FOR THE COUNCIL MEETING OF APRIL 5, 2022
COUNCIL AGENDA REPORT
TO:
FROM:
SUBJECT:
City Council
City Manager
Prepared by: Director of Utilities
WATER PURCHASE AGREEMENT WITH THE
CENTRAL COAST WATER AUTHORITY
RECOMMENDATION:
That the City Council adopt a Resolution approving a water purchase agreement with the Central Coast Water Authority.
BACKGROUND:
The Central Coast Water Authority ("CCWA") is a public entity organized under a joint exercise of powers agreement dated August 1, 1991, by the cities and special districts responsible for the creation and maintenance of water resources in portions of Santa Barbara County. The CCWA owns and operates a water treatment plant and pipeline that delivers water from the State Water Project ("SWP") to project participants in Santa Barbara and San Luis Obispo Counties, including the City of Santa Maria ("City"). The CCWA is the primary representative for Santa Barbara County in matters relating to the SWP.
In 1997, the City began receiving imported SWP water. Since then, the City has imported more than 210,000 acre-feet ("AF") of SWP water, annually delivering between 12,000 AF and 14,000 AF of blended water (SWP water and groundwater) to Santa Maria residents. The City has historically used SWP water to provide a blend of higher "quality" water to residents and businesses throughout the year, as SWP is softer than typical groundwater. Importantly, SWP water is also used to augment local supplies to meet peak -day demands during the longer, warmer days of summer.
The approved budget for the Utilities Department includes a line item for "Dry Year Water Purchases." This funding is used should the need arise for the City to purchase additional water during dry years, or years of low SWP water allocation. The State of California Department of Water Resources ("DWR") has issued an extremely low allocation of SWP water deliveries for 2022 (currently five percent).
The CCWA established a "2022 Supplemental Water Purchase Program" to identify, secure, and deliver supplemental water supplies to project participants when SWP supplies are reduced due to dry conditions. Supplemental water supplies are delivered through the SWP and CCWA facilities. The program requires each participant to state its purchase intent. Consistent with the intent of the approved budget for "Dry Year Water Purchases," the Director of Utilities signed a participation agreement with CCWA for the 2022 Supplemental Water Purchase Program and identified a goal of attaining 1,300 AF of supplemental water (Attachment "A").
As noted in the Supplemental Water Purchase Program Agreement, each agency is required to carry the costs associated the administration of the program at the percentage of their declared intent to purchase water. Once CCWA identifies an opportunity, the City can choose whether to enter into the purchase portion of the agreement.
DISCUSSION:
In conformance with the 2022 Supplemental Water Purchase Program, CCWA has explored opportunities to secure additional water supplies for project participants. One opportunity is with Casitas Municipal Water District ("CMWD"). CCWA and CMWD have come to terms regarding the sale of CMWD water to CCWA (Attachment "B"). CMWD is willing to sell water at a cost of $700 per AF. Due to limited availability based on the five percent allocation for SWP water, CMWD has just 250 AF available for sale. Consistent withiterms of the 2022 Supplemental Water Purchase Program, the City is eligible to purchase 61 AF. This number may increase slightly if other CCWA participants choose not to enter the purchase agreement.
The purchase agreement will be drafted by CCWA and presented to the City consistent with the terms between CMWD and CCWA. In order to purchase the water, the City must execute the agreement and submit it along with payment to CCWA for approval by its Board of Directors on April 28, 2022. Once approved and signed, the item will be submitted to DWR for approval.
Since this agreement will meet only a portion of the City's goal of attaining an additional 1,300 AF, Staff will continue to pursue supplemental water through the 2022 Supplemental Water Purchase Program with CCWA. Should additional opportunities for supplemental water becomes available, Staff will return to City Council for authorization to enter a water purchase agreement. In addition, Staff continues to identify and develop projects that provide additional resiliency for local groundwater supplies.
Alternatives
The City can elect not to enter into the water purchase agreement with CCWA. However, the terms of sale are reasonable given the current drought and SWP allocation of five percent.
Fiscal Considerations
Funds for this purchase are available within the existing budget identified as "Dry Year Water Purchases" in Fund 002 Water.
2 Impact to the City
The supplemental water will be used to augment local supplies to meet peak -day demands.
Impact to the Community
The City's ability to provide high quality water is essential to the operation of the City.
Execution of this agreement is a continuation of the City's effort to accomplish this essential operation.
Director of Utilities
ER, P.E.
ATTACHMENT "A": SUPPLEMENTAL WATER PURCHASE PROGRAM PARTICIPATION AGREEMENT ATTACHMENT "B": WATER TRANSFER AGREEMENT BETWEEN CCWA AND CMWD 3 2022 Supplemental Water Purchase Program
Participation Agreement
CENTRAL COAST WATER AUTHORITY
2022 SUPPLEMENTAL WATER PURCHASE PROGRAM
PARTICIPATION AGREEMENT
This 2022 Supplemental Water Purchase Program Participation Agreement ("Agreement") is made as of by and between
CENTRAL COAST WATER AUTHORITY ("CCWA")
and
CITY OF SANTA MARIA ("Contractor") (each, a "Party," and together, the "Parties").
