HomeMy WebLinkAbout12 MAIN ST. WELL #4 10-21-96AGENDA.
DATE:
OCTOBER 21, 1996
Inter-Com
NO. 12
10-21-96
TO:
FROM:
SUBJECT:
WILL~ A HUSTON, CITY MANAGER
PUBLIC WORKS DEPARTMENT/WATER SEKVICES DIVISION
AGREEMENT FOR CONSTRUCTION AND FINANCING OF MAIN STREET WELL
#4 THROUGH CITY PARTICIPATION IN THE ORANGE COUNTY WATER
DISTRICT CONJUNCIIVE USE WELL CONSTRUCTION PROGRAM
RECOMMENDATION
That the City Council, at its meeting of October 21, 1996, authorize the Mayor to execute an~ agreement with Orange
County Water District for the construction and financing of Main Street Well
FISCAL IMPACT
Funding in the amount of $1,303,800 is currently budgeted for this project in the Water Division Capital Improvement
Fund. If the City were to participate in the Conjunctive Use Program, as it did for the Vandenberg Well, its repayment
obligation for the eligible amount of $1,000,000 over a 20 year period at 3.5% interest would result in an annual
payment of $70,400. The City would also have the option of paying off the loan at any time.
BACKGROUND
The Orange County Water District (OCWD) has adopted a financial plan designed to hdp its groundwater producers
increase thdr pumping capacity. The plan is intended to assist agencies such as Tustin in taking advantage of the
Metropolitan Water District (MWD) Seasonal Storage Program, a water pricing program designed to reduce reliance
on imported water during the summer months and reduce peaking on the MWD system.
DISCUSSION
Under this agreement, the City is responsible for the preparation of the design and the construction of the subsurface
well facilities, as well as the wellhead and appurtenant facilities with review and approval by OCWD. The costs of
these activities will be reimbursed by OCWD up to the maximum loan amount of $1,000,000.
The project will be constructed in two phases. First, a construction comract will be issued for drilling of the well.
Once the drilling is complete and acquifer test results have been obtainedj the pumping facilities will be designed and
constructed. The Water Division will periodically invoice OCWD as costs accrue, up to the maximum loan amount.
Agreement for Construction and Financing of Main Street Well No. 4 through City Participation in the Orange County
Water District Conjunctive Use Well Construction Program
October 21, 1996
Page 2
Once the well is completed, it will replace the water supply lost due to the casing failure at Main Street Well No. 2, and
will provide a more reliable, less expensive supply than could alternately be purchased from the Metropolitan Water
District of Southern California.
Director of Public Works/City Engineer
TDS~V:~~ for c~t & fin Main ~ Wdl//4
Water Services Manager
ORANGE COUNTY WATER DISTRICT
WELL CONSTRUCTION PROGRAM AGREEMENT
THIS AGREEMENT is entered into as of by and between the
ORANGE COUNTY WATER DISTRICT, a sp~ial govemmental district organized and
existing pursuant to the Orange County Water~District Act, Chapter 924, Statutes of
1933, as amended (hereinafter "OCWD"), and the CITY OF TUSTIN, organized and
existing pursuant to the laws of the State of California (hereinafter referred to as
"PRODUCER"),
RECITALS
A. OCWD is.cooperating with qualifying groundwater producers within the
boundaries-of OCWD in a Conjunctive Use Well Construction Program (hereinafter, the
"Program") in order to maximize participation by groundwater producers within the
OCWD boundaries in the Seasonal Storage Program adopted by the Metropolitan Water
District of Southern California (hereinafter, "MWD"). The goals of the Program are to
increase each qualifying groundwater producer's pumping capabilities such that the
OCWD basin would be capable of adequately sustaining water deliveries during drought
and other emergency conditions, and to increase the extraction capacity from the
groundwater basin to allow optimum participation in the MWD Seasonal Storage
Program.
B. PRODUCER owns and operates a water distribution system (hereinafter,
its "Water System") for the purpose of delivering potable water to the customers in its
service area which is within the boundaries of OCWD. The water delivered and sold by
PRODUCER includes groundwater produced from the OCWD groundwater basin and
imported water delivered by MWD.
