HomeMy WebLinkAboutMETROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, MUNICIPAL WATER DISTRICT OF ORANGE COUNTY, ORANGE COUNTY WATER DISTRICT, CITY OF ANAHEIM/FULLERTON Return FULLY EXECUTED A-2024-121
Copy to City Clerk, M-30
b Pal �'�� Agreement No. AO-5296 Among The Metropolitan Water District of Southern California,
ChrMp,,66 [rrr\AY\Ple"),"Municipal Water District of Orange County, Orange County Water District, City of
AUG 1 5 2a24 Anaheim,City of Fullerton, and the City of Santa Ana
Regarding the Assignment of Extraordinary Supply from the Santa Ana River
Conservation and Conjunctive Use Program
This Agreement among The Metropolitan Water District of Southern California
(Metropolitan), Municipal Water District of Orange County(MWDOC), the Orange County
Water District(OCWD),the City of Anaheim(Anaheim), the City of Fullerton(Fullerton), and
the City of Santa Ana(Santa Ana)regarding the assignment of Extraordinary Supply from the
Santa Ana River Conservation and Conjunctive Use Program(hereinafter"Agreement")is
hereby entered into this day of 2024. Metropolitan,MWDOC,
OCWD, Anaheim, Fullerton, and Santa Ana are collectively referred to as "Parties" and
individually as a "Party" herein.
RECITALS
A. Metropolitan is a metropolitan water district organized under the Metropolitan
Water District Act, codified at section 109-1,et seq. of West's Appendix to the California Water
Code, and is engaged in developing, storing, and distributing water in the counties of Los
Angeles, Orange,Riverside, San Bernardino, San Diego, and Ventura. Metropolitan has a long-
term contract with the California Department of Water Resources(DWR) which sets forth the
terms and conditions of Metropolitan's participation in the State Water Project (SWP).
B. MWDOC is a municipal water district formed and existing under the California
Municipal Water District Act of 1911, Sections 71000 et seq. of the California Water Code, for
purposes that include providing its 28 member agencies in Orange County, with reliable,high
quality supplies from Metropolitan and other sources to meet present and future needs, at an
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Agreement No. AO-5296 Among The Metropolitan Water District of Southern California,
Municipal Water District of Orange County, Orange County Water District, City of
Anaheim, City of Fullerton, and the City of Santa Ana
Regarding the Assignment of Extraordinary Supply from the Santa Ana River
Conservation and Conjunctive Use Program
This Agreement among The Metropolitan Water District of Southern California
(Metropolitan), Municipal Water District of Orange County (MWDOC), the Orange County
Water District(OCWD), the City of Anaheim (Anaheim), the City of Fullerton (Fullerton), and
the City of Santa Ana (Santa Ana)regarding the assignment of Extraordinary Supply from the
Santa Ana River Conservation and Conjunctive Use Program (hereinafter "Agreement") is
hereby entered into this 1st day of September 2024. Metropolitan, MWDOC, OCWD, Anaheim,
Fullerton, and Santa Ana are collectively referred to as "Parties" and individually as a "Party"
herein.
RECITALS
A. Metropolitan is a metropolitan water district organized under the Metropolitan
Water District Act, codified at section 109-1, et seq. of West's Appendix to the California Water
Code, and is engaged in developing, storing, and distributing water in the counties of Los
Angeles, Orange, Riverside, San Bernardino, San Diego, and Ventura. Metropolitan has a long-
term contract with the California Department of Water Resources (DWR)which sets forth the
terms and conditions of Metropolitan's participation in the State Water Project(SWP).
B. MWDOC is a municipal water district formed and existing under the California
Municipal Water District Act of 1911, Sections 71000 et seq. of the California Water Code, for
purposes that include providing its 28 member agencies in Orange County, with reliable, high
quality supplies from Metropolitan and other sources to meet present and future needs, at an
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equitable and economic cost, and to promote water use efficiency for all of Orange County.
MWDOC is a member agency of Metropolitan.
C. OCWD undertakes responsibilities associated with actively managing the Coastal
Plain of Orange County Groundwater Basin (hereinafter"Orange County Groundwater Basin").
OCWD was formed by an act of the California State Legislature in 1933 for the purpose of
protecting and managing the Orange County Groundwater Basin. OCWD is a member agency of
MWDOC, and purchases imported water for replenishment purposes from MWDOC.
D. Anaheim is a California municipal corporation and a member public agency of
Metropolitan. The city is located in northern and northeastern Orange County with its
jurisdictional area overlying the Orange County Groundwater Basin. Anaheim is a member
agency of OCWD.
