HomeMy WebLinkAboutOC WATER DISTRICT (OCWD)/GREEN ACRES PROJECT - 1990-08-06M
AGREEMENT BETWEEN ORANGE COUNTY WATER DISTRICT AND THE
CITY OF iUNTINGTON BEACH REGARDING DISTRIBUTION AND SALE
OF GREEN ACRES PROJECT WATER
THIS AGREEMENT, made and entered into as of, December 18, 1991,
by and between the ORANGE COUNTY WATER DISTRICT (hereinafter,
"OCWD") and the CITY OF HUNTINGTON BEACH (hereinafter, "RETAILER") .
RECITALS
A. OCWD was created by the OCWD Act, Ch. 924, Stats. 1933, as
amended, for ,the purpose of protecting and managing the Orange
County groundwater basin. The OCWD Act empowers OCWD to manage the
groundwater basin, to provide for the conservation of the quantity
and quality of water in the groundwater basin, to conserve and
reclaim water within or outside of the boundaries of OCWD, to sell
or otherwise put to beneficial use any water or reclaimed
wastewater in order to conserve groundwater resources, and to
distribute water to persons in exchange for ceasing or reducing the
extraction of groundwater from the groundwater basin.
B. OCWD purchases imported water from the Metropolitan Water
District of Southern California (hereinafter "MWD"), through its
member agencies, for spreading and replenishment purposes, and
obtains wastewater from the County Sanitation Districts of Orange
County (hereinafter "CSDOC") for renovation -reclamation and
groundwater injection.
C. Reclaimed wastewater currently produced by OCWD is
suitable for a number of non -potable uses, including, but not
limited to, landscape irrigation and industrial uses.
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D.
RETAILER
is a
municipal corporation organized and
existing
under the
laws
of the State of California. RETAILER
provides retail water service to residents and water users within
its 'jurisdictional boundaries, and produces and distributes
groundwater as part of its retail water service. The
jurisdictional boundaries of RETAILER are within the jurisdictional
boundaries of OCWD.
E. Landscape irrigation and industrial water users within
the jurisdictional and service boundaries of RETAILER currently
either purchase potable water from RETAILER for their use, or
produce water from the groundwater basin by means of their own
facilities for their own use, which private groundwater production
is under the jurisdiction and control of OCWD.
F. OCWD desire' -to construct, operate and maintain a water
treatment facility, transmission mains and distribution pipeline
system (including mainlines and service lines) and, in some cases,
on -site plumbing, to be known as the "Green Acres Project," for the
purpose of reclaiming wastewater received from CSDOC (hereinafter,
"Project water") and distributing the Project Water for appropriate
landscape irrigation and industrial purposes in order to supplement
and conserve the supply of potable groundwater available to the
residents and water users within th6 boundaries of OCWD. As of the
date of this Agreement, OCWD has designed and commenced
construction of facilities for the first phase of the Green Acres
Project, to deliver Project Water for use within the boundaries of
the cities of Santa Ana and Fountain Valley, the Mesa Consolidated
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C
Water District, and one user within the boundaries of RETAILER
(hereinafter, the "Phase I Project Facilities"). OCWD desires to
construct facilities for the second phase of the Green Acres
Project, to deliver Project Water for expanded use within the
boundaries of RETAILER (hereinafter, the "Phase I1 Project
Facilities"). A plat depicting the Phase I and Phase II Project
Facilities in Huntington Beach is set forth as Exhibit "A" hereto.
G. OCWD and RETAILER mutually acknowledge that the use of
reclaired water for landscape irrigation is of mutual benefit to
OCWD and RETAILER in fulfilling their joint responsibilities for
the conservation of water resources in accordance with Sections
13550 and 13551 of the California Water Code.
H. OCWD desires to sell Project Water to RETAILER for resale
by RETAILER to appropriate landscape irrigation and industrial
water users within the service boundaries of RETAILER, and RETAILER
desires to purchase Project Water from OCWD for such resale
purposes.
AGREEMENTS
NOW, THEREFORE, in consideration of the facts recited above
and the terms, covenants and conditions herein contained, the
parties hereto agree as follows:
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SECTION ONE: FACILITIES FOR DELIVERY AND DISTRIBUTION OF
PROJECT WATER
1.1 The parties acknowledge that OCWD has entered into a
contract, and will be entering into additional contracts, for the
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construction of the Green Acres Project, and all facilities to
produce, transport and distribute Project Water for the herein
specified purposes (hereinafter, the "Project Facilities") . A plat
depicting that portion of the Project Facilities which OCWD shall
construct, operate and maintain within the boundaries of RETAILER
is attached hereto as Exhibit "A". OCWD shall cause the Phase I
Project Facilities to be completed and operational on or before
October 1, 1991, and the Phase I1 Project Facilities shall be
completed and operational on or before June 1, 1995; and RETAILER
shall incur no cost or liability in connection with the design or
construction of the Project Facilities.
1.2 The Project Facilities to be constructed shall include
a distribution pipeline system from the site of the Green Acres
Project Water Treatment Facility, to be located at 10500 Ellis
Avenue, Fountain Valley, California, to the point of connection to
each of the proposed Project Water customers within the boundaries
of RETAILER (hereinafter, "Project Customers"), for the purpose of
distributing Project Water to RETAILER at the points of connection
of the Project Customers for purchase by RETAILER and resale to the 'f
Project Customers. The names and anticipated annual Project Water
demands of each Project Customer are set forth in Exhibit "B"
hereto and incorporated herein by .his reference.
1.3 OCWD shall obtain all permits required to'construct• and
operate the Project Facilities, including the distribution pipeline
system and ancillary facilities to be located within the public
rights of way as shown on Exhibit "A" hereto, as well as those
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facilities which are necessary to produce, deliver and distribute
Project Water for the herein described purposes; and OCWD shall
further obtain those permits that Project Customers may be required
to obtain. OCWD shall cause the Project Facilities within the
boundaries of RETAILER to be constructed in accordance with the
construction standards of RETAILER in effect as of the date of the
award by OCWD of the contract or contracts for such construction.
