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HomeMy WebLinkAboutAgreement A-23-087 Agreement 9174.pdf 22-1040 Agreement No. 23-087 Assignment and Assumption of DCTRA Interest in 1999 Fresno County Water Supply Agreement to Lower Tule River Irrigation District This Assignment and Assumption of DCTRA Interest in 1999 Fresno County Water Supply Agreement to Lower Tule River Irrigation District ("Assignment") is made this 28thday of February , 2023, by and between Deer Creek and Tule River Authority, a Joint Powers Authority formed and operating pursuant to the California Joint Exercise of Powers Act in Title 1, Division 7, of the California Government Code ("DCTRA"), Lower Tule River Irrigation District, a California Irrigation District formed and operating pursuant to the California Irrigation District Law in Division 11 of the California Water Code ("LTRID"), and the COUNTY OF FRESNO, a political subdivision of the State of California ("County") with reference to the following facts: RECITALS A. WHEREAS, DCTRA is in the process of dissolving; and B. WHEREAS, DCTRA desires to assign to LTRID all of its rights and delegate to LTRID all of its obligations under that certain contract entered into between DCTRA and County dated December 14, 1999 (identified as County agreement number A-99-688), which contract was amended once on May 8, 2007 (identified as County agreement number A-07-145) (the contract, as amended, is attached hereto as Attachment 1 and shall be referred to herein as the "Assigned Contract"); and C. WHEREAS, LTRID desires to accept such assignment of rights and delegation of obligations under the Assigned Contract as provided in this Assignment; and D. WHEREAS, County, in reliance upon the representations and warranties of DCTRA and LTRID, is willing to release DCTRA from its obligations under the Assigned Contract and substitute LTRID as a party to the Assigned Contract in DCTRA's place, as provided in this Assignment. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES, COVENANTS AND CONDITIONS HEREINAFTER SET FORTH, IT IS AGREED BY AND AMONG THE PARTIES AS FOLLOWS: AGREEMENT 1. Assignment and Assumption. 1.1 Effective Date. The "Effective Date" of this Assignment is the date that the County executes this Assignment, which is the date set forth in the introductory paragraph above. 1 1.2 Assignment. DCTRA irrevocably sells, assigns, grants, conveys, and transfers to LTRID all of DCTRA's right, title, and interest in and to the Assigned Contract. 1.3 Assumption. LTRID unconditionally accepts such assignment and assumes all of DCTRA's duties, liabilities, and obligations under the Assigned Contract, and agrees to pay, perform, and discharge, as and when due, all of the obligations of DCTRA under the Assigned Contract accruing on and after the Effective Date. 2. Novation. 2.1 Release. (a) Despite anything to the contrary in the Assigned Contract, County releases and forever discharges DCTRA, as well as its directors, members, officers, employees, agents, and representatives, from all further obligations arising under the Assigned Contract, and from all manner of actions, causes of action, suits, debts, damages, expenses, claims, and demands whatsoever that County has or may have against any of the foregoing persons, arising out of or in any way connected to performance or failure to perform under the Assigned Contract on and after the Effective Date. For avoidance of doubt, except as provided in Section 2.2 of this Assignment, nothing in this Assignment affects any rights, liabilities, or obligations of County or DCTRA that are performed or due to be performed before the Effective Date. (b) Despite anything to the contrary in the Assigned Contract, DCTRA releases and forever discharges County, as well as its directors, officers, employees, agents, and representatives, from all further obligations arising under the Assigned Contract, and from all manner of actions, causes of action, suits, debts, damages, expenses, claims, and demands whatsoever that DCTRA has or may have against any of the foregoing persons, arising out of or in any way connected to performance or failure to perform under the Assigned Contract on and after the Effective Date. For avoidance of doubt, except as provided in Section 2.2 of this Assignment, nothing in this Assignment affects any rights, liabilities, or obligations of County or DCTRA that are performed or due to be performed before the Effective Date. 2.2 Substitution. The parties intend that this Assignment is a novation and that LTRID be substituted for the DCTRA in the Assigned Contract. In reliance upon the representations of DCTRA and LTRID, County recognizes LTRID as DCTRA's successor-in-interest in and to the Assigned Contract. LTRID by this Assignment becomes entitled to all right, title, interest, and obligation of DCTRA in and to the Assigned Contract in as much as LTRID is the substituted party to the Assigned Contract as of and after the Effective Date. County and LTRID shall be bound by the terms of the Assigned Contract in every way as if LTRID is named in the 2 novated Assigned Contract in place of DCTRA as a party to the Assigned Contract. DCTRA represents and warrants that there is no payment or other liability of DCTRA to County which has accrued and remains outstanding as of the Effective Date, which on the Effective Date, LTRID and County agree becomes the sole responsibility of LTRID and not of DCTRA (whether or not such amounts were incurred before or after the Effective Date). 