E. Fullerton is a California municipal corporation and a member public agency of
Metropolitan. The city is located in northern and northeastern Orange County with its
jurisdictional area overlying the Orange County Groundwater Basin. Fullerton is a member
agency of OCWD.
F. Santa Ana is a California municipal corporation and a member public agency of
Metropolitan. The city is located in northern Orange County with its jurisdictional area overlying
the Orange County Groundwater Basin. Santa Ana is a member agency of OCWD.
G. The Santa Ana River Conservation and Conjunctive Use Program (SARCCUP) is
a multi-agency, watershed-wide groundwater storage and recovery project involving multiple
basins in the Santa Ana River Watershed. The goal is to store available water during wet years in
local groundwater basins throughout the watershed and extract the stored water during dry years
to reduce the impacts from single and multi-year droughts.
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H. The SARCCUP includes four water banking sites. Three of the sites are located
within Metropolitan's service area. More specifically, the three aforementioned sites are in the
Metropolitan member agency service areas of Eastern Municipal Water District(EMWD),
Western Municipal Water District(WMWD), and MWDOC. The water banking facilities within
MWDOC's service area are located within, owned, and operated, exclusively by OCWD. The
fourth water banking site is within San Bernardino Valley Municipal Water District(Valley
District)'s service area in the San Bernardino Basin Area(SBBA), which is located outside of
Metropolitan's service area. The SARCCUP includes water delivery interconnections between
SBBA and SARCCUP facilities in the Metropolitan service area.
L OCWD undertakes all responsibilities associated with actively managing the
SARCCUP banking program in the Orange County Groundwater Basin. A portion of MWDOC's
service area overlies the Orange County Groundwater Basin and MWDOC's member agencies in
this portion of its service area along with Anaheim, Fullerton, and Santa Ana pump groundwater
from the Orange County Groundwater Basin in accordance with the Orange County Water
District Act.
J. On June 15, 2021, Valley District and Metropolitan entered into a Coordinated
Operating and Surplus Water Agreement whereby Valley District may offer to sell to
Metropolitan, and Metropolitan may purchase from Valley District, surplus SWP water.
K. On November 9, 2021, Metropolitan, EMWD, WMWD, MWDOC, Inland
Empire Utilities Agency (IEUA), and OCWD entered into an agreement(hereinafter"November
2021 SARCCUP Agreement")regarding SARCCUP. Under the November 2021 SARCCUP
Agreement,Metropolitan agreed to "equally offer to WMWD, EMWD, and MWDOC for
purchase an amount of water equivalent to 50% of the amount that Metropolitan purchases from
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Valley District during a calendar year for delivery to the SARCCUP water banking facilities"
(hereinafter, "SARCCUP Water").
L. On December 9, 2021, EMWD, WMWD,MWDOC, OCWD and IEUA entered
into an additional SARCCUP agreement(hereinafter"December 2021 SARCCUP Agreement")
governing MWDOC's access to SARCCUP Water (which is referred to in the December 2021
SARCCUP Agreement as "Allocated Water") for its own water supply purposes and prescribing
the priority and process for the parties to the agreement to access SARCCUP Water and placing
conditions on how, when, and where MWDOC may use SARCCUP Water.
M. Under Section 1.13 of the November 2021 SARCCUP Agreement, MWDOC will
purchase SARCCUP Water offered by Metropolitan on behalf of, and whenever requested by,
OCWD for the SARCCUP water banking program. Also under Section 1.13 of the November
2021 SARCCUP Agreement, as the owners and operators of the SARCCUP water banking
facilities, WMWD, EMWD, and OCWD will determine the delivery amounts to the SARCCUP
water banking sites and may designate deliveries to IEUA or MWDOC on their behalf. Under
Section 4 of the November 2021 SARCCUP Agreement, if SARCCUP Water purchased and
stored within the Santa Ana River Watershed during the same calendar year otherwise complies
with Metropolitan's Water Supply Allocation Plan last revised in December 2014 (or as any
successor to such plan), then it will qualify as extraordinary local supply production (hereinafter:
"Extraordinary Supply").
N. As a wholesale member agency of Metropolitan, MWDOC has developed and
adopted its own Water Supply Allocation Plan (hereinafter"MWDOC WSAP")for its retail
member agencies, including OCWD. The plan largely reflects the implementation terms and
conditions of Metropolitan's Water Supply Allocation Plan but is tailored to the MWDOC
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service area. Notably, MWDOC's WSAP tracks individual retail agency supplies and demands
but utilizes an aggregate approach whereby credits and adjustments are prorated to best match
MWDOC's allocation from Metropolitan. MWDOC's current policy under the MWDOC WSAP
is not to subject its member agencies to allocation surcharges if its member agencies' combined
imported water usage by the end of the Allocation Period is below the allocation established by
Metropolitan for MWDOC's service area.