The Project Facilities shall be owned by OCWD,• provided, however,
that RETAILER shall perform on behalf of OCWD all maintenance,
repair and replacement of the Project Facilities located within the
boundaries of RETAILER, pursuant to paragraph 4.1 hereinbelow.
1.4 OCWD shall, at no cost to RETAILER, provide a metering
device meeting RETAILER's specifications, to be owned, operated and
maintained by RETAILER', for the purpose of measuring the quantity
of•Project Water purchased by RETAILER and resold by RETAILER to
each Project Customer. RETAILER shall be responsible for ensuring
the accuracy of the metering device. Any costs incurred in
modifying the size of existing P.ETAILER meters shall be the
responsibility of OCWD. The quantity of Project Water measured by
the meters to be owned, operated and maintained by RETAILER shall
be the sole basis for determining the quantity of Project Water
delivered and sold by RETAILER tp each Project Customer under
Section Two of this Agreement. In the event that a raeter measuring
the quantity of Project Water delivered by RETAILER to a Project
Customer indicates a lesser quantity than OCWD*s meter measuring
the quantity of Project Water delivered to RETAILER for resale to
a Project Customer, OCWD shall be responsible for the cost of such
difference, and RETAILER shall not be liable therefor. In the
event RETAILER has a separate metering device serving exclusively
non -potable uses on the premises of a Project customer, OCWD may
sell Project Water to RETAILER by connecting the Project Facilities
distribution pipeline system directly to the separate non -potable
meter so long as the standards and requirements of RETAILER and any
other governmental agency having jurisdiction over the quality of
Project Water are satisfied.
1.5 In order to avoid the risk that Project Water may enter
into RETAILER's potable water distribution system, OCWD shall, at
its own expense, install on RETAILER"s potable water system a
backflow prevention device or devices approved by RETAILER at a
location or locations% designated in writing by RETAILER. Such
backflow prevention devices shall be installed prior' to the
commencement of deliveries of Project water to a particular
connection point. OCWD shall provide for separate marking of the
non -potable Project Water system in accordance with standards and
regulations in existence as of the date of this Agreement.
1.6 The Project Water distribution pipeline system shall"be
constructed by OCWD with sufficient capacity to allow RETAILER to
serve known Landscape irrigation arrl industrial water users. OCWD
shall sell to RETAILER, and RETAILER shall purchase frog► OCWD,
sufficient quantities of Project Water for RETAILER to sell to the
projected Project customers as shown on Exhibit "B, " and such other
and future Project Customers as are provided for herein, but only
to the extent that RETAILER has contracts with such other and
future Project Customers for the sale of Project Water; provided,
however, that a water user within the service boundaries of
RETAILER shall become a Project Customer only with the approval of
both OCWD and RETAILER; and provided further, that OCWD shall have
the sole discretion to determine whether to expand the Project
Facilities or the production and distribution capacity of the
Project Facilities to meet any future demand for Project Water that
may be generated within the boundaries of RETAILER. In this.
regard, the listing of Project Customers attached hereto as Exhibit
"B" represents a listing of both the known Project Customers as of
the date of this Agreement, and potential future Project Customers.
OCWD and RETAILER mutually understand and agree that additional
landscape irrigation and/or industrial water users within the
boundaries of RETAILER may at some future time be served with
Project Water and become Project Customers without the necessity
of amending this Agreement. All future water users within the
service boundaries of RETAILER who become Project Customers shall
execute an agreement for the purchase of Project Water in the form
attached hereto as Exhibit etc", and further shall be subject to the
Project Rules to be adopted by RETAILER pursuant to paragraph 5.3
hereinbelow. ;
SECTION TWO: PURCHASE AND BALE OF PROJECT WATER
2.1 OCWD shall complete the construction and commence
operation of the Phase I Project Facilities by October 1, 2991, and
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s
the Phase II Project Facilities by June 1, 1995, barring delays due
to unforeseeable causes beyond the control and without the fault
or negligence of OCWD or its contractors. If OCWD is permitted by
all regulatory agencies having jurisdiction over OCWD to distribute
Project Water, then, during the term of this Agreement, RETAILER
shall have the exclusive right to purchase Project Water from OCWD,
at the point of connection to each Project Customer, and to resell
Project Water to the Project Customers shown on Exhibit "B," and
such other landscape irrigation and industrial water users within
the boundaries of RETAILER that may be added as Project Customers
in accordance with paragraph 1.6 above.
2.2 Concurrently with and as a condition precedent to any
obligations of OCWD or RETAILER pursuant to this Agreement,
RETAILER shall enter 'into separate agreements with the proposed
Project Customers, in substantially the fora to be attached hereto
as Exhibit "C" upon preparation of a form mutually acceptable to
OCWD and RETAILER, for the purchase by Project Customers of Project
Water from RETAILER contingent upon its availability from OCWD.
The terms and conditions of such agreements between RETAILER and
s
Project Customers shall be in conformance with the terms and
conditions of this Agreement. In the event RETAILER and other
purveyors of ,Eroject Water are unAble by January 1, 1993 (or as
otherwise agreed to in writing by OCWD) to enter into agreements
for the sale of at least fifty percent (50%) of the total demand,
as set forth in Exhibit "B," for Phase I and Phase II Project Water
each year during the term hereof, this Agreement shall terminate.
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2.3 RETAILER shall commence the purchase and resale of
Project Water upon receiving at least sixty (60) days advance
written notice from OCWD of the availability of such Project Water.
-2.4 RETAILER shall purchase the Project Water from OCWD, at
the point of its metered connection, for an amount to be determined
by the OCWD Hoard of Directors in its discretion, not to exceed
eighty percent (80%) of the "area groundwater cost" as defined in
Section 2.5 hereinbelow. The point of connection and sale of the
Project Water from OCWD to RETAILER shall be at the meter which
neasures the flow of Project Water to each Project Customer, as
described in Section 1.4 hereinabove.