C. PRODUCER desires that a new proposed groundwater production well,
designated as the "Main Street Well No. 4" (hereinafter known as the "Well Facilities"),
to be constructed in the City of Tustin, be included in the Program. A depiction of the
proposed Well Facilities is contained in Exhibit "A", attached to this Agreement and
incorporated herein by this reference.
D. This Agreement is a joint effort' by PRODUCER and OCWD to improve~
water supply facilities. In order to increase the pumping capacity to both optimize
participation in the MWD Seasonal Storage Program and sustain adequate water
deliveries during drought and emergency conditions, OCWD and PRODUCER desire to
enter into this Agreement for the acquisition, construction, installation and operation of
the Well Facilities.
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EXECUTORY AGREEMENTS
NOW, THEREFORE, in consideration of the facts recited above and the
covenants, conditions and promises contained herein,' the parties hereto hereby agree as
follows:
_
SECTION ONE:
DESIGN OF WELL FACILITIES
1.1 PRODUCER shall prepare, or cause to be prepared, the design plans and
specifications (hereinafter, . the "Design") for the construction of the Well Facilities.
1.2 In the Design for the Well Facilities, PRODUCER shall require the
construction contractor to collect representative lithologic samples at ten-foot (10')
intervals and at changes in formation type and prepare a lithologic log and a log of the
well borehole using resistivity, spontaneous potential, and .natural gamma geophysical
methods to assess subsurface conditions and to determine final well design and
construction. The cost of this well logging shall be included in the Total Well Cost
Statement set forth in Section 2.7 below.
1.3 Upon completion of Design, PRODUCER shall furnish to OCWD a copy
of the Design for the Well Facilities as well as a preliminary cost estimate of the
installation (hereinafter, the "Engineer's Cost Estimate"). Either OCWD or PRODUCER
may terminate this Agreement within thirty (30) days of the date of receipt by OCWD of
the Design and Engineer's Cost Estimate for the Well Facilities if OCWD or
PRODUCER determines, in its sole discretion, either that the Engineer's Cost Estimate
renders the Well Facilities infeasible, or that the Design is unacceptable. Such
determination of infeasibility and/or Design unacceptability shall b-e transmitted to the
other party in writing within thirty (30) days of the date of the receipt by OCWD from
PRODUCER of the Design and Engineer's Cost Estimate. The Design and Engineer's
Cost Estimate shall be deemed approved if neither OCWD nor PRODUCER transmits
written notice of termination within such thirty (30) day period.
1.4 Notwithstanding Paragraph 1.2 above and Paragraph 2.5 and Section
Three below, PRODUCER shall be responsible for, and shall reimburse to OCWD, all
costs incurred in the preparation of the Design for the Well Facilities in the event that this
Agreement is terminated pursuant to Paragraph 1.3 above by written notice of
PRODUCER.
1.5 PRODUCER shall be responsible for complying with all requirements of
the California Environmental Quality Act (CEQA) in connection with the construction,
installation and operation of the Well Facilities.
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SECTION TWO:
CONSTRUCTION AND INSTALLATION OF
WELL FACILITIES
2.1 Within a reasonable period o'f time following approval pursuant to
Paragraph 1.3 above of the Design and Engineer's,Cost Estimate for the Well Facilities,
PRODUCER shall solicit bids, and award a conffact or contracts, for the construction of
the Well Facilities. In accordance with California Attorney General Opinion No. 86-803,
OCWD and PRODUCER acknowledge that the Well Facilities contemplated herein
constitute a public works project within the meaning of California Labor Code Section
1720, et seq. In connection with its construction of the Well Facilities, PRODUCER shall
comply with the requirements regarding payment of prevailing wages, and all of the other
requirements governing public works construction projects, set forth in Section 1720, et
seq., 1773.5, 1775, 1776, 1777.5 and 1810 ofthe California Labor Code.
2.2 PRODUCER shall be the lead agency and the contracting party for the
construction and installation of the Well Facilities.
2.2,1 PRODUCER shall be solely responsible'for the aw;arding and letting of all
contracts and agreements, .including change orders, for the acquisition,
construction and installation of the Well Facilities.
2.2.2 PRODUCER shall be solely responsible fOr obtaining all permits, licenses
and approvals, if any, necessary for the acquisition, construction and installation
of the Well Facilities.
