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15-0804_MUNICIPAL WATER DISTRICT OF ORANGE COUNTY_Water Conserv. Participation AgrWater Conservation Participation Agreement between the Municipal Water District of Orange County and City of San Juan Capistrano This Water Conservation Participation Agreement ("Agreement") is made between the Municipal Water District of Orange County ("MWDOC") anif'ty "f San Juan Capistrano("Participant Agency"). MWDOC and Participant Agency may be coiiectiveiy referred to as "Parties" and individuaiiy as "Party." Recitals A. The Metropolitan Water District of Southern California ("Metropolitan") provides incentive fhnding to residential, commerciai, and industrial water users in its service area for a variety of water conservation activities, including, but not limited to, rebates for the purchase and installation of water-saving devices ("Metropolitan Base Incentives"). B. MWDOC is a member agency of Metropolitan and has agreements with Metropolitan that enable residential, commerciai, and industrial water users in MWDOC's service area, and for the benefit of MWDOC's member agencies, to participate in and take advantage of Metropolitan's Base Incentives. C. Participant Agency, as a MWDOC member agency or a direct Metropolitan member agency, may elect to participate in Metropolitan's program to replace non-conserving items within its service area. D. The Metropolitan Base Incentives amounts for each eiigible device or program available to MWDOC and Metropolitan member agencies are listed in the attached Addendums 1A and IB. It is expected that Metropolitan will establish funding for additional water conservation items and to change some or ail of the existing fimding rates throughout the term of this Agreement. Any such changes will be incorporated herein by amendment to Addendums lA and IB. E. Metropolitan and MWDOC each have fiscal responsibility to manage their individual budgets, and hence may have a need to limit ayailability of funds. F. MWDOC and Metropolitan member agencies may also choose to provide additional supplemental funding of their own to augment the Metropolitan Base Incentives. Based on the tei-ms and conditions of this Agreement, MWDOC will facilitate supplemental funding for Participant Agency through the Metropolitan rebate contractor ("Rebate Contractor") or MWDOC directly. Metropolitan member agencies will coordinate any supplemental funding directly with Metropolitan. G. In addition to the Metropolitan Base Incentives, MWDOC has developed and arranged additional local, state, and federal grant funding ("Grant Funding") for eligible devices in a number of water conservation programs ("MWDOC Administered Programs") that MWDOC offers to Participant Agency and Metropolitan member agencies. This grant funding may be used to enhance the Metropolitan Base Incentives. Granting agencies Page I 1 include, but are not limited to, the Department of Water Resources and the United States Bureau of Reclamation. H. Participant Agency may also operate customized, local water conservation incentive programs in their respective service areas ("Participant Agency Administered Programs) and may have access to the Metropolitan Base Incentives and Grant Funding for such, subject to MWDOC and Metropolitan approval and the terms and conditions of this Agreement and any MWDOC and/or Metropolitan agreements. I. The purpose of this Agreement is to create a master water conservation participation agreement between MWDOC and Participant Agency that combines ail of the conservation programs and incentives ("Programs") into one agreement. Addendums to this Agreement will be issued for changes involving Metropolitan approved items, MWDOC Board approved items. Grant Funding, adding and subtracting MWDOC Administered Programs and Participant Agency Administered Programs as identified in Section 2, and changes to incentive programs, including funding and incentive levels. NOW THEREFORE, in consideration of the promises and covenants hereinafter set forth, the Parties do agree as follows: Section 1: Agreement Term and Administration 1.1 This Agreement will be effective on July 1, 2015 or upon execution of this Agreement by • ail Parties, whichever is later, and shall terminate on June 30, 2025 (Term"). Continuance of this Agreement will be subject to annual budget approval by MWDOC's Board of Directors. 1.2 This Agreement may be amended at any time by written mutual agreement of the Parties, or by Addendums issued by MWDOC as set forth in Recital I. 1.3 This Agreement may be terminated by either Party for any reason upon thirty (30) days written notice to the other Party. 1.4 Ail Addendums are enforced for the duration of this Agreement unless the Addendums are amended or terminated by either Party. 1.5 In the event the Agreement is terminated early. Participant Agency is responsible for payment of any funding contributions required by this Agreement that that were initiated prior to the effective date of the termination. For purposes of this Agreement, an application is deemed initiated when an application has been received by Metropolitan's rebate vendor, EGIA, by MWDOC, or a reservation has been made within any of MWDOC's online application portals that is pursuant to any of the programs described within this Agreement and the attached Addendums. 