2.5 For the purpose of this Agreement, the "area groundwater
cost" shall be the same as the fixed and variable costs of
groundwater production'as listed in the most recent OCWD Engineer's
Report prepared pursuant to Section 31,5(a) of the OCWD Act, plus
the replenishment assessment imposed by OCWD pursuant to the
authority contained in Section 27 of the OCWD Act, and any
additional replenishment assessments which may be imposed by OCWD
pursuant to the authority contained in Section 27.1 of the OCWD
Act, which replenishment assessments and additional replenishment
assessments are established in April of each year but do not become
effective until, the following July of each year. The parties
mutually recognize and agree that the area groundwater cost may
change each year during the term of this Agreement, as a function
of changes in the cost of operation and maintenance, energy, the
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replenishment assessment levied by OCWD, and the levy of any
additional replenishment assessment by OCWD.
2.6 The governing body of RETAILER shall establish the rate
for •the resale of Project Water to each Project customer, in an
amount not to exceed eighty percent (80%) of the "potable water"
rate established by RETAILER.
2.7 RETAILER shall read the Project Water meter for each
Project Customer on a sixty (60) day cycle. The Project Water
meter reading date shall coincide with RETAILER'S reading of the
meter which measures the quantity of potable water delivered by
RETAILER to the Project Customer that month. Within sixty (60)
days thereafter, RETAILER shall transmit to OCWD a statement
setting forth the Project Water rate established by RETAILER
pursuant to paragraph 2-6 during that billing period, a description
of the maintenance, repair and replacement activities of RETAILER,
and the amount of such actual costs incurred by RETAILER, pursuant
to Section .4.1 hereinbelow during that billing period, and
indicating, for each Project Customer, the current meter reading,
the previous meter reading, and the total quantity of Project Water %
purchased from OCWD and resold by RETAILER to such Project Customer
during the billing period. Together with this statement, RETAILER
shall transmit
:to OCWD
payment in %ccordance
with paragraphs
2.4
and 2.5 for the
Project
Water purchased from
OCWD by RETAILER
and
resold by RETAILER to all of the Project Customers during the
billing period, after deducting therefrom the actual costs incurred
by RETAILER in maintaining, repairing and replacing the Project
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Water distribution system within RETAILER's boundaries as set forth
in Section 4.1 hereinbelow.
• SECTION THREE: PROJECT WATER QUALITY,REGULATIONS
3.1 OCWD shall deliver and sell to RETAILER pursuant to this
Agreement Project Water that shall conform to all current and
future requirements established by the California Regional Water
Quality Control Board - Santa Ana Region, and all other federal,
state and local agencies having jurisdiction to fix minimum
standards for the anticipated landscape irrigation and industrial
uses of the Project Water by the Project Customers listed in
Exhibit "B" hereto. The anticipated quality of Project Water shall
be as shown on Exhibit I'D" attached hereto and incorporated herein,
or as subsequently amended to conform to any future regulatory
requirements for such use; provided, however, that OCWD shall not
have any obligation to modify the quality of Project Water to meet
the needs of any particular Project Customer.
3.2 During the term of this Agreement, OCWD shall pay all
costs imposed by any and all governmental agencies having `.
jurisdiction over the quality or use of Project Water for -the
issuance of any permits, licenses or approvals required for the
production, treatment, distributiorr,or sale of Project Water. OCWD
further shall be responsible for paying any charges,. fees,
surcharges, assessments or other sums imposed or levied upon
Project Water by the Municipal Water District of Orange County or
the Coastal Municipal Water District of Orange County.
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3.3 OCWD shall inform RETAILER promptly after becoming aware
of any proposed or actual modifieaticns by any agency having
jurisdiction over the quality of Project Water to any requirements
governing the minimum standards of quality for or use of Project
Water, or of any changes in the legally permissible uses which
might affect the use of the Project Water sold by OCWD to RETAILER
for resale by RETAILER to Project Customers, and OCWD shall bear
all costs of conforming to any such future requirements. RETAILER
shall have no obligation to pay the cost of meeting any future
requirements governing the standards of quality for, or use of,
Project Water.
SECTION FOUR: OPERATING OBLIGATIONS OF THE PARTIES
4.1 During the term of this Agreement, OCWD shall manage,
operate and maintain the Project Facilities in an efficient manner
and in accordance with the highest standards of skill and
workmanship; provided, however, that OCWD hereby contracts with
RETAILER for the performance by RETAILER .)f the actual maintenance,
repair and replacement responsibilities with respect to those
Project Facilities located within the service boundaries' of
RETAILER. RETAILER recognizes the special quality considerations
relating to Project Water, and, RETAILER shall perform its
maintenance, repair and replacement responsibilities in an
efficient banner and in accordance with the highest standards of
skill and workmanship. OCWD retains the right to make repairs to
Project Facilities within the service boundaries of RETAILER if
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they are not made by RETAILER in a timely or efficient manner.
RETAILER shall receive as a credit against all monies due OCWD
pursuant to paragraph 2.8 hereinabove for the sale of Project Water
the •cost of such maintenance, repair and replacement activities
actually undertaken by or on behalf of RETAILER, which costs shall
include the actual labor, material and equipment costs, plus
overhead costs, incurred by RETAILER and necessary for such
maintenance, repair and replacement activities.
4.2 Notwithstanding the provisions of paragraph 4.1, the
operating responsibility of OCWD with respect to the Project
Facilities shall include the maintenance of quality, quantity and
pressure of the Project Water, and compliance with all regulatory
requirements and conditions applicable to the distribution and sale
of Project Water, to-. the point of connection to each Project
Customer.
4.3 RETAILER shall, at no cost to OCWD, assume ownership of,
service, maintain and read the Project Water meter and valve set
and meter box/vault for each Project Customer in the same manner
that RETAILER would for a customer service meter attached to its
potable water system. RETAILER further shall, at no cost to OCWD,
be responsible for customer service functions relating to Project
Customers, including but not limitgd to billing and collection of
payments from Project Customers for the Project Water, record
keeping, and notification to OCWD of the quantity of Project Water
delivered through the Project Customer's meter during each meter
reading period.
