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HomeMy WebLinkAboutAdvisory Commission on Water Policy 040821 SPECIAL NOTICE REGARDING CORONAVIRUS DISEASE 2019 (COVID-19) AND PARTICIPATION IN PUBLIC MEETINGS On March 4, 2020, Governor Newsom declared a State of Emergency resulting from the threat of COVID-19. Governor Newsom issued Executive Order N-25-20 (3-12-20) and Executive Order N-29-20 (3-17-20) which temporarily suspend portions of the Brown Act relative to conducting public meetings. Subsequent thereto, Governor Newsom issued Executive Order N -33-20 (3-19- 20) ordering all individuals to stay at home or at their place of residence. Accordingly, it has been determined that all Board and Workshop meetings of the San Bernardino Valley Municipal Water District will be held pursuant to the Brown Act and will be conducted via teleconference. There will be no public access to the meeting venue. ADVISORY COMMISSION ON WATER POLICY THURSDAY, APRIL 8, 2021 – 6:30 P.M. PUBLIC PARTICIPATION Public participation is welcome and encouraged. You may participate in the April 8, 2021, meeting of the Advisory Commission on Water Policy online and by telephone as follows: Dial-in Info: (877) 853 5247 US Toll-free Meeting ID: 874 3030 1769 PASSCODE: 3802020 https://sbvmwd.zoom.us/j/87430301769 If you are unable to participate online or by telephone, you may also submit your comments and questions in writing for the District’s consideration by sending them to comments@sbvmwd.com with the subject line “Public Comment Item #” (insert the agenda item number relevant to your comment) or “Public Comment Non-Agenda Item”. Submit your written comments by 6:00 p.m. on Wednesday, April 7, 2021. All public comments will be provided to the President and may be read into the record or compiled as part of the record. IMPORTANT PRIVACY NOTE: Participation in the meeting via the Zoom app is strongly encouraged. Online participants MUST log in with a Zoom account. The Zoom app is a free download. Please keep in mind: (1) This is a public meeting; as such, the virtual meeting information is published on the World Wide Web and available to everyone. (2) Should you participate remotely via telephone, your telephone number will be your “identifier” during the meeting and available to all meeting participants; there is no way to protect your privacy if you elect to call in to the meeting. CALL TO ORDER/FLAG SALUTE 1)PUBLIC COMMENT Any person may address the Board on matters within its jurisdiction. 2)APPROVAL OF MINUTES 2.1 January 14, 2021, Meeting Advisory Minutes 01142021 3)PRESENTATIONS 3.1 Integrated Regional Urban Water Management Plan (IRUWMP) Status Update 3.2 2021 BTAC Regional Water Management Plan Monthly Statement March 2021 BTAC Monthly Statement 4)DISCUSSION/ACTION 4.1 Consider Support of SBVWCD Proposed Groundwater Charge Sustainability Component for Non-Groundwater Council Participants Staff Memo - Consider Support of SBVWCD Proposed Groundwater Charge Sustainability Component for Non-Groundwater Council Participants 4.2 Consider Support for Valley District's Purchase of Water Available in 2021 from the Yuba Accord Staff Memo - Consider Support for Valley District Purchase of Water in 2021 Available from the Yuba Accord 4.3 Consider Support for Proposed Valley District Agreement to Continue Recharge in San Bernardino County Flood Control Facilities SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT 380 E. Vanderbilt Way, San Bernardino, CA 92408 ADVISORY COMMMISSION ON WATER POLICY AGENDA 6:30 PM Thursday, April 8, 2021 1 (Page 3) (Page 7) (Page 11) (Page 13) (Page 16) Staff Memo - Consider Support for Proposed Valley District Agreement to Continue Recharge in San Bernardino County Flood Control Facilities Agreement with SBCFCD 5)ANNOUNCEMENTS BY COMMISSIONERS 6)FUTURE BUSINESS 7)NEXT MEETING DATE 8)ADJOURNMENT PLEASE NOTE: Materials related to an item on this Agenda submitted to the Board after distribution of the agenda packet are available for public inspection in the District’s office located at 380 E. Vanderbilt Way, San Bernardino, during normal business hours. Also, such documents are available on the District’s website at www.sbvmwd.com subject to staff’s ability to post the documents before the meeting. The District recognizes its obligation to provide equal access to those individuals with disabilities. Please contact Melissa Zoba at (909) 387-9228 two working days prior to the meeting with any special requests for reasonable accommodation. 2 446 MINUTES OF REGULAR MEETING OF THE ADVISORY COMMISSION ON WATER POLICY SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT January 14, 2021 Chairman Corneille called the regular meeting of the Commissioners of the San Bernardino Valley Municipal Water District Advisory Commission on Water Policy to order at 6:30 p.m. by teleconference. Commissioners and Alternates Present (Quorum is 9 agencies): Commissioners Present: 1. Jesse Chavez, City of Highland 2. Ronald Coats, East Valley Water District 3. Richard Corneille, San Bernardino Valley Water Conservation District 4. Lonni Granlund, Yucaipa Valley Water District 5. Denis Kidd, Riverside-Highland Water Company 6. Robert Stewart, Bear Valley Mutual Water Company 7. Bhavin Jindal, City of Loma Linda 8. Dr. G, City of Colton 9. Josh Swift, Fontana Union Water Company 10.Deborah Robertson, City of Rialto 11.Paul Barich, City of Redlands Member Agencies Absent: 1. Western Heights Water Company 2. City of San Bernardino Board of Water Commionsers 3. City of Grand Terrace 4. City of Riverside or city of Riverside Board of Public Utilities 5. City of San Bernardino 6. West San Bernardino County Water District 7. Agua Mansa Water Company and Meeks & Daley Water Company 8. San Bernardino County Board of Supervisors 9. Crafton Water Company 10.City of Yucaipa 11.Western Heights Water Company San Bernardino Valley Directors and Staff Present: June Hayes, S.B. Valley Municipal Water District Heather Dyer, S.B. Valley Municipal Water District Matt Howard, S.B. Valley Municipal Water District Jose Macedo, S.B. Valley Municipal Water District Adekunle Ojo, S.B. Valley Municipal Water District Cindy Saks, S.B. Valley Municipal Water District Bob Tincher, S.B. Valley Municipal Water District 3 447 Agencies Staff and Consultants Present: Tom Crowley, City of Rialto Joe Zoba, Yucaipa Valley Water District Vice Chairman Coats led the pledge of allegiance. Chairman Corneille announced there was a quorum establishing official business could take place. The meeting proceeded with the following agenda items. Agenda Item 1. Public Comment. Members of the public may address the Commission on matters within its jurisdiction. Chairman Corneille invited any person who so desired to address the Commission. Hearing none, he proceeded with the meeting. Agenda Item 2. Approval of Minutes of the October 15, 2020, Advisory Commission Meeting Minutes. It was moved by Chairman Corneille to approve the minutes of the October 15, 2020 meeting. Motion was second by Ron Coats. The motion was unanimously adopted. Agenda Item 3. Action Item and Presentations. Chairman Corneille returned to the meeting. 3.1 BTAC Regional Water Management Plan for 2021 Matt Howard presented the Draft 2021 Regional Water Management Plan. The Basin Technical Advisory Committee (BTAC) acquired its responsibility through the Upper Santa Ana Watershed Integrated Regional Water Management Plan (IRWMP) that was developed approximately 14 years ago. This is the 13th yearly regional plan that has been developed. The plan will go before the San Bernardino Valley Municipal Water District (SBVMWD) Board on February 2, 2021, and will go before the Western Municipal Water District (WMWD) Board of Directors on February 1, 2021. The purpose of the document is to provide basin management recommendations to the Board of Directors of SBVMWD and WMWD and establish artificial recharge thresholds in the San Bernardino Basin Area (SBBA) to reduce the possibility of high groundwater and any negative impact on the contamination plumes. The recommendation for the SBBA for artificial threshold this year is 435,000 acre-feet. The recommendation is to again recharge as much imported and native water as possible.The recommendations also include the recharge thresholds for the Yucaipa Basin of 3,500 acre- feet and the Riverside North Basin of 6,094 acre-feet. Staff recommended the Advisory Commission on Water Policy recommend approval of the BTAC 2021 Regional Water Management Plan to the SBVMWD and WMWD Boards. It was moved by Richard Corneille that the Advisory Commission on Water Policy recommend approval of the Basin Technical Advisory Committee 2021 Regional Water Management Plan to the SBVMWD and WMWD Boards. It was seconded by Ron Coats The motion was unanimously adopted. 4 448 3.2 2020 BTAC Regional Water Management Plan Monthly Statement Matt Howard reviewed the monthly BTAC statement in detail that was included in the Commission packet. The current SBVMWD State Water Project Table A allocation is 10 percent. 3.3 Results for the Usable Groundwater Storage Study for the San Bernardino, Rialto-Colton, Riverside and Arlington Groundwater Basins Bob Tincher reported that Valley District has been calculating the change in groundwater storage for many years which provides a comparsion to the year 1934 but does not compare storage levels to the “empty” condition, or bottom of the basin. Valley District, in partnership with the Western Municipal Water District, used the existing groundwater flow models in the region to estimate the total usable groundwater storage in the Arlington, Rialto-Colton, Riverside and San Bernardino Basins. Although outside the scope of work for this study, the total usable storage for the Yucaipa Basin has also been estimated. This additional knowledge allows a comparison of current storage levels to the empty condition. The study also estimated the amount of water in each basin accessible using existing wells and how much additional water could be removed if new wells and facilities were built to access the deeper groundwater. This information can help retail water agencies plan for possible investment in deeper wells. The study also estimated how many years’ worth water is in storage. The below table summarizes the results: Collectively, the region has more storage than the entire State Water Project. The Basin Technical Advisory Committee (BTAC) will be using this new information to develop possible management zones for consideration. 