1.6 Notwithstanding any other provision in this Agreement, funds for ail of the programs described within this Agreement and the attached Addendums are conditioned upon the Page I 2 availability of funds and MWDOC is under no obligation to provide funding for any of the programs if MWDOC determines, in its own discretion, that such funding is exhausted, reduced, eliminated, or unavailable from any funding source, for any reason. Section 2: Program Funding 2.1 Supplemental Funding 2.1.1 In addition to the Metropolitan Base Incentives, Participant Agency may provide additional funding to augment the Metropolitan Base Incentives amounts for those programs and devices that Participant Agency identifies, and in the amounts indicated, in the appropriate locations in Addendums 2A, 2B, and 2C ("Supplemental Funding"). The Supplemental Funding listed in Addendums 2A through 2C shall specify the amount of Supplemental Funding Participant Agency will provide per device or program, as well as the total maximum Supplemental Funding amount committed to each category of device or program. If the Participant Agency does not complete, sign, and return Addendums 2A through 2C to MWDOC, notwithstanding any other provision of this Agreement, the Participant Agency will not be bound by this Section or the provisions in Addendums 2A through 2C. In general. Supplemental Funding Addendums submitted by the 15* of a month will become effective the first of the following month. 2.1.2 If Participant Agency elects to provide Supplemental Funding or enhanced incentives under this Agreement for any device or program. Participant Agency is responsible for tracking the use of and the remaining availability of those funds. MWDOC will assist, in every way possible, but the ultimate responsibility for tracking ail Participant Agency funding is the responsibility of Participant Agency. Participant Agency will ultimately be responsible for any overuse of Participant Agency Supplemental Funding. 2.1.3 Any requests for changes or revisions to Participant Agency's Supplemental Funding, including funding transfers between Programs, must be submitted by Participant Agency to MWDOC in the form of revised Addendum 2s listing the new funding amounts/limits. 2.1.4 The Participant Agency may elect to participate in the Supplemental Funding Program and be bound by the provisions of this Section 2.1, Sections 3, 5, 6, 7, and 8 of this Agreement, and Addendum 2A through 2C by having its authorized representative complete and sign Addendum 2A through 2C in the spaces provided. 2.2 MWDOC Administered Programs 2.2.2 Participant Agency may elect to take advantage of the MWDOC Administered Programs by having its authorized representative compiefe and sign Addendums 3A through 3 C in the spaces provided. If Participant Agency completes and signs Addendums 3 A through 3C, Participant Agency agrees to be bound by the provisions of this Section 2.2, Sections 3, 5, 6, 7, and 8 of this Agreement, and Addendums 3 A through 3C. If the Participant Agency does not compiete, sign, and return Addendums 3 A through 3C, notwithstanding any other provision of this Agreement, the Participant Agency wiii not be bound by this Section or the provisions in Addendums 3A through 3C. 2.3 Participant Agency Administered Programs 2.3.1 From time to time, funding may be made available for Participant Agency to operate a customized member agency administered local water conservation incentive program or programs ("Participant Agency Administered" "PA" or "MAA Program") in its service area and access the Metropolitan Base Incentives for such, subject to MWDOC approval of the program and the terms and conditions of this Agreement and Addendum 4. The Participant Agency Administered Program(s) and requirements in connection with it are described in more detail in Addendum 4. 2.3.2 Upon receipt of approval of a Participant Agency Administered Program by MWDOC, Participant Agency is bound by the provisions of Sections 3, 5, 6, 7, and 8 of this Agreement and Addendum 4. 2.4 Exhaustion of Funding 2.4.1 In the event Participant Agency provided funding for any Program or device is exhausted, and Participant Agency does not elect to add additional funding or transfer available funding from another Program or device, MWDOC wiii discontinue offering the additional rebate funding for that Program or device in Participant Agency's service area. Notwithstanding any other provision in this Agreement, MWDOC may terminate this Agreement as it relates to Section 2 at any time without prior notice in the event that MWDOC determines that funding for any device or program on Addendums 2 through 4 or MWDOC Grant Funding is exhausted, reduced, eliminated, or unavailable from any • funding source, for any reason. Section 3: Participant Agencv Responsibiiitv and Ownership 3.1 Participant Agency, at its sole discretion, may independently contract with its own agents under separate agreements for program administration and management for any Participant Agency Administered Program provided that doing so does not compromise program performance, create or present a conflict of interest, or violate the terms of this Agreement. 3.2 Participant Agency and/or its agent shall provide all necessary services and materials for such Participant Agency Administered Programs including, but not limited to the following: program administration, promotion, marketing materials, data collection, and analysis, installation verification, and reporting. 