Cooperative AgreementCOOPERATIVE AGREEMENT FOR
THE CONSTRUCTION OF THE
SOUTHWEST COSTA MESA TRUNK SEWER PROJECT
OCSD PROJECT NUMBER 6-19
This COOPERATIVE AGREEMENT FOR THE CONSTRUCTION OF THE SOUTHWEST COSTA MESA TRUNK SEWER PROJECT (the "Agreement") is made and entered into by and between the ORANGE COUNTY SANITATION
DISTRICT ("OCSD"), a California Special District, the COSTA MESA SANITARY DISTRICT (CMSD), a California Independent Special District, and the CITY OF NEWPORT BEACH ("Newport Beach"),
a municipal corporation, as of ___________. OCSD, CMSD and Newport Beach are sometimes hereinafter individually referred to as “Party” and hereinafter collectively referred to as the
“Parties.”
RECITALS
1. OCSD proposes to design and construct a new gravity trunk sewer pipeline from a site near the existing Newport Beach pump station site at the west end of Walkabout Circle in the
City of Newport Beach to the OCSD Interplant Line in Brookhurst Street in Huntington Beach as part of a project known and designated as the Southwest Costa Mesa Trunk Sewer Project
No. 6-19. The "Project" consists of the following elements:
(a) OCSD will design and construct approximately 4,800 feet of gravity trunk sewer pipeline commencing at the existing Newport Beach pump station site at the end of Walkabout Circle
in the City of Newport Beach, flowing south along the eastern boundary of Talbert Regional Park then west along the southern boundary of Talbert Regional Park under the Santa Ana River
to the existing OCSD Interplant Line on Brookhurst Street.
(b) CMSD will design and construct gravity sewer pipelines connecting to the new OCSD trunk sewer pipeline, and will abandon five pump stations in the area surrounding the Newport
Beach pump station site at the end of Walkabout Circle. CMSD will further design and construct a new gravity sewer pipeline to connect to the new OCSD trunk sewer pipeline to facilitate
the abandonment of a private pump station on West 18th Street in the City of Costa Mesa. Actual elevation of points of connection to OCSD trunk sewer pipeline will be determined and
finalized during design of the Project.
(c) Newport Beach will abandon the Walkabout Circle pump station and will design and build a gravity sewer pipeline to connect to the new OCSD trunk sewer pipeline. Actual elevation
of point of connection to OCSD trunk sewer pipeline will be determined and finalized during design of the Project.
(d) The proposed new facilities and the pump stations to be abandoned by CMSD and Newport Beach are depicted in the Figure 3-5 of the Final Environmental Impact Report (EIR) for the
Southwest Costa Mesa Trunk Sewer Project No. 6-19 dated June 2014, State Clearinghouse No. 2013041049. Figures 3-5 of the Final EIR are attached hereto and made a part hereof.
2. On February 10, 2015, CMSD decided not to abandon Aviemore Terrace (No. 5) Pump Station because of the negative impacts constructing Aviemore Terrace pipeline will have on Talbert
Regional Park and because the costs for abandoning this pump station outweighs the community benefit.
3. The Project will consolidate the Parties' facilities and reduce the reliance on pump station infrastructure, which will in turn reduce the overall risks associated with facility failure
and the long-term operational, maintenance, and replacement costs associated with pump station infrastructure, which will benefit all the Parties to this Agreement.
4. For the OCSD Southwest Costa Mesa Trunk Sewer to convey flows as designed, the CMSD and Newport Beach gravity sewer pipelines connecting to the Project must be completed by CMSD
and Newport Beach, respectively, and current projected flows from CMSD and Newport Beach must be achieved to ensure that the new OCSD trunk sewer pipeline has sufficient flow to operate
as designed. Until these connections are made and projected design flows are achieved, the Southwest Costa Mesa Trunk Sewer is likely to experience higher than designed operation costs
and maintenance requirements.
AGREEMENT
NOW, THEREFORE, it is agreed by and between the Parties, as follows:
1. OCSD agrees as follows:
(a) To complete the design and construction of its portion of the Project as depicted in Figure 3-3, at its own cost and expense.
(b) To be responsible to address and carry out the mitigation measures identified in the EIR for its portion of the Project, at its own cost and expense.
2. CMSD agrees as follows:
(a) To complete the design and construction of its portion of the Project (connections and gravity sewer pipelines), and abandonment of the existing pump stations, as depicted in Figure
3-5, at its own cost and expense.
(b) To be responsible to address and carry out the mitigation measures identified in the EIR for its portion of the Project, at its own cost and expense.
3. Newport Beach agrees as follows:
(a) To complete the design and construction of its portion of the Project (connections and gravity sewer pipelines, and abandonments of the existing Walkabout Circle pump station,
as depicted in Figure 3-5, at its own cost and expense.
(b) To be responsible to address and carry out the mitigation measures identified in the EIR for its portion of the Project, at its own cost and expense.
4. The Parties agree to insure timely review and issuance of all plans, specifications, permits, and documents for the connections and gravity sewer pipelines within their jurisdiction
without undue delay.