3.4 RAND Study Results Bob Tincher reported that the region worked collaboratively to develop the San Bernardino Valley Regional Urban Water Management Plan (RUWMP) that details how water supply planning could meet water demands through 2040. The RUWMP describes its main strategy as recharging local groundwater basins during wet years with imported supplies, precipitation, and local surface supplies; and drawing from the recharged basins during drier years. The RUWMP relies on single deterministic estimates of supply and demand. However, there are significant uncertainties in both supplies and demands due to the range of plausible changes in local and regional climate, population growth, per capita water use and imported supplies, among other factors. To account for all of the uncertainty, the RUWMP uses a Reliability 5 449 Factor of 10 percent that ensures that supplies exceed projected demand by at least 10 percent. Valley District hired the RAND Corporation to do a comprehensive analysis of the plausible uncertainties in both the supplies and demand in the RUWMP. The study found that the RUWMP is vulnerable in a few extreme plausible future scenarios but that in a majority of the scenarios demand management and new water supply projects help the region overcome these vulnerabilities. The study recommends a slightly higher Reliability Factor of 15% that is re-evaluated each time the RUWMP is updated. The Basin Technical Advisory Committee (BTAC) will be incorporating the results of this study into the next update of the RUWMP, the proposed Upper Santa Ana River Watershed Integrated Regional Urban Water Management Plan. 3.4 Update on the Integrated Regional Urban Water Management Plan Matt Howard presented an update on the Integrated Regional Urban Water Management Plan (Plan) to the Commission. The update included a brief overview of each of the three workshops that have been completed thus far. The first workshop was a kick off meeting which provided an overview of the project workplan, project schedule, and the proposed Plan structure. The second workshop was centered around an activity measuring and quantifing the 2015 Integrated Regional Water Management Plan Goals and Objectives. The third and most recent workshop was focused on the population and water demand forecasting, using Southern California Association of Governments data to forecast future population trends and comparing them to previously used estimates in the 2015 Regional Urban Water Management Plan. Mr. Howard also presented the proposed 2020 Plan approach to estimate future demands that considers the upcoming Water Use Efficiency Standards and passive savings of permanent conservation measures. The plan is due to DWR in July 2021 and will be presented to the Commission before submittal. Agenda Item 4. Announcements by Commissioners. None. Agenda Item 5. Future Business The following items were suggested for future agendas: Yuba Accord, Valley District Strategic Plan and the Sites Reservoir Project. Agenda Item 6. Next Meeting Date The next meeting date for the Advisory Commission on Water Policy was set for April 8, 2021, at 6:30 p.m. Agenda Item 7. Adjournment There being no further business, Chairman Corneille adjourned the meeting at 8:20 p.m. Respectfully submitted, Jose Macedo Clerk of the board/ Assistant to the GM 6 2021 Regional Water Management Plan SBBA THREE STATION PRECIPITATION INDEX - CUMULATIVE DEPARTURE FROM THE MEAN SBBA THREE STATION PRECIPITATION INDEX - MONTHLY 2021 IMPORTED WATER SUPPLY PORTFOLIO BALANCE March Below Average 19,718 AC-FT 10.58 INCHES -100 -25 50 125 200 275 0 10 20 30 40 50 60 70 80 90 1930-311932-331934-351936-371938-391940-411942-431944-451946-471948-491950-511952-531954-551956-571958-591960-611962-631964-651966-671968-691970-711972-731974-751976-771978-791980-811982-831984-851986-871988-891990-911992-931994-951996-971998-992000-012002-032004-052006-072008-092010-112012-132014-152016-172018-192020-21Cumulative Departure from Historic Avg (in.)Average Annual Precipitation (in.)Water Year (October -September) Average of Lytle Creek / Big Bear (SAR) / Mill Creek - Precip Data Safe Yield Period Avg (1934-1960) Historic Average (1931-Present)Cumulative Departure from Historic Average 0 10 20 30 40 50 60 70 80 Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep WATER YEAR (OCTOBER -SEPTEMBER) 1992-1993 (wettest), 76.9 inches Historic Average (1931-Present), 31.1 inches Safe Yield Average(1934-1960), 32.9 inches 2001-2002 (driest), 7.0 inches 2018-19, 37.38 inches 2017-18, 14.61 inchesCurrent WY 2020-21,10.58 inches 0 5,000 10,000 15,000 20,000 25,000 0 500 1,000 1,500 JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC SWP Balance (acre-feet)Monthly (acre-feet)Recharge Direct Imported Water Balance (SBVMWD) 7 2021 Regional Water Management Plan LIQUEFACTION POTENTIAL IN THE SBBA (Avg. Backyard Well, D4, D5 and D6) ARTIFICIAL RECHARGE thru May March Data Unavailable 1,532 AC-FT High High Low Low - 10,000 20,000 30,000 40,000 50,000 60,000 - 2,000 4,000 6,000 Cumulative Recharge (acre-ft)Total Monthly Recharge (acre-ft)SBBA YUCAIPA SBBA Cumulative Yucaipa Cumulative SBBA Artificial Recharge Threshold -435,000 ac-ft 8 2021 Regional Water Management Plan 2021 SANTA ANA RIVER DIVERSIONS - PARSHALL FLUME SAN BERNARDINO BASIN GROUNDWATER COUNCIL DELIVERIES CY 2021 Deliveries SBBA GC Total Planned Deliveries 652 AF 31,128 AF 0 AC-FT March 0 5,000 10,000 15,000 20,000 25,000 30,000 35,000 0 50 100 150 200 250 JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC SBVMWD/WMWD Cumulative (acre-ft)Monthly Diversion (acre-feet)SBVWCD (Jan-May)SBVMWD/WMWD (Jan-May) SBVMWD/WMWD (Jun-Sep)SBVWCD (Oct-Dec) SBVMWD/WMWD (Oct-Dec)SBVMWD/WMWD (Cumulative) Delivered, 652 Remaining, 31,728 0 5,000 10,000 15,000 20,000 25,000 30,000 35,000 9 WATER SUPPLY Jan 2021 to Dec 2021 Storage Program March SBVMWD/WMWD Santa Ana River Diversions in 2021:- Direct delivery - Artificial Recharge (17% required by Riverside Agreement unless credits)100% Exchange (long-term storage/banking, 40 cfs max)- Additional San Bernardino Basin Area pumping:- Imported Water Portfolio for 2021:- Available:- Remaining for 2020 - Carryover to 2021 16,707 Entitlement for 2021 (5%)5,130 Kern - Delta Water Bank (5,000 af/yr maximum)- Multi-year Demo - Big Bear Lake (stored)742 - Big Bear Lake (Delivered)- Yuba Accord - Palmdale Exchange - Dry year yield program - Purchase additional imported water - TOTAL SUPPLIES - 742 21,837 Demands:- Direct Deliveries 2,138 Recommended uses for State Water Project Water in 2021:- Short-term (carryover) storage for direct deliveries - Artificial Recharge - Facility Storage 121 Long-term storage/banking - Sale to MWDSC - Palmdale Exchange (delivery to Palmdale)- Sale to Crestline-Lake Arrowhead Water Agency - Exchange to Crestline-Lake Arrowhead Water Agency - Exchange to Santa Clara - True up with DWR meters (141) TOTAL USE 0 2,119 BALANCE - 19,719 ARTIFICIAL RECHARGE Artificial Recharge Jan 2021 - Dec 2021 % in each basin San Bernardino Basin Area1 (Suggested Max)Local SWP Total %Based on 2011 modelin 1. Waterman Basins & 9. East Twin Creek Spreading Basin 125,063 - - - 0%29% 2. Santa Ana Basins 163,125 478 - 478 0%38% 3. Mill Creek Basins 97,875 1,054 - 1,054 1%23% 4. City of Redlands Spreading Basins - - - - 0% 5. Bear Valley Spreading Basin - - - - 0% 6. Santa Ana River Bottom - - - - 0% 7. Patton Basin - - - - 0% 8. EVWD Turnout - - - - 0% 10. Badger Basins 19,031 - - - 0%4% 11. Wiggins Basin - - - - 0% 12. Devil Canyon & Sweetwater Basins 29,906 - - - 0%7% 13. Gravel Pits - - - - 0% 14. Lower Lytle Creek Basins (proposed)- - - - 0% Sub-total SBBA 435,000 1,532 - 1,532 0% 1 Suggested maximum recharge values. See Appendix F. 2 Due to shallwow groundwater levels in this area, exceeding this value may result in rejected recharge at this location. Rialto-Colton Basin Yucaipa Basin 3,500 - - Riverside North Basin SBVMWD Recharge in Riverside North (Watermaster Table No. 17C)6,094 Other - Sub-Total R-C, Yucaipa, Riverside North 0 0 TOTAL RECHARGE MARCH 2021 1,532 - 1,532 2021 Regional Water Management Plan March March 10 DATE:April 8, 2021 TO:Advisory Commission on Water Policy FROM:Adekunle Ojo, Manager of Water Resources SUBJECT:Consider Support for the Proposed San Bernardino Valley Water Conservation District Replenishment/Sustainability Component to be Added to the Existing Groundwater Charge for Eligible Pumpers that Have Not Joined the San Bernardino Basin Groundwater Council At its February 10, 2021 regular Board meeting, the San Bernardino Valley Water Conservation District (Conservation District) Board of Directors considered a request from the San Bernardino Basin Groundwater Council (GC)to add a Replenishment/Sustainability component to their existing Groundwater Charge in order to collect the full, proportionate share of San Bernardino Groundwater Council (GC) costs for eligible pumpers, in the Conservation District boundary,that are not in the GC. The GC generally replenishes the basin to ensure sustainability into the future. This new charge would not apply to the Riverside Entities, as defined by the 1969 Western-San Bernardino Judgment (Judgment), because their pumping amounts are not allowed to increase based upon the purchase of supplemental replenishment water,like the San Bernardino Entities in the Judgment. Nearly all of the larger pumpers within the Conservation District service area have already joined the GC so this new charge would mainly apply to smaller pumpers. The total amount collected by Conservation District through this new fee and the existing Groundwater Charge would be proportioned between the GC water cost and the GC Operations & Maintenance cost, based on the approved GC annual budget. At this meeting, Conservation District staff will be presenting an overview of the proposed addition of a Replenishment/Sustainability component to their existing Groundwater Charge and asking the Advisory Commission for its support. 11 Background The GC was formed in 2018 after a two (2) year collaborative development process. The goal of the GC is to purchase enough imported water to ensure the sustainability of the San Bernardino Basin long into the future. Although most of the large pumpers, or water agencies, joined the GC, there were two larger agencies that required more time for their respective decision-making processes. The GC worked with these two larger agencies for a period of about two (2) years until they both joined. Once those larger agencies joined, the GC focused its attention on the smaller pumpers that had not yet joined the GC. Many of these smaller pumpers are private individuals, within Conservation District’s boundary, which already pay the Groundwater Charge that generally covers operations and maintenance of Conservation District’s recharge facilities and limited capital replacement or improvements. Rather than approach each of these private individuals, within Conservation District’s boundary, about joining the GC, the GC asked the Conservation District to consider adding a Replenishment/Sustainability component to their existing Groundwater Charge that would assess each of these pumpers their proportionate share of the GC costs, as determined by the Equitable Allocation Methodology (EAM). This new charge would be assessed, along with the Groundwater Charge, under Conservation District’s organic act and constitutional requirements, based on actual production within the District’s jurisdictional boundaries. A phase-in period of five, or more, years is also being considered for the new fee to help reduce “rate shock”. Conservation District is planning outreach to the pumpers that would pay the proposed charge to obtain feedback. The recommended amount for the Replenishment/Sustainability Component is about $20 per acre-foot of production. When added to the existing Groundwater Charge, the total charge would be around $34.00 per acre-feet of production. Staff Recommendation Support the implementation of an additional Replenishment/Sustainability component to the existing Conservation District Groundwater Charge for pumpers, within Conservation District’s boundary (not including the Riverside Entities defined in the Judgment), that have not joined the Groundwater Council in order to assess them their proportionate share of the GC costs. 12 DATE:April 8, 2021 TO:Advisory Commission on Water Policy FROM:Matt Howard, Water Resources Senior Project Manager Adekunle Ojo, Manager of Water Resources SUBJECT:Consider Support for Valley District’s Purchase of Water in 2021 Available from the Yuba Accord Valley District has an existing agreement with the California Department of Water Resources to purchase additional water at a reasonable price under the Yuba Accord Dry Year Water Purchase Program (Yuba Accord). Valley District first participated in this program in 2008 and staff typically asks the Board to consider participation in the program during dry years. The California Department of Water Resources (DWR) issues Notice of Availability under Yuba Accord and participants submit initial request in April; final requests are submitted in mid-May.Payments start in July and water is delivered during the transfer window from July to November. Valley District’s water supply contract with DWR sets forth the maximum amount of State Water Project (SWP) water it may request annually, which is 102,000 acre-feet (AF), also known as Table A amount. Given the historically low 5% Table A allocation for 2021,and the reasonable cost for additional water under this program,staff is recommending the Board of Directors consider purchasing up to 10,000 AF of Yuba Accord water, the same request amount as last year. The actual amount Valley District receives under the program is based on the final quantities of each “component” of water available through the program and the number of participants. The amount of water Valley District received under last year’s program was about 3,200 acre-feet, or about 1/3 of its initial request. At this time, Staff is recommending the Advisory Commission support the recommendation for Valley District to purchase up to 10,000 acre-feet of water from the Yuba Accord at a cost of around $3.7 million. 