HomeMy WebLinkAboutAGMT - Huntington Beach (Conveyance of Wastewater, Sunset Aquatic Park Sewer) AGREEMENT FOR THE CONVEYANCE OF WASTEWATER
BETWEEN THE CITY OF HUNTINGTON BEACH AND
THE CITY OF SEAL BEACH
This Agreement is entered into this V day of au t , 2003 , by
and between the CITY OF HUNTINGTON BEACH, a municipal corporation, hereinafter
referred to as "CITY ", and the CITY OF SEAL BEACH, hereinafter referred to as "SEAL
BEACH ", a municipal corporation, in reco of the following matters:
RECITALS
A. WHEREAS, the CITY is empowered to enter into contracts for the
conveyance of wastewater originating outside its boundaries and SEAL BEACH is
empowered to maintain and operate sewers and other sanitary disposal matters either in or
out of SEAL BEACH through joint powers agreements or through other means with any
municipality; and
B. SEAL BEACH has a continued need to provide for the discharge of
wastewater; and
C. CITY and SEAL BEACH desire to provide for the conveyance of
wastewater originating within SEAL BEACH through CITY's sewer system as depicted on
"Exhibit A,"
NOW, THEREFORE, CITY and SEAL BEACH do agree as follows:
1. DEFINITIONS. As used in this Agreement the following terms shall have
the meanings herein set forth:
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(a) Average Flow means the daily average discharge of wastewater during the
fiscal year expressed as a rate of flow in million gallons per day, and shall
be computed by dividing the total gallons discharged during the fiscal year
by the number of days within such year.
(b) Capacity Right means the right of SEAL BEACH to deliver and the
obligation of CITY to receive and convey to ORANGE COUNTY
SANITATION DISTRICT, hereinafter referred to as "DISTRICT" the
stated flow of wastewater expressed in terms of average flow and peak
flow.
(c) Fiscal Year means the period between October 1 and the next succeeding
September 30 inclusive, subject to slight modifications due to
administrative and accounting procedures of the parties hereto.
(d) Operation and Maintenance Costs means the actual costs incurred by CITY
in a given fiscal year for or in connection with the operation, maintenance,
upkeep, repair, improvement, alteration, renewal, replacement and
reconstruction of the facilities used for the conveyance of wastewater
pursuant to this Agreement. Such costs shall include those relating to tools,
equipment, labor, supplies, materials, appliances, power, fuel, engineering
and inspection. Operation and maintenance costs shall be deemed to
include overhead costs attributable to administrative and supervisory
functions, but only to the extent that such costs are directly related to the
services and facilities furnished to SEAL BEACH by CITY pursuant to this
Agreement.
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(e) Peak Flow means the maximum discharge of wastewater permitted under
this Agreement for a 24 -hour period. For purposes of measuring peak flow,
the 24 hour period shall commence at 12:00 a.m. each day.
(f) Permitted Flow means the rate of flow set forth herein and is the maximum
amount of wastewater flow which SEAL BEACH has the right to discharge
into the CITY's facilities under terms of this Agreement. Permitted flow is
expressed as an average flow or a peak flow or as both.
(g) Wastewater means the water carried wastes of the community derived from
public, residential, commercial or industrial sources.
2. CAPACITY RIGHT.
(a) Obligation to Accept and Convey. As of the effective day of this
Agreement,. CITY grants to SEAL BEACH a capacity right in CITY's
existing and expanded facilities.
(b) Quantity of Capacity Right. Said capacity right shall be an average flow
not to exceed Eleven Thousand Eight Hundred (11,800) gallons per day and
a peak flow not to exceed Forty Four Thousand Seven Hundred (44,700)
gallons per day.
3. POINT OF DELIVERY. CITY agrees to accept the flows set forth above
from one point of connection generally located at a manhole near the intersection of
Edinger Avenue and Trinidad Lane within the territorial limits of the CITY, as more
particularly described in Exhibit A hereto.
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4. FLOW MEASUREMENT. SEAL BEACH shall maintain at its expense a
flow meter and a recorder totalizer capable of measuring the quantities of wastewater
discharged from SEAL BEACH's wastewater system to the wastewater system of CITY.