RECITALS
A. Pursuant to the Transfer of Financial Responsibility Agreement, the Santa Barbara County Flood Control and Water Conservation District ("SBCFCWCD") transferred to CCWA, and CCWA accepted and assumed, all rights and obligations to the State Water Supply Contract between SBCFCWCD and the Department of Water Resources ("DWR") that provides for the delivery of water from California's State Water Project to portions of Santa Barbara County.
B. Additionally, CCWA owns, operates and maintains water conveyance, storage and treatment facilities to deliver water made available to CCWA pursuant to the State Water Supply Contract to cities, water districts and other water purveyors and users in portions of Santa Barbara County pursuant to one or more water supply agreements (collectively, the "CCWA Participants").
C. CCWA and Contractor are parties to a Water Supply Agreement, as amended from time to time, related to the matters described in Recitals A and B.
D. Due to persistent drought conditions, it is anticipated that the State Water Project will be unable to deliver to CCWA the quantity of water needed by CCWA for delivery to the CCWA Participants.
E. CCWA has determined that it should seek to acquire water from other sources to supplement the supply provided for in Contractor's Water Supply Agreement ("Supplemental Water") and has implemented the 2022 Supplemental Water Purchase Program to identify Supplemental Water that may be available for purchase by one or more CCWA Participants ("2022 Supplemental Water Purchase Program").
F. Contractor has determined that it wishes to participate in the 2022 Supplemental Water Purchase Program and is willing to share in the expenses pertaining thereto in accordance
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ATTACHMENT"A"
2022 Supplemental Water Purchase Program
Participation Agreement
with the terms and conditions of this Agreement. Contractor and any other CCWA Participants that have executed a "2022 Supplemental Water Purchase Program Participation Agreement," in a form substantially the same as this Agreement ("Participation Agreement"), are referred to herein as "Participating Contractors."
G. The Parties have determined that this Agreement is exempt from the California Environmental Quality Act ("CEQA") pursuant to the "common sense" exemption to environmental review under Section 15061 subdivision (b)(3) of Title 14 of the California Code of Regulations because the Parties' actions pursuant to this Agreement do not have the potential for causing a significant effect on the environment.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual representations, warranties, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. Purpose and Intent. The purpose of this Agreement is to provide for CCWA's identification of one or more opportunities for Participating Contractors to acquire Supplemental Water in exchange for the Participating Contractors' reimbursement of CCWA's Total Expenses, as that term is defined in Paragraph 4.2, arising from and associated with such activities. It is the intention of the Parties that neither CCWA, nor any CCWA Participant that is not a Participating Contractor shall incur any expense or liability related to or arising from this Agreement or the 2022 Supplemental Water Purchase Program.
2. Cooperation; Delivery Goal
2.1 Cooperation. Contractor acknowledges that CCWA's ability to identify, structure and negotiate one or more opportunities for the acquisition of Supplemental Water, as provided in this Agreement, requires Contractor's cooperation. The Parties shall reasonably cooperate with each other in all ways as may be necessary to carry out the terms and conditions of this Agreement.
2.2 Delivery Goal. Contractor represents that it is seeking to acquire 1,300 acre feet of Supplemental Water over the term of this Agreement ("Delivery Goal"). At any time during the term of this Agreement, Contractor may request an increase, but not a decrease, in the Delivery Goal by executing and delivering to CCWA a Request for Increase in Delivery Goal, in a form approved by CCWA. No such Request for Increase in Delivery Goal shall be effective unless and until it is executed by CCWA's Executive Director. Any increased Delivery Goal supersedes any prior Delivery Goal for all purposes related to this Agreement and without regard to the date on which any Delivery Goal is increased.
3. Notification of Purchase Opportunity; Statement of Intent; Allocation of Supplemental Water
3.1 Notification of Purchase Opportunity. CCWA shall notify Contractor of each opportunity to acquire Supplemental Water identified by CCWA (each, a "Purchase Opportunity"). Each notice shall include a deadline for Contractor's response and, to the extent
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it is available to CCWA, the following information: anticipated available quantity, purchase price, date of scheduled delivery, and delivery risk, including anticipated transmission losses (the "Notice"), which Notice shall be either in electronic or written format.
3.2 Statement of Intent
3.2.1 Upon receipt of the Notice, Contractor shall submit to CCWA a Statement of Intent ("Statement of Intent" or "SOI"), in a form approved by CCWA, which shall include the quantity of water Contractor intends to acquire in connection with a particular Purchase Opportunity ("SOI Quantity").