3.3 All materials and supplies necessary to implement a Participant Agency Administered Program shall be the exclusive property of Participant Agency. MWDOC shall have no Page I 4 ownership, right, title, security interest, or other interest in any Participant Agency Administered Program materials or supplies, nor any rights duties, or responsibilities, therefor. 3.4 Participant Agency is responsible for assuring that any Participant Agency Administered Program complies with all federal, state, and local requirements. 3.5 Participant Agency agrees to cooperate with MWDOC's data management activities related to assessing device saturation and program success. 3.6 As part of any Participant Agency Administered Program, Participant Agency shall use, maintain, and submit to MWDOC within the designated timeframe an electronic database, to be approved by MWDOC prior to use, for any conservation items installed, distributed, or rebated by Participant Agency or its agents to avoid duplicate distributions and to determine the saturation rate of items by the appropriate geographic delineation. 3.7 Participant Agency is solely responsible for the performance of its staff or representatives in complying with the terms of this Agreement and for the proper allocation and appropriate use of funds provided by Metropolitan and/or MWDOC for the purpose of achieving water conservation savings under this Agreement. Section 4: MWDOC's Obligations 4.1 MWDOC will be responsive to Participant Agency for ensuring that timely reports on the Programs' results are prepared by MWDOC's staff. 4.2 MWDOC will develop a database of information regarding participation in the Programs and provide monthly electronic and/or written reports of activity to Participant Agency. 4.3 MWDOC will invoice Participant Agency for any Participant Agency funding obligations on a monthly basis for rebates issued in the previous month. 4.4 MWDOC does not guarantee any minimum number of rebates will be available for Participant Agency's service area. Section 5 Marketing. 5.1 Participant Agency agrees to assist in the marketing of programs it participates in under this Agreement. With regard to Participant Agency Administered Programs, Participant Agency will be solely responsible for marketing its Participant Agency Administered Program to customers in its service area. Section 6: Installation Verification 6.1 Participant Agency shall be responsible for conducting installation verifications of items installed, distributed, and/or rebated by Participant Agency under Participant Agency Page I 5 Administered Programs, and/or for paying all costs associated with this verification. Installation verification measures for program devices must be designed to ensure that materials, installation verifications of eligible program devices, and services meet requirements established by Metropolitan, which requirements will be provided to Participant Agency by MWDOC. 6.2 Participant Agency may be responsible for conducting installation verifications of items installed, distributed, and/or rebated by Participant Agency or MWDOC under MWDOC Administered Programs, and/or for paying all costs associated with this verification. Installation verification measures for program devices must be designed to ensure that materials, installation verifications of eligible program devices, and services meet requirements established by Metropolitan, which requirements will be provided to Participant Agency by MWDOC. 6.3 MWDOC reserves the right to conduct installation verification of items within Participant Agency's service area. 6.4 Participant Agency acknowledges that any device receiving funding from Metropolitan may be subject to an installation verification to be performed by Metropolitan, or its agent(s), at Metropolitan's discretion. 6.5 Participant Agency shall promptly refund to MWDOC any amounts paid under any Participant Agency Administered Program or MWDOC Administered Program for installed or distributed devices in the event MWDOC or Metropolitan establishes via installation verification that the program devices were not installed. Section 7: Reporting and Invoicing 7.1 For any and all Supplemental Funding provided by Participant Agency and/or Participant Agency provided funding or inspection costs under the MWDOC Administered Programs pursuant to Section 2 of this Agreement, and as more particularly described in Addendums 2 and 3, MWDOC will Invoice Participant Agency on a monthly basis for the cost of such funding, and Participant Agency must pay the full amount of such invoice within thirty (30) days of receipt of any such invoice. 7.2 For any and all Participant Agency Administered Program(s), Participant Agency will invoice MWDOC on a monthly basis, by the 10* of each month, for any approved funding and costs associated with the Participant Agency Administered Program(s) as indicated in and subject to the provisions of Addendum 4. MWDOC is under no responsibility to reimburse Participant Agency for any costs incurred by Participant Agency that are not approved by MWDOC consistent with the terms and conditions of this Agreement and Addendum 4. The invoice package shall include a fully completed, to the satisfaction of MWDOC, Excel customer/applicant spreadsheet showing program activity, and an invoice, signed by the General Manager or designee of Participant Agency, certifying the information provided as accurate. Participant Agency shall use the Excel customer/applicant spreadsheet and Invoice forms approved by MWDOC. Page I 6 7.3 Participant Agency shall maintain all Participant Agency Administered Program information, including Participant Agency applications, water bills, and purchase receipts, for a period of seven years from the end date of this Agreement. 