2.2.3 PRODUCER shall use its best efforts both to cause the Well Facilities to
be constructed and installed in strict conformance with the approved Design, and
to cause the completion of the acquisition, construction and installation of the
Well Facilities on or before
2.3 PRODUCER shall provide OCWD reasonable access to the site of the
Well Facilities to observe construction of the Well Facilities. At least forty-eight (48)
hours prior to the commencement of geophysical logging of the well borehole as required
by Paragraph 1.2 above, PRODUCER shall provide written or telephonic notice to
OCWD of the intended commencement of such logging. Upon completion of such
logging, PRODUCER shall provide OCWD with a copy of all geophysical and lithologic
logs, and, prior to the installation of the well casing for the Well Facilities, PRODUCER
and OCWD shall jointly determine the final well design, including but not limited to the
depths at which the well casing will be perforated.
2.4 PRODUCER shall require each contractor involved in the construction or
installation of the Well Facilities t9 'provide general liabili~ insurance coverage in an
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amount not less than One Million Dollars ($1,000,000) per occurrence, naming OCWD
and PRODUCER, together with their respective officers, employees and representatives,
as additional insureds on each such policy. PRODUCER shall also require each such
contractor to furnish workers' compensation insurance. PRODUCER shall require each
such contractor to furnish certificates evidencing such general liability and workers'
compensation insurance to both OCWD and PI~ODUCER prior to commencing any
construction activities with respect to the Project Facilities.~
2.5 During the Design and/or construction of the Well Facilities, PRODUCER
shall submit to OCWD on a monthly basis the progress payment request(s) of the
contractor(s) and copies of invoices from consultants for. work performed in connection
with the Design, construction and installation of the Well Facilities, together with a
written recommendation of PRODUCER regarding whether such progress payment
requests and invoices should be paid. Within thirty (30) days of receipt of such progress
payment requests, invoices and recommendations, and upon determining that such
requests and invoices are appropriate for payment under this Agreement, OCWD shall
pay to PRODUCER such amounts as may be necessary to pay such progress payment
requests and invoices, and PRODUCER shall be responsible for the actual payment of
such amounts to such consultants and contractors. For purposes of this Agreement, costs
that are appropriate for payment by OCWD shall relate directly to the construction of'
Well Facilities, and shall include all costs paid to consultants and contractors, all permit
and engineering costs, and all other actual and. direct costs, incurred in the Design and
construction of the Well Facilities; but such costs shall exclude all costs incurred for land,
rights-of-way and legal services, all penalties, fines and judgments, and all costs
attributable to work or services performed by employees of PRODUCER.
Notwithstanding the foregoing, OCWD shall not be responsible for the payment of any
costs relating to the Design or construction of the Well Facilities in excess of One Million
Dollars ($1,000,000); and any and all costs relating to the Design or construction of the
Well Facilities in excess of One Million Dollars ($1,000,000) shall be borne by
PRODUCER.
2.6 For a period of three (3) years from and after the date of completion of
construction of the Well Facilities, PRODUCER shall maintain true and accurate records
and accounts Of all costs incurred in the Design, construction and installation of the Well
Facilities, including all costs paid to Design consultants and to contractors and suppliers
in connection with the construction and installation of the Well Facilities. OCWD shall
at all times have the right, upon reasonable notice to PRODUCER, to reView and audit all
such records and accounts.
2.7 Upon its acceptance of completion of construction and-installation of the Well
Facilities, PRODUCER shall file and record a notice of completion, and
transmit to OCWD written notice of the/:ompletion of the Well Facilities and
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their acceptance by PRODUCER (such notice is hereinafter referred to as the
"Well Facilities Completion Notice"), together with a certified statement of
the total costs paid by OCWD pursuant to Paragraph 2.5 above for the Design
and construction of the Well Facilities, including all costs paid to consultants
and contractors, all permit and engineering costs, and all other actual and
direct costs incurred by OCWD with~'spect to the Design and construction of
the Well Facilities, but excluding all costs incurred for land, rights-of-way and
legal services, and all costs attributable to work or services performed by
employees of PRODUCER (such statement of the amount of the total costs
paid by OCWD pursuant to Paragraph 2.5 above for the construction of the
Well Facilities is hereinafter referred to as the "Total Well Cost Statement").
The Total Well Cost Statement shall serve as the basis for the amounts to be
paid by PRODUCER to OCWD for the use by PRODUCER of the Well
Facilities and the possible purchase by PRODUCER from OCWD of the Well
Facilities pursuant to Section Three below.
