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.
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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.
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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.
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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
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