3. Transfer of Deposits and Other Monies. County has paid consideration to DCTRA, under Section 5 of the Assigned Contract, which DCTRA has held in an interest-bearing account, with a balance of $201,587.43 as of the Effective Date of this Assignment. Such payment is the full amount that County owed under Section 5 of the Assigned Contract to discharge the County's obligation to pay DCTRA as a one (1)-time capital cost reimbursement for Seven-Hundred Seventy-Seven (770) acre-feet of water. DCTRA shall cause such monies together with any interest that accrues following the Effective Date, to be released and paid to LTRID, subject to this Assignment, within 30 days of execution of this Assignment by all parties, and such payment to LTRID shall be deemed to be made on behalf of County and fully credited to County under the Section 5 of the Assigned Contract as County's discharge of the County's obligation to pay LTRID as a one (1)-time capital cost reimbursement for Seven-Hundred Seventy Seven (770) acre-feet of water. LTRID shall provide County with written notice within five days following receipt of such moneys, and accrued interest, confirming that such moneys have been received and the amount thereof, and deposited in an interest-bearing account under the terms of the Assigned Contract. 4. Consideration. The mutual promises, covenants and conditions set forth herein constitute consideration, and the parties intend thereby to be bound. 5. Representations and Warranties. 5.1 DCTRA's Representations and Warranties. DCTRA represents and warrants as follows: (a) DCTRA is duly organized, validly existing, and in good standing under the laws of the State of California, including but not limited to the Joint Exercise of Powers Act (Government Code, Title 1, Division 7, Chapter 5 (beginning with section 6500)) ("JEPA"). (b) DCTRA is qualified and licensed to do business and in good standing in every jurisdiction for purposes of this Assignment. (c) DCTRA has the full right, power, and authority to enter into this Assignment and to perform its obligations under this Assignment. (d) DCTRA has taken all necessary corporate action, including but not limited to approval by its board of directors in compliance with JEPA and the Ralph M. Brown Act (Government Code, Title 5, Division 2, Part 1, Chapter 9 (beginning with section 54950)) ("Brown Act"), to authorize the execution of 3 this Assignment by its representative whose signature is set forth at the end of this Assignment. (e) When executed and delivered by DCTRA, this Assignment will constitute the legal, valid, and binding obligation of DCTRA, enforceable against it in accordance with its terms and not subject to defenses. (f) DCTRA is the sole legal and beneficial owner of all the rights under the Assigned Contract on the Effective Date, free and clear of any lien, security interest, charge, or encumbrance. (g) The Assigned Contract has not been amended or modified as of the Effective Date. (h) The Assigned Contract is in full force and effect on the Effective Date. No event or condition has occurred that is, or with notice or passage of time would be, an event of default or termination under any of the Assigned Contract. There are no material disputes pending or, to its knowledge, threatened related to any rights or obligations transferred by this Assignment. (i) DCTRA has performed all of its obligations under the Assigned Contract that are required to be performed on or before the Effective Date. 0) The County has performed all of its obligations under the Assigned Contract that are required to be performed on or before the Effective Date. 5.2 LTRID's Representations and Warranties. LTRID represents and warrants as follows: (a) LTRID is duly organized, validly existing, and in good standing under the laws of the State of California, including but not limited to the Irrigation District Law (Water Code, Division 11 (beginning with section 20500) ("Irrigation District Law"). (b) LTRID is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Assignment. (c) LTRID has the full right, corporate power, and authority to enter into this Assignment and to perform its obligations under this Assignment. (d) As of the Effective Date, LTRID has a firm water