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HomeMy WebLinkAbout25D - AGMT FOR JOINT USE SEWERAGE FACILITIES`:. •, .. • MOM. • [01kV90.liPrel [MLIA 9RETRIl. = AUGUST 1, 2017 TITLE: APPROVE AN AGREEMENT FOR JOINT USE OF SEWERAGE FACILITIES WITH THE GARDEN GROVE SANITARY DISTRICT [NON -GENERAL FUND] {STRATEGIC PLAN NO. 6,1} CIT MANAGER CLERK OF COUNCIL USE ONLY: F.1152091WR ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO 511ffNVILLif51W Authorize the City Manager and Clerk of the Council to execute the attached agreement with the Garden Grove Sanitary District, subject to non -substantive changes approved by the City Manager and City Attorney, for the joint use of sewerage facilities. DISCUSSION The City of Santa Ana owns and operates a sewer collection system comprised of 390 miles of sewer main pipeline which collects sewage from all residents and businesses within Santa Ana. The neighboring city, Garden Grove, also owns and operates a sewer collection system for the same purposes. Along Santa Ana's limits with the City of Garden Grove, there are shared sewer pipeline and sewer mains which collect sewage generated by residents and businesses of Santa Ana and Garden Grove. The sharing of sewerage facilities in this boundary area allows for servicing the needs of both communities at a substantial cost savings. The City of Santa Ana and the Garden Grove Sanitary District (City of Garden Grove) first entered a joint use agreement for shared sewerage facilities in 1985 (Exhibit 1). Under the terms of the 1985 agreement, the limits of shared facilities are identified, a capital improvement cost sharing basis is established based on proportionate use, maintenance responsibilities are defined, and criteria is established identifying when capital improvements are necessary. To date, the agreement has served both cities well. The proposed joint use of sewerage facilities agreement (Exhibit 2) replaces the original 1985 agreement. It is necessary to reestablish shared commitments, incorporate new sewer pipeline replacement and design criteria, update the capital cost sharing commitments, and incorporate additional sewer pipe segments which were not previously included in the 1985 agreement. The updated agreement retains the spirit of cooperation, and shared costs and responsibilities of the original agreement. The new shared sewerage facilities agreement is for a period of 50 years, 2501-1 Agreement for Joint Use of Sewerage Facilities with the City of Garden Grove August 1, 2017 Page 2 expiring on June 30, 2067. Such a period acknowledges the typical lifespan of the sewerage facilities. STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with the recommended action. M" /�-- 4Freh Mouaviilodr Executive Director Public Works Agency FM/NS/RR Exhibits: 1. 1985 Joint Use Agreement (A-85-96) 2. Proposed Joint Use of Sewerage Facilities Agreement 25D-2 AGREEMENT FOR JOINT USE OF SEWERAGE FACILITIES This agreement, made and entered into this 5th day of August 19 85 , between the.City of Santa Ana, a municipal corporation, hereinafter referred to.as "CITY", and the Garden Grove Sanitary District of Orange County, California, a sanitary district organized under the Sanitary District Act of 1923, hereinafter referred to as "DISTRICT". W I T N E S S E T H WHEREAS, Orange County District Reorganization No. 66 will detach approximately 1,000 acres from the DISTRICT, of which approximately 906 acres are located within CITY; and, WHEREAS, Reorganization No. 66 will transfer to CITY the fixed assets of the detached portion of DISTRICT that are within CITY; and WHEREAS, said Reorganization provides for DISTRICT to retain capacity rights in certain DISTRICT sewerage facilities to be transferred to CITY which will be needed by DISTRICT to transport wastewater from remaining areas of -- DISTRICT to the Orange County Sanitation District facilities; and, WHEREAS, sewers transferred to CITY will remain connected to sewers retained by DISTRICT, and CITY will need capacity rights in these sewers to transport wastewater from the detached area within CITY to downstream portions of the same sewer transferred to CITY; and, WHEREAS, a report prepared.by Boyle Engineering Corporation for the r City of Santa Ana entitled "Addendum to the June 1979Engineering Report Update on Sewerage Facilities" dated July 27, 1984 indicates that certain shared sewers within CITY or DISTRICT will not have adequate capacity for the wastewater from the planned ultimate development of the areas within DISTRICT and CITY tributary to said certain facilities; and, WHEREAS,. because capacity rights in certain sewerage facilities will be shared by DISTRICT and CITY, it is in the best interests of DISTRICT and CITY to enter into an agreement to provide for the cost sharing of maintenance of sewers in which DISTRICT and CITY will share capacity rights and to provide for funding of the construction of future severs within CITY or DISTRICT that may be necessary to provide sufficient capacity to transport the combined ultimate wastewater flows from portions of DISTRICT and CITY to the Orange County Sanitation District facilities; and, NOW, THEREFORE, in consideration of the payments herein provided and the.several obligations hereof, the parties agree; 1. Shared Sewers (a) CITY hereby grants to'DISTRICT and DISTRICT hereby grants to CITY capacity rights so long as capacity is available in the shared sewers, the locations of which are shown on Exhibit A attached hereto and described in Exhibit $ attached hereto. DISTRICT and CITY agree to use said shared severs only to transport wastewater from those portions of DISTRICT or CITY within the tributary area as shown on said Exhibit A. The shared sewers, or portions thereof, shall be deemed to be at capacity when the measured peak }flow bas a depth equal to 75% of the sewer diameter. When either party determines by field measurements that a portion of a shared sewer is flowing at capacity, as defined herein, they shall immediately notify the other party in writing, setting forth the limits, the measured flow, and the depth of the peak flow. 25�°£4� Upon determination and notification that a sewer is at capacity, both parties shall immediately cease