3.2.2 If Contractor submits a Statement of Intent prior to the deadline set forth in the Notice, CCWA shall provide to Contractor (a) a proposed agreement between CCWA and Contractor whereby Contractor agrees to purchase and take delivery of the SOI Quantity on the terms and conditions stated therein ("Supplemental Water Purchase Agreement"), and (b) the deadline by which Contractor must elect to execute the Supplemental Water Purchase Agreement if it wants to participate in a specific Purchase Opportunity. Participating Contractors who submit a Statement of Intent are referred to herein as "Purchase Opportunity Participants" for each Purchase Opportunity.
3.3 Oversubscription: Allocation of Supplemental Water. As to each Purchase Opportunity, if CCWA receives signed Statements of Intent from Purchase Opportunity Participants where the aggregate 501 Quantity from all Purchase Opportunity Participants exceeds the amount of Supplemental Water available under the particular Purchase Opportunity, the amount of Supplemental Water available under each Purchase Opportunity shall be allocated for purchase to the Purchase Opportunity Participants in proportion to the respective Delivery Goal of each Purchase Opportunity Participant without regard to whether the Purchase Opportunity Participant has elected to participate in any other Purchase Opportunity; provided, however, that no such Purchase Opportunity Participant shall be allocated an amount that exceeds that Purchase Opportunity Participant's Delivery Goal, whether under a particular Purchase Opportunity or in aggregate across multiple Purchase Opportunities.
4. Allocation of Costs; Deposit; Contractor Payment
4.1 Contractor shall pay to CCWA Contractor's pro -rata share of CCWA's Total Expenses (as defined in Paragraph 4.2), which share shall be calculated as follows:
4.1.1 For Total Expenses arising from services rendered by CCWA pursuant to this Agreement, Contractor's pro -rata share shall be equal to Contractor's Delivery Goal divided by the sum of the Delivery Goals of all Participating Contractors as defined in its respective Participation Agreements.
4.1.2 For Total Expenses related to a specific Purchase Opportunity, Contractor's pro -rata share of such expenses shall be equal to Contractor's SOI Quantity for that Purchase Opportunity divided by the sum of the SOI Quantities set forth in the Statements of Intent submitted by all Purchase Opportunity Participants for that Purchase Opportunity. In the event that no Statements of Intent are executed and delivered by any Participating Contractor for a
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particular Purchase Opportunity, Contractor's pro -rata share under this Paragraph shall be calculated in accordance with Paragraph 4.1.1 above.
4.1.3 For Total Expenses arising from services that are of benefit to only one Participating Contractor, that Participating Contractor shall pay for the Total Expenses related to said services.
4.2 "Total Expenses" shall mean all out-of-pocket expenditures made by CCWA pursuant to this Agreement, including consultant and legal expenses, any expenses incurred by CCWA in defense of this Agreement, as provided in Paragraph 9, and any other costs related to or arising under this Agreement.
4.3 Deposit. Prior to execution of this Agreement, CCWA prepared and delivered to Contractor an estimate of Contractor's anticipated financial obligations under Paragraph 4.1.1 of this Agreement. Concurrently with Contractor's execution of this Agreement, Contractor shall place on deposit with CCWA the amount stated in the estimate.
4.4 Subsequent Deposits. Prior to the end of the calendar year of this Agreement, CCWA shall provide to Contractor an estimate of any additional anticipated financial obligations not covered by the deposit required by Paragraph 4.3. Contractor shall place on deposit with CCWA the amount stated in the estimate no later than the deadline established by CCWA's Executive Director.
4.5 Invoices and Payments. In the event CCWA reasonably determines that the deposit paid by Contractor to CCWA pursuant to Paragraph 4.3 and/or Paragraph 4.4 will be insufficient to cover Contractor's financial obligations hereunder, CCWA is authorized to deliver to Contractor a revised estimate of those financial obligations and an invoice for an additional deposit.
Contractor shall remit the amount stated in the invoice within thirty (30) days of receipt.
4.6 Reconciliation. Upon termination of this Agreement, CCWA shall provide to Contractor an accounting of the actual amounts Contractor is obligated to pay hereunder. Any overpayment by Contractor shall be promptly refunded by CCWA and any underpayment by Contractor shall be promptly paid to CCWA.
5. Contractor's Representative. Upon Contractor's execution of this Agreement, Contractor shall provide to CCWA a written Designation of Representative, in a form approved by CCWA, identifying Contractor's authorized representative with full authority to grant, provide and enter into, by and on behalf of Contractor, any and all consents, approvals, instructions, authorizations or agreements by Contractor in connection with this Agreement (collectively, "Contractor Directions"). CCWA shall be entitled to rely upon, without inquiry, the full authority of Contractor's designated representative. Without limiting the foregoing, Contractor's representative shall be solely responsible for requesting and obtaining in advance any special or further authorizations on behalf of Contractor that may be necessary in connection with any Contractor Direction given to CCWA hereunder and CCWA may assume, without further inquiry, that all such authorizations have been obtained. Contractor may designate a different individual as its representative in connection with this Agreement at any time by amending its Designation of Representative and providing such to CCWA pursuant to this Paragraph.