SEAL BEACH shall report the volume of wastewater contributed to the CITY's
system as determined by the aforesaid meter totalizer. Such reports, showing a summary
month by month for the entire term year, shall be made by SEAL BEACH to CITY within
30 days of the end of the fiscal year.
Said meter shall be subject to inspection and testing by CITY at its expense.
5. TELEMETRY. SEAL BEACH shall provide and maintain a telemetry
system compatible with CITY's telemetry system. Said telemetry shall be utilized to
monitor discharge flows and/or prohibit sewer flows from SEAL BEACH in the event of a
CITY sewer system failure.
6. RIGHT TO FUTURE CAPACITY. Should the capacity right afforded to
SEAL BEACH by this Agreement prove in the future to be insufficient, CITY may provide
added capacity to SEAL BEACH to the extent that such additional capacity is available at
the sole determination of CITY. To the extent that such capacity is unavailable but can be
made available in the sole determination of CITY, SEAL BEACH shall be responsible for
all costs to achieve additional capacity to the satisfaction of CITY. CITY shall have the
right to approve any land use changes within the service area of SEAL BEACH, covered
under this agreement, that change the general quantity, quality, or properties of the sewage
to be discharged to the sewer system of CITY. CITY and SEAL BEACH shall negotiate a
written amendment to reflect any terms of added capacity and costs of construction to
achieve added capacity.
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7_ CHARGES. Commencing October 1, 2003, SEAL BEACH shall pay to
CITY the portion of CITY's operation, maintenance, and capital facilities replacement
costs attributable to the facilities utilized by SEAL BEACH pursuant to this Agreement
that the average flow from SEAL BEACH during the preceding fiscal year bears to the
total average flow in said facilities as identified on "Exhibit B."
SEAL BEACH shall submit to CITY on or before October 31st of each fiscal year
the total flow for the previous fiscal year ending September 30` On or before November
28th of each year CITY shall invoice SEAL BEACH for their proportionate share of all
costs from the prior fiscal year based upon its actual operation, maintenance, upkeep and
repair expenses for the preceding fiscal year, in addition to the pro rata share of capital
facilities replacement costs attributable to the facilities utilized by SEAL BEACH. The
sum as determined above shall be paid by SEAL BEACH to CITY within the period of 60
days of receipt of a statement therefore.
8_ DISPOSAL OF EXCESS WASTEWATERS. SEAL BEACH agrees that in
the event it discharges wastewater to the CITY's conveyance system in excess of the total
annual flow based upon the average daily flow of Eleven Thousand Eight Hundred
(11,800) gallons per day, or a peak flow of Forty -Four Thousand Seven Hundred (44,700)
gallons per day, or as otherwise permitted by this Agreement, SEAL BEACH shall pay to
CITY five (5) times the amount of the gallonage charge as determined in paragraph 7
above for all wastewater in excess of the permitted flow. In addition, should said release
of excess flow result in a release of sewage from CITY system, SEAL BEACH shall be
responsible for any and all clean up costs, fines, fees or the like to clean up and correct the
sewer overflow.
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9. MAINTENANCE OF SEWER LINES. SEAL BEACH agrees to continue
its efforts, as far as is practicable, to reduce or eliminate surface waters and infiltration of
ground waters into its sewerage system. In the event CITY determines or has reason to
believe that SEAL BEACH's system is failing to reasonably reduce or exclude surface or
underground inflow /infiltration, CITY reserves the right to require an inspection of the
facilities owned and operated by SEAL BEACH which are used for collection of
wastewater within SEAL BEACH's service area. Said inspection shall be at no cost to
CITY. A report, with findings, shall be submitted to the City summarizing the results of
the inspection. The CITY shall request needed corrections of the inflow /infiltration in
writing. Upon notification by CITY, SEAL BEACH shall immediately correct identified
problems or otherwise discontinue discharging flow to CITY system.
10. ACTS OF GOD. Neither party hereto shall be liable for failure to comply
with the terms or conditions of this Agreement by reason of flood, fire, earthquake, or act
of God, provided, that due diligence is exercised to repair or replace facilities damaged and
to perform hereunder following such occurrence. CITY and SEAL BEACH shall each pay
their proportional share to the net cost of such replacement, based upon the capacity ratio
held and used by each at such time.