13 Background In December 2007, twenty-one (21) of the twenty-nine (29) State Water Contractors, one (1) non- State Water Contractor agency and the Department of Water Resources entered into the Yuba River Accord Water Purchase Agreement (Agreement) with parties in the Yuba River Basin to purchase additional, non-SWP water supplies in dry times. The Valley District Board of Directors saw the additional non-SWP supplies as a relatively low cost, low risk investment for additional dry year supplies. The amount of water available through this program varies year-to-year; the federal Central Valley Project (CVP) Contractors and the SWP Contractors share equally in the water available through this program. The annual average availability since 2008 is 100,000 acre-feet. Participating agencies purchase water at varying costs, per the Agreement, depending on the water year classification (Wet, Normal, Dry, Critically Dry, etc.) Water delivered through this program is released into the Yuba River which then flows through the Feather River and the Delta to the CVP (Federal) and/or Banks (SWP) pumping plants. In 2020, Valley District agreed to purchase up to 10,000 acre-feet through the program and received 3,220 acre-feet, including carriage water losses across the Delta, at a total cost of $1,545,600, or about $480 per AF. For comparison, Valley District’s estimated additional cost for water through the Sites Reservoir is between $600 to $700 per AF. Carriage water loss(es) is the water lost due to the required increase in Delta outflows to maintain baseline Delta salinity conditions which are generally around 20% or 30%. Four different types (“components”) of water available are through this program: Components 1, 2, and 3 water during dry conditions Component 4 water when Yuba County Water Agency has excess water Prices are pre-negotiated for Components 1-3, while Component 4 is based on market conditions. Per the Agreement, each participating agency is required to pay a minimum amount to participate in the program and then to pay for any water ordered and delivered through the program. The maximum amount of water available under the Agreement for the combined use of the participants varies, based on the flow schedule for fish deliveries, conditions in the Delta, groundwater availability, anticipated delivery allocations through the SWP and CVP, and the Sacramento 14 Valley 40-30-30 Index. This index, originally specified in the 1995 State Water Resources Control Board (SWRCB) Water Quality Control Plan, is used to classify the water year type. Water year types are set by first of month forecasts beginning in February. Final determination is based on the May 1st, 50 percent exceedance forecast. Fiscal Impact If Valley District were to receive its entire request of 10,000 acre-feet, the total cost would be approximately $4.8 million based upon the approved pricing in the Yuba Accord Agreement. Staff Recommendation Support the Valley District purchase of up to 10,000 acre-feet of water through the 2021 Yuba Accord program, at a total cost of approximately $3.7 million, exact price to be determined based on the terms of the Yuba Accord Agreement and the actual amounts of water available through the program. 15 DATE:April 8, 2021 TO:Advisory Commission on Water Policy FROM:Bob Tincher, Chief Water Resources Officer/Deputy General Manager SUBJECT:Consider Support for Proposed Valley District Agreement to Continue Recharge in San Bernardino County Flood Control Facilities Staff is recommending the Valley District Board of Directors consider the attached Agreement with San Bernardino County Flood Control District (Flood Control),which generally provides the procedures and requirements for Valley District’s continued use of Flood Control facilities in the San Bernardino and Yucaipa Basins for groundwater recharge; Flood Control has requested a separate agreement for the Rialto-Colton Basin. Under the Agreement, Flood Control will charge Valley District a “lease” type fee of $20 for every acre-foot of State Water Project (SWP) water recharged in Flood Control facilities. Staff has determined this fee is essentially equivalent to the annual lease payment Valley District makes to the San Bernardino Valley Water Conservation District (Conservation District)for the use of their recharge basins. Valley District could choose to pass these costs to those who purchased the SWP water for recharge. Recharge amounts under this agreement will range from 0 to about 44,000 acre-feet (about a $874,000 “lease” fee). This agreement has been reviewed by Valley District special legal counsel Meredith Nickel of Downey Brand and approved. Background: Flood Control owns a series of detention basins,drainage channels, and associated facilities in the San Bernardino and Yucaipa Basins that are used to control the flow of water from rain events that could cause flooding. When these facilities are not needed for flood control,they can also be used for groundwater recharge. Since 1972, Flood Control has been allowing Valley District to recharge water in their facilities, at Valley District’s expense. The use of these facilities saves Valley District money by eliminating the need to construct duplicate facilities. Utilization of Flood Control facilities for recharge is also one of the goals of the Upper Santa 16 Ana River Watershed Integrated Regional Watershed Management Plan which was adopted by both Valley District and San Bernardino County (County). Flood Control desires to replace the 1972 agreement with Valley District because it does not comply with the current San Bernardino County Board of Supervisor’s policy against “evergreen” agreements. Flood Control also intends for this agreement to be a “standard” template that will form the basis of similar agreements with other agencies that utilize its facilities throughout the County. In addition to the 1972 agreement, Flood Control and Valley District also entered into a ten-year Planning Memorandum of Understanding in 2013 which will also be replaced by this Agreement. The Agreement does not provide “blanket” approval for Valley District’s use of Flood Control facilities but, instead, outlines the general procedures and requirements for use. Valley District also needs to obtain a permit(s) from Flood Control to regularly clean and maintain the Flood Control detention basins it uses for recharge. The Agreement also states the desire of both parties to develop a permanent easement for a portion of Valley District’s Foothill Pipeline which was inadvertently never converted from the temporary construction easement and encroachment permit granted at the time of construction. The costs paid by Valley District in the new Agreement are different than the 1972 Agreement. Under the 1972 Agreement, Valley District reimbursed Flood Control for its actual costs associated with Valley District’s use of Flood Control facilities. In the Agreement, Valley District will continue to reimburse Flood Control for its actual costs and will also pay Flood Control a “lease” type payment of $20 per acre-foot for all SWP water recharged. This charge will not apply to the recharge of local water under the Active Recharge Project since Flood Control’s secondary mission (Cal. Water Code App. § 43-1 et seq.) is water conservation and recharge. Staff has compared this proposed charge to the annual lease payment Valley District pays Conservation District for the use of their recharge basins and they are essentially equivalent. Fiscal Impact: Under the Agreement, Valley District will be charged to reimburse Flood Control for any costs they incur to recharge SWP water for Valley District and will also be charged $20 per acre-foot for all SWP water recharged. Valley District can choose to pass these costs through to those who purchased the SWP water for recharge. 17 Staff Recommendation: Recommend that the Valley District Board of Directors consider the proposed agreement with Flood Control. Attachments: Groundwater Recharge Facilities Agreement by and Between the San Bernardino County Flood Control District and San Bernardino Valley Municipal Water District 18 1 GROUNDWATER RECHARGE FACILITIES AGREEMENT BY AND BETWEEN THE SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT AND SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT This Groundwater Recharge Facilities Agreement (“Agreement”) is entered into and effective as of the 1st day of June, 2021(“Effective Date”), by and between the San Bernardino County Flood Control District (“District”) and San Bernardino Valley Municipal Water District (“Recharger”). The District and Recharger may be referred to herein individually as a “Party” or together as the “Parties.” RECITALS WHEREAS, the District owns a series of flood control detention basins (detention basins) drainage channels, and associated appurtenances located within its service area that are used to temporarily detain water from rain events that could cause flooding; and WHEREAS, said detention basins, drainage channels, and associated appurtenances can also be used, when they are not needed for flood control, for groundwater recharge; and WHEREAS, Recharger estimates that its ratepayers will, over the period from 1960 to 2085, have invested over $1 billion on the State Water Project, Foothill Pipeline and other facilities to convey supplemental water for direct delivery and for recharge in various basins that benefit the San Bernardino Basin, which is the largest groundwater basin in the Recharger’s service area able to store up to 5.7 million acre-feet of water; and WHEREAS, the use of the Foothill Pipeline, as well as other facilities owned or operated by Recharger for the purpose of groundwater recharge, is of benefit to Recharger’s customers who reside in the San Bernardino Valley and within the District’s Zones 2 and 3; and WHEREAS, District and Recharger have a long history of cooperation dating back to an agreement dated September 25, 1972, (“1972 Agreement”), whereby District allowed Recharger to use said detention basins for groundwater recharge and provided Recharger with easements; and 19 2 WHEREAS, District provided Recharger with a temporary construction easement and encroachment permit for a portion of Recharger’s Foothill Pipeline which was inadvertently not granted to Recharger as an easement; and WHEREAS, for approximately fifty (50) years, the Parties have worked cooperatively to utilize District’s flood control basins for groundwater recharge when such basins are not otherwise required for flood control purposes and when the use of such basins does not otherwise compromise the District’s primary mission of protecting life and property from the significant risks posed by flooding; and WHEREAS, during this 50 year period, Recharger has paid District for water recharge in District’s basins; and WHEREAS, the 1972 Agreement is superseded and replaced by this Agreement; and WHEREAS, the Recharger has obtained a permit application to regularly clear and maintain the Waterman Detention Basins; and WHEREAS, Recharger desires to construct certain recharge improvements, as approved by District (“Recharger Improvements”), to increase recharge of the underground aquifer(s) by spreading water, as defined in Section III.G below (“Water”), onto property owned by the District and into the recharge area (“Recharge Area”) located in the District’s flood control facilities (“District Facilities”); and WHEREAS, District and Recharger are both signatories to the Upper Santa Ana River Watershed Integrated Regional Watershed Management Plan which establishes goals and objectives for water management, including groundwater recharge in various locations which include District detention basins; and WHEREAS, the increased recharge that Recharger desires will help meet current and future demands for