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6. Obligation in the Event of Default
6.1 Written Demand Upon Failure to Make Payment or Perform Obligation. Upon Contractor's failure to make any payment in full when due under this Agreement or to perform any other obligation hereunder, CCWA shall make written demand upon Contractor, and if such failure is not remedied within thirty (30) days from the date of such demand, such failure shall constitute a default. CCWA shall also provide a copy of the notice of such demand to each Participating Contractor. Upon failure of CCWA to perform any obligation of CCWA hereunder, Contractor shall make written demand upon CCWA, and if said failure is not remedied within thirty (30) days from the date of such demand, such failure shall constitute a default. Contractor shall also provide a copy of the notice of such demand to each Participating Contractor.
6.2 Termination of Contractual Rights: Continuing Obligations. Notwithstanding any provision in this Agreement to the contrary, including Paragraph 10.2, upon Contractor's failure to make any payment, which failure constitutes a default under this Agreement, CCWA may terminate this Agreement. Irrespective of such termination, the obligations of Contractor to CCWA to pay the full amount of costs under this Agreement, shall continue in full force and effect.
Termination under this Paragraph is in addition to all other remedies provided by this Agreement.
6.3 Increase in Non -defaulting Contractor Costs. Notwithstanding any provision in this Agreement to the contrary, including Paragraphs 4.1.2 and 10.2, upon the failure of any Participating Contractor to make any payment under its respective Participation Agreement, the pro -rata share of each non -defaulting Participating Contractor shall be automatically increased (pro rata with the other non -defaulting Participating Contractors) for the remaining term of any and all of the non -defaulting Participating Contractors' respective Participation Agreements. Contractor acknowledges and agrees that Contractor's pro rata share of Total Expenses may increase as a result of a default by another Participating Contractor.
6.4 Right of Recovery from Defaulting Participating Contractor. If a Participating Contractor shall fail or refuse to pay any amounts due to CCWA under its respective Participation Agreement, the non -defaulting Participating Contractors' increased obligations to make such payments shall not relieve the defaulting Participating Contractor of its liability for such payments.
Each non -defaulting Participating Contractor shall have a right of recovery from the defaulting Participating Contractor to the extent of such non -defaulting Participating Contractor's respective increase in obligation caused by the defaulting Participating Contractor. Any amounts received by CCWA from the defaulting Participating Contractor for costs that were previously paid by a non - defaulting Participating Contractor pursuant to Paragraph 6.3, shall be reimbursed by CCWA to the non -defaulting Participating Contractor.
7. Remedies
7.1 If either Party does not timely perform its obligations pursuant to this Agreement, the other Party shall be entitled to proceed to protect and enforce its rights as provided in this Agreement by such appropriate judicial proceedings as said Party may deem most effectual, either by suit in equity or by action at law, whether for the specific performance of any covenant or agreement contained herein or to enforce any other legal or equitable right vested by this Agreement or by law. The provisions of this Agreement and the duties of each Party and its
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elected officials, officers, agents, or employees shall be enforceable by mandamus or other appropriate suit, action, or proceeding in any court of competent jurisdiction.
7.2 The Parties agree that in the event of a Default or breach of this Agreement, the other Party shall have all remedies in law or equity available to them, including specific performance and termination of this Agreement, and no remedy or election shall be deemed exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
8. Disclaimer of Liability
8.1 Contractor acknowledges and agrees that CCWA is in good faith facilitating the purchase of Supplemental Water on behalf of Contractor and the other Participating Contractors, in exchange for the Contractor's and the other Participating Contractors' full reimbursement of CCWA's Total Expenses and full assumption of CCWA's liabilities related to or arising out of this Agreement or any related agreements to which CCWA is a party for purposes of the 2022 Supplemental Water Purchase Program. As a result, it is the intent and agreement of the Contractor and CCWA that CCWA shall not incur any liability for assistance to Contractor under this Agreement, or any related agreements to which CCWA is a party for purposes of the 2022 Supplemental Water Purchase Program, for any cause, except for CCWA's sole negligence or willful misconduct or CCWA's breach of this Agreement or any related agreements to which CCWA is a party for purposes of the 2022 Supplement Water Purchase Program.
8.2 To the maximum extent permitted by law, neither CCWA, nor any of its elected officials, officers, agents, employees, consultants, or attorneys, nor any of the CCWA Participants who are not also Participating Contractors, shall be liable to Contractor pursuant to this Agreement or otherwise for any claims, liabilities, damages, losses, actions, penalties, proceedings, or expenses in the event Supplemental Water is not available for purchase by CCWA, Supplemental Water is not available for purchase on the terms and conditions acceptable to Contractor, any approval required to permit the delivery of Supplemental Water is not obtained or is conditioned in any manner that is not acceptable to Contractor, or Supplemental Water is not delivered to CCWA for any reason, except for CCWA's sole negligence or willful misconduct or CCWA's breach of this Agreement or any related agreements to which CCWA is a party for purposes of the 2022 Supplemental Water Purchase Program.