SECTION THREE:
OPERATION AND PURCHASE OF THE
WELL FACILITIES
3.1 OCWD shall own' the Well Facilities; but PRODUCER shall purchase'the
Well Facilities from OCWD on an installment basis, and shall be'entitled to all water
produced from the Well Facilities. ..
3.2 PRODUCER shall comply with the following provisions regarding the
operation and maintenance of the Well Facilities:
3.2.1 PRODUCER shall be responsible for the operation and maintenance of the
Well Facilities from the date of the Well Facilities Completion Notice and
throughout the remainder of the term of this Agreement.
3.2.2 PRODUCER shall be responsible for obtaining any and all permits and
approvals required for the operation of the Well Facilities and the distribution of
water produced by the Well Facilities.
3.2.3 PRODUCER shall operate and maintain the Well Facilities in accordance
With the highest professional standards and generally accepted maintenance and
operation principles. PRODUCER further shall at all times provide personnel
sufficient in numbers and qualifications to operate and maintain the Well
.
Facilities.
3.2.4 OCWD shall have the right to enter upOn the site of the well facilities to'
exercise any and all of the remedies authorized.by Paragraph 3.6.2 below, together
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with reasonable rights of access from public thoroughfares to the site of the
installation of the Well Facilities. OCWD shall at all times during normal
business hours have the right to enter upon the site of the Well Facilities and
inspect or observe their use, operation and performance.
3.2.5 PRODUCER shall exercise due.~'are in the manner in which the Well
Facilities are used, operated and maintained, and shall comply fully with all laws,
ordinances and regulations relating to the possession, maintenance, use and
operation of the Well Facilities. PRODUCER shall, at its sole cost and expense,
keep the Well Facilities in good repair, condition and working order, and shall
furnish all tools, labor, equipment and parts reasonably required to keep the Well
Facilities in good working order, and shall see that the Well Facilities are not
subjected to careless or needlessly rough usage. In connection with its
maintenance of the Well Facilities, PRODUCER shall keep a log book showing,
among other things, the type of maintenance, repair or replacement' work
performed, the date, the cost, and the person or entity performing the work.
PRODUCER shall' not make any alterations, additions or improvements that
significantly affect the performance characteristics of the Well Facilities without'
the prior written approval of OCWD.
3.2.6 PRODUCER shall be responsible for all costs incurred in the operation
and maintenance of the Well .Facilities, including but not limited to labor,
materials and electrical energy (such costs are hereinafter referred to as the "Well
O & M Costs").
3.2.7 At all times during the term of this Agreement, PRODUCER shall take out
and maintain in effect comprehensive general liability insurance in an amount not
less than One Million Dollars ($1,000,000) per occurrence, for bodily .injury,
death and property damage in any way resulting from the operation or
maintenance of the Well Facilities, or the delivery or use of water produced from
the Well Facilities. PRODUCER shall name OCWD and its respective officers,
employees and representatives as additional insureds under such policy. Such
liability insurance coverage may be maintained as part of or in conjunction with
any other liability insurance carried by PRODUCER. A certificate of insurance
evidencing the liability insurance coverage and endorsements as required herein
shall be furnished to OCWD upon transmission of the Well Facilities Completion
Notice pursuant to Paragraph 2.7' above, and shall be maintained throughout the
term of this Agreement. PRODUCER shall provide written notice to OCWD of
any change in the status of PRODUCER'S insurance during the term of this
Agreement within thirty (30) days of the effective date of such change. In the
event that PRODUCER currently is self-insuring, or determines during the term
of this Agreement to self-insure, PRODUCER may self-insure for loss6s and
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liabilities relating to the performance of the Well Facilities by providing written
notice thereof to OCWD and maintaining reserves to cover such losses and
liabilities, in an amount not less than One Million Dollars ($1,000,000).
3.2.8 PRODUCER shall take out and maintain at all times during the term of
this Agreement property casualty insuran~ on the Well Facilities in an amount at
least equal to the amount set forth in the Total Well Cost Statement pursuant, to
Paragraph 2.7 above. Such insurance may be maintained as part of, or in
conjunction with, any other insurance carried by PRODUCER, and may be
subject to a reasonable deductible. Such property casualty insurance shall include
coverage against damage to or loss of the Well Facilities by reason of fire, smoke,
lighming, vandalism, malicious mischief and explosion.