11. RIGHT TO INSPECT.
(a) SEAL BEACH shall have the right at all reasonable times to inspect all
records of CITY that pertain to its operation and maintenance expenses
applicable to this Agreement. CITY shall, at the request of SEAL BEACH,
advise SEAL BEACH of the manner in which CITY has determined the
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charges payable under Sections 7 and 8, and the records that were used in
making such determination.
(b) CITY shall have the right at all reasonable times to inspect all records of
SEAL BEACH that pertain to its operation and maintenance expenses
applicable to this Agreement_ SEAL BEACH shall, at the request of CITY,
advise CITY of the manner in which SEAL BEACH has determined the
charges payable under Section 6 and the records that were used in making
such determination.
12. INDEMNITY. CITY shall protect, defend, indemnify and hold harmless
SEAL BEACH, its officers, officials, employees and agents from and against any and all
liability, loss, damage, expenses, costs (including without limitation costs and fees of
litigation of every nature) arising out of or in connection with performance of this
Agreement or its failure to comply with any of its obligations contained in this Agreement,
except such loss or damage which was caused by the sole negligence or willful misconduct
of the SEAL BEACH.
SEAL BEACH shall protect, defend. indemnify and hold harmless CITY, its
officers, officials, employees and agents from and against any and all liability, loss,
damage, expenses, costs (including without limitation costs and fees of litigation of every
nature) arising out of or in connection with performance of this Agreement or its failure to
comply with any of its obligations contained in this Agreement, except such loss or
damage which was caused by the sole negligence or willful misconduct of the CITY.
13. TERM. This Agreement shall remain in effect until terminated by either
party as set forth herein. Should either party wish to terminate this Agreement, a minimum
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one year written notice of termination shall be given to the other party with no other cause
required.
14. ASSIGNMENT.. This Agreement shall not be assigned by either party
hereto without the express written consent of the other party to this Agreement provided
that such consent shall not unreasonably be withheld.
15. NOTICES. Any notice or special instructions required to be given in
writing under this Agreement shall be given either by personal delivery to SEAL BEACH's
agent or to CITY's Director of Public Works as the situation shall warrant, or by enclosing
the same in a sealed envelope, certified mail, postage prepaid, and depositing the same in
the United States Postal Service, addressed as follows:
TO CITY: TO SEAL BEACH:
Director of Public Works ttQ,ECTOR 0 F 8Llt L►?DRKS
City of Huntington Beach C I T y 0 F SEAL Belt CH
2000 Main Street 2 1 1 El &HiN STREET`
Huntington Beach, CA 92648 5 EA L B EA c N CA 907'i 0
16. MODIFICATION. No waiver or modification of any language in this
Agreement shall be valid unless in writing and duly executed by both parties.
17. LEGAL SERVICES SUBCONTRACTING PROHIBITED. SEAL
BEACH and CITY agree that CITY is not liable for payment of any subcontractor work
involving legal services, and that such legal services are expressly outside the scope of
services contemplated hereunder. SEAL BEACH understands that pursuant to Huntington
Beach City Charter Section 309, the City Attorney is the exclusive legal counsel for CITY;
and CITY shall not be liable for payment of any legal services expenses incurred by SEAL
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BEACH. This Section 17 does not affect in any way the provisions contained in Section
12 of this Agreement.
18. ATTORNEY'S FEES & ARBITRATION. In the event suit is brought by
either party to enforce the terms and provisions of this Agreement or to secure the
performance hereof, each party shall bear its own attorney fees.
In the event of a dispute regarding the interpretation or implementation of this
Agreement or any rights or obligations hereunder, the issues in dispute shall be submitted
to arbitration. (California Code of Civil Procedure, Part 3, Title 9, Section 1280 et seq.)
For such purpose, an agreed arbitrator shall be selected, or in the absence of such
agreement, each party shall select an arbitrator and the two arbitrators shall select a third.