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4.4 OCWD shall have the right to review the books, records
and accounts maintained by RETAILER relating to the Project Water
and Project Customers during normal business hours, upon
forty-eight (48) hours prior written notice to RETAILER.
4.5 OCWD shall operate the Project Facilities in such a
manner that Project Water shall be delivered to the point of
connection to each Project Customer on a continuous basis at a
pressure of not less than sixty (60) pounds per square inch between
the hours of 8:00
p.m. and 6:00
a.m. , and
not less than twenty
(20)
pounds per square
inch between
the hours
of 6:00 a.m. and 8:00
p.m.
4.6 Except as provided in paragraph 9.6 hereinbelow, in the
event that, at any time during the term of this Agreement, OCWD for
any reason cannot or chooses not to produce Project Water from its
Green Acres 'Project Water Treatment Facility described in paragraph
1.2 hereinabove, OCWD shall provide through the Project Facilities,
or otherwise, -at a cost equal to the cost of Project Water,
sufficient water of a quality at least equal to the quality of
Project Water to meet the landscape irrigation and industrial water
needs of all of the Project Customers; provided, however, that OCWD
shall have no such obligation in the event that Project Water
cannot be delivered to Project Customers due to damage to, breaks
or other disruptions in the distribution facilities transporting
Project Water to Project Customers.
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SECTION FIVE: PROJECT WATER RULES AND REGULATIONS
5.1 All Project Water produced by OCWD for delivery and sale
to RETAILER shall be in accordance with the terms and conditions
of the discharge requirements and primary user permit for the
Project Water issued to OCWD by the California Regional Water
Quality Control Board - Santa Ana Region. OCWD has obtained and
shall maintain a blanket primary user permit for the production,
distribution and sale of Project Water, and shall at all times
maintain such permit and bear all costs in complying with all
present and future provisions thereof and all renewals or
subsequent such permits.
5.2 OCWD shall promulgate and enforce rules and regulations
regarding the distribution, delivery and sale of Project Water to
RETAILER, and governing the use of Project Water resold by RETAILER
to Project Customers (hereinafter, the "Project Rules"). OCWD
shall pay all costs incurred in the drafting and preparation of the
Project Rules. OCWD shall obtain all requisite certifications and
approvals from all federal, state and local agencies having
jurisdiction over the production, quality and use of Project Water,
including, but not limited to, the California Regional Water
Quality Control Board - Santa Ana Region, and the State of
California Department of Health, that such Project Rules comply
with the regulations, requirements and orders of such regulatory
agencies.
5.3 OCWD shall transmit to RETAILER such approved Project
Rules for adoption by RETAILER, and RETAILER shall, within ninety
15
(90) days after receipt thereof, incorporate the Project Rules into
RETAILER's promulgated rules and regulations governing the
distribution, delivery and sale of 'water within the service
boundaries of RETAILER. Promptly upon adoption, RETAILER shall
transmit to OCWD RETAILER'S adopted Project Rules, and RETAILER
shall notify OCWD of any amendments to or modifications of the
Project Rules adopted by RETAILER. Should OCWD choose either to
make reasonable amendments or modifications to the Project Rules
not contrary to this Agreement, or be required by any governmental
agency exercising jurisdiction over the distribution, sale or use
of the Project Water to modify or amend the Project Rules, OCWD
shall promptly furnish such modifications or amendments to
RETAILER; and RETAILER shall, after being provided a ninety (90)
day period in which to'review, comment upon, and/or Meet and confer
With OCWD regarding such proposed modifications or amendments,
incorporate such modifications or amendments into RETAILER's
adopted rules and regulations.
5.4 RETAILER shall include in its promulgated rules and
regulations provisions requiring, whenever feasible and if Project :
Water is available, that any new or future customer of RETA11,:R,
as a condition to receiving potable water service from RETAILER,
to become a PrO ect Customer and tp accept and use Project Water
in lieu of-RETAILER's potable water supply for appropriate
landscape irrigation and industrial purposes. RETAILER shall
further include in its promulgated rules and regulations a
requirement that any new or future Project Customer permit
representatives of OCWD and RETAILER to enter the premises of the
Project Customer at all reasonable times for the purpose of
monitoring, inspecting, analyzing and observing the Project
Customer's on -site Project Water facilities and the utilization by
the Project Customer of Project Water.
5.5 For purposes of paragraph 5.4 of this Agreement,
"feasibility" shall be presumed if OCWD and RETAILER mutually
determine in their discretion that Project Water is available and
that the Project Facilities can acconnodate the new or future
landscape irrigation or industrial water customer of RETAILER. For
purposes of section 5.4 of this Agreement, the use of Project Water
for landscape irrigation or industrial uses shall be presumed
"appropriate" if the use of Project Water by a new or future
Project Customer for landscape irrigation or industrial
applications will neither violate any minimum water quality or
health standards established by any federal, state or local agency
having jurisdiction over the quality of Project Water, nor
significantly and adversely affect either the Project Customer's
plantings or the industrial processes or products served by the
Project Water.
5.6 In connection with RETAILER's adoption of the Project
Rules as part ,of its rules and regAlations, and at the request of
r-
RETAILER, OCWD shall cooperate with and assist RETAILER an
obtaining from the State of California Water Resources Control
Board any necessary certifications, findings or orders authorized
under Sections 13550 and 13551 of the California Water Code to
27
require the use of Project Water for landscape irrigation uses
within the service boundaries of RETAILER.