9. Indemnification and Defense
9.1 Indemnification. Contractor ("Indemnifying Party") agrees to indemnify, defend, protect and hold harmless CCWA and its officers, directors, employees, agents, consultants and attorneys and CCWA Participants who are not also Participating Contractors (each an "Indemnified Party" and collectively, the "Indemnified Parties") from and against any and all claims, actions, liabilities, damages, losses and expenses, including attomeys', paralegals', consultants', and experts' fees, costs and expenses, arising from or relating to this Agreement and any related agreements pertaining to any purchase of Supplemental Water for purposes of the 2022 Supplemental Water Purchase Program, whether claims, actions, liabilities, damages, losses or expenses arise prior to or following termination or expiration of this Agreement, except to the extent any liability, loss, cost or expense is caused by the Indemnified Party's sole negligence or willful misconduct.
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9.2 Defense of Action. If requested by the Indemnified Party, the Indemnifying Party shall assume on behalf of the Indemnified Party, and conduct with due diligence and in good faith, the defense of such Indemnified Party with counsel reasonably satisfactory to the Indemnified Party; provided, however, that if the Indemnifying Party is a defendant in any such action and the Indemnified Party reasonably believes that there may be legal defenses available to it that are inconsistent with those available to the Indemnifying Party, the Indemnified Party shall have the right to select separate counsel to participate in its defense of such action at the Indemnifying Party's expense. If any claim, action, proceeding or investigation arises as to which the indemnity provided for in this Paragraph 9.2 applies, and the Indemnifying Party fails to assume the defense of such claim, action, proceeding or investigation after having been requested to do so by the Indemnified Party, then the Indemnified Party may, at the Indemnifying Party's expense, contest or, with the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld, settle such claim, action, proceeding or investigation. All costs and expenses incurred by the Indemnified Party in connection with any such contest or settlement shall be paid upon demand by the Indemnifying Party.
10. Term; Termination
10.1 Tern-i. Except as provided in Paragraph 10.2, the term of this Agreement shall commence on the last date executed by all Parties and shall continue until December 31, 2022, or until Contractor's final payment to CCWA of all costs attributable to this Agreement, whichever is later.
10.2 Termination
10.2.1 This Agreement may be terminated by CCWA at any time, provided all Participating Contractors agree in writing thereto. Irrespective of such termination, the obligations of Contractor to CCWA to pay Contractor's pro -rata share of CC WA's Total Expenses under this Agreement shall continue in full force and effect.
10.2.2 This Agreement may be terminated by Contractor upon the expiration of thirty (30) days following the later of (i) delivery of written notice of termination to CCWA, and (ii) discharge by Contractor, or satisfactory assurance of performance, of all financial obligations hereunder. CCWA shall promptly provide a copy of any such notice of termination received by CCWA to all other Participating Contractors.
10.2.3 Notwithstanding any provision in this Agreement to the contrary, the obligations set forth in Paragraphs 4, 7, 8, and 9 shall survive in full force and effect until the expiration of the applicable statute of limitations, or any claim or litigation concerning this Agreement within the applicable statute of limitations is finally resolved, whichever occurs later.
11. General Provisions
11.1 Assignability. This Agreement shall not be assigned by Contractor without the prior written consent of CCWA, which consent shall not be unreasonably withheld. Any attempted assignment without the prior written approval of CCWA shall be void.
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11.2 Attorneys' Fees. In any action to enforce or interpret this Agreement, the prevailing party shall recover from the non -prevailing party, in addition to any damages, injunctive or other relief, all costs (whether or not allowable as "cost" items by law) reasonably incurred by the prevailing party at, before and after trial or on appeal, or in any bankruptcy proceeding, including attorneys' and witness (expert and otherwise) fees, deposition costs, copying charges and other expenses.
11.3 Construction. The provisions of this Agreement should be liberally construed to effectuate its purposes. The language of all parts of this Agreement shall be construed simply according to its plain meaning. Any rule of contract interpretation to the effect that ambiguities or uncertainties are to be interpreted against the drafting party or the party who caused it to exist shall not be employed in the interpretation of this Agreement or any document executed in connection herewith, as each party has participated in the drafting of this document and had the opportunity to have their legal counsel review it. The Recitals to this Agreement are incorporated herein and made a part hereof by this reference. The headings in this Agreement are for convenience of reference only and shall not be used in construing this Agreement. The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The terms "person" and "party" include individuals, corporations, partnerships, trust, and other entities and associations. The words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."
