HomeMy WebLinkAboutAgreement A-19-223 with WESD.pdf1
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TEMPORARY WELL TESTING AGREEMENT
This TEMPORARY WELL TESTING AGREEMENT (“Agreement”) is made and entered
into this ____ day of ___________, 2019, by and between the County of Fresno, on behalf of
Fresno County Service Area 49 (“CSA 49”) and Westside Elementary School District, (“WESD”).
CSA 49 and WESD are also referred to hereinafter individually as a “Party” and collectively as
“Parties.”
WITNESSETH
WHEREAS, CSA 49 administers and maintains a potable water distribution system; and
WHEREAS, the State Water Resources Control Board (SWRCB) has issued
Compliance Order Numbers 03-23-13R-006 and 03-23-17RA-008-A1 for noncompliance of the
Maximum Contaminant Level (MCL) of Haloacetic Acids Five (HAA5) and Total
Trihalomethanes (TTHM); and
WHEREAS, CSA 49 desires to secure a safe, reliable supply of water sufficient to meet
the needs of its customers and be in compliance with drinking water standards; and
WHEREAS, WESD is a customer of CSA 49; and
WHEREAS, CSA 49 through the State Water Resources Control Board has received
grant funding through the Drinking Water State Revolving Fund for the planning and design
portion of a water supply improvement project; and
WHEREAS, WESD owns certain real property situated in the County of Fresno, State of
California, contained within Assessor’s Parcel Number 060-04-117T (the “Property”); and
WHEREAS, CSA 49 has identified a location in said Property as the most viable location
to drill a well to serve its potable water distribution system; and
WHEREAS, CSA 49 desires to construct a test well on WESD’s property that will be
funded through said grant, to determine if water in sufficient quantity and of adequate quality
meeting the requirements of Title 22 of the California Code of Regulations is available to serve
CSA 49’s water demand; and
WHEREAS, Code of Civil Procedure sections 1245.010 and 1245.020 authorize a public
entity considering the acquisition of property for a public use to enter the property for purposes
19-0349 Agreement No. 19-223
14th May
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of testing, boring, surveys, examination, and sampling related to the public use being studied,
with the written consent of the owner to enter upon their property and to undertake such
activities; and
WHEREAS, WESD wishes to give written consent to CSA 49 to enter upon their
Property and undertake the activities described in this Agreement, subject to the terms and
conditions of this Agreement; and
WHEREAS, both Parties desire to establish the terms and conditions associated with the
construction of a test well upon the Property;
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
herein contained, the Parties agree as follows:
I. TEST WELL TEMPORARY CONSTRUCTION PERMIT (TCP)
A. WESD hereby agrees to allow CSA 49’s officers, employees, agents,
consultants, and contractors to enter upon the Property within the area shown on Exhibit 1,
which exhibit is attached hereto and incorporated herein by this reference, for the purposes
described hereinafter upon the presentation of written notice from CSA 49, executed by and
through the Director of Public Works and Planning, or his/her designee (all references in this
Agreement to the “Director of Public Works and Planning” refer to the Director of Public Works
and Planning for Fresno County). The area shown on Exhibit 1 is the area for which the TCP
will be performed, and includes areas where work ancillary or related to the TCP will be
performed as well as depictions of access areas.
B. WESD hereby agrees to allow CSA 49’s officers, employees, agents,
consultants, and contractors to perform work within the are shown in Exhibit 1, including but not
necessarily limited to:
1. Performing such clearing of vegetation as may be required to construct
the test well and access thereto.
2. Constructing such temporary access roads as may be necessary to
access the test well site.
3. Drilling a test well at approximately 1,200 feet of depth and installing such
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appurtenant equipment as may be necessary to perform a well test.
4. Installing and operating a temporary generator.
5. Performing a well capacity test as deemed necessary.
6. Performing water quality sampling and testing.
7. To construct a fence around the test well site.
8. Any and all other work the Director of Public Works and Planning, or
his/her designee, believes is necessary to drill and test a well in the area depicted in Exhibit 1.
9. Disposing of water generated during the well test. Water may be
disposed by the use of tanker trucks or, in the event that the Director of Public Works and
Planning or his/her designee determines that such water may be discharged to the nearest
natural drainage without degrading or otherwise adversely affecting the Property or adjacent
properties and in accordance with all applicable rules and regulations, then such water may be
discharged to the nearest natural drainage. WESD acknowledges that, in the event water is
discharged to the nearest natural drainage, it may be necessary for CSA 49 to install temporary
pipes to convey such water to the drainage, and that such pipes will not necessarily be
contained within the area shown in Exhibit 1. However, the installation of any such pipes on
WESD’s property and outside of the area shown in Exhibit 1 shall be subject to approval of the
WESD, which approval shall not be unreasonably withheld.