5.7 The parties understand and agree that Project Water
delivered and sold by OCWD to RETAILER pursuant to the terms of
this Agreement has limited uses, and OCWD shall deliver and sell
to RETAILER Project Water only for those uses and purposes which
are legally permissible under the laws of the State of California
and the rules, regulations and directions of the appropriate
federal, state and local regulatory agencies exercising
jurisdiction over the quality and use of Project Water. In this
regard, OCWD and RETAILER shall cooperatively enforce Project Rules
limiting the use of Project Water to legally permissible landscape
irrigation and industrial applications, and shall :monitor the use
of Project Water by Project Customers to safeguard against any
misuse or improper application of Project Water by Project
Customers.
SECTION SIX: PROJECT WATER DELIVERY TO EXCLUSIVE GROUNDWATER
USERS i
6.1 This Section Six shall apply only with respect to water
users located within the Green Acres service area boundaries and
within the service boundaries cf R-TAILER who, as of the date of
this Agreement, are not presently served potable water by RETAILER
for their landscape irrigation uses, but who rely instead
exclusively upon their own private groundwater production to
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satisfy their landscape irrigation demands (such water users are
hereinafter referred to as "Groundwater Customers").
6.2 With the assistance and cooperation of OCWD, RETAILER
shall use its best efforts to enter into agreements with each
Groundwater Customer, under which the Groundwater Customer shall
agree not to produce groundwater to satisfy its landscape
irrigation demands, and purchase from RETAILER and use Project
Water in lieu of groundwater for landscape irrigation purposes.
In consideration for purchasing and using Project Water in lieu of
groundwater, RETAILER shall sell Project Water to each Groundwater
Customer at a rate equal to the variable groundwater production
cost, including any Replenishment Assessment and additional
Replenishment Assessment imposed by OCWD pursuant to Sections 27
and 27.1 of the OCWD Act, as shown in the most recent OCWD
Engineer's Report prepared pursuant to Section 31.5(a) of the OCWD
Act.
6.3 RETAILER shall read the Project Water meter for each
Groundwater Customer at the same time during each sixty (60) day
cycle, and shall perform the same customer service functions for '
Groundwater Customers that RETAILER performs for Project Customers'
pursuant to paragraph 4.3 hereinabove.
6.4 Within sixty (60) days ;after reading the meters of
Groundwater Customers as set forth in paragraph 6.3 hereinabove,
RETAILER shall forward to OCWD a statement indicating, for each
Groundwater Customer, the current meter reading, the previous meter
reading, and the total quantity of Project Water delivered and sold
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to RETAILER for resale to such Groundwater Customer during the
billing period, together with payment for the Project Water
purchased by all Groundwater Customers during the preceding- month.
The payments to be made by RETAILER to OCWD herein shall comprise
the amounts actually owed by each Groundwater Customer to RETAILER,
less a sum representing ten dollars ($10.00) for each acre foot of
Project Water purchased by the Groundwater Customers from RETAILER.
Commencing in the year in which Project Water deliveries commence
under this Agreement, the credit to RETAILER of ten dollars
($10.00) shall be adjusted annually in accordance with the Consumer
Price index published by the United Stated Department of Labor for
the Long Beach - Santa Ana - Anaheim metropolitan area. This
annually adjusted credit to RETAILER shall serve as full and
adequate compensation*- to RETAILER for the costs incurred by
RETAILER in assuming ownership of, servicing, maintaining and
reading the Project Water meter for each Groundwater Customer in
the same manner that RETAILER would for a customer service Deter
attached to its potable water system, and for providing to the
Groundwater Customers those customer services functions provided
by RETAILER to Project Customers pursuant to paragraph 4.3
hereinabove.
6.5 In the event either that a, Groundwater Customer abandons
its groundwater production facility or that OCWD determines that
a Groundwater Customer is no longer capable of producing
groundwater for its landscape irrigation needs, OCWD shall have the
exclusive authority and discretion, without the necessity of
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amending this Agreement, to remove such water user from the
designation of "Groundwater Customers." In such event, the former
Groundwater Customer shall be treated as a Project Customer for all
purposes hereunder, including but not limited to the retail sale
of, and billing and payments for, Project Water.
SECTION &EVEN: INDEMNITY AND INSURANCE
7.1 OCWD shall save RETAILER harmless from and against and
shall indemnify RETAILER from any liability, loss, costs, expenses
or damages however caused by reason of any injury (whether to body,
property, or personal or business character or reputation)
sustained by or to any person or property by reason of any act,
neglect, default, or omission of OCWD or any of its agents,
employees, or representatives, or caused by reason of the design,
construction, operation or maintenance of the Project Facilities,
or the distribution and sale to RETAILER for resale purposes herein
of Project Water that does not meet the quality standards set forth
in Title 22 of the California Code of Regulations; provided,
however, that OCWD shall not be responsible for the negligent ;
operation, maintenance or repair of the Project Facilities within
RETAILER'S service boundaries by RETAILER, the negligent operation,
maintenance or repair by RETAILMF or any Project Customer or
Groundwater Customer of Project Water distribution and storage
facilities located on the lands of any Project Customer or
Groundwater Customer, and/or the misuse or misapplication of the
Project Water on the Project Customer's or Groundwater Customer's
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k",
side of the Project water meter by any person, including RETAILER
or any Project Customer or Groundwater Customer. If RETAILER is
sued in any court for damages by reason of any of the acts for
which OCWD is required to indemnify RETAILER in this paragraph 7.1,
including but not by way of limitation, damages arising out of a
products liability claim, OCWD shall defend said action (or cause
same to be defended) at its own expense and shall pay and discharge
any and all amounts of judgment that may be rendered in any such
action. If OCWD fails or neglects to so defend in said action,
RETAILER may defend the same and any expenses, including reasonable
attorneys' fees, which it may pay or incur in defending said action
and the amount of any judgment which it may be required to pay
shall be promptly reimbursed upon demand. Nothing herein is
intended to --nor shall it relieve RETAILER or any Project Customer
or Groundwater Customer from liability for its own acts, omissions,
or active or passive negligence.