water among its constituents; and WHEREAS, water conservation and recharge are part of the District’s secondary missions, as set forth in the San Bernardino County Flood Control District Act (Cal. Water Code App. § 43- 1 et seq.); and 20 3 WHEREAS, the District has determined that the recharge contemplated under this Agreement is consistent with its secondary missions; and WHEREAS, the proposed Water recharge, as set forth in this Agreement, has been determined by the District not to interfere with District’s primary statutory objectives and purposes to provide for the control of flood and storm waters and to safeguard the safety of public health and property; and WHEREAS, in 2013, the Parties entered into a ten year Planning Memorandum of Understanding (Agreement No. 13-608; the “2013 Agreement”) to outline the cooperative manner in which the Parties shall work together to identify and analyze the suitability of District facilities for recharge purposes; and WHEREAS, the 2013 Agreement expires in 2023 and the Parties wish to terminate and supersede the 2013 Agreement with this Agreement; and WHEREAS, the Parties now wish to enter into this Agreement to allow Recharger non- exclusive access to develop, construct, operate, and maintain the Recharger Improvements necessary to transport, discharge, spread, and store Water in the Recharge Area as described herein and as permitted by the District; and WHEREAS, as provided herein, this Agreement does not authorize nor guarantee any specific project and the Parties will comply with the California Environmental Quality Act (Cal. Public Resources Code § 21000 et seq.) (“CEQA”) prior to approving any specific project. NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS: I. Prior Agreements This Agreement supersedes the 1972 Agreement and the 2013 Agreement between the Parties. The 1972 Agreement and the 2013 Agreement shall be mutually terminated as of the Effective Date of this Agreement. The easements granted under the 1972 Agreement are attached hereto as Exhibits A, B, D and E to Attachment 1. The District-granted easements generally authorize Recharger to construct and operate (i) water transmission and related facilities, and (ii) power recovery or dissipation facilities and related facilities over the named assessor parcels. 21 4 In 1972, District provided Recharger with a temporary construction easement and encroachment permit for a portion of Recharger’s Foothill Pipeline which was inadvertently not granted to Recharger as a permanent easement. District and Recharger agree to work together on a permanent easement. Additionally, in 1972, the Parties entered into a Common Use Agreement (CUA), attached hereto as Exhibit C to Attachment 1, which references the 1972 Agreement in Section 2 of the CUA. The Parties hereby amend Section 2 of the CUA to delete the reference to the 1972 Agreement and replace the reference to this Agreement. II. Recitals. The above recitals are hereby incorporated into this Agreement as if fully set forth herein. III. Definitions. As used herein, the following terms are defined as follows. A. District Facilities. A portion of the District-owned real and personal property, which includes, but is not limited to, roads, rights of way, storm water detention basins, channels, pipelines, turn-outs, gate valves, fencing, pipes, and other improvements and equipment in the vicinity of the following facilities: 1. Sweetwater Basins 2. Badger Basins 3. Waterman Basins 4. East Twin Basins 5. Oak Glen Basins 6. Wildwood Basins 7. Wilson Basins B. Existing Recharge Improvements. Any recharge improvements existing in the Recharge Area at the time of the execution of this Agreement, which, are described in Attachment 2 attached hereto and incorporated by this reference. C. Encroachment Permit(s). Any Encroachment Permit(s) issued by the District to the Recharger in relation to this Agreement, as may be amended from time to time. 22 5 D. Operations Plan. That certain document, as may be amended from time to time, which details the operational standards and requirements for Recharger’s day-to-day operation of the Recharger Improvements and Recharger’s Water spreading and recharge activities at the Recharge Area and District Facilities pursuant to the terms of this Agreement. E. Recharge Area. That area located within the District Facilities into which Water may be spread by Recharger, as described in Attachment 3 attached hereto. F. Recharger Improvements. Any equipment and/or appurtenances Recharger constructs, places, and/or installs within the Recharge Area or District Facilities pursuant to this Agreement, subject to first obtaining any necessary Encroachments Permits from the District. G. Water. State Water Project Water, recycled/reclaimed water, and any other water supply that is not local stormwater. H. Water Spreading Fee. The amount to be paid by Recharger for the Water spreading and recharge activities contemplated by this Agreement as set forth in Section VI.A below. IV. Term. A. This Agreement shall become effective on June 1, 2021 and shall have an initial term of twenty (20) years (“Initial Term”), with six (6) options to extend the term by five (5) years each pursuant to the mutual written agreement of the Parties. This Agreement shall automatically terminate without further action of either of the Parties at the end of the Initial Term and any agreed-upon extension terms, unless notice to extend is provided pursuant to subsection (B) below. B. The Parties shall meet no later than two years before the end of the Initial Term of this Agreement to determine whether they wish to exercise the option to extend the Initial Term. If the Parties wish to continue this Agreement, they shall amend this Agreement no later than one year before the end of the Initial Term of this Agreement. The Parties shall, similarly, meet no later than one year before the end of each subsequent extension term of this Agreement to determine whether they wish to extend this Agreement for an additional 23 6 5 years. If the Parties wish to continue this Agreement, they shall amend this Agreement no later than six months before the end of the then-current extension term. C. In the event that the Parties fail to timely meet to determine whether to continue this Agreement and if both Parties nonetheless wish to continue this Agreement, the Parties may agree in writing to a one year holdover period during which time they shall meet to amend this Agreement. Neither Party shall contend that the Agreement has terminated until the end of that one-year holdover period, at which time the Agreement shall automatically terminate unless the Parties execute an amendment to extend the Initial Term to this Agreement. V. Flood Control Priority. A. Priorities. Recharger’s access to and use of the Recharge Area and the District Facilities for Water spreading and recharge purposes is, and shall be subordinate to, the basic flood control purposes of the District Facilities, and Recharger’s access to and use of the Recharge Area and the District Facilities shall in no way conflict with the District’s flood control activities. B. District Control. To protect property and public safety and to maintain the full flood control capacity of District Facilities, the District shall have sole authority to: (1) determine when the Recharge Area is available for recharge of Water; (2) release water, including the Water; and (3) order the reduction, suspension, or cessation of the delivery of the Water. C. District Authority to Reduce, Suspend or Terminate Recharge. The District is entitled to, at any time, order Recharger to reduce, suspend or terminate its Water spreading and/or recharge activities upon a determination by the District’s Chief Flood Control Engineer or his or her designee that Recharger’s Water spreading and recharge activities are incompatible with the District’s flood control efforts. Upon such a determination, the District shall provide notice to Recharger advising of the conflict and, if applicable, any steps Recharger must take to cure the conflict and the deadline by which to do so. Should 24 7 the District direct Recharger to immediately reduce, suspend or terminate its Water spreading and recharge activities, Recharger shall immediately comply. D. General Planning Efforts. 1. Once a specific plan is initiated by Recharger for the specific use of a particular flood control facility, the Parties agree to allocate sufficient staff time and resources to evaluate the joint use/operation of that existing facility for adequate flood control purposes in conjunction with water replenishment. Recharger shall provide to the District all of the details associated with the proposed use for each District facility including, but not limited to, any proposed improvements and a proposed operational plan for each District facility. This information will also include the amounts of estimated Recharge for both native stormwater and State Water Project water (if any), or other sources of water for each facility, and quality of such water. 2. The joint evaluation may consider replenishment with both native water and water from the State Water Project or other sources and shall also consider the potential effects of groundwater replenishment to the environment, including, but not limited to, an evaluation of whether such activities will introduce water quality pollutants or mobilize existing groundwater contamination, or will cause land subsidence, liquefaction, or seepage to low lying lands in any basin to be impacted by the replenishment activities of Recharger. The Parties acknowledge that Recharger will be the agency primarily leading this evaluation as it has experience concerning groundwater storage and the quality of waters from sources such as the State Water Project. The District will independently review Recharger’s evaluation. VI. Costs. A. Water Spreading Fee. Recharger shall pay Twenty dollars ($ 20.00) per acre-foot of Water discharged into the Recharge Area to District for the use of the Recharge Area as provided pursuant to the terms of this Agreement. The Water Spreading Fee shall be paid annually no later than August 30 of each year and shall be accompanied by the discharge 25 8 records required to be submitted pursuant to Section IX.B. The Water Spreading Fee shall apply to imported or recycled/reclaimed water or other water sources defined in Section III.G above. Stormwater recharged in District Facilities shall not be subject to this fee. B. District Costs. Recharger shall reimburse the District for any and all of the following expenses incurred for work performed by the District or its agent, whether at the Recharger’s request or at the District’s discretion, as provided herein, and for all other expenses incurred by the District that are directly or indirectly associated with the Water spreading and recharge activities by Recharger in the Recharge Area, within thirty (30) days of receipt of an invoice therefor: 1. Labor costs and labor-related costs to District due to the spreading of Water, which shall be based upon the salary listed in the applicable Memorandum of Understanding between the County of San Bernardino (“County”) and the Employee’s Association(s)/Union(s); 2. Any increase in any regulatory costs incurred by the District resulting from Water spreading, recharge, or any other activities pursuant to this Agreement that are not otherwise identified in Section VI.C, below; 3. Actual cost (if any) to the District for materials, equipment, and labor used in additional work attributable to the spreading of Water; 4. Actual cost (if any) to the District for materials, equipment, and labor used to maintain the Recharge Area and/or Recharge Improvements; 5. Increased operation and maintenance costs; and 6. An overhead charge at the District’s overhead rate, in accordance with the County’s then-current Indirect Cost Rate Proposal, will be added to the costs identified in Section VI.B.1-4 above to cover general and administrative overhead costs. 7. District shall use its best efforts to invoice Recharger for District Costs on a quarterly basis within a reasonable time of incurring said costs. 