7.4 Payment of Participant Agency invoices shall be in the form of either a credit on MWDOC's water bill to Participant Agency or a check made payable to Participant Agency. Method of payment shall be at MWDOC's discretion. Section 8: Confidentialitv 8.1 MWDOC agrees to maintain the confidentiality of Participant Agency's customer names, addresses, and other information gathered in connection with this Agreement. MWDOC will not cause or permit the disclosure of such information expect as necessary to carry out any of the MWDOC Administered or Participant Agency Administered Programs, or as required by law. To the extent that MWDOC contracts with third party contractors to carry out all or any portion of any of the Programs, MWDOC will require such contractors to maintain the confidentiality of such customer information. 8.2 Notwithstanding anjrthing to the contrary in this Agreement, Participant Agency acknowledges and agrees that MWDOC may request and use historical water consumption data for purposes of satisfying any grant water use and water quality evaluation requirements of any of the Programs. Participant Agency also acknowledges and agrees that MWDOC may also request to use Program applicant information, such as . name, mailing address, site photos, and email address to market other water use efficiency programs to past applicants. A similar provision will be required of every individual applicant. Section 9. Indemnification. 9.1 The parties agree that each Party shall be responsible for its own actions, and the actions of its officers, employees, and agents, in performing services under this Agreement. Except as provided in this Agreement and its Addendums, each Party agrees to indemnify and hold the other Party and its officers and agents harmless and agrees to defend the other Party against any claim or asserted liability arising out of Its actions, either willful or negligent, or the actions of its officers, employees, and agents, in performing services pursuant to this Agreement. Such indemnity will include any losses relating to any claim made, whether or not a court action is filed, and will include attorney fees and administrative and overhead costs related to or arising out of such claim or asserted liability. 9.2 Participant Agency shall include the following language in its agreement with any consultant or contractor retained by Participant Agency to work on any of the Program" "(Consultant) agrees at is sole cost and expense to protect, indemnify, defend, and hold harmless Metropolitan, MWDOC, and their associated Boards of Directors, officers, representatives, agents and employees from and against any and all claims and liability of any kind (including, but not limited to, any claims or liability for injury or death to any person, damage to property, natural resources or to the environment, or water quality problems) that arise out of or related to Participant Agency's approval, construction, operation, repair, or ownership of any Program. Such indemnity shall include all damages and losses related to any claim made, whether or not a court action is filed, and shall include attorneys' fees, administrative and overhead costs, engineering and consulting fees, and all other costs related to our arising out of such claim or asserted liability." Section 10. Certification re Lobbving (43 GFR 18) 10.1 The undersigned hereby certifies on behalf of Participant Agency that no Federal appropriated funds have been paid or will be paid, by or on behalf of the Participant Agency, to any person for influencing or attempting to influence an officer or employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress in connection with a Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form LLL, "Disclosure Form to Report Lobbying" in accordance with its instructions. To the extent federal funds are involved, the Participant Agency shall require that the language of this certification be included in the awards documents for any sub-awards by the Participant Agency at all tiers (including sub-contracts, sub-grants, and contracts under • grants, loans and cooperative agreements) and that sub-recipients, if any, shall certify accordingly. Section 11. Other Terms 11.1 Any alteration or variation of the terms of this Agreement will not be valid unless made in writing and signed by both Parties. 11.2 This Agreement will inure to the benefit of and be binding upon the Parties and their respective successors. 11.3 The partial or total invalidity of one or more parts of this Agreement will not affect the intent or validity of this Agreement. 11.4 This agreement shall be deemed a contract made under the laws of the State of Califomia, and for all purposes will be inteipreted in accordance with such laws. The Parties hereby agree and consent to the exclusive jurisdiction of the courts of the State of Califomia, and that the venue of any action brought hereunder will be in Orange County, Califomia. /// /// Page I 8 11.5 This Agreement constitutes the entire agreement between the Parties. IN WITNESS WHEREOF, the parties hereto have executed this Agreement. PARTICIPANT WATER AGENCY MUNICIPAL WATER DISTRICT OF ORANGE COUNTY By: Date: Robert J. Hunt GeneraUvdanager ^ Maria |\flofcisVdity Clerk By: Date: Derek Reeve Mayor. City of San Juan Capistrano Date: Approved as to Form: Jeff Balnnger, City Attorney Page I 9