11.4 Counterparts: Delivery by Email. The Agreement may be executed in two or more counterparts, each of which shall be deemed an original, and all of which when taken together shall constitute one and the same document. The signature of any Party to any counterpart shall be deemed a signature to, and may be appended to, any other counterpart. Any Party may deliver its signed counterpart of the Agreement to the other Party by email, and such delivery shall be deemed made and completed upon receipt of such email transmission by the other Party. Any Party delivering a signed counterpart by email agrees to promptly send the counterpart bearing its original signature to the other Party; provided that a delay or failure to do so shall not negate the effectiveness of the delivery made by the email transmission.
11.5 Due Authority. Each Party hereby represents and warrants that the individual(s) executing this Agreement are expressly authorized to do so on behalf of such Party and to bind that party to perform all acts required by this Agreement, and that the consent, approval, or execution of or by any additional person or party is not required to legally bind that party to the terms and conditions of this Agreement.
11.6 Entire Agreement; Modification. The making, execution and delivery of this Agreement have not been induced by any representations, statements, warranties or agreements other than those herein expressed. This Agreement constitutes the entire agreement and understanding of the Parties concerning the subject matter hereof. This Agreement supersedes all prior negotiations, agreements, representation and understandings of the Parties relating to the subject matter hereof, including Participation Agreements from prior years. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both Parties.
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11.7 Good Faith. The Parties agree to exercise their best efforts and utmost good faith to effectuate all the terms and conditions of this Agreement and to execute such further instruments and documents as are necessary or appropriate to effectuate all of the terms and conditions of this Agreement.
11.8 Governing Law; Venue. This Agreement and all matters relating to this Agreement shall be governed by the laws of the State of California, without regard to principles of conflicts of laws. Venue for any disputes under this Agreement shall be in Santa Barbara County, California.
11.9 Legal Advice. Each Party has received independent legal advice from its attorneys with respect to the advisability of executing this Agreement and the meaning of the provisions of this Agreement.
11.10 No Agency. This Agreement shall not create, nor shall it be construed to create, any agency, partnership or similar relationship among the Parties.
11.11 Notices. All notices, approvals, acceptances, requests, demands and other communications required or permitted under this Agreement, to be effective, shall be in writing and shall be delivered, either in person or by email or by Federal Express or other similar overnight delivery service, to the party to whom the notice is directed at the address of such party as follows:
If to Authority:
Central Coast Water CCWA
255 Industrial Way
Buellton, CA 93427
Attn: Ray Stokes, Executive Director
Telephone: (805) 688-2292
Email: RAS cr,ccwa.cotn
If to Contractor:
City of Santa Maria
2065 East Main Street
Santa Maria, CA 93454
Attn: Shad Springer, Director of Utilities
Telephone: (805) 925-0951, ext, 7211
Email: [email protected]
Any communication given by email shall be deemed delivered on such mailing date and any communication given by overnight service shall be deemed delivered one (1) business day after the dispatch date. Either party may change its email and overnight service addresses by giving the other party written notice of its new addresses.
11.12 Severability. If any provision of this Agreement or its application to any party or circumstance is held invalid or unenforceable, then the remainder of this Agreement and the affected provision to the extent it is not so held shall remain valid and enforceable and in full force and effect. The forgoing shall not apply, however, if the invalid or unenforceable provision in question or, as applicable, the portion or application thereof held invalid or unenforceable, is a fundamental and material provision of this Agreement.
11.13 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
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11.14 Third Party Beneficiary: Enforcement. The Parties agree that this Agreement is for the benefit of (i) Contractor, (ii) CCWA, (iii) other Participating Contractors, and (iv) all CCWA Participants, and all of the aforementioned entities and persons shall be entitled to enforce the provisions of this Agreement.
11.15 Time of the Essence. Except as otherwise provided in this Agreement, time is of the essence with respect to this Agreement and the performance of each and every obligation contained in this Agreement.
11.16 Time for Performance. Notwithstanding any provision of this Agreement to the contrary, in the event a Party fails to perform any obligation under this Agreement (other than an obligation to pay money) because of strikes, lockouts, labor disputes, acts of God, inability to obtain labor or materials or reasonable substitutes for labor or materials, government or judicial actions, inclement weather or other causes beyond its reasonable control, that failure will not constitute a default under this Agreement, and the performance in question will be excused during the period in which the cause for failure continues.
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IN WITNESS WHEREOF, the Parties have executed and entered into this Agreement as of the date first written above.
CENTRAL COAST WATER AUTHORITY
By:
Name: Ray Stokes
Title: Executive Director
Approved as to form:
Brownstein Hyatt Farber Schreck
By:
Stephanie Osler Hastings
Attachments:
Statement of Intent
Request for Increase in Delivery Goal
Designation of Representative
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CITY OF SANTA MARIA
By:
Name:
Title:
Director of Utilities
Approved as to form:
Thomas T. Watson, Ci CrIV
B
CENTRAL COAST WATER AUTHORITY
2022 SUPPLEMENTAL WATER PURCHASE PROGRAM
STATEMENT OF INTENT
Participating Contractor: City of Santa Maria
Pursuant to the 2022 Supplemental Water Purchase Program Participation Agreement ("Agreement") between the Central Coast Water Authority and the above -named Participating Contractor, the undersigned, on behalf of the Participating Contractor, states its intent to acquire 1,300 acre-feet of water in connection with the proposed Purchase Opportunity to acquire supplemental water from Casitas Water District for delivery of water to CC WA in 2022.
