Amendment #1
to THE Joint Exercise of Powers Agreement Creating South Orange County Wastewater Authority Orange County, California
(SOCWA)
and Terminating Aliso Water Management Agency, South East Regional Reclamation Authority, South Orange County Reclamation Authority This Amendment (Amendment) to the Joint Exercise of Powers Agreement Creating South Orange County Wastewater Authority Orange County, California (SOCWA) and Terminating Aliso Water Management Agency, South East Regional Reclamation Authority, South Orange County Reclamation Authority (Joint Powers Agreement) shall be effective on ___________, 2024 (the Amendment Date) and is executed by and between Moulton Niguel Water District, a California water district (MNWD), South Coast Water District, a county water district (SCWD), Emerald Bay Service District, a California community services district (EBSD), City of Laguna Beach, a __________(CLB), El Toro Water District, a ________________ (ETWD), Santa Margarita Water District, a __________ (SMWD) and the City of San Clemente, a ________ (CSC). The public entities listed above may be referred to in this Agreement collectively or in combination(s) as the “parties” or individually as a “party”. Capitalized terms not immediately defined herein shall have the definitions set forth in Article I of the Joint Powers Agreement.
RECITALS
WHEREAS, effective on or about May 19, 2022, the City of San Juan Capistrano (CSJC) withdrew as a member agency of SOCWA; WHEREAS, effective on or about May 4, 2023, Trabuco Canyon Water District (TCWD) withdrew as a member agency of SOCWA; WHEREAS, effective on or about July 1, 2023, Irvine Ranch Water District (IRWD) withdrew as a member agency of SOCWA; WHEREAS, effective on or around the Amendment Date, MNWD will withdraw as a member agency of SOCWA pursuant to a written withdrawal agreement which is referenced in the list below; WHEREAS, SOCWA is going through certain other organizational changes that will affect member agency capacity rights and assign or transfer certain assets and liabilities, all of which shall be reflected in the following separate agreements which shall be referred to collectively as the “2024 SOCWA Reorganization Agreements”:
“Asset and Capacity Transfer Agreement (Agreement 1)”;
“Regional Treatment Plant Capacity Rights Transfer Agreement (Agreement No. 2) (ETWD, SCWD, CLB and EBSD Solids Capacity Rights in Project Committee 17)”; “Coastal Treatment Plant Capacity Rights Transfer Agreement (Agreement No. 3) (MNWD Capacity Rights in Project Committee 15)”; “MNWD – SOCWA Withdrawal Agreement (Agreement No. 4)”;
“Assignment and Assumption Agreement (Agreement #5) (Project Committee 2)”; “Assignment and Assumption Agreement (Agreement #6) (Project Committee 5)”; “Assignment and Assumption Agreement (Agreement #7) (Project Committees 21 and 24)”; “Agreement for Solids Treatment and Handling Services at the Joint Regional Treatment Plant by Moulton Niguel Water District (Agreement #8)”; “Moulton Niguel Water District SOCWA Continued Services Agreement (Agreement No. 9)”; “Amendment No. 7, Agreement for Acquisition, Use, Operation, Maintenance and Expansion of Sewage Treatment Plant of City of San Juan Capistrano by South East Regional Reclamation Authority for and on Behalf of Project Committee No. 2” “Memorandum of Understanding, Allocation of MNWD’s Transfer Price Payment for the Regional Treatment Plant and Withdrawal from SOCWA and Evaluation of Reducing SOCWA Overhead Expenses”.
WHEREAS, the parties wish to memorialize and acknowledge the current membership of SOCWA and summarize their respective capacity rights in one central record and recognize the supremacy of the 2024 SOCWA Reorganization Agreements that are being approved prior to or concurrently with this Amendment; WHEREAS, the parties hereby agree to amend the Joint Powers Agreement as set forth below:
AGREEMENT
THE PARTIES HEREBY AGREE AS FOLLOWS:
Incorporation of Recitals. The Recitals set forth above are hereby incorporated into the Joint Powers Agreement as though set forth in full therein.
