09-1103_SOUTH COAST WATER DISTRICT_Agr for the Term. of the Water Svc & Lease of Cap. RightsAGREEMENT FOR THE TERMINATION OF THE WATER SERVICE AND LEASE OF CAPACITY RIGHTS AT DEL OBISPO AND THE ESTABLISHMENT OF AN EMERGENCY INTERCONNECTION BETWEEN CITY OF SAN JUAN CAPISTRANO AND SOUTH COAST WATER DISTRICT AT DEL OBISPO This Termination of the Water Service Agreement and Lease of Capacity Rights at Del Obispo connection and the Establishment of an Eme_rgpncy Interconnection at Del Obispo ("Agreement") is entered into is to be effective the - s� °� da of �`a �......_....:- Y �# 2009 by and between the South Coast Water District ("SCWD"), a water district organized and existing under the County Water District Law, Water Code §§30000 etseg., in its capacity as operator of the Joint Regional Water Supply System (formerly known as the Joint Transmission Main) and the City of San Juan Capistrano, a municipal corporation ("City"). SCWD and City are sometimes collectively referred to in this Agreement as the "Parties". RECITALS A. SCWD is the designated operator of a certain "Joint Regional Water Supply System," (JRWSS) a domestic water pipeline that conveys water imported from the Metropolitan Water District of Southern California. The JRWSS main extends from the Coastal Junction at the terminus of the East Orange County Feeder No. 2 to the Brandt Reservoir located in the City of San Clemente. The parties that hold capacity or property rights in the JRWSS Main have designated SCWD as operator pursuant to a "Joint Exercise of Powers Agreement to Operate and Maintain -the JWRSS Main dated March 31, 2000. SCWD replaced the Tri -Cities Municipal Water District ("TCMWD") as operator of the Joint Transmission Main, effective March 31, 2000; B. City and SCWD previously entered into that certain Water Service Agreement and Lease of Capacity Rights Re Dei Obispo Connection, dated November 21, 2000, pursuant to which City agreed to the lease capacity for delivery of water from the Joint Transmission Main for a value of $60,000 per year ("Lease of Capacity") attached by reference; City wishes to end its Lease of Capacity and has provided the SCWD with the requisite notice of its intent; and obtain an Emergency source of water supply to certain areas within its boundaries via the existing Del Obispo Connection effective June 30, 2009, C. The City desires now to utilize the Del Obispo Connection strictly for emergency water effective June 30, 2009; NOW THEREFORE in consideration of the mutual covenants and conditions herein contained, the parties hereby agree as follows: AGREEMENT 1) Water Supply. Subject to the terms and conditions of this Agreement, during an Emergency, and if SCWD in its own discretion has the capacity in the JRWSS main; Final 9124109 SCW D agrees to provide water to City; using the Del Obispo connection. 2) Emergency. For the purpose of this Agreement an "Emergency" will be defined as an unusual service disruption including, but not limited to a line break or construction that disrupts the normal means of providing service. 3) Location of Del Obispo Connection. The Del Obispo connection is located within the public right of way of Del Obispo Street, approximately 690 feet north of its intersection with Stonehill Drive. 4) Construction of Facilities. The Del Obispo connection is an existing connection, requiring no modifications at this point. 5) Ownership and Maintenance of the Facilities. The water meter vault, water meter, the Pressure Reducing Valve (PRV), collectively "the Del Obispo connection," and the pipeline from the Del Obispo connection into the CITY system will be owned, maintained, and operated by CITY. CITY shall on. an annual basis perform independent flow comparison testing and the results of same shall be provided to SCWD. CITY shall provide access to the meter for regular SCWD reading of the meter. SCWD in its capacity as the operator of the JRWSS main will operate and maintain the JWRSS main that supplies the Del Obispo connection. 6) Fees and Payments. The Parties hereby agree to terminate the Water Service Agreement and Lease of Capacity Rights at Del Obispo connection. The fiscal year ending June 30, 2009 will be the last year for which the annual lease payments are due. Starting July 1, 2099, and subject to the terms and conditions of this Agreement, SCWD will sell water to the CITY at the prevailing MWDOC water rates and charges, including cost for peaking charges. Should peaking charges occur during any period wherein CITY is using the Del Obispo connection, CITY shall provide daily readings for meter usage during said period and JRWSS personnel of the SCWD will assess such usage and peaking charges shall be transmitted to CITY if appropriate. 