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1978-0701_SERRA_Agreement 1st AmdFIRST AMENDMENT TO THE AGREEMENT BETWEEN THE SOUTHEAST REGIONAL RECLAMATION AUTH- ORITY (SERRA) FOR AND ON BEHALF OF PROJECT COMMITTEE NO. 2 WITH THE CITY OF SAN JUAN CAPISTRANO FOR OPERATION AND MAINTENANCE OF WASTEWATER TREATMENT PLANT Effective July 1, 1978, the Operations and Maintenance Agreement, dated March 3, 1976, by and between the City of San Juan Capistrano and SERRA be and is hereby amended as follows: SECTION 4. TERM The term of this Agreement shall continue from year to year until such time as either party shall notify the other of non -renewal, in writing, ninety (90) days prior to the end of any fiscal year. Provided however that for the period of July 1, 1978, to December 31, 1978, SERRA would have the option to terminate on a monthly basis with forty-five 45) days notice to the City of San Juan Capistrano. 30) days Drior to the date of r Plant emDlovees a Davroll benefit Dackaee IN WITNESS WHEREOF the parties hereto have executed this Agreement as of June 7 , 1978. CITY OF SAN JUAN CAPISTRANO ATTEST: j By KENNETH E. FRIESS, MAYOR R AHAN VER, CITY CLERK APPROVED AS TO FORM: J ES S. OKAZAKI, &4TY ATT0R2 SOUTHEAST REGIONAL RECLAMATION By ev T. MEADOWS, SECRETARY AGREEMENT BETWEEN THE SOUTH EAST REGIONAL RECLAMATION AUTHORITY (SERRA) FOR AND ON BEHALF OF PROJECT COMMITTEE NO. 2 WITH CITY OF SAN JUAN CAPISTRANO FOR OPERATION AND MAINTENANCE OF WASTEWATER TREATMENT PLANT THIS AGREEMENT made this 3rd day of March, 1976, by and between the SOUTH EAST REGIONAL RECLAMATION AUTHORITY (SERRA), an entity created by the Joint Powers Agreement entitled "Joint Exercise of Powers Agreement Creating South East Regional Author- ity -- Orange County, California (SERRA)" dated March 9, 1970, entered into by the parties to that Agreement under the provisions of the Joint Exercise of Powers Act, Section 6500 and following of the Government Code, hereinafter in some instances referred to as "Authority" and the City of San Juan Capistrano, a general law city, formed under and existing pursuant to the laws of the State of California, hereinafter referred to as "Operator": W I T N E S S E T H: WHEREAS, Authority has heretofore established Project Committee No. 2 for the construction, operation and maintenance of a wastewater treatment plant presently owned by Operator and being expanded by Authority to a total estimated capacity of 9.0 million gallons per day (MGD), hereinafter in some instances referred to as "the Treatment Plant"; and WHEREAS, the Agreement between Authority and Operator for the acquisition and expansion of the Treatment Plant provides that the title thereto shall vest in Authority upon completion of the present construction, expanding the estimated capacity of the Treatment Plant, thereby necessitating that Authority operate or enter into agreement with other entities for operation of the Treatment Plant as provided for in the hereinabove described Joint Powers Agreement; and WHEREAS, Authority desires to have Operator accomplish the operation and maintenance of the Treatment Plant on the basis of the terms and conditions hereinafter set forth. NOW, THEREFORE, Authority and Operator in consideration of the mutual covenants hereinafter set forth agree as follows: SECTION 1. Operator commencing upon the date that title to the Treatment Plant vests in Authority shall thereafter during the term of this Agreement operate and maintain the Treatment Plant in accordance with sound operating procedures for the opera- tion of a municipal wastewater treatment plant as well as the requirements of the Operations Manual approved or subsequently approved by the State Water Resources Control Board (SWRCB) and the United States Environmental Protection Agency (FPA). Authority agrees to give Operator thirty (30) consecutive calendar days notice of its intention to accept as complete the Treatment Plant and the responsibility to commence operation and maintenance thereof by Operator. -1- SECTION 2. Operator shall maintain reasonable records relating to the cost of operating and maintaining the Treatment Plant. Such cost shall include, but not be limited to, power, supplies, and labor costs. Labor costs shall be charged on the basis of actual payroll salary payments to employees. In addition, all supplementary costs including but not limited to retirement, vacation, sick leave, training, insurance and accounting are eli- gible. In order to reimburse the Operator for any administrative time not related to a person actually performing work relating to the operation and maintenance of the Treatment Plant, the Operator is authorized an additional charge equal to five (5) percent of the total charges for operating and maintaining the Treatment Plant. The actual payroll cost to be charged to Authority by Operator shall be for those persons actually performing work reasonably necessary to operate and maintain the Treatment Plant in accordance with the hereinabove set forth criteria. Expenditures for other costs such as power, supplies, repairs, maintenance, engineering, and consulting services shall be at actual cost to Operator. In this regard, Authority shall include Operator as an additional named insured on the insurance policy of Authority as to activities relating to the operation and maintentance of the Treatment Plant. SECTION 3. Such amounts as are to be paid to Operator by Authority pursuant to this Agreement shall be billed by Operator quarterly. Payment thereof shall be made to Operator by Authority within thirty (30) consecutive calendar days following receipt of a demand for payment. An initial deposit