issuance of any additional sewer connection permits to any tributary sewer. The cessation of issuance of sewer connection permits shall continue in force until additional sewer capacity has been constructed as provided for herein. (b) CITY and DISTRICT agree to maintain their respective portions of the shared sewers as shown on Exhibit A in the same manner and at the same frequency as all other sewers maintained by CITY or DISTRICT. (c) Replacement or Repair of Shared Sewers Both parties agree that the shared sewers have a finite life and eventually, due to damage or deterioration, all or portions of the shared sewers may need to be replaced. When either party determines that a portion of a shared sewer within its jurisdiction is in need of major replacement, it shall immediately notify the other party in writing, setting forth a description and schedule of repair or replacement and the estimated cost thereof. Unless the work is required to abate a public health problem it shall be scheduled so that both parties can arrange for financing in the next following fiscal year. Work 'required to abate a public health problem shall be commenced immediately. The cost of repair or replacement of each shared line shall be apportioned to each party as set forth.in Exhibit B. The total cost shall include engineering, administration and construction expenses. Prior to starting the repair or replacement work, the initiating party shall bill the other party for their apportioned share.. The other party shall promptly deposit the billed amount. Upon completion of the work and payment of all costs, the initiating party shall submit a report setting forth all costs incurred together with either a bill, or a refund for the difference between the actual apportioned cost and the deposit. '25P-5 Any repair or replacement costing less than 45,000.00 may be done by force account. Repairs or replacements costing in excess of $5,000.00 shall be subject to a public bidding process. If, within 30 days.aftor notification, .the notified party disagrees with the necessity or estimated cost or apportionment of the cost of the repair or replacement, they shall so notify the other party in writing. If the parties are unable to agree upon the need or cost of, the repair or replacement, the matter may be submitted to arbitration as set forth in Section 4. 2. Future Sewers It is anticipated that, as the tributary area to the shared sewers continues to develop, there will not be adequate capacity, as defined in Section 1, in some of the shared sewers. Exhibit C attached hereto shows the sizes and locations of parallel sewers and relief connections to orange County Sanitation District facilities that are anticipated will be required in the future to provide capacity for ultimate planned development. On or before October 1st of each year, each party shall determine whether the shared sewers within their jurisdication have sufficient capacity, as defined in Section 1, to provide service without limiting connections for the next calendar year. If it appears that adequate capacity will not be available, then the parties shall meet and determine within 60 days the.size and estimated cost of a parallel relief sewer that, together with the existing sewer, will provide adequate capacity for ultimate planned development within the tributary area. Each party shall provide the estimated ultimate flows for their portion of the tributary area. The cost of the new parallel sewer, including engineering, administration and construction shall be apportioned between the parties equal to 25D-6 4 of 6 the ratio that each party's estimated ultimate peak flows bears to the combined ultimate peak flow. The construction of the new line shall be scheduled to start after the next July lst in order to permit both parties to budget the required funds. Prior to commencing construction, the party within whose jurisdiction the new sewer will be located shall bill the other party for their apportioned share of the total cost. The other party shall promptly deposit the billed amount. Upon completion of the work, and payment of all costs, the initiating party shall submit a report setting forth all costs incurred together with either a bill or a refund for the difference between the actual apportioned cost and the deposit. If one of the parties does not finance their apportioned share of the new parallel sewer, or relief connection, or for any other reason declines to participate, then the remaining party at their option may proceed to construct and finance a parallel sewer with capacity only for the tributary area within their jurisdiction, if this option is exercised, then the party choosing not to participate shall immediately cease issuance of sewer connection permits as provided for in Section 1(a). Such cessation of connection permits shall remain in effect until the non -participating party constructs sewer facilities with capacity for added flows from their tributary area :or diverts the added flow to non -shared sewers. 3. Modifications A -pumping station in Fountain Valley now discharges sewage into the shared line in Edinger Avenue. In the event that the flow from this pumping station is discharged elsewhere, this agreement shall be. modified as necessary to reflect the changed condition. a gBU-7 4. Arbitration I£ the parties are unable to agree on the necessity, cost, or apportionment of repair or replacement of shared sewers, the matter may be submitted to arbitration before a 3 -man arbitration board in the following manner: Either party may, within 60 days after the date of the notification of the need for a repair or replacement, appoint one member of said arbitration board, giving notice thereof to the party making the first appointment to said board. The third member shall be appointed by the first two members. All members of said board shall be registered Civil Engineers in the State of California. 