10. At the end of the above referenced activities, but no later than 1 year after
commencing the TCP, CSA 49 shall remove all of its equipment, destroy the test well, and
restore the area in Exhibit 1 to its original condition to the extent reasonably practicable.
C. The Director of Public Works and Planning, or his/her designee, shall provide to
WESD a minimum of 72 hours advance written notice prior to entering upon or performing any
work within the TCP and also 72 hours before all the work has been completed within the TCP.
D. WESD agrees, promises, and covenants to comply with any and all regulations,
codes, policies, statutes, of or relating to the Sustainable Groundwater Management Act, and
hold CSA 49 harmless for any and all costs, fees (including that of attorney’s fees), fines,
expenditures, litigation, liability, or other legal actions, related in any way to the Sustainable
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Groundwater Management Act.
E. WESD is aware of the dangers of, risks of, and other circumstances related to,
the operation of a well and the equipment used to operate a well, especially in regards to
underage persons, students, invitees, persons, and WESD employees, agents, and contractors,
using the Property. WESD will instruct its invitees, all underage persons, students, staff, and
any all other persons entering the Property, of the dangers, risks, and other circumstances
related to the well, drilling and operation of a well in the area depicted in Exhibit 1, including any
equipment attached to or related to drilling or the well, as is necessary to apprise and make
such persons aware and knowledgeable of the dangers and risks. WESD will advise, instruct,
and inform all students and all other persons on the Property that they are not to come within or
be within 50 feet of the well or the equipment being used in conjunction with the TCP, or within
10 feet of the fence surrounding the well. WESD, in addition to the foregoing, shall take all
steps necessary to prevent any and all persons from gaining access to or entering the area in
Exhibit 1 or coming into contact with any of the equipment attached to or related to the area in
Exhibit 1. WESD will also place warning signs around the area marked in Exhibit 1 and any and
all equipment related to the work being done the area shown in Exhibit 1, with such signs being
of sufficient size, language, and depiction, to warn all persons entering the Property of the
dangers and risks of the well and the equipment used to operate and drill the well. In the event
either WESD, CSA 49, or both Parties, determines that there is any risk or danger to anyone
entering the Property, as a result of the work described in this Agreement, CSA 49 and WESD
will notify the other Party, as soon as reasonably practicable, and develop a solution to address
and prevent any such risk or danger.
F. CSA 49 will ensure that a fence is constructed around the well site by requiring
the contractor to construct a fence of adequate height, strength, and material, to obstruct and
deter students and other persons on the Property from being able to enter the area around the
well site and/or the equipment therein.
II. COMPENSATION
The Parties agree CSA 49 will compensate WESD at the rate of one dollar ($1.00) for
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the TCP, all underlying rights related to the foregoing, and the Agreement, including all of its
terms and conditions. The full amount of this Compensation will be paid forty-five (45) days
after termination of the Agreement.
WESD hereby acknowledges that WESD has been advised of, and is aware of, its
rights in accordance with state law to have an appraisal made and to receive just compensation
for the TCP, all underlying rights related to the foregoing, and the Agreement, including all of its
terms and conditions; however, WESD agrees, acknowledges, represents, understands, and
covenants, that foregoing compensation of one dollar ($1.00) serves as full and complete
consideration for the TCP, all underlying rights related to the foregoing, and the Agreement,
including all of its terms and conditions. WESD is apprised of, knowledgeable of, and
competently understands its right to have an appraisal made, WESD hereby voluntarily waives
such right, freely and without coercion.
III. GENERAL COVENANTS
A. This Agreement shall not be construed to create a principal-agent, master-
servant, employer-employee, partnership, joint-venture, or any other associational relationship
between CSA 49 and WESD. Each Party and its respective officers, agents, contractors and
employees shall act in an independent capacity in all matters and correspondence between the
Parties in connection with the performance of this Agreement.
B. This Agreement is not assignable, without the express, written permission of
CSA 49.
C. All notices, consents, approvals, communications, and/or reports of any kind
whatsoever provided for or given under this Agreement shall be in writing and shall be
transmitted to each Party’s Point of Contact at the address set forth hereinafter or to such other
address as a Party may designate by written notice to the other Party.