O. MWDOC acknowledges that under the MWDOC WSAP, the SARCCUP Water
MWDOC purchases on behalf of OCWD, that is stored and pumped from the Orange County
Groundwater Basin, and approved by Metropolitan as certified Extraordinary Supply, shall be
exclusively allocated to MWDOC's member retail water agencies that produced the SARCCUP
Water from the Orange County Groundwater Basin.
P. Under Section 5 of the November 2021 SARCCUP Agreement, Metropolitan
agreed to assign any Extraordinary Supply benefit that would accrue to MWDOC as a result of
actions taken by OCWD in accordance with a separate written agreement among Metropolitan,
MWDOC, OCWD, Anaheim, Fullerton, and Santa Ana. Accordingly, the purpose of this
Agreement is to provide the mechanism for MWDOC, on behalf of its member retail water
agencies that pump water from the Orange County Groundwater Basin, and for Anaheim,
Fullerton, and Santa Ana(which also overlie and pump water from the Orange County
Groundwater Basin), to receive Extraordinary Supply credits from Metropolitan under
Metropolitan's adopted Water Supply Allocation Plan where SARCCUP Water is pumped and
used as extraordinary local supply during a Metropolitan declared allocation.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the representations,
warranties, covenants, and agreements contained in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the
Parties hereby agree to the following terms and conditions.
1. Declaration of a Metropolitan Allocation
Should Metropolitan's Board of Directors take action to declare an allocation and set an
allocation amount to be in effect("Allocation Period")under its Water Supply Allocation Plan,
OCWD and MWDOC will confer with MWDOC's member retail water agencies that pump
water from the Orange County Groundwater Basin, and Anaheim, Fullerton, and Santa Ana
(hereinafter the"Groundwater Producers"). The purpose of this consultation will be, among
other things, for OCWD to discuss the amount of SARCCUP Water it has in storage and to
obtain information regarding the Groundwater Producers' need for Extraordinary Supply from
the SARCCUP program to comply with Metropolitan's imported water allocation.
2. Pumping of Stored SARCCUP Water
A. Based upon the consultation with the Groundwater Producers and MWDOC, and
prior to the commencement of Metropolitan's Allocation Period, OCWD may act to
incrementally increase its groundwater Basin Production Percentage (hereinafter"BPP") to
incentivize the pumping of SARCCUP Water in storage by the Groundwater Producers. OCWD
may also incentivize additional pumping of SARCCUP Water by the Groundwater Producers
through other basin management tools authorized under the OCWD Act, including, but not
limited to, the use of the Basin Equity Assessment,production limitations, and surcharges.
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Additional pumping of SARCCUP Water in storage undertaken by the Groundwater Producers
would be above the planned local supply production baseline amount for the Metropolitan
Allocation Period.
B. During Metropolitan's Allocation Period, OCWD may consult with MWDOC and
the Groundwater Producers regarding those agencies' consumption of imported water relative to
their Metropolitan allocation amount, and further adjust the BPP or take other actions as it deems
necessary to modify the pumping of SARCCUP water in storage by those agencies.
3. Documentation of SARCCUP Water Produced
On a monthly basis, and upon completion of Metropolitan's Allocation Period, OCWD
will work with MWDOC, Anaheim, Fullerton, and Santa Ana, to provide any relevant
documentation required. OCWD will provide to MWDOC the amount of SARCCUP Water that
the Groundwater Producers each pump from storage from the Orange County Groundwater
Basin, including :
A. The quantity of SARCCUP Water produced by the Groundwater
Producers in excess of each Groundwater Producer's originally planned local supply
production amount.
B. An accounting of the change in storage and storage balance of SARCCUP
Water in the Orange County Groundwater Basin during the Allocation Period.
C. Other documentation as needed by MWDOC, Anaheim, Fullerton, and
Santa Ana to comply with the applicable requirements of Metropolitan's Water Supply
Allocation Plan and to certify the eligible Extraordinary Supply amounts.