·
3.3 For and in consideration of the purchase by PRODUCER of the Well
Facilities, and subject to the provisions of Paragraph 3.8 below, PRODUCER shall pay
OCWD installment payments for the Well Facilities with interest as shown on Exhibit
"B". The first installment shall consist of the interest at the rate of 3.5 percent per annum
on the funds advanced to PRODUCER'during the construction of the facilities. The
remaining equal annual installments shall amortize the final total Facilities cost as
certified per Section 2.7 over a 20-year period at 3.5 percent interest. The first
installment is due 75 days after the Notice of Completion has been filed for the Well
.Facility completed in accordance with Section 2.7, but in no.event later than seventy-five
(75) days following the activation of the well or cessation of work on the Well Facility,
whichever is sooner. The remaining installments shall be paid annually on or before
September 15~, beginning the year following payment of the first installment. Exhibit
"B" shall be prepared by OCWD no later than 60 days after the completion of the Well
Facilities and shall be provided immediately to PRODUCER for inclusion in the
agreement and for payment purposes. Ownership of the well shown on Exhibit "A" shall
be transferred to PRODUCER in accordance with the schedule set forth in Exhibit "B" as
payments are made.
3.4 The obligation of PRODUCER to make installment payments hereunder
when due is absolute and unconditional, and until such time as such installment payments
shall have been .paid in full (or provision far the payment thereof shall have been made
pursuant to Paragraph 3.8), PRODUCER shall not discontinue or suspend any such
installment payments when due, whether or not the Well Facilities or any part thereof is
operating or operable, or its. use is suspended, interfered with, reduced or curtailed or
terminated in whole or in part, and such payments shall not be subject to reduction
whether by offset or otherwise.
3.5 Each payment under the Well Facilities Agreement shall be paid in lawful
money of the United States to or upon the order of OCWD. Any such payment which
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shall not be paid when due shall bear interest at the rate of one percent (1%) per month
for each month or portion thereof that the payment remains delinquent, or the legal
maximum interest rate, whichever is lower.
3.6 ocWD's remedies in the event the , PRODUCER does not pay when due
any payment under Paragraph 3.3 hereinabove ar6:as follows:
(a)
By notice in writing to PRODUCER, declare the entire principal amount
of the unpaid installment payments and the accrued interest thereon to be
due and payable and upon any such declaration the same shall become
immediately due and payable, anything contained herein to the contrary'
notwithstanding; provided, however, that if at any time after the entire
principal amount of the unpaid installment payments and the accrued
interest thereon shall have been so declared due and payable and before
any judgment or decree for the payment of the moneys due shall have been
obtained or entered, PRODUCER shall deposit with OCWD a sum
sufficient to pay the unpaid principal amount of the installment
payments due prior to such dec!aration and the accrUed interest thereon,
with interest on SUch overdue installments as provided herein, and any and
all other defaults known to OCWD shall have been made good or cured to
the satisfaction of OCWD or provision deemed by OCWD to be adequate
shall have been made therefor, then and in every such 'case OCWD, bY
written notice to PRODUCER, may rescind and annul such declaration
and its consequences; but no such rescission and annulment shall extend to
or shall affect any subsequent default or shall impair or exhaust any fight
or power consequent thereon;
(b)
By any action, proceeding or suit, at law or in ~quity, to enforce its rights
against PRODUCER and to compel PRODUCER to carry out its duties
under the law and the agreements and coveffants, required to be performed
by it, him or her contained herein;
(c)
By suit in equity to enjoin any acts or things which are unlawful or Violate
the fights of OCWD;
(d)
Take possession of the Well Facilities and, at the sole discretion of
OCWD, either operate and maintain the Well Facilities for the benefit of
OCWD, or shut down the Well Facilities,~ terminate the intrOduction into
PRODUCER's Water System of groundwater produced from the Well
Facilities, and.remove the Well Facilities.
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No remedy herein conferred upon or reserved to OCWD is intended to be
exclusive and every such remedy shall be cumulative and shall be in addition to
every other remedy given to OCWD under this Agreement, or otherwise at law or
in equity. No delay or omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be construed to be a waiver
thereof, but any such right or power maS;"be exercised from time to time and as
often as may be deemed expedient by OCWD.