WESD Point of Contact
Baldomero Hernandez
19191 W. Excelsior Ave
Five Points, CA 93624
(559) 884-2492
Email: bhernandez@westside-elem.com
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CSA 49 Point of Contact:
Fresno County Department of Public Works and Planning
2220 Tulare Street, Sixth Floor
Fresno, CA 93721
(559) 600-4259 phone
Attn: Special Districts Administration – CSA 49
Email: specialdistrictsadmin@fresnocountyca.gov
All notices between the CSA 49 and WESD provided for or permitted under this Agreement must
be in writing and delivered either by personal service, by first-class United States mail, by an
overnight commercial courier service, or by email. A notice delivered by personal service is
effective upon service to the recipient. A notice delivered by first-class United States mail is
effective three Fresno County business days after deposit in the United States mail, postage
prepaid, addressed to the recipient. A notice delivered by an overnight commercial courier service
is effective one Fresno County business day after deposit with the overnight commercial courier
service, delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
the recipient. A notice delivered by email is effective when transmission to the recipient is
completed (but, if such transmission is completed outside of Fresno County business hours, then
such delivery shall be deemed to be effective at the next beginning of a Fresno County business
day), provided that the sender maintains a machine record of the completed transmission. For all
claims arising out of or related to this Agreement, nothing in this section establishes, waives, or
modifies any claims presentation requirements or procedures provided by law, including but not
limited to the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning
with section 810).
E. WESD represents, warrants, and covenants that each person executing this
Agreement for WESD is the duly authorized representative of WESD, and is fully authorized by
WESD to legally bind the WESD to this Agreement according to its terms and conditions, and to
make on its behalf all of the representations, covenants, warrantees, and agreements set forth
herein.
F. The terms in this Agreement shall be binding upon the parties hereto, their
respective heirs, personal representatives, executors, administrators, successors and
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assignees.
G. This Agreement may be modified by the mutual, written consent of WESD and
CSA 49.
IV. INDEMNIFICATION
A. WESD agrees to indemnify, save, hold harmless, and at CSA 49’s request, defend
the CSA 49, its officers, agents, and employees from any and all costs and expenses (including
attorney’s fees and costs), damages, liabilities, claims, and losses occurring or resulting to CSA 49
in connection with the performance, or failure to perform, by WESD its officers, agents, or
employees under this Agreement, and from any and all costs and expenses (including attorney’s
fees and costs), damages, liabilities, claims, and losses occurring or resulting to any person, firm,
or corporation who may be injured or damaged by the performance, or failure to perform, of
WESD, its officers, agents, or employees under this Agreement.
B. CSA 49 agrees to indemnify, save, hold harmless, and at WESD’s request,
defend WESD, its officers, agents, and employees from any and all costs and expenses,
damages, liabilities, claims, and losses occurring or resulting to any person, firm, or corporation
who may be injured or damaged by the performance, or failure to perform, of CSA 49, its
officers, agents and employees, under this Agreement; provided, that nothing herein shall
constitute a waiver by CSA 49 of governmental immunity available under or pursuant to
Government Code Section 810 et seq. Furthermore, such indemnification shall not apply to any
damage the WESD may endure by reason of hazardous waste or dangerous conditions that
existed on the Property prior to CSA49’s use thereof.
C. In the event of concurrent negligence on the part of CSA 49 or any of its officers,
agents or employees, and WESD or any of its officers, agents, or employees, the liability for any
and all costs and expenses (including attorney’s fees and cost), damages, liabilities, claims, and
losses occurring or resulting shall be apportioned under the State of California's theory of
comparative negligence as presently established or as may be modified hereafter.
V. INSURANCE
Without limiting the CSA 49's right to obtain indemnification from WESD or any third
parties, WESD, at its sole expense, shall maintain in full force and effect, the following
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insurance policies or a program of self-insurance, including but not limited to, an insurance
pooling arrangement or Joint Powers Agreement (JPA) throughout the term of the Agreement:
A. Commercial General Liability
Commercial General Liability Insurance with limits of not less than Two Million Dollars
($2,000,000.00) per occurrence and an annual aggregate of Four Million Dollars
($4,000,000.00). This policy shall be issued on a per occurrence basis. CSA 49 may require
specific coverages including completed operations, products liability, contractual liability,
Explosion-Collapse-Underground, fire legal liability or any other liability insurance deemed
necessary because of the nature of this contract.
B. Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per accident for bodily injury and for property damages. Coverage
should include any auto used in connection with this Agreement.