5. Notice Any notice hereunder shall conclusively be deemed to have been given upon, the date it is enclosed in a sealed envelope addressed to the party to whom intended at the following address: If to the CITY: City of Santa Ana Attention: Chief Engineer . Utilities Agency If to the DISTRICT: Garden Grove Sanitary District Attention: President, Board of Directors 6. Termination The term of this agreement shall commence upon approval'and execution of this document by both parties, and shall continue for so long as is necessary to carry out the purposes of this agreement. This agreement may be terminated or amended at any time by the consent of both parties. 25Pof4 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers, duly authorized, the provisions of which Agreement are effective as of'tbe data first above written. ATTEST: By City Clerk APPROVED AS TO FORM: By i 6—rney APPROVED AS TO CONTENT: By City Manager APPRAVED AS TO FORM: By� CITY OF SANTA ANA, A Municipal Corporation By Mayor GARDEN GROVE SANITARY DISTRICT, a Sanitary.. tract f By Chairman 25D-9 LUENV, '•mm" CITY OF SANTA ANA 'BOUNDRY. BOUNDRY OF AREA -TRIBUTARY TO SHARED SEWERS. •�■ ORANGE COUNTY SANITATION DIST. TRUNK SEWERS. --- BOUNDRY OF AREA WITHIN, CITY DETACHED FROM GARDEN GROVE SANITARr DISTRICT. SHARED SEWERS& DIAMETER TO BE MAINTAINED BY CITY. SHARED SEWERS & DIAMETER TO BE MAINTAINED BY DISTRICT. 25D-10 EXH18I ' a, CITY OF SANTA ANA ORANGE COUNTY CALIFORNIA laro IXx/ i.�4gIN xSCAL--� E IELI �\ �1 ■ \ 25DA 1 Apportionment(l) of Repair or Replacement Cost District City 08 1008 - 448 448 0% 318 678 75% 758 0% 378 48% 428 448 488 518 548 398 36% 258 568 568 1008 698 728 338 258 258 1008 638 528 58% 568 528 498 468 618. 648 758 EXHIBIT B Sewer Located Shared Sewer Location. Diameter within Marty - Lewis to Siemon 8" District Marty - Lewis west to'City Boundary 8" District Marty - City Boundary west to Laird a" City Marty - Siemon to Lewis 8" District Laird - Marty to Trask 10" City -Trask - Laird to Fairview 10"- - ----- ---City_—. Cotter - Downie to Marty 8" City Marty - Cotter to Fairview 8" City Fairview - Marty to Trask 8" City Westminster - Buena to Roxey 10" District Westminster - Roxey to Clinton 12" District Westminster - Clinton to Harper 12" city Westminster - Harper to Laurel 12" City Westminster - Laurel to Enterprise 12" City Westminster - Enterprise to Nautilus 12" City Westminster - Nautilus to east of Harbor 12" City_. Westminster - East of Harbor to Harbor. 12" City_ Harbor - Westminster to Century 15" City Harbor —Century to Washington 15'" City Harbor -*Washington to Hazard 15" City 25DA 1 Apportionment(l) of Repair or Replacement Cost District City 08 1008 - 448 448 0% 318 678 75% 758 0% 378 48% 428 448 488 518 548 398 36% 258 568 568 1008 698 728 338 258 258 1008 638 528 58% 568 528 498 468 618. 648 758 EXHIBIT B Apportionment�l3 of Repair or Located Replacement Cost sewer Shared Sewer Location Diameter within District Citx Harbor - Hazard to 5th 15" City 238 778 h't 1st 15" City 228 788 Harbor -St o 798 Harbor - Edinger to City 10", Boundary 218 Westminster - East of Newhope 10" Westminster - East of Newhope City to Newhope 10" Westminster-= Newhope west to 1Q" City Boundary city .Westminster - City Boundary to 10" Parsons 678 Westminster - Parsons west to lQ" City Boundary 388 Westminster - City Boundary 10" to Rosita Westminster - Rosita to La Bonita lo" Westminster —La, Bonita ' to Anita 10' Westminster - Anita to Euclid 10" Euclid - Westminster to Juarez 15" Euclid - Juarez to Hazard 15" Euclid - Hazard to 5th 15" Euclid - 5th to lst 15" Edinger - Harbor to 2280' east of Newhope 12" Edinger - 2260' east to 1950' east of Newhope 12" 25D-12 -2- District 08 city 758 City 748 City 768 District 7-88' District 798 1008 258 268 248 228 21% City 798 218 city 798 218 City 808 208 City 928 88 City 918 9 city 838 178 City 678 338 city 628 388 District 358 658 District 368 648 EXHIBIT B 0 (1�Apportionment based on ultimate average flows per report prepared by Hoyle Engineering Corporation for the City of Santa Ana entitled "Addendum to -the June 1979 Engineering Report Update on Sewerage Facilities" dated July 27, 1984. - 3 - 25D-13 Apportionment�l) of Repair or Sewer Located Replacement Cost Shared Sewer Location Diameter within District City Edinger - 1950' east to 1620' east of Newhope 12" District 378 638 . Edinger - 1620' east of Newhope to City Boundary 12" •District 398 618 Edinger - City Boundary to Newhope 12", City 398 618 Edinger - Harmon to Euclid 12" City 338 678 0 (1�Apportionment based on ultimate average flows per report prepared by Hoyle Engineering Corporation for the City of Santa Ana entitled "Addendum to -the June 1979 Engineering Report Update on Sewerage Facilities" dated July 27, 1984. - 3 - 25D-13 25D-14 AGREEMENT FOR JOINT USE OF SEWERAGE FACILITIES THIS AGREEMENT FOR JOINT"USE OF SEWERAGE FACILITIES (the "Agreement") is made and entered into to be effective as of the day of , 2017_ (the "Effective Date") by and between the Garden Grove Sanitary District ("District"), a subsidiary district of the City of Garden Grove, and the City of Santa Ana ("City"), a municipal corporation. District and City are sometimes individually referred to as "Party" and collectively referred to as the "Parties." RECITALS WHEREAS, the District and City both own, operate, and maintain sewerage facilities within their respective jurisdictions; and WHEREAS, it is necessary for District and City to enter into this Agreement to ensure effective operation and maintenance of sewerage facilities, protection of the public health and welfare, compliance with the Statewide Waste Discharge Requirements, and equitable cost sharing between District and City, for jointly used sewerage facilities. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants, conditions and promises herein contained, it is hereby agreed by and between the District and the City, as follows: 1. SHARED SANITARY SEWERS. (a) Cgpacity Rights. City hereby grants to District, and District hereby grants to City, capacity rights, subject to the provisions of this Agreement, in those shared sanitary sewers located within the territorial jurisdictions of City and District, respectively, the locations of which are shown on Exhibit "A" and described on Exhibit "B" attached hereto. District and City agree to use the shared sewers only to transport wastewater from those areas specified on Exhibit "A" as tributary to the shared sanitary sewers. The Parties agree to notify the other party if wastewater is transported outside the area depicted on Exhibit "A". The diversion, release, or transmission of wastewater from any other area into the shared sanitary sewer facilities by either Party, without express written consent of the other Party, shall be deemed to be a breach of this Agreement, provided that (i) the non -breaching Party provides written notice to the breaching Party which explains with particularity the nature of the claimed breach, and (ii) within thirty (30) days after receipt of said notice, the breaching Party fails to cure the claimed breach or, in the case of a claimed breach which cannot be reasonably remedied within a thirty (30) day period, the breaching Party fails to commence to cure the claimed breach within such thirty (30) day period, and thereafter diligently complete the activities reasonably necessary to remedy the claimed breach: The shared sanitary sewers, or portions thereof, shall be deemed to be at capacity when the measured peak dry weather flow has a depth equal to the following percentage of the sewer diameter, as verified through flow monitoring: 25DRIS 579683.1 Size of Sewer Percentage of Sewer Diameter Existing Shared Sewers All Diameters) 62% New or Replacement Shared Sewers (_?18" in Diameter) 62fo New or Replacement Shared Sewers (<18" in Diameter) 50% If one Party to this Agreement determines by field measurements that a portion of a shared sanitary sewer is flowing at, above or within 10% of capacity, as defined herein, that Party shall immediately notify the other Party in writing, setting forth the sewer line capacity limits, the measured flow, and the depth of the peak dry weather flow, and provide any other information and documentation relating to the flow supporting the determination which the notifying party possesses. Upon determination and notification that a sanitary sewer, or a portion or portions thereof, is at or exceeding capacity, both Parties shall immediately cease issuance of any additional sewer connection permits and permits for increases in the number of restrooms, sinks, showers, bathtubs, or square footage in existing building that directly or indirectly convey wastewater to those portions of that sewer that is at or exceeding capacity. The cessation of issuance of sewer comiection permits and permits for increases in the number or restrooms, sinks, showers, bathtubs, and square footage in existing buildings shall continue in force until sufficient additional sewer capacity has been constructed and been placed in operation as provided for herein. (b) Maintenance. City and District each agree to maintain the portions of the shared sanitary sewers as shown on Exhibit "A" which are located within their respective jurisdictions in good condition and in at least the same manner and at the same frequency as all other comparable sanitary sewers maintained by City or District. Costs for routine maintenance of any portion of a shared sanitary sewer shall be borne by the Party within whose territory the shared sanitary sewer is located. For purposes of this Agreement, routine maintenance shall include anything that is within the normal scope of sewer line' maintenance duties of the responsible Party's employees or contractors, including, but not limited to, regular cleaning of the entire system (including more frequent cleaning at problem areas), visual and closed circuit television inspection and re -inspection, pump station maintenance, and root removal. Any repair in excess of the normal scope of such duties, or which is necessitated by changes from the plan design conditions, shall be undertaken pursuant to Paragraph I (c). (c) Replacement or Repair of Shared Sanitary Sewers. Both Parties acknowledge and agree that the shared sanitary sewers have a finite life and eventually, due to damage or deterioration, all or portions of the shared sanitary sewers may need to be repaired or replaced. When a Party determines that a portion of shared sewer within its jurisdiction is in need of repair or replacement, it shall immediately notify the other Party in writing, setting forth a description and schedule of repair or replacement and the estimated cost thereof. Unless the work is required to abate a public health or welfare problem, it shall be scheduled so that both parties can budget for the project in the second subsequent fiscal year, effectively allowing both parties to budget for the project two years after determination of need of repair or replacement. Work required to abate a public health or welfare problem shall be commenced immediately. Except in the case of work required to immediately abate a public health or welfare problem, the Parties shall meet to review the plans and specifications for the repair or replacement of the shared sanitary 25D-16 579683.1 sewer (i) upon their fifty percent (50%) completion and (ii) upon their completion, but prior to the solicitation of bids for the repair or replacement work. The cost of repair or replacement of each shared sanitary sewer shall be apportioned to each Party according to flows as set forth on Exhibit `B," The total cost shall include both in-house and outside engineering, administration, and constriction expenses. Prior to starting the repair or replacement work, the initiating Party shall invoice the other Party for its apportioned estimated cost share. The other Party shall promptly deposit the invoiced amount with the initiating Party. The initiating Party shall keep these monies in a segregated fund and use them only for the project for which they were deposited. Upon completion of the work and payment of all costs, the initiating Party shall submit a report setting forth all costs incurred together with either an invoice, or a refund for the difference between the actual apportioned cost and the deposit (and any related accumulated interest). All repair and replacement work shall be done in accordance with applicable laws, ordinances, charter provisions related to public work projects, and the applicable standards and specifications of the Party within whose jurisdiction the work is being performed. If, within 30 days after notification, the notified Party disagrees with the necessity for, or disagrees with the estimated