3.7 From the date of the Well Facilities Completion Notice pursuant to
Paragraph 2.7' and continuing during the remainder ,of the term of this Agreement,
PRODUCER shall assume all risk of loss and damage to the Well Facilities. In the event
of any such loss of or damage to the Well Facilities, PRODUCER 'shall, in a timely
manner, repair or replace Well Facilities and return it to operational status.. PRODUCER
shall not be obligated to put the well facility back into operational service if the
consensus of PRODUCER and' OCWD is that it is not financially or physically feasible to
do so. No loss of or damage to the Well Facilities shall impair any obligation of
PRODUCER under this Agreement, which shall continue in full force and effect.
'3.8 PRODUCER may exercise the option to acquire all of OCWD's interest in,
and purchase, the Well Facilities at any time prior to or at the conclusion of the term of
this Agreement, provided that PRODUCER is not in default under any of the terms or
conditions of this Agreement. The option price shall be the principal amount of the
remaining installment payments together with interest accrued from the date of the last
installment payment, as shown on Exhibit "B", to such date. Upon full payment of such
amount to OCWD by PRODUCER, PRODUCER shall be vested with all fight, title and
interest in and to the Well Facilities, this Agreement shall be deemed terminated, and
OCWD shall execute and tender to PRODUCER any instrument reasonably requested by
PRODUCER to document the transfer of title to the Well Facilities from OCWD to
PRODUCER.
3.9 This paragraph 3.9 is included for the purpose of maintaining the Tax Exempt
Status of OCWD's obligations that were the source of funds for the Well Facilities. The
covenants contained in this Paragraph 3.9 shall' survive the discharge of PRODUCER's
obligation pursuant to this Agreement and shall continue in full force and effect until
OCWD's obligations that were the source of the funds for the Well Facilities subject to
this Agreement are no longer outstanding for purposes of Federal income taxation.
pRODUCER hereby covenants that; notwithstanding any other provision of this
Agreement, it shall not intentionally or knowledgeably do any of the following:
(a)
PRODUCER shall not take any action or omit to take any action with
respect to the Well Facilities'or the funds t6 be used to finance the Well
Facilities, which action or omission, if reasonably expected on the date of
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initial delivery of any obligations of OCWD would result in a loss of
exclusion from gross income for purposes of Federal income taxation of
interest on such obligations under section 103(a) of the Internal Revenue
Code of 1986 (hereinafter, the "Code");
(b)
.,
PRODUCER shall not use any fur/tls provided by OCWD to acquire
"investment property," as defined in section 148 of the Code, nor shall
PRODUCER permit the use 'of any such funds or the Well Facilities
financed with such funds or take any action or fail to take any action,
which use, action or omission would cause OCWD's obligations that were
the source of such funds to be "arbitrage bonds" as defined in section 148
of the Code;
(c)
PRODUCER shall not use or permit the use of the Well Facilities by any
person or entity in such a manner or to such an extent as would result in
either private business use or private loans under sections 141 (b) (6) or
141 (c) of the Code, respectively, unless PRODUCER receives prior
written approval from OCWD, which prior approval shall be granted in the
sole discretion of OCWD;
(d)
PRODUCER shall not use the moneys received from OCWD. in a manner
that would cause OCWD's obligations that were the source of such funds
to be considered "federally guaranteed" as that term is defined in section
149 of the Code; and
(e)
Neither PRODUCER nor any related entity shall purchase, pursuant to any
arrangement, formal or informal, OCWD obligations that were the source.
of the funds used in whole or in part to finance the Well Facilities in an
amount related to the purchase price of the Well Facilities as described in
Section Three of this Agreement.
3.10 Notwithstanding any other provision of this Agreement, OCWD and
PRODUCER understand and agree that all amounts payable by PRODUCER to OCWD
under this Agreement shall be paid only from revenues received by PRODUCER from
PRODUCER's water system, and shall not in any way be construed to be a debt 0f-
PRODUCER in contravention of any applicable constitutional or statutory limitation or
requirement concerning the creatiOn of indebtedness by PRODUCER, the. State of
California, or any political subdivision thereof; nor shall anything contained in this
Agreement constitute a pledge of general revenues, funds or moneys of PRODUCER or
an obligation of PRODUCER for which PRODUCER is obligated to levy or pledge any
form of taxation or for which PRODUCER has levied or pledged any form of taxation.