26 9 C. Regulatory and Other Costs. Recharger shall be solely responsible for any and all costs associated with its Water spreading and recharge activities pursuant to this Agreement, which includes all regulatory costs associated with Recharger’s responsibilities under Section IX herein, as well as any and all other costs associated with the handling, delivery, transport, spreading and/or conserving of Water to and in the Recharge Area. Such costs may include, but are not limited to, regulatory permitting costs, compliance costs, and enforcement costs. VII. Mutual, Non-Exclusive Use of the Recharge Area. A. Non-Exclusive Use. Recharger and District understands and consents to Recharger’s non- exclusive use of the Recharge Area and District Facilities for Water spreading and recharge purposes. Consistent with the priority to be given to flood control purposes as set forth in Section V.A, the Parties shall attempt to operate and maintain their facilities in such a manner and at such time so as not to unreasonably interfere with the uses of the other. The District and the Recharger agree that, in the event that any third party wishes to construct or operate recharge facilities in the Recharge Area, such use will be the subject of a multi- party agreement among the District, the Recharger and such third party(ies). Among other things, Recharger and District understands and consents to: (1) the presence and/or placement of any District Facilities and/or any Existing Recharge Improvements; (2) the District (which shall include without limitation its officers, employees, representatives, agents, contractors, and/or vendors) having access to the Recharge Area and District Facilities for flood control, water spreading, and other purposes; and (3) the owners/operators of any Existing Recharge Improvements (which shall include without limitation their officers, employees, representatives, agents, contractors, and/or vendors) having access to the Recharge Area and District Facilities for flood control, water spreading, and other purposes. B. Cooperation Regarding Regulatory Permits and Easements. The Parties agree to cooperate to obtain any necessary regulatory permits and/or easements to facilitate the construction, operation, and maintenance of the Recharger Improvements. The costs for 27 10 obtaining any such permits or easements shall be the sole responsibility of Recharger as set forth in Section VI herein. The Parties agree to cooperate in the shared use of regulatory permits for the mutual benefit of the Parties, to the extent possible, and without cost to each other. C. Recharge Improvements. Recharger constructed, operates, and maintains the Existing Recharge Improvements within the Recharge Area, as designated on Attachment 3. Recharger shall design, construct, improve, and maintain its Recharge Improvements so as to not conflict with or damage the Existing Recharge Improvements. To the extent that Recharger damages the Existing Recharge Improvements due to its activities under this Agreement or otherwise, Recharger shall be solely liable and responsible for such repair costs regardless of District’s approval of any such designs and/or activities. In the event that it becomes necessary to fence the Recharge Areas, Recharger shall be responsible for paying the cost of such fencing and shall coordinate with District to ensure that such fencing permits District access. D. No Known Present Conflict. As of the Effective Date of this Agreement, the Parties do not anticipate that Recharger’s activities will conflict with District’s flood control activities or the operation of any Existing Recharge Improvements, if any. E. Other Water Agencies. Recharger may enter into separate agreements with other water agencies under which such agencies shall utilize the Recharge Improvements for recharge into the Recharge Area within the District Facilities. District shall not be a party to such agreements and shall not be liable to any third parties, such as the water agencies, in the event that the District exercises its options to reduce, suspend, or terminate under this Agreement. 28 11 VIII. District Responsibilities. A. Notice of Reduction, Suspension, or Termination of Activities. District shall notify Recharger, in accordance with Section V herein, any time it is necessary to reduce, suspend, or terminate Recharger’s Water spreading, recharge, or other activities in the Recharge Area. B. Maintenance of Records and Reporting Costs. District shall maintain records of labor, equipment, and materials expended by District on behalf of Recharger for any activities other than routine management of the District Facilities. District shall submit invoices and/or any receipts for reimbursement to Recharger and maintain such records for two (2) years. District shall make such records available to Recharger (or copies thereof) upon request. C. Joint Inspections. At District’s sole discretion, District may schedule periodic inspections with Recharger of the District Facilities, Recharger Improvements, Existing Recharge Improvements (if any), and related property(ies) to assess and determine whether any such facilities, improvements, or other related property(ies) are maintained in good working order or if they have suffered any damage or degradation as a result of activities related to this Agreement or otherwise. The frequency, scope and timing of these joint inspections shall be established in the Operations Plan described in Section X.C below. The District and Recharger agree that they shall use their best efforts to complete and approve the Operations Plan within a reasonable time following the Effective Date of this Agreement. D. Maintenance and Repairs. Following any joint inspections or District otherwise reasonably determines that any maintenance or repairs are necessary, District shall provide written notice to Recharger identifying, and directing Recharger to complete, any necessary maintenance or repairs that the District has reasonably determined to be directly or indirectly associated with water spreading and recharge activities by Recharger in the Recharge Area. District shall include in the notice a reasonable deadline by which Recharger must complete such maintenance or repairs. If Recharger fails to complete the 29 12 recharge-associated maintenance or repairs by the noticed deadline, District will meet and confer with Recharger to determine whether there should be a change in the deadline. If Recharger fails to adequately complete such recharge-associated maintenance or repairs by the deadline provided or otherwise agreed upon, District may, at its sole discretion, complete or arrange for the completion of any identified maintenance and repairs and invoice Recharger for any costs incurred, as provided in Section VI.B herein. Nothing herein shall obligate Recharger to complete any maintenance or repairs or pay District for costs of any maintenance or repairs that is not directly or indirectly associated with water spreading and recharge activities by Recharger in the Recharge Area. E. Emergency Contacts. District shall provide Recharger with names and phone numbers of District emergency contact personnel titled “Emergency Contact Personnel.” District shall provide a revised list of emergency contact personnel within thirty (30) days of any changes to the contacts identified on its Emergency Contact Personnel list. IX. Recharger Responsibilities. A. Encroachment Permit(s). Recharger is responsible to obtain from the District all Encroachment Permits required by the District to access the Recharge Area and to construct, install, supervise, operate, and maintain the Recharger Improvements and any future improvements developed pursuant to this Agreement. The District will use its best efforts to issue such Encroachment Permits to Recharger within a timely manner following Recharger’s application for such permit. All District permit fees and costs shall be separate and shall not be deemed to be included as a part of the Water Spreading Fee in Section III.H. B. Discharge Records. Recharger shall maintain a detailed monthly record of the amount of Water discharged into the Recharge Area. Recharger shall submit the detailed monthly report to District on a monthly basis. Recharger shall also submit, along with the Water Spreading Fee pursuant to Section III.H, an annual summary report, detailing the monthly and annual totals of the Water it discharged into the Recharge Area. The District may revise 30 13 the frequency of reporting by providing written notice to Recharger. Recharger may provide this report to the District electronically. C. Water Monitoring and Records. Recharger shall comply with all federal, state, and local water monitoring requirements, and all water monitoring requirements pursuant to any permits, authorizations, and/or approvals related to Recharger’s Water spreading and recharge activities pursuant to this Agreement. Recharger shall maintain copies of any such water level measurements and any water quality sample results for five (5) years for District purposes and shall provide copies to District upon request. D. Water Rights. Before engaging in any recharging and/or water spreading operations at the Recharge Area, Recharger shall ensure that it holds all water rights necessary to convey the Water into underground storage and/or for subsequent use. E. Comply with All Regulatory Requirements for Discharge. 1. Ensure Compliance. Recharger shall ensure that all discharges into the Recharge Area shall meet any and all applicable federal, state, local and any other requirements including, but not limited to: water quality standards, including, but not limited to, the Porter-Cologne Water Quality Control Act (Cal. Water Code § 13000 et seq.) and any and all permits, plans, policies, waste discharge requirements, National Pollution Discharge Elimination System permits under the federal Clean Water Act (33 U.S.C. § 1251 et seq.) developed and implemented by the State Water Resources Control Board (Cal. Water Code §§ 13263 and 13377), the applicable Regional Water Quality Control Boards, and California Department of Public Health. 2. Maintain and Provide District Copies. Recharger shall maintain copies of all such permits, authorizations, and/or approvals and shall, within fifteen (15) days of receipt thereof, provide copies of all such permits, authorizations, and/or approvals to District. F. Comply with All Other Regulatory Requirements. 1. Ensure Compliance. Recharger shall be responsible to obtain any and all legally required permits, authorizations, and/or approvals as may be necessary or required by 31 14 any local, state, or federal agencies for Recharger’s development and/or use of any facilities or other activities related to the handling, delivery, discharge, and spreading or conserving of Water to and/or in the Recharge Area and/or the extraction of Water from the Recharge Area, and shall otherwise ensure compliance with any and all local, state, and federal regulatory requirements, including, but not limited to, CEQA. Recharger shall be the CEQA lead agency. 2. Maintain and Provide District Copies. Recharger shall maintain copies of all such permits, authorizations, and/or approvals and shall, within fifteen (15) days of receipt thereof, provide copies of all such permits, authorizations, and/or approvals to District. G. Notice of Exceedance. Recharger shall immediately notify District of any water monitoring results that indicate the presence of any contaminant(s) in an amount that exceeds any limitation set forth for such contaminant(s), whether by federal, state, or local laws or regulations or by any permit, authorization, and/or approval related to Recharger’s Water spreading and recharge activities pursuant to this Agreement. H. Approvals from Other Property Owners. Recharger shall procure and maintain records of any necessary and applicable approvals from other property owners for the delivery, discharge, and spreading facilities and appurtenances for the Water spreading operation in the Recharge Area. I. Control of Recharger Improvements. Recharger is solely responsible for all operation and control of Recharger’s Water delivery, discharge, and spreading equipment and appurtenances. J. Turnout Structures. Recharger shall be responsible for the supply of Water at the outlet of the turnout structures. K. Reduction, Suspension, or Termination of Activities. Recharger shall immediately reduce, suspend, and/or terminate use of the Recharger Improvements and/or reduce, suspend, and/or terminate Water spreading, recharge, and any other activities at the Recharge Area upon notice to do so from District pursuant to Sections V and VIII.A herein. 32 15 L. Automated Control. Recharger shall provide and maintain an automated system to interrupt Water spreading and recharge activities to accommodate emergency conditions and/or District’s operation and maintenance of the Recharge Area. M. Maintenance of Facilities. Recharger is solely responsible for maintaining in good working order its Recharger Improvements, including, but not limited to, all Water delivery, discharge, and spreading appurtenances. N. Maintenance of Recharge Area. Recharger is solely responsible for maintaining the Recharge Area, including, but not limited to: controlling any and all vectors and vegetation that may occur either directly or indirectly due to Recharger’s Water spreading operation in the Recharge Area, including any downstream impacts; scarification of the Recharge Area; removal of trash and other debris from the Recharge Area; and maintaining fencing or other structures in good repair. O. Maintenance of District Facilities. Recharger shall be solely responsible for the cost of any necessary repairs to restore to prior condition any District Facilities, utilities, roads, and/or other improvements damaged by, or as a result of, Recharger’s activities under this Agreement, reasonable wear and tear excluded. P. Security of Recharge Area. Recharger shall patrol and maintain surveillance of all areas directly affected by the spreading of Water to deter trespass, per the Operations Plan. Records of surveillance shall be kept by Recharger and made available to District upon request, per the Operations Plan. Q. Participation in Joint Inspections. Recharger shall participate in joint inspections scheduled by District, at its sole discretion, per the Operations Plan, of District Facilities, Recharger Improvements, Existing Recharge Improvements (if any), and related property(ies) to assess and determine whether any such facilities, improvements, or other related property(ies) are maintained in good working order or if they have suffered any damage or degradation as a result of activities related to this Agreement or otherwise. 33 16 R. Complete Maintenance and Repairs Directed by District. Following any joint inspections, should District provide written notice to Recharger directing Recharger to complete any necessary maintenance or repairs, Recharger shall complete such maintenance or repairs within the timeline(s) established in the Operations Plan. S. Emergency Contacts. Recharger shall, prior to exercising any of its rights under this Agreement, provide in writing to District the names and phone numbers of Recharger emergency contact personnel. Recharger shall provide a revised list of emergency contact personnel within thirty (30) days of any changes to the contacts identified on its Emergency Contact Personnel list. T. Termination of Facility Use. Recharger may, at any time, terminate the use of any facility identified in Section 3.A above by providing District with thirty (30) days’ written notice of such termination. X. Recharger Improvements. A. Approvals. Recharger shall submit plans to District through the Encroachment Permit process for District’s review and approval, which will not be unreasonably withheld or delayed, detailing any improvements Recharger seeks to construct and/or install within the Recharge Area. B. Contracting for Recharger Improvements. With District’s written concurrence, which concurrence shall not be unreasonably withheld, delayed or conditioned, Recharger may contract with any other public or private entity or entities to provide said improvements. Any and all procurement of labor, equipment, materials, and services necessary to carry out construction of improvements shall be in accordance with the applicable bidding and procurement procedures and policies of Recharger and shall comply with all applicable provisions of state law, including but not limited to, the California Labor Code, California Public Contract Code, and the California Civil Code. Recharger shall ensure that District and County are named third-party obligees in any payment and performance bonds obtained for the improvements and are named express third-party beneficiaries in any 34 17 construction contracts entered into for the improvements. When contracting with third parties for the construction of such improvements, Recharger shall defend, indemnify, and hold District and County free and harmless from all claims, damages, losses, or expenses arising out of the construction of said improvements in accordance with Section XII of this Agreement. Recharger shall add a staff gage at a location designated by District for use by the District in all District Facilities that Recharger is using for recharge. C. Operations Plan. The operation of the Recharger Improvements shall be detailed in an Operations Plan submitted to District and approved by the Chief Flood Control Engineer or his or her designee. District may, from time to time at its sole discretion, amend the Operations Plan. Should District amend the Operations Plan, it shall provide Recharger notice of any such amendments per the deadline specified in the Operations Plan. Recharger shall comply with all operations and procedural requirements detailed in the Operations Plan. Should the Operations Plan conflict with this Agreement, this Agreement shall control. In the event that there is a disagreement between District and Recharger over the changes to the Operations Plan, the Parties will meet and confer in an effort to resolve the disagreement amicably. D. Removal of Recharger Improvements. Upon termination of this Agreement or upon termination of the use of a Recharge Area as set forth in Section V.C, Recharger covenants and agrees to surrender and forfeit any rights it obtained pursuant to the terms of this Agreement and to deliver up the Recharge Area peaceably to District immediately upon any such termination. If Recharger shall remain in possession of said premises after any termination of this Agreement, Recharger shall be deemed guilty of an unlawful detention of the Recharge Area and shall be subject to eviction and removal, forcibly or otherwise, at any time thereafter, with or without process of law. In the event of the failure of Recharger to remove the Recharger Improvements and/or any other personal property, machinery or fixtures, if any, belonging to it from the Recharge Area or District Facilities and that interferes with the District’s use of District Facilities within one hundred 35 18 twenty (120) days after termination of this Agreement, District may remove such personal property and place the same in storage at the expense of Recharger and without liability to District for loss thereof. Recharger agrees to pay District on demand all expenses incurred in such removal, including court costs, attorneys’ fees (notwithstanding any provision to the contrary herein), and storage charges. District may also, without notice, sell all or any part of said personal property at public or private sale for such prices as District may obtain, and apply the proceeds of such sale upon any amounts due under this Agreement from Recharger and to any expenses incidental to the removal and sale of said personal property, with the surplus, if any, being refunded to Recharger. District may also retain possession and assume ownership of any Recharger Improvements not timely removed from the Recharge Area and/or District Facilities. E. Ownership of Improvements. Except as set forth in Section X.D above, ownership of monitoring equipment and other improvements installed by Recharger under the terms of this Agreement will continue to vest with Recharger after termination of this Agreement. XI. Damage to Other Facilities. A. Corrective Action. Under no circumstances shall the use of District Facilities by Recharger result in damage or degradation to District Facilities, Existing Recharge Improvements (if any). In the event damage to or degradation of District Facilities and/or Existing Recharge Improvements is identified in the course of the Joint Inspections described in Sections VIII.C and IX.Q herein or otherwise, District shall determine, with input provided by Recharger, any corrective action required and provide written notice to Recharger detailing the corrective action required and the deadline by which such action must be completed. The procedures through which District may direct such corrective action will be included in the Operations Plan. Should Recharger fail to adequately complete such corrective action by the noticed deadline, District may, at its sole discretion, complete or arrange for the completion of any identified corrective action and invoice Recharger for any costs incurred, as provided in Section VI.B herein. 36 19 B. Emergency Corrective Action. At any point, should District discover that District Facilities have been damaged by Recharger and determine that emergency corrective repair work is required to safely capture and detain storm water runoff and/or to otherwise protect the public health and safety, District shall document the cause and extent of damage (e.g., through the use of photos, etc.) and shall proceed to make the necessary emergency corrective repairs. As soon as practicable following the discovery that such District Facilities require emergency corrective work, District shall inform Recharger of its decision to perform emergency corrective work and of its intent to invoice Recharger for the costs incurred, as provided in Section VI.B herein. XII. Duty to Indemnity, Defend, Protect, and Hold Harmless. A. Recharger’s Duty. To the fullest extent permitted by law, Recharger shall indemnify, defend (at Recharger’s sole cost and expense and with legal counsel approved by District, which approval shall not be unreasonably withheld), protect, and hold harmless District, County, and all of their respective authorized representatives, designees, officers, employees, consultants, agents, volunteers, successors, and assigns, (collectively, the “Indemnified Parties”), from and against any and all claims (including, without limitation, claims for bodily injury, death, or damage to property), demands, obligations, damages, actions, administrative actions, administrative orders, investigations, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs, and expenses (including, without limitation, attorneys’ fees, disbursements, and court costs, and all other professional, expert, or consultants’ fees and costs, and District’s general and administrative expenses) of every kind and nature whatsoever (individually, a “Claim,” collectively, “Claims”) which may arise from or in any manner relate (directly or indirectly) to this Agreement (including, without limitation, a release or threatened release of any hazardous substance or hazardous waste into the environment, land subsidence, liquefaction, seepage to low lying lands, and introduction and/or mobilization of contamination or pollutants in groundwater) or Recharger’s presence or activities 37 20 conducted in the Recharge Area (including, without limitation, the negligent and/or willful acts, errors, and/or omissions of Recharger, its principals, officers, agents, employees, vendors, suppliers, consultants, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them), regardless of any active or passive negligence or strict liability of an Indemnified Party. As used herein, the phrases “contamination,” “pollutants,” “hazardous substance,” and “hazardous waste” shall coincide with the broadest definition thereof contained in any present or future federal or state laws, including, without limitation: the Comprehensive Environmental Response, Compensation and Liability Act 42 United States Code section 9601 et seq., as amended or superseded, and the regulations promulgated thereunder; the Resource Conservation and Recovery Act, 42 United States Code section 6901 et seq., as amended and superseded, and the regulations contained in title 40 of the Code of Federal Regulations parts 260-281; the Toxic Substances Control Act, 15 United States Code section 2601 et seq., and the regulations contained in title 40 of the Code of Federal Regulations parts 761-766; the California Porter-Cologne Water Quality Control Act of 1969, California Water Code section 13000 et seq., including all applicable regulations; California Health and Safety Code section 25117; California Public Resources Code section 40141; the Carpenter-Presley-Tanner Hazardous Substance Account Act, California Health and Safety Code section 25300 et seq., and Titles 22 and 26 of the California Code of Regulations and other regulations promulgated thereunder; and radioactive materials which are source, special nuclear or byproduct material as defined by the Atomic Energy Act of 1954, 42 United States Code section 2011 et seq., and the regulations contained in title 10 of the Code of Federal Regulations part 40. Notwithstanding the foregoing, nothing herein shall be construed to require Recharger to indemnify the Indemnified Parties from any Claim arising from the sole or gross negligence, intentional acts, or willful misconduct of the Indemnified Parties with respect to the operation and maintenance of the District Facilities. 