cost of, the repair or replacement, it shall so notify the other Party in writing. If the parties are unable to agree upon the need for or cost of the repair or replacement, the Parties may pursue any other remedies authorized bytbis Agreement. This Subsection 1(c) shall apply to any replacement of a shared sewer line by a new shared sewer line of equal or lesser capacity. Section 2 of this Agreement shall apply to replacement of existing shared sewer lines by new sewer lines with a capacity greater than the capacity of the line being replaced and the construction of new shared sewer lines. (d) Compliance with Law. Each Party hereby agrees to operate and maintain the shared sanitary sewers within its jurisdiction and those sanitary sewers within its jurisdiction that directly or indirectly connect to shared sanitary sewers in the other Party's jurisdiction in accordance with all applicable federal and state laws and regulations, including, but not limited to, any waste discharge requirements ("WDRs") lawfully established by the State Water Resources Control Board and/or the Santa Ana Regional Water Quality Control Board, and each Party's respective Operation and Maintenance Plan when such plan is adopted (collectively, "Applicable Laws and Regulations"). 2. FUTURE SANITARY SEWERS. (a) Annual Determination of Sufficiency of Capacity in Shared Sewers. It is anticipated that future development in the tributary areas to the shared sanitary sewers may lead to a situation in which there is a need for additional capacity, as defined in Section 1, in some of the shared sanitary sewers. On or before October 1st of each year, each Party shall detennine whether the shared sanitary sewers within its jurisdiction have sufficient capacity, as defined in Section 1, to provide service without limiting connections for the next calendar year. Each Party shall bear their individual cost of performing the sufficiency of capacity determination 25D-17 579683.1 with respect to the sewers within their jurisdiction and will perform the determination by whatever means and methods they deem, appropriate. The results of such determinations must be shared with the other Party by October 1 st of each year when the results indicate that a shared sanitary sewer is near or over capacity as defined in Section 1. (b) Construction of New Shared Sanitary Sewer If a Party determines that any shared sanitary sewers within its jurisdiction will not have sufficient capacity to provide service without limiting connections for the next calendar year, then the Parties shall meet and determine within sixty (60) days the size acrd estimated cost of a new, larger sanitary sewer that will provide adequate capacity for ultimate planned development witivn the tributary areas. The Parties anticipate that such new, larger sanitary sewers will generally be designed and constructed as replacements for the then -existing shared sanitary sewers. Unless otherwise agreed by the Parties, the Party within whose jurisdiction the new sanitary sewer will be located shall be responsible for preparation of the plans and specifications for the new sanitary sewer. The Parties shall meet to review the plans and specifications (i) upon their fifty percent (50ofo) completion and (ii) upon their completion, but prior to the solicitation of bids for construction of new sanitary sewer. The cost of the new sanitary sewer, including in-house and outside engineering, administrative, and construction, shall be apportioned between the parties in the proportions set forth on Exhibit "B." The construction of the new line shall be scheduled to start by the mutual agreement of the parties, but in no event shall it be undertaken prior to the next July 1st so that both parties may budget for the required funds, unless earlier construction is required due to an irmnediate threat to public health and welfare or unless theparties mutually agree to earlier commencement of construction. Prior to commencing construction, the Party within whose jurisdiction the new sanitary sewer will be located shall invoice the other Party for its apportioned share of the estimated total cost. The other Party shall promptly deposit the invoiced amount with the initiating Party. The initiating Party shall keep these monies in a segregated fund and use them only for the project for which they were deposited. Upon completion of the work, and payment of all costs, the initiating Party shall submit a report setting forth all costs incurred together with either an invoice, or a refund, for the difference between the actual apportioned cost and the deposit (and any related accumulated interest). (c) Withdraw of Tributary Areas in Lieu of Contribution to Cost of New Shared Sewer. In lieu of contributing to the cost of a new, larger shared sanitary sewer, a Party may elect to withdraw the areas within its jurisdiction tributary to the shared sanitary sewer fiom coverage under this Agreement and construct alternative connections of the sanitary sewerage facilities in such tributary areas, provided that the Party provides notice to the other Party of its intention to withdraw such tributary areas and construct alternative corrections and/or facilities prior to the award of a contract by the other Party for design of the new shared sanitary sewer. The failure to provide such notice prior to the award of the design contract shall constitute a waiver of the right to elect to withdraw. A Party that makes such an election to withdraw shall, as of eighteen (18) months r 57968).1 following the date of the election be deemed to have relinquished all capacity rights in, and rights to discharge to both the relevant existing shared sanitary sewer, to the extent such sewer remains in existence fotlowing construction of the new larger sanitary sewer, and any new supplemental or enlarged replacement sanitary sewer constructed by the other Party. The withdrawing Party shall commence construction of the alternate connections of the sanitary sewerage facilities and/or new facilities in affected tributary areas within a reasonable time after notifying the other Party of its election and, in the absence of a mutual agreement of the Parties providing otherwise, shall ensure that