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PRODUCER shall fix, prescribe and collect rates and charges for the water
system which will be at least sufficient to yield during each fiscal year water system
revenues sufficient to pay the installment payments due hereunder.
SECTION FOUR: MISCELLANEOUS
4.1 Notices: Any notice, instmme~t' payment or document required to be
given or delivered under this Agreement shall be given or delivered by personal delivery
or by depositing the same in a United States mail depository, first class postage prepaid,
registered or certified, and addressed as follows:
If to OCWD:
Orange County Water District
10500 Ellis Avenue
Post Office Box 8300
Fountain'Valley, California 92728-2300
Attention: General Manager
If to PRODUCER:
City of Tustin
300 Centennial Way
Tustin, California 92680
ATTENTION: Water Service Manager
..
or such other address as either party may direct in writing to the other.
4.2 Hold Harmless: Neither, PRODUCER nor OCWD shall be liable for the
acts or omissions of the other. PRODUCER and OCWD shall each protect, defend,
indemnify and hold the other and its respective officers and emploYees harmless from and
against any and all claims, actions, expenses, liabilities and losses incurred by one of the
parties hereto as a result of any property damage or personal injury, including death
suffered or allegedly suffered by any person, and caused by any wrongful act or omisSion.
of the other party.
4.3 Term: Except for those obligations contained in paragraph 3.9, the term of
this Agreement shall terminate upon the earlier of the following events:
(a)
The exercise by PRODUCER of its option to acquire the interest of
OCWD in the Well Facilities pursuant to the provisions of Paragraph 3.8
above;' or
(b)
The payment by PRODUCER of all payments as required in the "Payment
Schedule" included in Exhibit "A" hereto. Upon such payment to OCWD
by PRODUCER, PRODUCER shall be vested with all right, title and
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interest in and to the Well Facilities, this Agreement shall be deemed
terminated, and OCWD shall execute and tender to PRODUCER any
instrument reasonably requested by PRODUCER to document the transfer
of title to the'Well Facilities from OCWD to PRODUCER.
· 4.4 No Waiver of Breach: No failur'e~to exercise or delay in exercising any
right, power or remedy accruing to either party on any breach or default of the other
hereunder shall impair any such right, power or remedy, or be construed as a waiver of
any such breach or default, and no waiver of any single breach or default shall be
.construed as a waiver of any other breach or default theretofore or thereafter occurring.
4.5 Partial Invalidity: If any one or more of the agreements or covenants or
portions thereof required hereby to be performed by or on the part of PRODUCER or
OCWD shall be contrary to law, then such agreement or agreements, such covenant or
covenants or such portions thereof shall be null and void and shall be deemed separable
from the remaining agreements and covenants or portions thereof and shall in no way
affect the validity hereof. PRODUCER and OCWD declare that they would have
executed this Agreement, and each and every other article, section, paragraph,
subdivision, sentence, clause and phrase hereof, irrespective of the fact that any one or
more articles, sections, paragraphs, subdivisions, sentences, clauses or phrases hereof or
the application thereof to any person or circumstances may be held to be unconstitutional,
unenforceable or invalid.
4.6 Execution in Counterparts: This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which shall constitute
but one and the same instrument.
4.7 Amendments Permitted: This Agreement and the rights and obligations of
PRODUCER and OCWD may be modified or amended at any time by an amendment
hereto which shall become .binding with the written cOnsents of the parties hereto, No
such modification or amendment shall extend the payment dates, or reduce the rate of
interest represented thereby, or extend the time of payment of interest, or reduce the
amount of principal represented thereby, or reduce any premium payable on the
prepayment thereof.
4.8 Integration and Construction: This Agreement represents the. entire
understanding of OCWD and PRODUCER as to those matters contained herein. No prior
oral or written understanding shall be of any force or effect with respect to those matters
covered by .this Agreement. This Agreement shall be· construed and governed in
accordance, with the laws of the' State of California, and shall be construed as if drafted by
both OCWD and PRODUCER,
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09/30/96 OCWD Main Street Well #4 Agreement.doc
.4.9 Successors and Assigns: Neither this Agreement nor any of the fights or
obligations hereunder shall be assigned or conveyed by PRODUCER without the prior
written consent of OCWD; and this Agreement and any rights hereunder may be assigned
by OCWD, in whole or in part, without the necessity of obtaining the prior consent of
PRODUCER. Subject to the foregoing, all of the t.~rms, conditions and provisions of this
Agreement shall inure to the benefit of, and be .b'fnding upon, OCWD, PRODUCER and
their respective successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
first written above.