shall be made by Author- ity and retained by the Operator for the term of this Agreement based upon an estimate by Operator as to the quarterly cost of such operation and maintenance. SECTION 4. The term of this Agreement shall continue from year to year until such time as either party shall notify the other of non -renewal, in writing, ninety (90) days prior to the end of any fiscal. year. SECTION 5. Authority agrees to indemnify and hold harm- less Operator for any and all acts arising out of or in any way related to the operation and maintenance of the Treatment Plant provided such actions are within the scope of employment of such employees of Operator in accordance with the hereinabove set forth criteria for operation and maintenance of the Treatment Plant. SECTION 6. Any notice or instrument required to be given or delivered by depositing the same in any United States Post Office, registered or certified, postage prepaid, addressed to: SOUTH EAST REGIONAL P.O. Box 967 San Juan Capistrano, RECLAMATION.AUTHORITY California 92675 CITY OF SAN JUAN CAPISTRANO 32400 Paseo Adelanto San Juan Capistrano, California 92675 and shall be effective upon receipt thereof by a party to this Agreement. SECTION 7. in the =vent an action is commenced by any party to this Agree.uent to enforce or construe its rights or obli- gations arising from this,.Agreement, the prevailing party in such action, in addition to any other relief and recovery awarded by the Court, shall be entitled to recover all statutory costs in- cluding a, reasonable amount for attorney's fees. -2- SECTION 8. Any controversy or claim between the parties to this Agreement, including but not by way of limitation, any claims, disputes, demands, differences, controversies, or misunder- standings arising under, out of, or in relation to this contract, or any alleged breach thereof, shall be submitted to and determined by arbitration. To the extent not inconsistent herewith, the rules of the American Arbitration Association shall apply. The party desiring to initiate arbitration shall give notice of its inten- tion to arbitrate to the other party to this Agreement. Such notice shall designate such other parties, if any, as the initiat- ing party intends to have bound by any award made therein. Within twenty (20) days of the service of the initial demand for arbitra- tion, the American Arbitration Association, hereinafter referred to as "AAA" shall submit simultaneously to the initiating party and to all parties, if any, named as respondents or filing a response therein, an identical list of names of persons chosen from the AAA National Panel of Arbitrators, which persons shall be, to the extent possible, persons first in the field of wastewater disposal and reclamation or in the alternative, public law. Each party to the dispute shall have seven (7) consecutive calendar days from the mailing date in which to cross off any names to which he objects, number the remaining names indicating the order of his preference and return the list to the AAA. If a party does not return the list within the time specified, all persons named therein shall be deemed acceptable. From among the persons who have been approved on both lists, in accordance with the desig- nated order of mutual preference, the AAA shall invite the accept- ance of an arbitration panel consisting of three (3) persons from those designated, or if for any reason an acceptable panel of three (3) arbitrators is unable to act, or if for any other reason the appointment cannot be made from the submitted list, the AAA shall have the power to make the appointment of the panel of three (3) arbitrators from other members of the list originally submitted, within the submission of an additional list. The panel of arbitrators shall determine the rights of the parties in accordance with the law, and award shall be subject to review as to the panel's application of the law by any court having jurisdiction thereof whether or not any mistake of the law shall appear upon the face of the award. As to all questions of fact, however, the determination of the arbitrators shall be binding upon all parties and shall be final. Any party shall be entitled to written findings of fact and conclusions of law as to all issues determined by the award. Subject to the above limita- tions, the award shall be binding upon all parties to the arbitra- tion and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrators may, in their discretion, as part of the arbitration award, impose upon any one party or allocate among two or more of the parties, the liability for the arbitration fees and expenses. Such allocable fees may include the initial administration fees, fees for second and subsequent hearings, post- ponement fees, and overtime fees. Allocable'expenses may include the expenses of producing witnesses, the cost of stenographic records, the cost of any transcripts, travel expenses of the arbitrators and Tribunal Administrator, the expenses of any wit- nesses, the cost of any proofs produced at the direct request of the arbitrators, and any other expenses relating directly to the arbitration. In the event of the failure of the arbitrators to provide for the allocation of such fees and expenses, the arbi- tration fees shall be divided equally between the parties and the expenses shall be borne by the party incurring them. -3- IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first hereinabove written. SOUTH EAST REGIONAL RECLAMATION AUTHORITY "Authority" An th, Chairman By T. J. adows, Secret CITY OF SAN JUAN CAPISTRANO "Operator" QI 10 APPROVED AS TO FORM: z � 4P Att� J es S. Okazaki, Curty Attorney -4-