supply available for purchase by the County under the Assigned Contract, which water supply the County, subject to any approvals that may be necessary from the United States Bureau of Reclamation, may extract from Millerton Lake, and which the County may lawfully use for municipal and industrial development in the area 4 known as Fresno County Service Area No. 34, as provided in the Assigned Contract. (e) Consistent with the terms of the Assigned Contract, LTRID will obtain all necessary approvals that may be required by the United States Bureau of Reclamation, for LTRID to provide a firm water supply to the County as stated above and as provided in the Assigned Contract. LTRID will commence seeking such approvals at such time as is required under the Assigned Contract. (f) LTRID has taken all necessary corporate action, including but not limited to approval by its board of directors in compliance with the Irrigation District Law and the Brown Act, to authorize the execution of this Assignment by its representative whose signature is set forth at the end hereof. (g) When executed and delivered by it, this Assignment will constitute the legal, valid, and binding obligation of LTRID, enforceable against it in accordance with its terms and not subject to defenses. 6. Indemnification. 6.1 Mutual Indemnification. Subject to the terms and conditions set forth in Section 6.2, DCTRA and LTRID (each, an "Indemnifying Party") shall indemnify, hold harmless, and defend each other and their respective officers, directors, managers, members, employees, and agents (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, that are incurred by Indemnified Party or awarded against Indemnified Party (collectively, "Losses"), relating to or arising out of or resulting from any third-party claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise ("Claim") alleging: (a) A breach or non-fulfillment of any material representation, warranty, or covenant under/representation or warranty set forth in this Assignment by Indemnifying Party or its representatives; (b) Any negligent or more culpable act or omission of Indemnifying Party or any of its representatives (including any reckless or willful misconduct) in connection with the performance of its obligations under this Assignment; (c) Any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Indemnifying Party or its representatives (including any reckless or willful misconduct); or 5 (d) Any failure by Indemnifying Party to materially comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Assignment. 6.2 Exceptions and Limitations on Indemnification. Despite anything to the contrary in this Assignment, Indemnifying Party is not obligated to indemnify or defend Indemnified Party against any Claim if such Claim or corresponding Losses arise out of or result from, in whole or in part, Indemnified Party's: (a) Negligence or more culpable act or omission (including recklessness or willful misconduct); or (b) Bad faith failure to materially comply with any of its obligations set forth in this Assignment. 6.3 Sole Remedy. THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY LOSSES COVERED UNDER SECTION 6. 7. Miscellaneous. 7.1 Further Assurances. On any other party's reasonable request, each party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Assignment. 7.2 Survival. Subject to the limitations and other provisions of this Assignment, the representations and warranties of the Parties contained herein will survive the expiration or earlier termination of this Assignment; 7.3 Notices. Each party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Assignment (each, a "Notice") in writing and addressed to the other party at its address set forth below (or to such other address that the receiving party may designate from time to time in accordance with this section). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), Portable Document Format (PDF) attached to an email (with confirmation of transmission), or first-class United States mail. 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 County business days after deposit in the United States mail, postage prepaid, addressed to the recipient. A notice delivered by a nationally recognized overnight courier is effective one County business day after deposit with the overnight commercial courier service (with all fees prepaid), with delivery instructions given for next day delivery, addressed to the recipient. A notice delivered by PDF document attached to an email is effective when transmission to the recipient is completed (but, if such transmission is completed outside of County business hours, then such delivery is deemed to be effective at the next beginning 6 of a County business day), provided that the sender maintains a machine record of the completed transmission. For all claims arising from or related to this Assignment, nothing