Supremacy. The terms set forth in the 2024 SOCWA Reorganization Agreements, as further defined and as described in the Asset and Capacity Transfer Agreement (Agreement 1), are meant to and hereby do supersede and control over any conflicting terms in the Joint Powers Agreement and any other predecessor agreement executed by and between the parties or any combination of parties thereof, including, but not limited to, Project Committee Agreements. Each and every other term and condition, article, obligation, right and provision of the Joint Powers Agreement or any Project Committee agreement not in conflict with the terms set forth in the 2024 SOCWA Reorganization Agreements shall remain in full force and effect. It is the intent of the parties that the 2024 SOCWA Reorganization Agreements should be read as a whole, in context, and, if possible, to give the same weight and effect to every word within the agreements. The parties are bound to give consistent, harmonious, and sensible effect to all of the parts of the agreements, to the extent possible. However, to the extent any terms cannot be harmonized within the 2024 SOCWA Reorganization Agreements and in the unlikely event terms within the agreements conflict with one another, the agreements shall control in the supremacy order set forth below (in other words, the agreement listed below as 1 controls over the subsequent agreement listed as 2, and so forth):
Supremacy Order/Order of Control
Name of Agreement
Signatories
1 Amendment #1 to Joint Powers Agreement
MNWD, SOCWA, SCWD, EBSD, ETWD, CLB, SMWD & CSC
2 Asset and Capacity Transfer Agreement (Agreement 1) (Excluding all Exhibits thereto)
MNWD, SOCWA, SCWD, EBSD, ETWD, CLB & CSC
3 SOCWA Withdrawal Agreement
MNWD, SOCWA, SCWD, EBSD, ETWD, CLB, SMWD & CSC
4 Assignment and Assumption Agreement (PC 2) (Agreement #5)
MNWD, SMWD & SCWD
4 Assignment and Assumption Agreement (PC 5) (Agreement #6)
MNWD, CSC, SCWD & SMWD
4 Assignment and Assumption Agreement (PC 21/24) (Agreement #7)
MNWD, CLB, EBSD, SCWD & ETWD
5 RTP Capacity Rights Transfer Agreement (PC 17) (Agreement #2)
MNWD, SCWD, EBSD, ETWD & CLB
5 CTP Capacity Rights Transfer Agreement (PC 15) (Agreement #3)
MNWD, SCWD, EBSD & CLB
6 RTP Solids Handling Agreement (Agreement #8)
MNWD, SCWD, EBSD, ETWD & CLB
7 MNWD-SOCWA Continued Services Agreement (Agreement #9)
MNWD & SOCWA
8 Labor MOU
MNWD, SOCWA & SOCWA Employees Association
9 Transfer Price Allocation MOU
CLB, CSC, EBSD, ETWD, SCWD & SMWD
10 Laboratory Lease
MNWD & SOCWA
11 RTP Property Transfer Agreement
MNWD & SOCWA
12 RTP Property Transfer Agreement Grant Deed
MNWD & SOCWA
13 RTP Property Transfer Agreement Bill of Sale
SOCWA
14 RTP Property Transfer Agreement Promissory Notes
MNWD
15 Amendment No.7 to the PC 2 Agreement
MNWD, SOCWA, SMWD & SCWD
Concurrency. This Amendment shall not be effective, and no term shall be enforceable, until all of the 2024 SOCWA Reorganization Agreements are effective and enforceable.
Acknowledgment of MNWD Withdrawal. Effective on the Amendment Date, MNWD will no longer be a member agency of SOCWA, nor will MNWD be a member of any SOCWA Project Committee, and all voting rights of MNWD in SOCWA and in any Project Committee thereof will be extinguished as of the Amendment Date, though the obligations of MNWD to SOCWA and the other member agencies shall continue as detailed in the 2024 SOCWA Reorganization Agreements, approved and executed concurrently together with this Amendment.
Remaining SOCWA Member Agencies. Effective on the Amendment Date, SOCWA shall have six remaining member agencies: SCWD, CLB, EBSD, CSC, SMWD, and ETWD.
Acknowledgment of Remaining Capacity Rights. The parties hereby acknowledge Exhibit 1 attached hereto, which summarizes the capacity rights for the remaining member agencies in SOCWA Project Committees 2, 5, 10, 24, 15, and 21 effective on the Amendment Date.
Signing Authority. Each party represents and warrants that each person or persons executing this Amendment on its behalf is duly authorized to do so by the respective party and that this Amendment shall bind the parties.
Successors & Assigns. The terms of this Amendment are binding upon and will inure to the benefit of and be enforceable by the respective successors and assigns of the parties.
Counterparts. Each party represents and warrants that it has the full power and authority to execute this Amendment. This Amendment may be executed in counterparts and/or electronically (e.g., via DocuSign), each of which shall be deemed an original and all of which shall constitute one instrument. A faxed, .pdf, scanned or other electronic copy of the fully executed original version of this Amendment shall have the same legal effect as an executed original for all purposes.
In witness whereof, the parties hereto have by their respective officers thereunto duly authorized caused this Amendment to be executed on the dates set forth below, effective on the Amendment Date.
SANTA MARGARITA WATER DISTRICT
By:
President
By:
Secretary
MOULTON NIGUEL WATER DISTRICT
By:
President
By:
Secretary
CITY OF LAGUNA BEACH
By:
Mayor
By:
City Clerk
SOUTH COAST WATER DISTRICT
By:
President
By:
Secretary
CITY OF SAN CLEMENTE
By:
Mayor
By:
City Clerk
EMERALD BAY SERVICE DISTRICT
By:
President
By:
Secretary
EL TORO WATER DISTRICT
By:
President
By:
Secretary
EXHIBIT 1
SUMMARY OF CAPACITY RIGHTS FOR SOCWA Project Committees 2, 5, 10, 24, 15, and 21 - 1 -
8513451.2
Attachment 2