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4. Extraordinary Supply Certification and Crediting
A. MWDOC,Anaheim, Fullerton, and Santa Ana shall review and incorporate the
documentation provided by OCWD as specified in Section 3 into any submitted certifications of
Extraordinary Supply and other submissions to Metropolitan for compliance with Metropolitan's
Water Supply Allocation Plan. If Metropolitan determines that certifications and other
supporting documentation submitted by MWDOC, Anaheim, Fullerton, and Santa Ana are in
accordance with the applicable requirements of Metropolitan's Water Supply Allocation Plan for
such certifications, Metropolitan will qualify the water as Extraordinary Supply and will assign
the benefit accordingly to MWDOC, Anaheim, Fullerton, and Santa Ana.
B. Under MWDOC's WSAP, SARCCUP Water that is pumped by MWDOC's retail
member agencies in the Orange County Groundwater Basin, and is certified by Metropolitan as
Extraordinary Supply, shall be proportionally credited exclusively to those MWDOC retail
member agencies that pumped the SARCCUP Water. MWDOC shall base such crediting upon
documentation submitted by OCWD and MWDOC's retail member agencies in the Orange
County Groundwater Basin.
5. Records and Inspection
Metropolitan, MWDOC, OCWD, Anaheim, Fullerton, and Santa Ana will keep records
of SARCCUP Water storage and production pursuant to this Agreement. The SARCCUP Water
storage and production records of each agency will be open to inspection by the other agencies
upon reasonable notice. The agencies will cooperate to develop coordinated administrative
procedures for the tracking required under this Agreement.
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6. Changes to Metropolitan's Water Supply Allocation Plan
Metropolitan, MWDOC, OCWD, Anaheim, Fullerton, and Santa Ana acknowledge that
Metropolitan's Water Supply Allocation Plan is established by Metropolitan's Board of
Directors and is subject to change. Should Metropolitan's Board of Directors take actions to
change the Water Supply Allocation Plan in a manner that materially affects the terms of the
Agreement,the Parties will work together in good faith to develop procedures to fulfill the intent
of this Agreement in a manner that is consistent with any changes to Metropolitan's Water
Supply Allocation Plan.
7. Severability
In the event that a court of competent jurisdiction determines that a provision included in
this Agreement is legally invalid or unenforceable and such decision becomes final, the Parties to
this Agreement shall use their best efforts to (i)within thirty (30) days of the date of such final
decision,identify by mutual agreement the provisions of this Agreement which must be revised,
and(ii)within three (3) months thereafter promptly agree on the appropriate revision(s). The
time periods specified above may be extended by mutual agreement of the Parties. Pending the
completion of the actions designated above, to the extent it is reasonably practical and can be
done without violating any applicable provisions of law, the provisions of this Agreement, which
were not found to be legally invalid or unenforceable in the final decision, shall continue in
effect. If the Parties cannot agree on appropriate revisions, this Agreement shall be terminated.
8. Further Assurances
Each Party hereto, upon the request of the other, agrees to perform such further acts and
to execute and deliver such other documents as are reasonably necessary to carry out the
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provisions of this Agreement. The Parties agree to perform such further acts timely when
performing all obligations under this Agreement.
9. Counterparts
This Agreement may be executed in two or more counterparts, each of which, when
executed and delivered, shall be an original and all of which together shall constitute one
instrument, with the same force and effect as though all signatures appeared on a single
document.
10. Dispute Resolution
In the event of a dispute between the Parties regarding this Agreement, the Parties may
attempt to resolve the dispute by using the services of a mutually acceptable mediator before a
third-party neutral prior to initiating litigation in court. If the Parties decide to use a mediator,
they will equally share the mediator's fees and expenses.
11. Successors and Assigns
This Agreement shall bind and inure to the benefit of the successors and assigns of the
Parties; provided,however, no Party shall assign any of its rights or obligations under this
Agreement without the prior written consent of the other Parties.Nothing in this Agreement is
intended to confer any right or remedy under this Agreement on any person other than the Parties
to this Agreement and their respective successors and permitted assigns, or to relieve or
discharge any obligation or liability of any person to any Parry to this Agreement, or to give any
person any right of subrogation or action over or against any Party to this Agreement.
12. Waiver/Cure of Defaults
The failure of any Party to enforce against another Party a provision of this Agreement
shall not constitute a waiver of that Party's right to enforce such a provision at a later time. No
Party shall be deemed to be in default of any provision of this Agreement unless the other Party
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has given written notice specifically stating the alleged default and the Party in default fails to
cure the default within sixty (60) days of receipt of such written notice.
13. No Obligation to Third Parties
The approval, execution and performance of this Agreement does not confer any rights
upon any person or entity other than the Parties to this Agreement.
14. Termination
This Agreement will terminate on December 31, 2085.