the alternate connections and/or facilities are constricted and in operation, and that the area served by the shared sewer no longer discharges into the shared sanitary sewer, no more than eighteen (18) months after notifying the other Party of its election. Such Party shall make a good faith effort to coordinate construction of its alternate sanitary sewer connections and/or facilities with the other Party's construction of the new sanitary sewer. (d) Options in Event of Party's Failure to Fund Apportioned Share of New Shared Sewer. If one of the Parties does not finance or fund its apportioned share of the new sanitary sewer or for any other reason declines to participate, then, unless such Party withdraws and constructs alternate connections as provided in Section 2(c), above, the other Party, at its sole option, may take any of the following actions: (i) Proceed to construct with its own funds a new supplemental sanitary sewer with capacity only for the tributary area or a portion thereof within its jurisdiction. If this option is exercised, then the non -participating Party shall have no capacity rights in the new supplemental sewer and, with respect to the existing shared sanitary sewer, shall immediately cease issuance of sewer connection permits and permits for additional fixtures in, and/or square footage additions to, existing buildings as provided for in Section I(a). Such cessation of issuance of permits shall remain in effect until the non -participating Party constructs alternate sewer facilities with capacity for added flows from its tributary area or diverts the added flows to non - shared sanitary sewers. The non -participating party shall be solely responsible for all maintenance, repair; abandonment and enforcement costs of the existing shared sanitary sewer following the construction of the supplemental sanitary sewer until it constructs alternate sewer facilities or diverts all of its flows to non -shared sanitary sewers; (ii) Proceed to construct with its own funds anew, larger sanitary sewer with capacity for the tributary areas in the jurisdictions of both parties and recover from the non- participating Party that Party's proportionate share of all necessary and appropriate costs as determined after completion of construction, through mutual co-op agreement of the Parties ; and/or (iii) Pursue any remedy authorized in law, in equity, or by this Agreement. (e) Treatment of New Shared Sanitary Sewers and Amendment of Exhibits Upon completion of construction, ,new shared sanitary sewers shall be treated by the Parties in the same manner as existing shared sanitary sewers. The Parties shall, in good faith, negotiate an amendment to Exhibits A and B upon completion of each new shared sanitary sewer in order to 25D-19 579681.1 1 maintain an accurate record of the shared sanitary sewers and the appropriate unit flow factors and proportionate flows. 3. ARBITRATION. If the parties are unable to agree on the necessity, cost, or apportionment of cost of repair, replacement, or construction of shared sanitary sewers, upon mutual agreement of the parties, the matter may be submitted to arbitration pursuant to California Code of Civil Procedure, Part 3, Title 9, Sections 1280 et seq. If the parties do not mutually agree to arbitration, either Party may pursue all remedies available to it under law, including the initiation of legal proceedings to determine each Party's rights and obligations. 4. ENFORCEMENT OF DISCHARGE REGULATIONS (a) Primary Enforcement Responsibility. Each Party agrees to keep in force and effect ordinances, regulations, and/or procedures regulating discharges of materials and substances into the sanitary sewers within its jurisdiction (collectively, "Discharge Regulations"), which are required by, and comply with, all Applicable Laws and Regulations. Each Party shall have primary responsibility for enforcing its own Discharge Regulations. For purposes of this Agreement, the term "enforcement" shall include monitoring, inspection, sampling, investigation of past and potential discharge violations, issuance of administrative orders and compliance schedules, recovery of administrative and civil penalties, obtaining injunctive relief to ensure compliance with applicable Discharge Regulations, and any other actions taken to ensure compliance with applicable Discharge Regulations. Nothing herein shall be construed to limit the ability of either Party to enforce its own Discharge Regulations or the terms and conditions of any sewer connection or discharge permits issued by such Party. (b) Cooperation in Enforcement. (i) Either Party may request to participate with or accompany inspections being conducted within the areas tributary to the shared sanitary sewers that are outside of the requesting Party's jurisdiction, and the inspecting Party shall reasonably accommodate all such requests. (ii) The Parties agree to cooperate in exchanging reports, correspondence and other information relating to the discharges in the service areas within their respective jurisdictions which are tributary to the shared sanitary sewers, including data on all point sources relating to discharge quality, and information produced as a result of monitoring; inspection and enforcement. It is the intent of the parties that, except in an emergency as set forth in Section 3(b) (iii), if either Party determines that enforcement actions or additional enforcement actions are or may be needed with respect to a discharge originating within the other Party's jurisdiction, the Party so determining shall notify the other Party, and the Parties shall meet and confer in order to determine the appropriate enforcement actions to be taken and the roles of the Parties. 