7.2 OCWD shall cause RETAILER to be named as an additional
insured on OCWD's general liability policy of insurance with
respect to the sale and distribution to RETAILER of Project Water
within the service boundaries of RETAILER, and OCWD shall provide
RETAILER with certificates of insurance and endorsements evidencing
such insurance coverage, provided/ however, that nothing shall
.. «:.
preclude OCWD from maintaining self insurance with respect to the
sale, distribution and use of Project Water, in lieu of purchasing
insurance as provided for herein.
22
7.3 OCWD shall not commence nor permit any contractor or
subcontractor to commence work on construction of any of the
Project Facilities that are located within the service boundaries
of RETAILER until OCWD has obtained, or has caused its contractors
to obtain, comprehensive general liability insurance providing
coverage for bodily injury, personal injury and property damage,
and which shall include as additional insureds RETAILER, its
officers, agents and employees, but only while acting in their
capacity as such and only as respects operations of the original
named insured, its subcontractors, agents, officers and employees
in the performance of the construction 'Contract. OCWD shall
furnish RETAILER with certificates of insurance and endorsements
showing insurance coverage as described above. RETAILER shall
incur no expense in connection with obtaining and maintaining any
insurance required under paragraphs 7.2 and 7.3.
SECTION EIGHT: PISPUTES
S. 1 In the event of any dispute arising under this Agreement,
the parties hereto agree to utilize the arbitration procedure set
forth in this Section Eight as the sole and exclusive means' of
resolving any such dispute.
8.2 Arbitration shall be initiated by any party hereto
serving upon any other party a written demand for arbitration,
which demand shall describe with specificity the nature of the
dispute. Except as specified herein, the arbitration shall be
conducted pursuant to the provisions of California Code of Civil
23
Procedure, Section 1280, et sea. The parties hereto agree that
there shall be a single neutral arbitrator who shall be a civil
engineer knowledgeable in water facilities operation and reclaimed
wastewater, who shall be selected in the following manner: (A) The
demand for arbitration shall include a list of the names of five
(5) persons acceptable to the demanding party for appointment as
arbitrator. The responding party shall determine if any of the
names submitted are acceptable, and, if so, shall inform the other
party within ten (10) days of actual receipt of the arbitration
demand, and such person will be designated as arbitrator; (B) In
the event that none -of the names submitted by the demanding party
is acceptable to the responding party, or if for any reason the
arbitrator selected is unable to serve, the responding party shall
submit to the demanding party a list of the names of five (5)
persons acceptable to the responding party for appointment as
arbitrator. The demanding party shall in turn have ten (10) days
from actual receipt of the list in which to determine if one such
person is acceptable; (C) If the parties are unable mutually to
agree upon a neutral arbitrator as described above, the matter of
the selection of an arbitrator, qualified as above, shall' be
submitted to the Orange County Superior Court pursuant to Code of
Civil Procedure.Section 1281.6. Upon selection of an arbitrator,
the arbitration shall be conducted consistent with the provisions
of Code of Civil Procedure section 1280, et seg., as are deemed
practicable by the arbitrator, considering the nature of the
dispute.
24
8.3 The costs of arbitration, including but not limited to
reasonable attorneys' fees, shall be recoverable by the party
prevailing in the arbitration. If an arbitration conducted
hereunder is appealed to a court pursuant to the procedures set
forth in Code of Civil Procedure Section 1280, et sec., the costs
of arbitration shall also include court costs associated with such
appeals, including but not limited to reasonable attorneys' fees.
SECTION NINE: XTSCELLANEOUS PROVISIONS
9.1 Notiges: All notices, payments, transmittals of
documentation and other writings required or permitted to be
delivered or transmitted to any of the parties under this Agreement
shall be personally served or deposited in a United States mail
depository,' -first class postage prepaid, and addressed as follows:
If to OCWD: Orange County Water District
10500 Ellis Avenue
P.O. Box 6300
Fountain Valley, California 92708
Attn: William R. Mills Jr.,
General Manager
If to RETAILER: City of Huntington Beach
P.O. Box 190
Huntington Beach, California 92648
Attn: Mr. Jeff Renna,
Water Superintendent
or such other address as OCWD or RETAILER shall direct in writing.
Service of ariy"instrument or writing by mail shall be deemed
complete forty-eight (48) hours after deposit in a United States
mail depository.
9.2 Term and Amendment: The term of this Agreement shall be
for twenty --five (25) years from the date hereof. This Agreement
25
shall automatically be extended for up to five (5) extensions of
five (5) years each, for a possible total extension of twenty-five
(25) additional years to the initial term hereof, if neither party
hereto exercises its right to terminate the extensions to the
initial term of this Agreement. Either party shall have the right
to terminate any extension to the initial terra of this Agreement
by written notice to the other at least four (4) years prior to the
expiration of the initial term or any extension of this Agreement.
Except as provided in paragraph 1.6 and Section Six hereinabove,
this Agreement may only be amended or modified by mutual agreement
in writing of OCWD and RETAILER.
9.3 Limitation on Sales by OCWD: OCWD acknowledges and
agrees that, except as provided herein or with the prior written
consent of RETAILER, OCWD is not now and will not in the future
become a wholesale or retail seller of Project Water within the
service boundaries of RETAILER, and OCWD further agrees that it
will not use or contract with any entity other than RETAILER for
the purpose of selling and distributing Project Water within the
service boundaries of RETAILER.
9.4 as iri to o s: OCWD and RETAILER mutually understand
and agree that any and all Project Water delivered and sold by OCWD
hereunder shall. not constitute either "supplemental sources" or
"groundwater supplies" for the purpose of the annual establishment
of basin groundwater production requirements and limitations by
OCWD pursuant to Section 31.5 of the OCWD Act. Project Water is
26
V
hereby established as a separate class of water for the purposes
of Section 31.5•of the OCWD Act.