5. During construction of the OCSD Project, CMSD and Newport Beach shall accept and dispose of all dewatering flow from activities related to construction of the OCSD trunk sewer pipeline
east of the Santa Ana River. Dewatering flows shall be conveyed by OCSD’s contractor to the CMSD and/or Newport Beach point of acceptance within 5,000 linear feet of the construction
area.
6. The Parties agree that any facilities, appurtenances, or connections required to be constructed to be connected to the new OCSD sewer trunk pipeline will be constructed to OCSD standards.
7. (a) The Parties agree that if for any unforeseen circumstances CMSD is not able to fully connect and provide current projected flows to the new OCSD trunk sewer pipeline within
one year of completion of the Project, CMSD will assume operation and maintenance of said OCSD trunk sewer pipeline until a full connection is made and current projected flows are achieved.
Upon completion of the CMSD gravity sewer pipelines and connection, and when current projected flows are achieved, CMSD will clean and CCTV the OCSD trunk sewer pipeline before turning
it back to OCSD.
(b) The Parties agree that if for any unforeseen circumstances Newport Beach is not able to fully connect and provide current projected flows to the new OCSD trunk sewer pipeline
within one year of completion of the Project, Newport Beach will assume operation and maintenance of said OCSD trunk sewer pipeline until a full connection is made and current projected
flows are achieved. Upon completion of the Newport Beach gravity sewer pipelines and connection, and when current projected flows are achieved, Newport Beach will clean and CCTV the
OCSD trunk sewer pipeline before turning it back to OCSD.
(c) If neither CMSD nor Newport Beach connect and achieve current projected flows within one year of completion of the Project, CMSD and Newport Beach agree to jointly operate and
maintain the OCSD trunk sewer pipeline until such time that both are connected and achieving current projected flows, at which time, OCSD will assume operation and maintenance responsibilities.
(d) Operation and maintenance of the OCSD trunk sewer pipeline during the interim period described above in (a) through (c) will not be the responsibility of OCSD.
8. In contemplation of the provisions of Section 895.2 of the California Government Code imposing certain tort liability jointly upon public entities solely by reason of such entities
being parties to an agreement as defined by Section 895 of the Government Code, each Party, pursuant to the authorization contained in Sections 895.4 and 895.6 of the Government Code,
hereby agrees to and shall indemnify and hold harmless the other Party, and its council members, officers, agents, and employees from and against any and all losses, liability, damages,
claims, suits, actions, and administrative proceedings or demands (including reasonable attorneys fees) relating to acts or omissions of the indemnitor, its officers, agents, or employees
arising out of or incidental to the performance of any of the provisions of this Agreement. Neither Party assumes
liability for the acts or omissions of persons other than each party's respective officers, agents, or employees. In the event judgment is entered against the Parties because of joint
or concurrent negligence of the Parties, or their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a Court of competent jurisdiction.
This section shall survive termination of the Agreement.
9. This Agreement shall remain in effect from _________ to the acceptance of the improvements by the legislative bodies of the Parties, provided that it may be amended or terminated
upon the mutual written agreement of the Parties.
10. All notices given pursuant to this Agreement shall (a) be in writing and sent by overnight courier (return receipt requested) or facsimile or electronic transmission, (b) shall
be deemed given upon the date of delivery (or refusal to accept delivery) as indicated on the return receipt; provided, however, if such notice is not delivered or refused on a business
day, then notice shall be deemed to have been given on the first business day following the actual date of delivery or refusal and (c) addressed as follows:
If to OCSD: With a copy to:
General Manager
Orange County Sanitation District
10844 Ellis Avenue
Fountain Valley, CA 92708
If to CMSD: With a copy to:
General Manager
Costa Mesa Sanitary District
628 W. 19th Street
Costa Mesa, CA 92627
If to Newport Beach: With a copy to:
11. The terms of the Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship
of this Agreement or any other rule of construction which might otherwise apply.
12. Absent an express waiver, the failure of any party to pursue any right granted under this Agreement shall not be deemed a waiver of that right regarding any existing or subsequent
breach or default under this Agreement.
13. This Agreement is solely between the Parties hereto, and is not intended to create, nor should it be construed to create any rights in so-called third party beneficiaries.
14. It is understood that there are no oral agreements between the Parties hereto affecting this Agreement and this Agreement supersedes and cancels any and all previous negotiations,
arrangements, agreements, and understandings, if any, between the parties, and none shall be used to interpret this Agreement. This Agreement may be amended at any time by the mutual
consent of the parties by an instrument in writing.
15. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of the other provisions of this Agreement. If any provision of this
Agreement shall be found contrary to law, the remainder of this Agreement shall continue in full force.
16. This Agreement may be executed in counterparts, each of which shall be deemed an original, and such counterparts together shall constitute but one and the same instrument.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the date set forth opposite the respective signatures.
ORANGE COUNTY SANITATION DISTRICT
By:
ATTEST:
By:
APPROVED AS TO FORM:
By:
COSTA MESA SANITARY DISTRICT
By:
ATTEST:
By:
APPROVED AS TO FORM:
By:
CITY OF NEWPORT BEACH
By:
ATTEST:
By:
APPROVED AS TO FORM:
By: