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Home My WebLink AboutA-2003-095 . A-2003-095 .. AGREEMENT THIS AGREEMENT, is made and entered into, to be effective the jðfl'vday of fwf'Uar~ , 2003, by and between: ORANGE COUNTY SANITATION DISTRICT, hereinafter referred to as "OCSD"; AND CITY OF SANTA ANA, hereinafter referred to as "AGENCY"; collectively referred to herein as the "Parties", RECITALS WHEREAS, OCSD is the regional agency with primary responsibility for collecting, treating, and disposing of wastewater in central and north Orange County, California, and within the jurisdiction of the California Regional Water Quality Control Board - Santa Ana Region, hereinafter referred to as "RWQCB-SA"; and WHEREAS, from January 2000 through August 2001, there were approximately 250 sewer system overflows ("SSOs") within Orange County, of which almost 75 percent were from sewer collection systems owned by cities and local wastewater agencies. During this same period, there were 31 beach closures due to SSOs, of which 17 were from systems owned by cities and local wastewater agencies, The most prevalent cause of the SSOs is grease accumulation in the small to medium sewer lines commonly known as and hereinafter referred to as "local collector sewers," These local collector sewer lines are owned and operated by cities and local wastewater agencies, with the exception of those located in the unincorporated area 170479_1 1 . known as North Tustin and in the City of Tustin, where OCSD also provides the local collector sewer service; and WHEREAS, the 2000-01 Orange County Grand Jury ("Grand Jury") investigated SSOs County-wide and published its Findings in April, 2001 in a Report entitled, Sewage Spills, Beach Closures-Trouble in Paradise, The Grand Jury identified as the main cause of SSOs, sewer pipes clogged with grease from restaurants and high-density residential areas (e.g" apartment complexes), The Grand Jury also suggested that a regional coalition be formed to resolve the SSO problems and develop a regional, consolidated approach to controlling grease, which, if implemented, would encompass areas outside of the jurisdiction of the RWQCB-SA and within the jurisdiction of the Regional Water Quality Control Board-San Diego ("RWQCB-SD"); and WHEREAS, to address a portion of the County-wide SSO incidents, the RWQCB-SA has adopted its Order No. R8-2002-0014, General Waste Discharge Requirements (the "Order"), requiring cities and local wastewater agencies within its jurisdiction in northern and central Orange County to monitor and control SSOs, The Order names OCSD as one of 31 Co-Permittees and as a facilitator agency to assist in obtaining regional compliance with the Order by all Co-Permittees, The Co-Permittees include 16 cities and 13 local wastewater agencies that provide sewer service in northern and central Orange County (although the City of Los Alamitos is named in the Order, the RWQCB-SA is expected to remove it from the Order because it does not provide sewer service in its jurisdiction; sewer service in Los Alamitos is provided by the Rossmoor-Los Alamitos Area Sewer District), Agency is one of the Co-Permittees, 170479_1 2 As part of the Order, each Co-Permittee is also required to develop a "Fats, Oil, and Grease Source Control Program ("FOG Control Program") by December 30, 2004, To enable the development of FOG Control Programs that are practical, equitable, and implementable by all Co-Permittees, OCSD has proposed to conduct a study to evaluate FOG control technologies, practices, and programs, and based thereon, to develop technical and administrative practices and procedures, together with the elements or building blocks to implement the FOG Control Programs; and WHEREAS, the Co-Permittees have determined that the interests of all developed areas within the County of Orange would be best met by conducting a County-wide, comprehensive FOG Control Study ("Study") to develop a consistent, practical, and equitable approach to FOG control throughout Orange County, including the jurisdiction of Co-Permittees, The Study was divided into two phases, Phase I is a research Study that evaluates the current FOG control practices, technologies, and programs in the United States. Phase II is a follow up to the findings of Phase I and would involve field-testing of selected FOG control technologies identified in Phase I before they are considered for adoption in local FOG control programs and ordinances. Additional follow-up issues may be addressed in Phase II, subject to budget constraints, Some additional follow-up issues include: Efficient Kitchen Best Management Practices; Education and Outreach; Program Costs, Fees, and Incentives; Monitoring and Enforcement; Standardized Grease Interceptor Plumbing, Design, and Sizing Criteria; Waste Grease Tracking; and Private Lateral Sewer Line Cleaning Notification; and 170479_1 3 , WHEREAS, the Study, managed centrally by OCSD, will result in significant cost savings to the Co-Permittees. The expected cost of this consolidated approach to develop and conduct the Study, is $600,000,00, which represents a significant cost savings to the Co-Permitees compared with the estimated cumulative cost of $3,000,000.00 to $5,000,000.00 if all Co-Permittees conducted individual studies; and WHEREAS, to meet the December 30, 2004 deadline, interim schedules, resource requirements, and other constraints, OCSD has contracted for professional services with Environmental Engineering & Contracting, Inc. ("EEC"), to conduct the 2- Phase Study, The cost for Phase I of the Study was $268,000.00, Phase I commenced in May 2002, and was completed during Fiscal Year 2002-03. Phase II will commence on or about December 1, 2003, and will be completed during Fiscal Year 2003-2004, The cost for Phase II of the Study is approximately $300,000,00; and WHEREAS, the parties have agreed in principle to contribute towards the cost of performing Phase II of the Study subject to the fair-share allocation of the costs for Phase II based upon Co-Permittee population, AGREEMENT NOW, THEREFORE, OCSD and AGENCY agree as follows: Section 1: OCSD shall contract with EEC for purposes of conducting Phase II of a Fats, Oils, and Grease Control Study in an amount not-to-exceed $300,000,00, Section 2: AGENCY acknowledges that OCSD has been designated as one of the Co-Permittees and as a facilitator among the Co-Permittees, by the RWQCB- 170479_1 4 SA, to assist in obtaining compliance by each of the Co-Permittees with RWQCB Order No. R8-2002-0014. Section 3: OCSD shall be solely responsible for the administration of the above-referenced Professional Services Agreement between OCSD and EEC, wherein EEC will undertake a scientific study to perform evaluations and field testing of three technologies that Phase I identified as having potential success in controlling FOG in pilot tests and applications. Section 4: AGENCY agrees that it shall pay the sum of $35,926 to OCSD as its proportionate share, based on AGENCY's population, of the cost of Phase II of the Study. It is intended that the balance of the cost of Phase 'I of the Study will be paid by the other Co-Permittees according to their respective proportionate shares identified in Exhibit A attached hereto, Section 5: AGENCY shall pay OCSD the sum due, concurrently upon execution and delivery of this Agreement. Section 6: Upon collection by OCSD of the proportionate shares from Co- Permittees participating in the Phase II Study, if the funds collected total a sum below the estimated costs of $300,000,00, OCSD shall determine at its own discretion to adjust the scope of the Phase II Study commensurate with the funding available. Additionally, if OCSD determines that the funding available is below the cost of a reasonable and useful Phase II Study, OCSD may, in its discretion, decline to proceed with the Study. If OCSD declines to proceed, the funds collected from the Agency pursuant to this Agreement shall be refunded by OCSD, without interest, within thirty (30) days of OCSD's decision not to proceed with the Phase II Study, 170479_1 5 Section 7: All reasonable administrative costs to coordinate and manage the Agreement with EEC shall be borne by OCSD, Section 8: OCSD shall be solely responsible to ensure full compliance and completion by EEC of all services within the scope of work for the Phase II Study, and approval of the Final Report from the Study shall rest in the sole discretion of OCSD, Section 9: AGENCY shall receive a copy of the Final Report from OCSD immediately following approval and acceptance of the Report by OCSD. Section 10: AGENCY agrees to cooperate with OCSD and representatives of EEC, in providing information as requested by OCSD and/or EEC in the performance of Phase II of the Study. Section 11: AGENCY shall not be obligated in any manner by this Agreement, to implement any finding or recommendation set forth in the Final Report for the Phase II Study. Section 12: OCSD shall administer all payments to EEC due under the terms of the Phase II Agreement between OCSD and EEC from the funds collected from Co- Permittees pursuant to this Agreement. Section 13: It is the intention of OCSD and AGENCY that each party shall bear responsibility for the negligence, if any, of its respective officers, employees, agents, representatives, and successors-in-interest. OCSD agrees to hold harmless, defend, and indemnify AGENCY, its officers, employees, agents, representatives, and successors-in-interest against any and all loss, damage, cost, or expense that