7) Interruptible Water Supply. The parties acknowledge and agree that SCWD's sale of water to CITY for its emergency water supply needs is subject to interruption at any time, and for any length of time, in the event SCWD determines in its sole discretion that the participants in JRWSS require the water for their own needs. 8) Waiver. Each party waives and releases all claims and recourse against the other party, including the right of contribution for loss or damage of persons or property, arising out of or in any way connected with the interruption of the water supply under this Agreement and with the matters each party is obligated to indemnify the other party from and/or against as set forth in Section 9 below. 9) Indemnitor. Each party hereby agrees to mutually indemnify and hold the other party harmless from any and all claims, demands, causes of action, damages, costs and 2 Final 9/24/€39 expenses, including attorneys fees, property damage, bodily injuries, personal injury, losses or liabilities, in law or in equity, of every kind and nature to the extent that the same are the result of an error, omission or negligent act of the indemnifying party, its officers or employees, or any other person acting pursuant to its control in performing this Agreement. Notwithstanding the above, SCWD's obligation to supply emergency water is in its discretion as to the availability of such water, and in no event shall SCWD's termination of CITY usage be grounds for any claim that said termination has resulted in negligence in the operation of the JRWSS. 10) Insurance. Each party will maintain their own insurance as required by law. 11) Attorney's Fees. If either party hereto commences any action to enforce any provision of this Agreement, the prevailing party shall be entitled to receive from the other party, in addition to damages, equitable or other relief, all costs and expenses incurred, including reasonable attorney's fees. 12) Successors. This Agreement will be binding upon and inure to the benefit of the parties' successors hereto. 13) Waiver. The failure of either party to insist on compliance with any of the terms, covenants, or conditions of this Agreement by the other party shall not be deemed a waiver of such terms, covenants, or conditions of this Agreement by the other party, nor shall any waiver or relinquishment of any right or power conferred by this Agreement at any other time, or times, by a party be deemed a waiver or relinquishment of that right or power for all or any other times. 14) Severability. If any part of this Agreement is held to be illegal or unenforceable or void for any reason by a court of competent jurisdiction, the validity of enforceability of this Agreement as a whole shall not be affected and the remainder and all other provisions of this Agreement shall be given affect to the maximum extent permissible by law. 15) Entire Agreement. This Agreement supersedes any and all agreements between the parties with respect to the subject matter herein, and contains the entire agreement between the parties with respect to those matters. 15) Amendment. No addition to or modification of any provision contained in this Agreement shall be effective unless fully set forth in a writing signed .by both parties. 17) Notice. Any notice required or permitted to be given hereunder shall be deemed to have been validly or given or made only if in writing and when received by the party to whom it is directed by personal service, hand delivery, or United States Mail as follows: 3 Final 9/24/09 if to SCWD: Mr. Mike Dunbar, General Manager South Coast Water District P.O. Box 30205 Laguna Niguel, CA 92607-0205 If to City: Eric Bauman, Utilities Engineer City of San Juan Capistrano 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Either party may change its address above at any time by written notice to the other, 18) Recitals/Exhibits: Counterparts. The parties acknowledge and agree the Recitals are true and correct and are incorporated in this Agreement. The Exhibits referenced in this Agreement and attached to this Agreement are incorporated herein. This Agreement may be executed in counterparts, each of which shall be deemed an original. 19.) Termination. Except for the termination of the Water Service Agreement and tease of Capacity Rights at Del Obispo Connection, which small be final, either party may terminate this Agreement at any time upon five days notice to the other. 4 Final 9124109 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed. Date; ,). , 2009 ATTEST: By: k,� Secretary U111=1 r ► • •OT CITY OF SAN JUAN CAPISTRANO By:. Mark Ni Isen, Mayor APPROVED A TO FORM: City Attorney, Omar Sandoval SOUTH COAST WATER DISTRICT By:4a4l'14�M Dunbar, General Manager 67 General Counsel Final 9124109