38 21 B. Independent Duty to Defend. The duty to defend hereunder is wholly independent of and separate from the duty to indemnify. Such defense obligation shall arise immediately upon presentation of a Claim by any party and written notice of such Claim being provided to Recharger. C. Payment Not Condition Precedent. Payment to Recharger by any Indemnified Party or the payment or advance of defense costs by any Indemnified Party shall not be a condition precedent to enforcing such Indemnified Party’s rights to indemnification hereunder. D. Separate Liability/No Limitation. Recharger’s liability for indemnification hereunder is in addition to any liability Recharger may have to District for a breach by Recharger of any of the provisions of this Agreement. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Recharger’s indemnification obligation or other liability hereunder. E. Survival. This provision shall survive the termination of any other agreement between Recharger and District. Recharger’s obligations to indemnify and to defend Indemnified Parties pursuant to this Agreement shall survive the expiration or earlier termination of this Agreement until such time as any action against the Indemnified Parties for such matter indemnified hereunder is fully and finally resolved or barred by the applicable statute of limitations or statute of repose. F. No Financial Limitation. IT IS UNDERSTOOD AND AGREED THAT RECHARGER’S OBLIGATION TO INDEMNIFY PURSUANT TO THIS AGREEMENT IS NOT SUBJECT TO ANY MAXIMUM FINANCIAL LIMITATION. G. Exclusive Benefit. The foregoing indemnity is for the exclusive benefit of the Indemnified Parties and in no event shall such indemnity inure to the benefit of any third party. XIII. Insurance. A. Recharger’s Obligation. Without in any way affecting the indemnity herein provided and in addition thereto, Recharger shall secure and maintain throughout the term of the 39 22 Agreement, including any extensions of the term of the Agreement, the following types of insurance with limits as shown: 1. Commercial/General Liability. General Liability Insurance covering all operations performed by or on behalf of Recharger providing coverage for bodily injury and property damage with a combined single limit of Five Million Dollars ($5,000,000), per occurrence. The policy coverage shall include: premises operations and mobile equipment; products and completed operations; broad form property damage (including completed operations); explosion, collapse, and underground hazards; personal injury; contractual liability; and pollution liability. 2. Workers’ Compensation. A program of Worker’s Compensation insurance or a State- approved Self-Insurance Program in an amount and form to meet all applicable requirements of the Labor Code of the State of California, including Employer’s Liability with One Million Dollars ($1,000,000) limits, covering all persons providing services on behalf of Recharger and all risks to such persons under this Agreement. 3. Automobile Insurance. Comprehensive and collision automobile insurance for all owned, hired, and non-owned vehicles, which shall include combined single limits for bodily injury and property damage of not less than One Million Dollars ($1,000,000) per occurrence. 4. Environmental Impairment Liability. Liability insurance for environmental impairment including cleanup costs and endorsed for “Sudden and Accidental” contamination or pollution. Such coverage shall be in an amount and form to meet all applicable state and federal requirements but in no event less than Five Million Dollars ($5,000,000) per occurrence, or Fifteen Million Dollars ($15,000,000) aggregate limit. 5. Self-Insurance. Proof of self-insurance by Recharger may be used instead of policies, where approved by District, which approval shall not be unreasonably withheld, delayed or conditioned. 40 23 B. Additional Named Insured. All policies, except for the Workers’ Compensation policy shall contain additional endorsements naming the Parties to this Agreement, the County, and each of their respective directors, managers, officers, employees, agents, and volunteers as additional named insured with respect to liabilities arising out of the performance of this Agreement. Such additional insured coverage shall be at least as broad as Additional Insured Endorsement Form ISO, CG 20 37 04 13. The additional insured endorsements shall not limit the scope of coverage for District or County to vicarious liability but shall allow coverage for District and County to the full extent provided by the policy. C. Waiver of Subrogation Rights. Recharger hereby waives all rights or subrogation against District and County that any insurer of Recharger may acquire from Recharger by payment of any loss. Recharger shall obtain any endorsement that may be necessary to effect this waiver of subrogation. D. Policies Primary and Non-Contributory. All policies required above are to be primary and non-contributory with any insurance or self-insurance programs carried or administered by District and/or County. E. Severability of Interests. Recharger agrees to ensure that coverage provided to meet these requirements is applicable separately to each insured and there will be no cross-liability exclusions that preclude coverage for suits between Recharger and District or between Recharger and County or between District or County and any other insured or additional insured under the policy. F. Proof of Coverage. Recharger shall immediately, and prior to exercising any of its rights under this Agreement, furnish certificates of insurance to District evidencing the insurance coverage required by this Agreement, including endorsements, which certificates shall provide that such insurance shall not be terminated or expire without thirty (30) days’ prior written notice to District, and Recharger shall maintain such insurance from the time Recharger commences performance of this Agreement until the expiration of any 41 24 applicable statute of limitations for filing a claim or lawsuit by a third party arising from Recharger’s activities pursuant to this Agreement. Within sixty (60) days of the commencement of this Agreement, Recharger shall furnish certified copies of all policies and endorsements. G. Acceptability of Insurance Carrier. Unless otherwise approved in writing by the County’s Risk Manager, insurance shall be written by insurers authorized to do business in the State of California and with a minimum “Best” Insurance Guide rating of “A-VII.” H. Deductibles and Self-Insured Retentions. Any and all deductibles or self-insured retentions in excess of $10,000 shall be declared to and approved in writing by the County’s Risk Manager. I. Subcontractor Insurance Requirements. Recharger agrees to require all subcontractors, including architects or others it hires or contracts with related to the performance of this Agreement, to provide insurance covering the contracted operations with the same coverage and subject to the same insurance specifications set forth herein (including waiver of subrogation rights), including the requirement to name District and County and their representatives identified above as additional insureds. Recharger agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided as required by this Section. J. Insurance Review. The above insurance requirements are subject to periodic review by the District and the County. The County’s Risk Manager is authorized, but not required, to reduce or waive any of the above insurance requirements whenever the Risk Manager determines that any of the above insurance is not available, is unreasonably priced, or is not needed to protect the interests of the District and the County. Following such a determination that a particular type of insurance coverage is unreasonably priced or unavailable, should the Risk Manager determine that such insurance coverage or coverage limits have become reasonably priced or available, the Risk Manager is authorized, but not required, to change the above insurance requirements, to require additional types of 42 25 insurance coverage or higher coverage limits, provided that any such change is reasonable in light of past claims against the District and the County, inflation, or any other item reasonably related to the District and the County’s risk. K. Reduction or Waiver. Any such reduction or waiver for the entire term of this Agreement and any change requiring additional types of insurance coverage or higher coverage limits must be made by amendment to this Agreement. Recharger agrees to execute any such amendment within thirty (30) days of receipt. XIV. Dispute Resolution. The Parties recognize that there may be disputes regarding the obligations of the Parties or the interpretation of this Agreement during the term of this Agreement. The Parties agree that they will attempt to resolve disputes as follows: A. Statement Describing Alleged Violation of Agreement. A Party alleging a violation of this Agreement (the “Initiating Party”) shall provide a written statement describing all facts that it believes constitute a violation of this Agreement to the Party alleged to have violated the terms of this Agreement (the “Responding Party”). B. Response to Statement of Alleged Violation. The Responding Party shall have sixty days from the date of the written statement to prepare a written response to the allegation of a violation of this Agreement and serve that response on the Initiating Party or to cure the alleged violation to the reasonable satisfaction of the Initiating Party. The Initiating Party and the Responding Party shall then meet within thirty days of the date of the response to attempt to resolve the dispute amicably. C. Mediation of Dispute. If the Initiating Party and the Responding Party cannot resolve the dispute within ninety days of the date of the written response, they shall engage a mediator, experienced in water-related disputes, to attempt to resolve the dispute. Each Party shall ensure that it is represented at the initial mediation by its General Manager (for the 43 26 Recharger) and its Chief Flood Control Engineer (for the District). If, after at least sixty days of good-faith mediation involving at least three sessions, the Parties have not reached agreement, then the mediation will continue with each Party being represented by a member of its governing board or their designee. These representatives of the Initiating Party and the Responding Party may consult with staff and/or technical consultants during the mediation and such staff and/or technical consultants may be present during the mediation. The costs of the mediator shall be