AGENCY, its officers, employees, agents, representatives, and successors-in-interest may incur or be required to pay by any 170479_1 6 reason of any injury or property damage caused or incurred by OCSD or their officers, employees, agents, representatives, or contractors arising out of or in connection with this contract, excepting that portion of such loss, damage, cost, or expense caused or incurred by AGENCY, AGENCY agrees to hold harmless, defend, and indemnify OCSD, its officers, employees, agents, representatives, and successors-in-interest against any and all loss, damage, cost, or expense that OCSD, its officers, employees, agents, representatives, and successors-in-interest may incur or be required to pay by any reason of any injury or property damage caused or incurred by AGENCY or their officers, employees, agents, representatives, or contractors arising out of or in connection with this contract, excepting that portion of such loss, damage, cost, or expense caused or incurred by OCSD, This indemnity does not apply to any work, action, or decisions by OCSD or AGENCY to implement any part or provision of the Program, as recommended by contractor, EEC, Section 14: Each Party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and bind each respective Party. Section 15: All notices, demands, invoices, and written communications required to be provided under this Agreement, shall be delivered at the following addresses or such other addresses as the Parties may designate by written notice: If to AGENCY: City of Santa Ana 220 S. Daisy Ave. Santa Ana, CA 92703 Attn: Ray Burk 170479_1 7 If to OCSD: Orange County Sanitation District Attention: Mark Kawamoto P.O. Box 8127 Fountain Valley, California 92728-8127 With Copy To: Director of Technical Services Orange County Sanitation District P.O. Box 8127 Fountain Valley, California 92728-8127 Depending on the method of transmittal, notice shall be deemed received as follows: by facsimile or other electronic transmission, as of the date and time sent, based on electronic confirmation of receipt; or by messenger, as of the date delivered; or by U,S. Mail first class postage prepaid, as of seventy-two (72) hours after deposit in the U. S, Mail. Section 16: It being agreed that both Parties or their agents have participated in the preparation of this Agreement, the language of this Agreement shall be construed according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days, or period for performance shall be deemed calendar days and not work days, Section 17 No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing and signed by the Parties. Section 18: No waiver of any default shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a Party shall give the other Party any contractual right by custom, estoppel, or otherwise, 170479_1 8 Section 19: Each and all of the covenants and conditions shall be binding on and shall inure to the benefit of the Parties, and their successors, heirs, personal representatives, or assigns, This Section shall not be construed as an authorization for any Party to assign any right or obligation under this Agreement. Section 20: Should any part of this Agreement be declared by a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid, or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the unexcised portion, can be reasonably interpreted to give effect to the intentions of the parties. Section 21: Time is of the essence in this Agreement, and the Parties agree to execute all documents and proceed with due diligence to complete all covenants and conditions. Section 22: This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument. Section 23: This Agreement contains the entire Agreement between the Parties and supersedes any prior oral or written statements or Agreements between the Parties, Section 24: This Agreement shall become effective on the date first set forth above, [SIGNATURE PAGE FOLLOWS] 170479_1 9 IN WITNESS WHEREOF, OCSD and AGENCY have each caused this Agreement to be executed by its duly authorized representative on the day and year set forth above. ORANGE COUNTY SANITATION DISTRICT By ~~~L Blake P. Anderson, General Manag,Ðr (11Ü' Secret ',PPROVED AS TO FORM J -'.I --,Y, r;1 ~ ,~>.1" -- // . -, 'NOODRUFF COUNSEL By AGENCY ~/ /] ) - cÞI ¡'V:ti-~ By Title City Manager ATTE,ST: ., ~ / ~_/ -, (---¡,,- , I ' By \...5 c;¿ Title Clerk of the Council Attachment: FOG Phase II Cost Fair Share Allocations 170479_1 <J~tJi,< '1\'1:.:\ ,\ T(i ¡-(;¡~\J Ô\£?ft' , Lolli :-:: :'1 :r; ".:¡,~(',:\ ';,~Si::'l,lIIL c¡,. .\:t,\I "'~~ 10 170479_1 FOG PHASE II COST FAIR SHARE ALLOCATIONS '''Cost(Pop)'' = PopulationlTotal*(Cost Basis - 20%)' 'OCSD and Orange County as regional agencies agreed to contribute 10% each towards the cost of Phase II, 11