C. Professional Liability
If WESD employs licensed professional staff, (e.g., Ph.D., R.N., L.C.S.W., M.F.C.C.) in
providing services, Professional Liability Insurance with limits of not less than One Million
Dollars ($1,000,000.00) per occurrence, Three Million Dollars ($3,000,000.00) annual
aggregate.
D. Worker's Compensation
A policy of Worker's Compensation insurance as may be required by the California
Labor Code.
Additional Requirements Relating to Insurance
WESD shall obtain endorsements to the Commercial General Liability insurance naming
the CSA 49, its officers, agents, and employees, individually and collectively, as additional
insured, but only insofar as the operations under this Agreement are concerned. Such
coverage for additional insured shall apply as primary insurance and any other insurance, or self
insurance, maintained by or on behalf of CSA 49, its officers, agents and employees shall be
excess only and not contributing with insurance provided under WESD 's policies herein. This
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insurance shall not be cancelled or changed without a minimum of thirty (30) days advance
written notice given to CSA 49.
WESD hereby waives its right to recover from CSA 49, its officers, agents, and
employees any amounts paid by the policy of worker’s compensation insurance required by this
Agreement. WESD is solely responsible to obtain any endorsement to such policy that may be
necessary to accomplish such waiver of subrogation, but WESD’s waiver of subrogation under
this paragraph is effective whether or not WESD obtains such an endorsement.
Within Thirty (30) days from the date WESD signs and executes this Agreement, WESD
shall provide certificates of insurance and endorsement as stated above for all of the foregoing
policies, as required herein, to CSA 49, (Principal Staff Analyst of the Department of Public
Works & Planning – Special Districts Section of the Resources Division), stating that such
insurance coverage has been obtained and are in full force; that CSA 49, its officers, agents and
employees will not be responsible for any premiums on the policies; that for such worker’s
compensation insurance the WESD has waived its right to recover from the CSA 49, its officers,
agents, and employees any amounts paid under the insurance policy and that waiver does not
invalidate the insurance policy; that such Commercial General Liability insurance names CSA
49, its officers, agents and employees, individually and collectively, as additional insured, but
only insofar as the operations under this Agreement are concerned; that such coverage for
additional insured shall apply as primary insurance and any other insurance, or self insurance,
maintained by CSA 49, its officers, agents and employees, shall be excess only and not
contributing with insurance provided under WESD's policies herein; and that this insurance shall
not be cancelled or changed without a minimum of thirty (30) days advance, written notice given
to CSA 49.
In the event WESD fails to keep in effect at all times insurance coverage as herein
provided, the CSA 49 may, in addition to other remedies it may have, suspend or terminate this
Agreement upon the occurrence of such event.
All policies shall be issued by admitted insurers licensed to do business in the
State of California, and such insurance shall be purchased from companies possessing a
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current A.M. Best, Inc. rating of A FSC VII or better.
VI.GOVERNING LAW
This Agreement shall be deemed to be performed only in Fresno County, California.
Venue for any action which might arise out of or related to this Agreement shall only be in
Fresno County, California. The rights and obligations of the Parties and all interpretation and
performance of this Agreement shall be governed in all respects by the laws of the State of
California.
VII.HEADINGS
The article headings in this Agreement are for convenience and reference only and shall
not be construed or held in any way to explain, modify or add to the interpretation or meaning of
the provisions of this Agreement.
VIII. ENTIRE AGREEMENT
This Agreement, which includes the attached Exhibits, constitutes the entire Agreement
between CSA 49 and WESD with respect to the subject matter hereof and supersedes all
previous negotiations, proposals, commitments, writings, advertisements, publications, and
understandings, of any nature whatsoever unless expressly included in this Agreement.
IX. SEVERABILITY
Should any provision of this Agreement be found or deemed invalid by a final and
binding judicial determination, all other provisions which are otherwise lawful shall remain in full
force and effect, and to this end the provisions of this Agreement are hereby declared to be
severable.
X. AUDITS AND INSPECTIONS
The WESD shall at any time during business hours, and as often as the CSA 49 may deem
necessary, make available to the CSA 49 for examination all of its records and data with respect to
the matters covered by this Agreement. The WESD shall, upon request by the CSA 49, permit
CSA 49 to audit and inspect all of such records and data necessary to ensure WESD'S compliance
with the terms of this Agreement.
If this Agreement exceeds ten thousand dollars ($10,000.00), WESD shall be subject to
the examination and audit of the Auditor General for a period of three (3) years after final
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payment under contract (Government Code Section 8546.7).