15. Late Arising Claims
If a claim arising under or with respect to one or more terms of this Agreement has not
been resolved when such term terminates, or if such a claim is brought after this Agreement has
terminated, but within the period of time for bringing such a claim under California law (Late
Arising Claim), the provisions of this Agreement shall continue in full force and effect for such
additional period of time as is necessary to resolve such claims and to satisfy the rights and
obligations of the Parties hereto with respect thereto.
16. Entire Agreement
This Agreement constitutes the final, complete and exclusive statement of the terms of
the agreement among the Parties pertaining to the matters provided herein during the term and
supersedes all prior and contemporaneous understandings or agreements of the Parties related
thereto. No Party has been induced to enter into this Agreement by,nor is any Party relying on,
any representation or warranty outside those expressly set forth in this Agreement.
17. Notices
All notices, requests, and demands hereunder (Notices) shall be in writing, including
electronic communications, and shall be deemed to have been duly given when delivered (or, if
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mailed,postage prepaid, on the third business day after mailing, if that date is earlier than actual
delivery). Notices shall be sent to a Parry at the address of that Parry set forth below or, if such
Party has furnished notice of a change of that address as herein provided, to the address of that
Party most recently so furnished.
Metropolitan Water District of Southern California
Attention: General Manager
P.O. Box 54153
Los Angeles, CA 90054-0153
Municipal Water District of Orange County
Attention: General Manager
P.O. Box 20895
Fountain Valley, CA 92708
Orange County Water District
Attention: General Manager
18700 Ward St
Fountain Valley, CA 92708
City of Anaheim
Attention: Public Utilities Department
201 S. Anaheim Blvd., Suite 1101
Anaheim, CA 92805
City of Fullerton
Attention: Public Works Director
303 W. Commonwealth Avenue
Fullerton, CA 92832
City of Santa Ana
Attention: City Manager
220 S. Daisy Avenue, M-85
Santa Ana, CA 92703
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18. Governing Law
The validity, construction, and enforceability of this Agreement shall be governed in all
respects by the laws of the State of California.
19. Electronic Signatures
Any Party may execute this Agreement using an "electronic signature," as that term is
defined in California Civil Code Section 1633.2, or a"digital signature," as defined by California
Government Code Section 16.5. An electronic or digital signature will have full legal effect and
enforceability.
[Signatures on Following Page]
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In WITNESS WHEREOF, the Parties have caused this Agreement to be executed by the
following duly authorized representatives.
THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA
Deven Upadhyay
Interim General Manager
DocuSigned by:
fjVAU�bIa �bSI�I 10/23/2024
By:
rancon oshi Dated
Interim Manager, Water Resource Management
APPROVED AS TO FORM:
Marcia L. Scully
General Counsel
Signed by:
By. At&ad k S
Michael W. Hughes
Senior Deputy General Counsel
MUNICIPAL WATER DISTRICT OF ORANGE COUNTY
DocuSigned by:
B � �t, �,A VVt, 8/29/2024
y� o
Harvey De La Torre Dated
General Manager
APPROVED AS TO FORM:
Best, Best& Krieger
Signed/by:
B [�-F-l
pU, �j�V "t,
y: E841- ...
Joseph Byrne
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ORANGE COUNTY WATER DISTRICT
Signed by:
�6LL )1 8/29/2024
Join Kennedy Dated
General Manager
APPROVED AS TO FORM:
Rutan &Tucker LLP
DocuSigned by:
By:Ltmm�
�tti Vt iS
feremy DA g�`un reis
CITY OF ANAHEIM
DocuSigned by:
8/29/2024
By
Dukku Lee Dated
Public Utilities General Manager
APPROVED AS TO FORM:
Office of City Attorney
DocuSigned by:az
By. X�--
F8/f1{iF3DB9AQ1...
Andrew Lee
Deputy City Attorney
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CITY OF FULLERTON
Signed by:
V1G 9/1/2024
By: f�13f38&EEi46F9d3E..
Eric Levitt Dated
City Manager
APPROVED AS TO FORM:
Office of City Attorney
DocuSigned by:
By
Richard D. Jones
City Attorney
CITY OF SANTA ANA
Si ned by:
/� � 9/30/2024
By DD06943DEC-44
Alvaro Nunez Dated
City Manager
APPROVED AS TO FORM:
Sonia R. Carvalho, City Attorney
Signed by:
By: � �
B
randon alvatierra
Deputy City Attorney
Attest' Signed by:
FUVJA� r b•
By +i59+AGAE+%9aes..
Jennifer L. Hall
City Clerk
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