Discovery may be conducted in connection with the arbitration proceeding pursuant to
California Code of Civil Procedure, Section 1283:05. The arbitrator, or three arbitrators
acting as a board, shall take such evidence and make such investigations as deemed
appropriate and shall render a written decision on the matter in question. The arbitrator(s)
shall decide each dispute and every dispute in accordance with the laws of the State of
California. The arbitrator(s)' decision and award shall be binding on both parties but
subject to the judicial review for errors of fact or law in the Superior Court for the County
of Orange.
19. PARTIAL INVALIDITY. Should any provision of this Agreement be held
by a court of competent jurisdiction to be either invalid, void, or unenforceable, the
remaining provisions of this Agreement shall remain in full force and effect unimpaired by
the holding, so long as the reasonable expectations of the parties hereto are not materially
impaired.
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20. INTERPRETATION OF GOVERNING LAW. This Agreement shall be
governed by and construed pursuant to the laws of the State of California.
21. ENTIRETY. This Agreement contains the entire agreement between the
parties respecting the subject matter of this Agreement and supercedes all prior
understanding and agreements whether oral or in writing. The foregoing sets forth the
entire Agreement between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement, consisting of
ten (10) pages, including this page, on the dates set forth beside their respective signatures.
CITY OF SEAL BEACH, a municipal CITY OF HUNTINGTON BEACH, a
corporation of the State of C- ornia municipal corporation of the State of
California
4 1 1 .. 30ahitta
ciry MhN
Op
Mayor
i / ATTEST:
ClT C K
y /ij /oS City Clerk
' APPROVED AS TO FORM:
k ,40; —4 . .._ II
Lt 7103__C ty Attorney 0 p 1
INITIA E, , o APPRO/ D:
EP1 /
Director of Public \ °orks
REVIEWED AND APPROVED:
• City Jdministrator
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20. INTERPRETATION OF GOVERNING LAW. This Agreement shall be
governed by and construed pursuant to the laws of the State of California.
21. ENTIRETY. This Agreement contains the entire agreement between the
parties respecting the subject matter of this Agreement and supercedes all prior
understanding and agreements whether oral or in writing. The foregoing sets forth the
entire Agreement between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement, consisting of
ten (10) pages, including this page, on the dates set forth beside their respective signatures.
CITY OF SEAL BEACH, a municipal CITY OF HUNTINGTON BEACH, a
corporation of the State of C, ornia municipal corporation of the State of
California
/ /4,
, edry n, 1 4V4 EA
Mayor
/ ATTEST:
CITY CL•Ef2K
City Clerk
APPROVED AS TO FORM:
.3)1 1105 City Attorney ✓
II
INITIATED AND APPROVED:
Director of Public Works
REVIEWED AND APPROVED:
City Administrator
03agree /seal beach/6 /11/03 10
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• •
20. INTERPRETATION OF GOVERNING LAW. This Agreement shall be
governed by and construed pursuant to the laws of the State of California.
21. ENTIRETY. This Agreement contains the entire agreement between the
parties respecting the subject matter of this Agreement and supercedes all prior
understanding and agreements whether oral or in writing. The foregoing sets forth the
entire Agreement between the parties.
IN WITNESS WHEREOF, the parties have executed this Agreement, consisting of
ten (10) pages, including this page, on the dates set forth beside their respective signatures.
CITY OF SEAL BEACH, a municipal CITY OF HUNTINGTON BEACH, a
corporation of the State of, ornia municipal corporation of the State of
California
—C I / is - ' 3,
elry Alm/A
4111p Mayor
_ ; / ATTEST:
T L E K ‘,z-e.'
Jodi–
CI Ty c
/,doS City Clerk
APPROVED AS TO FORM:
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k 40 j. W ' 10 i
41A, i O . ty Attorney
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INITIA ED 'OD APPRO� D:
instrument is a correct
The foregoing l on fis in this aloe.
/ •P4
of the Attu R�
,,t S {- (_ 20 0 3 Director of Public . orks
C°i\1;YW��, ;aCi�JI��S�rr�'i'�
kirk and id REVIEWED AND APPROVED:
Cou ncil of the City of Huntington
By - - ( City Alministrator
15 p po,y.
03 agree /seal beach/6 /11/03 10
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