All terms used in this Statement of Intent have the meaning given to them in the Agreement.
Signature:
Print Name: Shad S. Springer
Title: Director of Utilities
Date: March 18, 2022
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CENTRAL COAST WATER AUTHORITY
2022 SUPPLEMENTAL WATER PURCHASE PROGRAM
DESIGNATION OF REPRESENTATIVE
Participating Contractor:
Signature:
Print Name: Shad S. Springer
Title: Director of Utilities
Date: March 18, 2022
Authorized Representative:
Signature:
Print Name:
Title:
Director of Utilities
Date: March 18.2022
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Eric Friedman
Chairman
Ed Andrisek
Vice Chairman
Ray A. Stokes
Executive Director
Brownstein Hyatt
Farber Schreck
General Counsel
Member Agencies
City of Buellton
Carpinteria Valley
Water District
City of Guadalupe
City of Santa Barbara
City of Santa Maria
Goleta Water District
Montecito Water District
Santa Ynez River Water
Conservation District,
Improvement District #1
Associate Member
La Cumbre Mutual
Water Company
255 Industrial Way
Buellton, CA 93427
(805) 688-2292
Fax (805) 686-4700
www.ccwa.com
March 15, 2022
Michael L. Flood, General Manager
Casitas Municipal Water District
1055 Ventura Ave.
Oak View, CA 93022
Subject: 2022 Water Transfer Agreement
Dear Mr. Flood,
This letter agreement ("Agreement") documents and confirms the agreement that has been reached between the Central Coast Water Authority, ("CCWA") and Casitas Municipal Water District ("CMWD") for a transfer of water from the State Water Project.
BACKGROUND AND PURPOSE
In Santa Barbara County, CCWA is responsible for the State Water Contract between the Santa Barbara County Flood Control and Water Conservation District (SBCFCWCD) and the Department of Water Resources (DWR). In Ventura County, a portion of the Table A Amount made available by the State Water Contract between the Ventura County Flood Control District (VCFCD) and DWR has been allocated to CMWD.
As of the date of this Agreement, the DWR has approved an allocation of water from the SWP to CCWA and CMWD of 5% of the Table A Amounts set forth in their respective State Water Project Contracts for calendar year 2022. For CCWA, that equals an allocation of 2,274 acre- feet (AF) that CCWA will receive from the SWP in 2022. CCWA's allocation for 2022 is not sufficient to satisfy CCWA's need for imported water in 2022. CMWD has surplus water available to it and has agreed to transfer up to 250 AF of CMWD's 2022 Annual Table A Amount, as that term is defined by the State Water Contract, to CCWA for delivery in 2022, subject to the terms and conditions hereinafter set forth ("Transfer").
TERMS AND CONDITIONS
Condition Precedent
DWR's written approval of the Transfer is a condition precedent to the effectiveness of this Agreement. CCWA and CMWD anticipate that DWR's approval will be provided in the form of a Change in Point of Delivery Agreement ("DWR Approval").
In the event of a conflict between the terms of this Agreement and the DWR Approval, the terms of the DWR Approval shall govern.
Water Transfer to CCWA
CMWD shall make available and CCWA shall take delivery of up to 250 AF of CMWD's Annual Table A Amount in 2022. By March 31, 2022, CMWD shall provide written notice to CCWA of the final quantity of Table A Amount to be made available to ATTACHMENT "B"
Michael L. Flood
March 15, 2022
CCWA for delivery in 2022. Within 2 weeks of receiving written notice from CMWD of the total quantity of water made available to CCWA, CCWA shall provide notice to CMWD of the quantity of available water that CCWA would like to receive, up to the total amount made available. The Transfer will occur as provided in the DWR Approval. The point of delivery for the Transfer is Banks Pumping Plant.
Places of Use
The water delivered to CCWA in 2022 pursuant to this Agreement shall be used entirely within CCWA's service area.
Notice of Exemption
Because all of the water delivered to CCWA and to CMWD pursuant to this Agreement will be delivered through existing facilities, without the construction of additional facilities to effect such deliveries, CCWA and CMWD agree that the Transfer described herein constitutes a project that is exempt from CEQA pursuant to Sections 15061(b)(3) and 15301 of the State CEQA Guidelines. Furthermore, the Transfer, which is a temporary water transfer, qualifies for a Statutory Exemption under CEQA as follows:
Section 15282 (u) Temporary changes in the point of diversion, place of use, of purpose of use due to a transfer or exchange of water or water rights as set forth in Section 1729 of the Water Code.