9.5 Conditions Precedent: The performance of this Agreement
is conditioned upon OCWD's being able to acquire acceptable rights
of way and access rights from its existing facilities to the points
of connection to Project Customers, as set forth in the plat
attached hereto as Exhibit "A", and the approval by the State of
California of funding for the construction of the Phase II Project
Facilities. The performance of this Agreement is further
conditioned upon the approval by all federal, state and local
regulatory agencies having jurisdiction over the Green Acres
Project and Project Water.
9.6 Conditions SubseMent: The performance of this Agreement
is conditioned upon OCWD's continued ability feasibly to produce
and distribute Project Water for sale. to RETAILER and resale by
RETAILER to Project Customers in a cost --effective manner.
Subsequent to the date of this Agreement, should OCWD determine in
its sole discretion that unanticipated increases in the cost of
producing or distributing Project Water or new or modified '
regulatory requirements governing the production, distribution,
quality or use of Project Water render the Green Acres Project
economically.. asible, OCWD may cease production and distribution
of Project Water upon ninety (90) days written notice to RETAILER.
In the event that OCWD ceases the production and distribution of
Project Water pursuant to this paragraph 9.6, this Agreement shall
terminate and OCWD shall incur no liability to RETAILER or any
27
t
1
Project Customer or Groundwater Customer by reason of the
termination of this Agreement or the termination of production and
delivery of Project Water; provided, however, that if OCWD ceases
the production and distribution of Project Water pursuant to this
paragraph 9.6 within ten (10) years irmediately following the date
of this Agreement, OCWD shall pay the cost of connecting or
reconnecting the landscape irrigation or industrial water
facilities of each Project Customer or Groundwater Customer then
connected to the Project Facilities to the domestic water
distribution facilities of RETAILER.
9.7
No Duvlication of Services
Intended
or Created: OCWD and
RETAILER
mutually understand
and agree that
the construction and
operation of the Project Facilities and the distribution and sale
of Project'.Water by IDCWD to RETAILER for sale by RETAILER to
Project Customers pursuant to this Agreement do not constitute
either a duplication of RETAILER's retail water service or a taking
of any property of RETAILER within the meaning of Section 1501, et
seq of the California Public Utilities Code. RETAILER shall have
no right to institute any action against OCWD pursuant to Sections
1503, 1504 or 1505.5 of the Public Utilities code by reason of the
construction and operation of the Project Facilities and the
distribution.. ,and sale of Project 'Water by OCWD to RETAILER in
conformance with this Agreement.
9.8 Warranty: OCWD represents and warrants that under the
OCWD Act OCWD, without the consent of any other public agency water
purveyor, may enter into this Agreement to deliver and sell Project
28
Water to RETAILER for resale by RETAILER to Project Customers or
lands within the service boundaries of RETAILER.
9.9 Construction: This Agreement shall be construed
according to its plain meaning and as if prepared by all parties
hereto. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
9.10 Integration: The parties herein have set forth the Whole
of their agreement, and the performance of this Agreement
constitutes the entire consideration intended herein.
9.11 Successors: This Agreement and all of the provisions
herein, shall, be binding upon and inure to the benefit of OCWD and
RETAILER, and their respective successors and assigns.
WHEREFORE, the parties herein have executed this Agreement as
of the date'set forth above.
APPROVED AS TO FORM:
RUTAN & TUCKER
By,r'),0"fag A/J
General Counsel f Orange
Orange County water District
District
APPROVED AS TO FORM:
By / wr C `--r
City Attorney, t of
lly,q( ington Beacha.
rfo: -.41
8/131/006104-0124/005e
MA-CRE=E MAIL. I
ORANGE CO A R DISTRICT
By - e
By
General M6n
t
CIT UNTINGTON ]BEACH,
By
Mayor --
00
Attest ^
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HUNTMTON
BEACH
L!GlND
POTENTIAL RECLAlMAED WATER USERS*
MEEN AitK1 TMJIT►OfT NLA1fT
f Mu fiKtl! RrSC�R
• •CL•.� •G OCI�LIIeR
O
ORANGE COUNTY WATER OtS RICT
�w DOTIrUT10M ►ACUM —PH A29 1
2 CITY FAW/=F COLM
r CPAM i[ MM" LMM PMK
3 HLWTNQTM CEWTM pom
• EIAVTW fwK
GAM ACTIES PROACT •-14MMf4GTQ/4 1lIsrACN
• r r w MTMV" M TACLffU -PHAM d
4 OMAN VIEW HIM ODOl
• MEACI"aw COU10E
M OPOSED D"rngAIJTM FAOL MS AMD
'NOTE: ALL OWN AM LlM "PILAW N EXCEPT
i 1tADOWUM acLF COMM
f • VILLAO[ Y
POTENTIAL RECLAM" MTiA 1JIEETts
TOIL VLLAOE MRSEMY IN PHASE I
+ COMITY •A)wTt< 014 PLANT I/O, ! Mor*narm
MXLWT 1 MO
ExhRgt A
EXHIBIT' "B'
HUNTINGTON BEACH POTENTIAL RECLAIMED WATER DEMANDS
Peals Demand
Avera❑s Demand Nit Day
Potential Use AF rr, Q= g-m gam
-
Phase 1
Village Nursery
Holly Seacliff Development
City Park/Golf Course
Huntington Central Park
Ocean View High School
Meadowlark Golf Course
Eolsa Chica Development
Orange County Linear Park
Elufftop Park
Seacliff Goff Course
County Sanitation Plant No. 2
TOTAL
208 129 774 774
836
518
3,108
1,658
290
180
1,080
576
200
124
744
397
75
46
276
147
175
108
648
345
452
280
1,680
896
395
245
1,470
784
50
31
186
99
150
93
558
298
- -DZZ
—Q
_3,240
2 24Q
3,703
2,294
13,764
9,214
EXHIBIT `Go
FORM OF PROJECT CUSTOMER SALES AGREEMENT
(To Be Provided by City of Huntington Beach)
EXHIBIT "D"
TYPICAL WATER QUALITY TO BE SUPPLIED
TO GREEN ACRES CUSTOMERS
Total Dissolved Solids
Hardness
Calcium
Magnesium
Potassium
Sodium
Bicarbonate
Chloride
Sulfate
Boron
Fluoride
Silica
Nitrogen - Total N
Prosphorus - Total P
Chemical Oxygen Demand
mq/L
950
- 11050
300
- 350
80
- 100
20
- 25
12
- 14
190 -
240
260 -
280
230 -
300
220 -
240
0.6 -
0.B
1.1 --
1.5
21 -
24
20 -
30
5.0 -
5.6
30 -
40
r
r i
REQUEE,; FOR CITY COUNCiI,.)ACT[ON
Data _ A lust 6, 1990
Submitted to: Honorable Mayor and City Council
Submitted by: Michael T. Oberuaga, City Administrator
Prepsred by: TX.Louis F. Sandoval, Director of Public Works
Subject; GREEN ACRES RECLAIMED WATER PROJECT
Consistcnt with Council Policy? [X] Yes ] New Policy or Excel
APPROVED BY CITY COLTXCIL
- - rr b� 19-70
Statement of Issue, Recommendation, Analysis, Funding Source, Alternative-!,
PIO 5/85
STATEMENT OF ISSUE
The Green Acres Project of the Orange County Water District
(OCWD) will provide reclaimed water for irrigation purposes to
the City of Huntington Beach. An approved agreement between the
agencies will allow OCWD to proceed with the Huntington Beach
portion of the Green Acres Project (GAP).