APPROVED AS TO FORM:
ORANGE COUNTY WATER DISTRICT
By
General Counsel, Orange
County Water District
'By
President.
APPROVED AS TO FORM:
By _[~.,~{~ ',U/(~ ]~'i,4M.,,
By
General Manager
CITY OF TUSTIN
By
Mayor
Attest By:
City Clerk
13 of 13
09/30/96 OCWD Main Street Well #4 Agreement.doc
o~
THIRD STREET
BOOSTER ..' ~
PUMP STATION
N.T.S.
ASL Consulting Engineers
WELLHEAD FACILITY ~
CHLORINATION
STATION
ALTERNA'~VE ~
WELLHEAD FACILITY
EXHIBIT A
September, 1996
~//////
/
/ PROPERTY NOT OWNED
· ~'.',~,, ~ c<,~'.. ,;~,~ ~-.~ ///////////////////////////////~ ]
~ ~ ~ .~, .~ . , ~ ~ . ~ ~.- ,> .~;:~';,'~'~-~;,~ .
,,~ .... ~,. ,;~,........., ?:.~,,.
I
; :. :: .:: .,':'," .",7': .... .:.~?' ..;?~: ":~: .:.>~ "' ~"~' '.~ ~ 3].:"~.;~7:.' :3"': '
. ,,.~..:~ ..... , ...... ,.~ ..... ..,:......~.:.: :......, ..... ,.,..,. .:,.... .... , .....
' : ~ ~ ~/ ~ 4 /' '1 I I I
~- J : k~ X I ADMINIS~A~ON BUILDING I FIELD g~CE~'BUI~ING J'~/~¢'g"';;~[ I · , , I
I
. . · ~ ~-.~*~.- . ~
': : ' ~ ' ' · · ,' . ','~'L ;/" , ---
. ~~_~:_ _~ .... ~:_ _ ~ ........ ~¢~ ~ ~ _: ~~ / :
...........,..........~ :.::.:: -':::.:.:=.-"-' . :::..=-..-=...: ........ ,.,...=.?. ...=.~ . ...... .:.....=.........,..;~,; ....... =.=...:h=...~ ....... .. ..... .......==..,,.........,,:,,..~=:.:.~:..: .. :~:~::?~. ~.. . :,. ... ~ . . ~, ,...
........................ ."::~. MA N o ~ I , .. '~} .....
EXHIBIT "B"
LOAN AMORTIZATION SCHEDULE
Construction Cost:
Loan Amount:
Interest Rate:
Annual Payment:
Initial Payment:
Begin Payment:
Fully Amortized By:
(3.5% Annually)
CITY OF TUS .TfN
$1,ooo,ooo.oo
$1,000~000.00
3.50%
$70,361.08
$35,0O0.00
Installments
Payment
Date
Balance Principal Interest
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
·
18
19
20
$1,000,000.00 $35,361.08 $35,000.00
$964,638.92 $36,598.71 $33,762.36
$928,040.21 $37,879.67 $32,481.41
$890,160.54 $39,205.46 $31,155.62
$850,955.08 $40,577.65 $29,783.43
$ 810,377.43 $41,997.87 $28,363.21
$768,379.57 $43,467.79 $26,893.28
$724,911.77 $44,989.16 $25,371.91
$679,922.61 $46,583.79 $23,797.29
$633,358.82 $48,193.52 $22,167.56
$585,165.31 $49,880.29 $20,480.79
$535,285.01 $51,626.10 $18,734.98
$483,658.91 $53,433.01 $16,928.06
$430,225.90 $55,303.17 $15,057.91
$374,922.73' $57,238.78 $13,122.30
$317,683.95 $59,242.14 $11,118.94
$258,441.81 $61,315.61 $9,045.46
$197,126.19 $63,461.86 $6,899.42
$133,664.53 $65,682.82 $4,678.26
$67,981.72 $67,981.72 $2,379.36
Annual
Payment
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$70,361.08
$1,000,000.00' $407,221.54 $1,407,221.54