divided evenly between the Initiating Party and the Responding Party. D. Prior to Claims Under California Tort Claims Act. The Parties agree that the procedure described in this Section XIV. represents an effort to resolve disputes without the need for a formal claim under the California Tort Claims Act or other applicable law. The period of time for the presentation of a claim by one Party against another shall be tolled for the period from the date on which the Initiating Party file a written statement until the date upon which the mediator renders a decision. E. Reservation of Rights. Nothing in this Section XIV shall require a Party to comply with a decision of the mediator and, after the completion of the mediation process described above, each Party shall retain and may exercise at any time all legal and equitable rights and remedies it may have to enforce the terms of this Agreement; provided, that prior to commencing litigation, a Party shall provide at least five calendar days’ written notice of its intent to sue to the other Party. XV. General Terms. A. Entire Agreement. This Agreement contains the entire understanding between the Parties relating to the rights created herein. All prior or contemporaneous drafts, agreements, understandings, representations, statements, oral or written, are merged into this 44 27 Agreement and shall be of no further force or effect. Only a writing signed by the Parties may amend this Agreement. B. Neutral Interpretation. The terms of this Agreement are contractual and the result of negotiations between the Parties, which were each represented by counsel throughout. Accordingly, any rule of construction of contracts that provides that ambiguities are to be construed against the drafting Party, including, without limitation, California Civil Code section 1654, shall not be employed in the interpretation of this Agreement. C. Headings. The Section headings contained in this Agreement are for reference purposes only and are not intended to govern, limit, or aid the interpretation of this Agreement and shall not in any way affect the meaning of this Agreement. D. No Employment Relationship Created. It is agreed that in the performance of the services by each Party to this Agreement, each Party and their officials, employees, and agents, shall act and be independent contractors of the other Party, and shall not become or act as an agent or employee of the other Party, and shall obtain no rights to any benefits which may accrue to employees of the other Party. E. Choice of Law. This Agreement shall be construed in accordance with the laws of the State of California. F. Venue. Any action arising under, growing out of, or in any way related to this Agreement, shall be brought only in the Superior Court of the State of California, San Bernardino County, Central District, and each party hereto expressly waives its rights (whether arising by statute or otherwise) to cause any such action or proceeding to be brought elsewhere. G. Material Covenants. The failure or refusal of one Party to perform a material covenant within a reasonable time shall relieve the other Party from any further performance under this Agreement with respect to that individual Party. Absent a material breach, the covenants contained in this Agreement shall continue in full force and effect. 45 28 H. Waiver. No waiver by either Party of any provision of this Agreement shall be deemed a waiver of any other provision of this Agreement or of any subsequent breach by the other Party of the same provision. I. Other Agreements. No provision of this Agreement is intended to require, nor shall it be deemed to require, that the Parties enter into any agreements or obtain any approvals from any other agency or third party that would constitute a violation of, or prevent any of the Parties from complying with, any other separate agreement or permit in effect as of the Effective Date of this Agreement, or that would otherwise require District or Recharger to waive, compromise, or violate any of their respective statutory duties or responsibilities. No provision of this Agreement is intended to interfere with or in any way supersede any separate agreements between the Parties identified herein or between any of the Parties and third parties in existence as of the Effective Date of this Agreement. Each Party will notify the other Party should it enter into other agreements with third parties that might affect District Facilities and/or Recharger Improvements. J. Notices. All notices, approvals, consents or other documents required or permitted under this Agreement shall be in writing and, except as otherwise provided herein, shall be effective upon personal delivery or three days after deposit in the United States mail, registered or certified, with first class postage fully prepaid, addresses as follows: Notice to District San Bernardino County Flood Control District 825 East Third Street San Bernardino, CA 92415-0835 Notice to Recharger San Bernardino Valley Municipal Water District 380 E. Vanderbilt Way San Bernardino, CA 92408 K. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the Parties. L. Severability. If any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement 46 29 shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in this Agreement. M. Counterparts; Electronic Signatures. The Parties agree that this Agreement may be executed in counterparts, each of which shall be deemed to be an original, but both of which together shall constitute one and the same instrument, and that a photocopy or facsimile may serve as an original. If this Agreement is executed in counterparts, no signatory hereto shall be bound until both the parties have fully executed a counterpart of this Agreement. The Parties shall be entitled to sign and transmit an electronic signature of this Agreement (whether by facsimile, PDF, or other email transmission), which signature shall be binding on the party whose name is contained therein. Each Party providing an electronic signature agrees to promptly execute and deliver to the other party an original signed Agreement upon request. N. District Revenue. All of the District’s revenues as defined below, have been pledged to secure the payment of the principal and interest on certain bonds and refunding bonds (“Bonds”) issued by the District in May 2007. The pledge constitutes a first lien on the revenues for the payment of the Bonds. Any payments under this Agreement are subject to the prior pledge of revenues described above. District payments pursuant to this Agreement will be made to the extent there are sufficient funds available after payment of the Bonds. For purposes of this paragraph, “revenues” shall mean all income and revenue received by the District from the operation or ownership of the flood and storm water control and conservation facilities (“Flood Control System”) of the District (including but not limited to, all real and personal property, or any interest therein, and all additions, improvements, betterments, and extensions thereto), determined in accordance with Generally Accepted Accounting Principles, including all ad valorem property taxes received by the District pursuant to Article XIII A of the Constitution of the State of California and California Revenue and Taxation Code section 95 et seq., all rents, royalties and license and permit fees and charges received by the District, investment income and all other money 47 30 howsoever derived by the District from the operation or ownership of the Flood Control System or arising from the Flood Control System, but excluding: (a) ad valorem property taxes levied to pay any voter approved general obligation indebtedness of the District; (b) assessments levied pursuant to section 43-7 or section 43-26.9 of the San Bernardino County Flood Control Act (Cal. Water Code App. § 43-1 et seq.); and (c) grants, advances or contributions in aid of construction, except to the extent such grants are unrestricted and available for any expenditure of the District. O. Attorneys’ Fees and Costs. If any legal action is instituted to enforce or declare any Party’s rights hereunder, each Party, regardless of which Party is the prevailing party, must bear its own costs and reasonable attorneys’ fees. This paragraph shall not apply to those costs and attorneys’ fees relating to the removal of improvements under Section X.D or directly arising from any third-party legal action against a party hereto and payable under Section XII herein relating to indemnification. [SIGNATURES ON NEXT PAGE] 48 31 IN WITNESS WHEREOF, the San Bernardino County Flood Control District and Recharger have each caused this Agreement to be subscribed by its respective duly authorized officers on its behalf. Approved as to Legal Form Reviewed for Contract Compliance Reviewed/Approved by District Sophie A. Akins, Deputy County Counsel Andy Silao, Contracts Brendon Biggs, Chief Flood Control Engineer Date Date Date SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT By: Curt Hagman, Chairman, Board of Supervisors (Authorized signature – sign in blue ink) Date: Name: SIGNED AND CERTIFIED THAT A COPY OF THIS (Print or type name of person signing contract) DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD Title: Lynna Monell Clerk of the Board (Print or Type) By Date: Deputy Address: 49 32 INDEX OF ATTACHMENTS AND EXHIBITS ATTACHMENT 1 – EASEMENTS Exhibit A All of those portions designated as pipeline easements and described in that document recorded October 20, 1972 in Book 8045, page 1020. of Official Records of San Bernardino County. Exhibit B All those portions designated as turnout easements and described in that document recorded July 18, 1973 in Book 8206, page 594. of Official Records of San Bernardino County. Exhibit C That portion described in Common Use Agreement between the San Bernardino County Flood Control District and the San Bernardino Valley Municipal Water District dated September 25, 1973 filed as CA723/09010 in the Engineering Office of the San Bernardino County Flood Control District. Exhibit D Those parcels described in Exhibit A, B, and C. Exhibit ESBVMWD Easements on Aerial Photos ATTACHMENT 2 - EXISTING RECHARGE IMPROVEMENTS ATTACHMENT 3 - RECHARGE AREA 50 33 ATTACHMENT 1 EASEMENTS [ATTACHED BEHIND THIS COVER PAGE] 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 EXHIBIT E SBVMWD MAPS 79 Y:\2020\1480_Agreement\Easements\Easements.aprx Easements - Badger Basin\Parcel 1-4.2,3 SBVMWD Easement S.B. County Flood Control Parcel SBVMWD Pipeline N Aerial Imagery: March, 2019 Parcel 1-4.2 Portion A 50' Permanent Easement Badger Basin Turnout Parcel 1:3,600 Parcel 1-4.2 Portion B 50' Permanent Easement Parcel 1-4.3 50' Permanent Easement 80 Y:\2020\1480_Agreement\Easements\Easements.aprx Easements - Devil Canyon\Parcel 1-4.1 SBVMWD Easement S.B. County Flood Control Parcel SBVMWD Pipeline N Aerial Imagery: March, 2019 Parcel 1-4.1 50' Permanent Easement Devil Canyon* Turnout Parcel * Currently referred to as Sweetwater Turnout 1:3,600 81 ALLEYLEROY46TH 51ST 47TH 49TH 52ND SEPULVEDA50TH 48TH SIERR A WATERMANLUGOHI L LS.B .C . F .C .D . SIERR A 49TH 49TH Y:\2020\1480_Agreement\Easements\Easements.aprx Easements - Waterman Ave\Parcel 1-4.4 SBVMWD Easement S.B. County Flood Control Parcel SBVMWD Pipeline N Aerial Imagery: March, 2019 Parcel 1-4.4 50' Permanent Easement Waterman Ave Turnout Parcel 1:3,600 82 34 ATTACHMENT 2 EXISTING RECHARGE IMPROVEMENTS [ATTACHED BEHIND THIS COVER PAGE] 83 84 85 86 87 88 89 90 91 92 93 #2M84084 35 ATTACHMENT 3 RECHARGE AREA [ATTACHED BEHIND THIS COVER PAGE] 94 Sources: Esri, HERE, DeLorme, Intermap, increment P Corp., GEBCO, USGS, FAO, NPS, NRCAN, GeoBase, IGN, Kadaster NL, Ordnance Survey, Esri Japan, METI, Esri China (Hong Kong), swisstopo, MapmyIndia, © OpenStreetMap contributors, and the GIS User Community San Bernardino County Flood Control DistrictDetention Basins/Recharge Areas N 0 1 2 3 Miles Y:\2021\1480_SpreadingAgreements\Basins.mxd §¨¦215 §¨¦10 ·|}þ210 !(1 !(2 !(3 !(4 !(5 !(6 !(7 1. Sweetwater Basin 2. Badger Basins 3. Waterman Basins 4. East Twin Basins 5. Wilson Basins 6. Oak Glen Basins 7. Wildwood Basins Recharge Areas 95