CCWA and CMWD each shall file, in their respective counties, a Notice of Exemption for the Transfer with the applicable County Clerk/Recorder.
Pricing and Transaction Costs
CCWA shall pay CMWD a rate of $700 for every AF of water CCWA agrees to purchase from CMWD pursuant to the Transfer; payment shall be made within 30 days of the invoice date.
Additionally, CCWA shall be responsible for the DWR variable costs for the water delivered to CCWA.
Additionally CCWA shall be responsible for any administrative or other transactional costs charged by DWR for DWR's Approval and for the preparation and processing of such other approvals as may be necessary to affect the Transfer.
Notwithstanding the foregoing, CMWD and CCWA shall each be responsible for their own transaction costs, including but not limited to legal and consulting costs incurred in the preparation, review and implementation of this Agreement, the DWR Approval, and any other documents and approvals that may be required.
Cooperation
CCWA and CMWD each agrees to cooperate with each other to request and obtain the DWR Approval of the Transfer described in this Agreement and with the processing of such other documents and approvals as may be necessary to affect the Transfer described herein.
CCWA Letter Agreement with Casitas MWD for purchase of water -March 2022
Michael L. Flood
March 15, 2022
Costs of Defense
In the event of any legal action by a third party to challenge this Agreement and/or the water transfer described herein, CCWA and CMWD agree to cooperate in the defense thereof and to share equally in the costs of such defense, utilizing counsel mutually acceptable to the parties.
Force Maieure
In the event that an unavoidable event renders the performance of this Agreement impossible or infeasible, the parties hereto shall be excused from the performance thereof, with a corresponding refund or adjustment of the payments required herein as may be necessary to achieve financial equity as between the parties for that portion of the Agreement that cannot be performed; provided, however, that CCWA and CMWD shall first coordinate with DWR to determine whether alternate performance may be possible pursuant to an alternate schedule for completion of performance.
Authority
The undersigned representatives of CCWA and CMWD hereby represent that they are authorized to execute the Agreement for the party on whose behalf this Agreement is executed.
Notice
Written notice may be provided by either party to the other by first-class mail, postage prepaid, to the following addresses:
Central Coast Water Authority
255 Industrial Way
Buellton, CA 93427
Attn: Ray A. Stokes, Executive Director
Casitas Municipal Water District
1055 Ventura Ave.
Oak View, CA 93022
Attn: Michael L. Flood, General Manager
If acceptable, sign below acknowledging your agreement to these terms and conditions.
Sin rely,
ay . 4jQ6
kes
Ex, utive Director
CCWA Letter Agreement with Casitas M W D for purchase of water -March 2022
Michael L. Flood
March 15, 2022
CASITAS MUNICIPAL WATER DISTRICT
By:
Michael L. Flood' General Manager
Date: #M'CL 19 �t
CCWA Letter Agreement with Casitas MWD for purchase of water -March 2022
RESOLUTION NO. 2022-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SANTA MARIA,
CALIFORNIA, APPROVING A WATER PURCHASE AGREEMENT WITH
THE CENTRAL COAST WATER AUTHORITY
WHEREAS, the Central Coast Water Authority ("CCWA") is a public entity organized under a joint exercise of powers agreement dated August 1, 1991, by the cities and special districts responsible for the creation and maintenance of water resources; and WHEREAS, the CCWA is composed of eight members from public agencies, including the City of Santa Maria ("City"), with each member agency represented on the CCWA Board of Directors; and
WHEREAS, the State of California Department of Water Resources issued a five percent allocation of State Water Project water deliveries for 2022; and WHEREAS, to meet the needs of CCWA participants, CCWA initiated the 2022 Supplemental Water Purchase Program; and
WHEREAS, on March 18, 2022, the Director of Utilities executed the 2022 Supplemental Water Purchase Program Participation Agreement with CCWA; and WHEREAS, the CCWA negotiated terms for the purchase of water from Casitas Municipal Water District ("CMWD") as identified in the letter between the CCWA and the CMWD dated March 15, 2022; and
WHEREAS, the City wishes to enter into a Water Purchase Agreement with CCWA consistent with the terms identified between CCWA and CMWD.
NOW, THEREFORE, IT IS HEREBY RESOLVED by the City Council of the City of Santa Maria, as follows:
1. Authorize and direct the City Manager or his designee to execute the Water Purchase Agreement with the CCWA, consistent with the terms negotiated with CMWD, incorporated herein by reference; and
2. Authorize and direct the Chief Deputy City Clerk to make minor changes herein to address clerical errors, so long as substantial conformance of the intent of this document is maintained. In doing so, the Chief Deputy City Clerk shall consult with the City Manager and City Attorney concerning any changes deemed necessary.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of Santa Maria held this 5t" day of April 2022.
1/
Mayor
ATTEST:
Chief Deputy City Clerk
APPROV % S S • FORM:
City Attorney
City Manager