25D-20 579683.1 6 In the event of a bona fide emergency, any affected Party may proceed with enforcement measures it reasonably deems necessary to protect the shared sanitary sewers within its jurisdiction, but such Party shall notify the other Party of such action as soon thereafter as possible. (iv) Either Party, upon becoming aware through its monitoring or inspection or by information received from a discharger or a third party, of any discharge originating within any area within its jurisdiction that is tributary to a shared sanitary sewer within the other Party's jurisdiction, which presents an imminent danger to the public health, safety or welfare, or the environment, or which threatens to interfere with the operation of the other Patty's sewerage system, shall immediately notify the other Party of such discharge. Each Party shall also immediately inform the other Party of any discharger within such tributary areas which has been determined by such Party to be in non-compliance with the terms of its discharge permit or such Party's Discharge Regulations and of what enforcement action is proposed to be taken by such determining Party. (c) City Delegation of Secondary Enforcement Authority to District (i) Delegation of City's Enforcement Authority to District. To the extent permitted by law, City hereby delegates to District, the limited authority necessary, within the scope of this Agreement, to enforce City's Discharge Regulations and the terms and conditions of any sewer connection or discharge permits applicable in the service areas within the City's jurisdiction which are tributary to the shared sanitary sewers located within District's jurisdiction. (ii) Secondary Enforcement by District. Within those portions of City's service areas that are tributary to shared sanitary sewers located within the District's jurisdiction, if the District makes a detennination that enforcement or additional enforcement is necessary in a particular instance, and if the City has not initiated the enforcement or additional enforcement, the District shall be entitled to proceed independently to pursue enforcement as it deems appropriate; provided that the District has first requested that the City respond with the appropriate enforcement and the City has failed to respond within a period of time that is reasonable (based on the urgency of the circumstances). Except in an emergency, if the District determines to take independent actions pursuant to this paragraph, it shall first notify the City as soon as possible, but not less than twenty-four (24) hours in advance of the intended enforcement action. Such notice may be given in writing or by telephone or by electronic communication or facsimile, confirmed in writing. (d) District Delegation of Secondary Enforcement Authority to City. (i) Delegation of District's Enforcement Authority to City. To the extent permitted by law, District hereby delegates to City, the limited authority necessary, within the scope of this Agreement, to enforce District's Discharge Regulations and the terns and conditions of any sewer comiection or discharge permits applicable in the service 25D-21 579683.1 areas within the District's jurisdiction which are tributary to the shared sanitary sewers located within City's jurisdiction. (ii) Secondary Enforcement by City. Within those portions of District's service areas that are tributary to shared sanitary sewers located within the City's jurisdiction, if the City makes a determination that enforcement or additional enforcement is necessary in a particular instance, and if the District has not initiated the enforcement or additional enforcement, the City shall be entitled to proceed independently to pursue enforcement as it deems appropriate; provided that the City has first requested that the District respond with the appropriate enforcement and the District has failed to respond within a period of time that is reasonable (based on the urgency of the circumstances). Except in an emergency, if the City determines to take independent actions pursuant to this paragraph, it shall first notify the District as soon as possible, but not less than twenty-four (24) hours in advance of the intended enforcement action. Such notice may be given in writing or by telephone or by electronic communication or facsimile, confirmed in writing. (e) Nothing herein is intended to relieve either Party from any responsibility it may otherwise legally have for enforcement within its own jurisdiction or make the Parties jointly responsible therefore. 5. REMEDIES. In addition to any other remedies provided elsewhere in this Agreement and by law, the parties shall be entitled to specific performance. The parties acknowledge that monetary damages are not an adequate remedy in the event of a breach by either Party to this Agreement with respect to the obligations to construct or repair facilities and to discontinue wastewater discharges to affected sewers. The Parties agree that the construction, repair or discontinuance obligations shall be specifically enforceable by any court of competent jurisdiction. 6. INDEMNIFICATION. Each Party shall defend, indemnify and hold harmless the other Party and each of its officers, directors, council members, employees, agents and representatives against and from any and all actions, claims, damages to persons or property, fines, fees, penalties, obligations or liabilities, including attorney's fees, that may be asserted or claimed by a person, firm, corporation political subdivision, governmental agency, or other organization, arising out of, resulting from, or in connection with (i) the negligence or willful misconduct of itself, its officers, agents, employees, or representatives in the performance of this Agreement, and (ii) any wastewater discharge from a sanitary sewer operated by, or on behalf of, itself, into ashared sanitary sewer within the jurisdiction of the other Party. TERM AND TERMINATION. The term of this Agreement shall commence upon approval and execution of this document by both parties and shall expire on June 30, 2067. This Agreement may be terminated by written notice to the other party at least 18 months in advance. The party electing to terminate agreement 25D-22 579693.1 must ensure that all of its respective sewage flows are diverted into a separate conveyance infrastructure. S. AMENDMENT. (a) This Agreement may be amended by the written agreement of both parties. (b) Each Party shall promptly notify the other Party of, and the Parties shall endeavor to appropriately amend Exhibits "A" and/or `B" to this Agreement within a reasonable time following, (i) the withdrawal and disconnection of tributary areas from any shared sewers, (ii) any changes in the land use designation of an area tributary to a shared sanitary sewer, (iii) changes in other unit flow factors utilized in calculating the Party's respective proportionate flows and cost sharing percentages, or (iv) construction of new shared sanitary sewers. 9. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall conclusively be deemed to have been given upon the date it is (i) enclosed in a sealed envelope addressed to the Party to whom it is intended, and deposited in the United States Mail with adequate postage; (ii) delivered to the office of the intended Party; or (iii) sent through other commercially reasonable means, such as overnight delivery by a reputable courier company. The addresses of the respective parties for all notices shall be: CITY: City of Santa Ana Attention: City Clerk 20 Civic Center Plaza, M-30 Santa Ana, CA 92701 City of Santa Ana Attn: Director of Public Works 20 Civic Center Plaza, M-21 Santa Ana, CA 92701 DISTRICT: Garden Grove Sanitary District Attn.: General Manager P. O. Box 3070 Garden Grove, CA 92842 Any Party may, by written notice to the others, designate a different address, which shall be substituted for that specified above. 10. SEVERABILITY. If any tern, provision, covenant, or condition set forth in this Agreement is held by the final judgment of a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions, covenants, and conditions shall continue in full force and effect to the extent that the basic intent of the Parties as expressed Herein can be accomplished. In addition, in such event the Parties sball cooperate in good faith in an effort to amend or modify this Agreement in a mariner 25D-23 3796834 such that the purpose of the invalidated or voided provision, covenant, and condition can be accomplished to the maximum extent legally permissible; provided, however, that in no event shall either Party be required to agree to an amendment or modification of this Agreement that materially adversely impacts its rights or materially increases its obligations or risks as set forth herein. 11. WAIVER. No waiver of any right or remedy by a Party with respect to any occurrence or event under this Agreement shall constitute a continuing waiver or be deemed a waiver of any right or remedy in respect to any other or subsequent occurrence or event. 12. ENTIRE AGREEMENT. This Agreement (including the Exhibits hereto) constitutes the entire understanding and agreement of the Parties and supersedes all previous negotiations, discussions and agreements between the Parties relative to the joint use of sanitary sewers. 13. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument. 14. RECITALS. The Recitals above are hereby incorporated into this section as though fully set forth herein and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 25D-24 579683.1 10 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized officers as of the date first set forth above. "DISTRICT" GARDEN GROVE SANITARY DISTRICT ATTEST: 0 Board Secretary APPROVED AS TO FORM: District Counsel ATTEST: m City Clerk APPROVED AS TO FORM: SONIA R. CARVALHO, CI"TY ATTORNEY BY JO& Funk Assistant City Attorney 579083,1 General Manager "CITY" CITY OF SANTA ANA in 25D-25 11 City Manager EXHIBIT "A" MAP OF SHARED SANITARY SEWERS AND TRIBUTARY AREAS 25D-26 579689.1 Exhibit Ad: Overview - City of Santa Ana and Garden Grove Sanitation District Shared Sewer System 25D-27 Legend •... .Santa Ana City Limit — Shared SewerTributary Boundary — Shared GGSD Sewers — Santa Ana Sewers OCSD Trunks Exhibit A-2: Detail -City of Santa Ana and Ga rden Grove Sanitation District Shared Sewer System 25D-28 Exhibit A-3: Detail- City of Santa Ana and Garden Grove Sanitation District Shared Sewer System 25D-29 Legend ••^ Santa Ana City Limit �^ Shared Sewer Tributary Boundary Shared GGSD Sewers ® Santa Ana Sewers. ^^ OCSD Trunks F-- Co�o,u rzmza�« Exhibit A4: Detail • City of Santa Ana and Garden Grove Sanitation District Shared Sewer System 25D-30 EXHIBIT `B" UNIT FLOW FACTORS AND PROPORTIONATE FLOWS 25D-31 5'7FG$7.l Exhibit B: Wastewater Flow Split Percentages between Jurisdictions Marty-Lewis west to city Boundary 8" District 60% 40% Marty-City Bound a ry west to Lai rd $" City 60% 40% Laramore- City Boundaryto Laird 8" City 44% 56% Laird- City Boundary south to Laramore 8" Clty 65% 35% _ Laird-Laramore to Lori 8" City 49% 51% Laird - Lori to Marty 8" City 23% 779° Laird -Marty to Trask 8" City 53% 47% Trask -Laird to Fairview T 10" City 44% 56% Lori to Cotter 8" City 20°% 80% Co-_Fairview tter - Lori to Downie 8" City 20% 80% Downie - Fairview to Cotter 8" City 15% 85% Cotter-Downie to Marty $° City 22% 78% Marty- Cotter to Fairview 8" City 22% 78% Fairview-Marty to Trask $" City 34% 66% _ Westminster- Buena to Roxey 10" District 18% ^_ 82% Westminster -Roxey to Clinton 15" District 1B% 82% Clinton-. Keel to Westminster 8" District 95°% 5% Clinton - Keel to end of Clinton 8" District 83% 17% Green - Clinton/City Boundary to Holiday 10" City 80% 20% Washington- Holiday to Harbor 10"/12" City 18% 82% Westminster Clinton to Harper 15" City 235s 77% Westminster - Harper to Laurel 15" City 29% 71%: Westminster- Laurel to Enterprise 15" City 29% 71% Westminster- Enterprise to Nautilus 15" City 29% 71% Westminster- Nautilus to east Of Harbor 15" City 29% 719° Westminster- East of Harbor to Harbor 15" City 30% 70% Harbor- Westminster to Century 15" City 0% 100% Harbor- Centuryto Washington 15" City 0% 100% Harbor-Washington to Hazard 15" City 9% 91% Harbor-Hazard to Sth 15" City 6:% 94% Harbor-5th to lst 15." City 5% 9591. Westminster - Harborto West. 15" City 30%. 70% Westminster-Westto Newhope 15" City 30% 70% Westminster- East of Newhope to Newhope 10" City 47% 53% Westminster- Newhope west to City Boundary 10" City 77%. 23% Westminster- City Boundary to Parsons 10" District 77% 23% Westminster- Parsons west to City Boundary 10" District 789, 22% Westminster- City Boundary to Rosita 10" City 83% 17% Westminster - Rosita to La Bonita 10" City 83°% 1790 Westminster- La Bonita to Anita 10" City 83% 17% Westminster -Anita to Euclid 12" City 959, 5% Westminster -La Bonita to Euclid 8" City 0% 10090 Euclid -Westminster to 36th 15" City 0% 100% 25D-32 25D-33 25D-34