in this Assignment establishes, waives, or modifies any claims presentation requirements or procedures required by law, including the Government Claims Act (Division 3.6 of Title 1 of the Government Code, beginning with section 810). Notice to DCTRA: 357 East Olive Ave. Tipton, California 93272 Email: elimas@ltrid.org Attention: ERIC LIMAS Notice to LTRID: 357 East Olive Ave. Tipton, California 93272 Email: elimas@ltrid.org Attention: Notice to County: 2220 Tulare Street, 6t" Floor Fresno, CA 93721 Email: specialdistrictsadmin@fresnocountyca.gov Attention: Special Districts, CSA 34 7.4 Interpretation. For purposes of this Assignment: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation", (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Assignment as a whole. Unless the context otherwise requires, references in this Assignment: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Assignment; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The final form of this Assignment is the result of the parties' combined efforts. If anything in this Assignment is found by a court of competent jurisdiction to be ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement against any party. 7.5 Headings. The headings in this Assignment are for reference only and do not affect the interpretation of this Assignment. 7 7.6 Severability. If any term or provision of this Assignment is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Assignment or invalidate or render unenforceable such term or provision in any other jurisdiction, and the parties shall make best efforts to replace the invalid, illegal, or unenforceable term or provision with lawful and enforceable terms or provisions intended to accomplish the parties' original intent. 7.7 Entire Agreement. This Assignment, together with all of its exhibits and schedules, is the sole and entire agreement of the parties to this Assignment regarding the subject matter contained in this Assignment and in its exhibits and schedules, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. 7.8 No Third-Party Beneficiaries. This Assignment does not and is not intended to create any rights or obligations for any person or entity except for the parties. 7.9 Amendment and Modification. No amendment to this Assignment is effective unless it is in writing and signed by all parties to this Assignment. 7.10 Waiver. (a) No waiver under this Assignment is effective unless it is in writing, an express and knowing waiver, and signed by the party waiving its right. (b) Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any other occasion or for any other purpose. (c) None of the following is a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Assignment: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Assignment; or (ii) any act, omission, or course of dealing between any of the parties. 7.11 Cumulative Remedies. All rights and remedies provided in this Assignment are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Despite the previous sentence, the 8 parties intend that each Indemnified Party's rights under Section 6 are its exclusive remedies for the events specified in Section 6. 7.12 Equitable Remedies. Each of DCTRA and LTRID acknowledges that a breach or threatened breach by it of any of its obligations under this Assignment would give rise to irreparable harm to the other, or to the County, for which monetary damages would not be an adequate remedy and hereby agrees that if a breach or a threatened breach occurs the other party will, in addition to any and all other rights and remedies that may be available to it arising from such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond). 7.13 No Third-Party Beneficiaries. This Assignment benefits solely the parties to this Assignment and their respective successors and assigns and nothing in this Assignment, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Assignment. 7.14 Choice of Law. This Assignment and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to this Assignment, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of California, United States of America. 7.15 Counterparts. This Assignment may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Assignment delivered by PDF attached to email is deemed to have the same legal effect as delivery of an original signed copy of this Assignment. SIGNATURE PAGE FOLLOWS 9 IN WITNESS WHEREOF, the parties hereto are deemed to have executed this Assignment as of the Effective Date. DCTRA: Deer Creek and Tule River Authority By �iGLGi%�L� Name: L'770 t) L�SGt �. Title: President LTRID- Loweppu e Rivers tion District By "00 Name:-Vo v-� gC,v ce-Np Title: President COUNTY OF FRESNO By_ Nam uintero Title: Chairman of the Board of Supervisors of the County of Fresno Attest: Bernice E. Seidel Clerk of the Board of Supervisors County of Fresno, State of California By: _ _ Deputy 10