RECOMMENDATION
Approve the agreement which allows Iuntington Beach to
participate in the reclaimed water project.
f \. tiA ATI-A &�
Orange County Water District is willing to supply reclaimed water
to as many local users as possible. Huntington Beach is a'
logical participant in the project due to our location and
ability to utilize the reclaimed water supply. The Water
Division has been working closely with OCWD for the past year to
analyze our reclaimed water demands and plan transmission line
locations.L
The project will consist of a reclaimed water transmission system
which extends through the City from east to west. Preliminary
design has determined a large transmission line will extend from
the OCWD supply facility at Ellis Avenue and Ward Street, down
Garfield Avenue to Golden West Street and Warner Avenue. This
system will provide reclaimed water to several high consumption
irrigation areas, such'as Seacliff Golf Course, the Holly
Seacliff area, Central Park, the County Linear Park and the Bolsa
Chica Development. Additionally, it is planned to serve the
County Sanitation District's Plant No. 2 at Brookhurst and
Bushard Streets.
Reclaimed water is a significant source of additional water
supply. Facilities in Los Angeles and Orange Counties have been
providing reclaimed water for irrigation purposes to communities
for several years. Current users include Long Beach, Irvine, 1
San Clemente, Moulton Niguel, Dana Point, Laguna Beach and Palm � J
Desert. Caltrans is required by the State to utilize reclaimed
water for roadside irrigation if it is available. ��
W"
Request for
Green Acres
Page 2
Council Action
Project
The California Water Resource Control Board has requested that
Southern California should use reclaimed water as an alternative
to increased allocations from the State Water Project.
Reclaimed water is highly treated and odorless, almost meeting
the safe drinking water standards. There are no adverse affects
from using reclaimed water as the water lines are completely
separate from domestic water facilities.
Huntington Beach will be Phase II of the Green Acres project.
Construction could begin as soon as 1992. Upon completion, the
project will provide up to 15 million gallons per day of
irrigation water. Fountain Valley, Santa Ana and Mesa
Consolidated Water District (Costa Mesa) are participants in
Phase I, which is currently under construction.
The Green Acres Project will lessen the demand on our domestic
water supply significantly. With OC1qD's willingness to design
and construct the transmission lines at their expense, the City
will avoid a three to four million dollar expenditure. Reclaimed
water is the most expeditious method to supplement the City's
present and future water needs.
FUNDING SOURCE
Not Applicable
ALTERNATIVE ACTIONS
Do not approve the agreement, and decline participation in the
Green Acres reclaimed water project.
Do not approve the agreement, and direct staff on how to proceed.
Do not approve the agreement, and direct staff to design and
construct our own reclamation facilities at a cost of
several million dollars..
Do not approve the agreement, and direct staff on how to secure
sufficient water supplies for both irrigation and domestic
purposes.
ATTACHMENTS
Agreement between Orange County Water District and the City of
Huntington Beach to Provide Green Acres Project Water.
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November 12, 1990
Steven Conklin
Orange County Water District
P.O. Box 8300
Fountain Valley, California 92728-8300
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Re: Green Acres Project (Huntington Beach Retail
Dear Steve:
Per your request, I have reviewed the changes that you
had proposed to the Green Acres Project Retailer Agreement
executed recently by the City of Huntington Beach. I have
incorporated all of the changes that you proposed into a new
version of the Agreement, and have enclosed both a clean and
red -line copy of this new version.
Given the lack of any substantive changes to the
Agreement, Z do not believe it necessary.to treat the changes
as formal amendments and reprocess an amended agreement
before both the OCWD Board and the Huntington Beach City
Council. Rather, I believe that the changes can be treated
as clerical corrections and updating, such that the approvals
from each agency need not be disturbed, and the Agreement (in
its revised form) may be executed by the appropriate
officials from each agency. In order to accomplish this,
however, this opinion must also be shared by the Huntington
Beach City Attorney.
Please note that while the text of the Huntington Beach
Agreement has been changed, the exhibits (which are not on
the system in this office) have not been modified.
Accordingly, OCWD should make the requisite changes to the
exhibits prior to attaching their to the Huntington Beach
Retailer Agreement and transmitting the package to Huntington
Beach for its review.
RUTAN & TUCKER
ATTOPImCYS AT L^W
Steven Conklin
November 12, 1990
Page 2
I hope that this assists you in finalizing the
Huntington Beach Retailer agreement under the Green acres
Project. As always, should you have any questions regarding
this or any other legal matter affecting OCWD, please do not
hesitate to call.
Very truly yours,
JDK:t
Enclosures
8/131/006104-0001/170