XI. DISCLSOSURE OF SELF-DEALING TRANSACTIONS
This provision is only applicable if the WESD is operating as a corporation (a for-profit or
non-profit corporation) or if during the term of the agreement, the WESD changes its status to
operate as a corporation.
Members of the WESD’s Board of Directors/Supervisors shall disclose any self-dealing
transactions that they are a party to while WESD is providing goods or performing services
under this agreement. A self-dealing transaction shall mean a transaction to which the WESD is
a party and in which one or more of its directors has a material financial interest. Members of
the Board of Directors shall disclose any self-dealing transactions that they are a party to by
completing and signing a Self-Dealing Transaction Disclosure Form, attached hereto as Exhibit
2 and incorporated herein by reference, and submitting it to the CSA 49 prior to commencing
with the self-dealing transaction or immediately thereafter.
XII. TERM
The term of this Agreement is dependent upon the notice discussed in Section I.A.
Once the notice discussed in Section I.A is provided to WESD, the term of this Agreement shall
be no more than one (1) year from the date of the notice. However, prior to the expiration of the
one (1) year timeline as delineated in this Section XII, the Director of Public Works and Planning
may give a seventy-two (72) hour notice to WESD of the termination of this Agreement and the
Agreement will terminate upon expiration of the seventy-two (72) hour period. If the Section I.A
notice is not provided to WESD within one (1) year of the execution of this Agreement, this
Agreement will terminate.
XIII. TERMINATION
A.Non Allocation of Funds: The terms of this Agreement, and the services to be
provided hereunder, are contingent on the approval of funds by the appropriating government
agency. Should sufficient funds not be allocated, the services provided may be modified, or this
Agreement terminated, at any time by giving WESD thirty (30) days advance written notice.
B. Breach of Contract: CSA 49 may immediately suspend or terminate this
Agreement in whole or in part, where in the determination of CSA 49 there is:
1)An illegal or improper use of funds;
2)A failure to comply with any term of this Agreement;
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3) A substantially incorrect or incomplete report submitted to the CSA 49;
4) Improperly performed service.
In no event shall any payment by the CSA 49 constitute a waiver by the CSA 49 of any
breach of this Agreement or any default which may then exist on the part of WESD. Neither
shall such payment impair or prejudice any remedy available to the CSA 49 with respect to the
breach or default. The CSA 49 shall have the right to demand of the WESD the repayment to
the CSA 49 of any funds disbursed to the WESD under this Agreement, which in the judgment
of the CSA 49 were not expended in accordance with the terms of this Agreement. WESD shall
promptly refund any such funds upon demand.
C.Without Cause: Under circumstances other than those set forth above, this
Agreement may be terminated for any reason, or no reason at all, by CSA 49 upon the giving of
thirty (30) days advance written notice of an intention to terminate to WESD.
1 IN WITNESS WHEREOF, the parties have executed this Agreement on the date ·
2 set forth above.
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4 WESD
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Mailing Address
bk Iba~ a 0'.t.2:-y'
City, State, and Zipde
FOR ACCOUNTING USE ONLY
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Org No.
Account No.
Fund No.
Subclass No.
~9-2A9
8400
0235
12800
13
COUNTY OF FRESNO
<-:zo~:2
Nathan Magsig, Chairman of the Board of
Supervisors of the County of Fresno acting
on behalf of CSA 49
ATTEST:
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California
SELF-DEALING TRANSACTION DISCLOSURE FORM
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code 5233 (a)
(5) Authorized Signature
Signature: Date:
SELF-DEALING TRANSACTION DISCLOSURE FORM INSTRUCTIONS
In order to conduct business with County Service Area 49 (hereinafter referred to as
“CSA 49”), members of a contractor’s board of directors (hereinafter referred to as “CSA
49 Contractor”), must disclose any self-dealing transactions that they are a party to while
providing goods, performing services, or both for CSA 49. A self-dealing transaction is
defined below:
“A self-dealing transaction means a transaction to which the corporation is a party and
which one or more of its directors has a material financial interest”
The definition above will be utilized for purposes of completing the disclosure form.
(1) Enter board member’s name, job title (if applicable), and date this disclosure is
being made.
(2) Enter the board member’s company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed
to CSA 49. At a minimum, include a description of the following:
a.The name of the agency/company with which the corporation has the
transaction; and
b.The nature of the material financial interest in the Corporation’s transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on
applicable provisions of the Corporations Codes.
(5) Form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
EXHIBIT 2