HomeMy WebLinkAboutFresno Irrigation District - 2015 Operation and Maintenance Serving Temporary Surface Water Treatment - 2015-ñ
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AGREEMENT REGARDING 2015 OPERATION & MAINTENANCE OF
FRESNO IRRIGATION DISTRICT FACILITIES SERVING
TEMPORARY SURFACE WATER TREATilIENT PLANT
This Agreement is made effective as of January ,2015 by and between the
Fresno lrrigation District, a California irrigation district ('DISTRICT'), and the City ofFresno, a California mun¡c¡pal corporation ('C|TY"). DISTRICT and ClTy are
somet¡mes individually referred to below as a Party and collectively as the parties. This
Agreement is made with respect to the following facts:
A. CITY has constructed a temporary surface water treatment plant
("Treatment Plant") on the north side of Dakota Avenue between Temperance and
Armstrong Avenues, for the purpose of delivering domestic and municipal water
supplies to residents and businesses within its service area until a larger, regional plant
can be constructed.
B. District owns and operates the Jefferson Canal No. 112, the Gunn
Pipeline No, 386, and the Brown Canal No. 113 (collectively, "District Facilities").
C. Clry desires to receive untreated surface water at the Treatment Plant
from the District Facilities, in accordance with the provisions contained within the 1g76
Cooperative Agreement between DISTRICT and the CITY.
D. The Distdct Facilities have been upgraded to meet the Galifornia
Department of Public Health requirements for treatment plant operation, as
conlemplated in that certain Reimbursement Agreement for Design and Construction of
Jefferson Canal lmprovements for City of Fresno lnterim Surface Water Treatment plant
between the Parties dated September 24,2009 (the "Reimbursement Agreement").
E. This Agreement is not the separate mutual agreement contemplated at
Section 9 of the Reimbursement Agreement governing the operation and maintenance
of the District Facilities, and is intended solely for use during the 201S calendar year.
NOW THEREFORE, in consideration of the Parties' mutual covenant and
conditions described below, the Parties agree as follows:
1. Delivery of Water. DISTRICT agrees to deliver water through the District
Facilities to the Treatment Plant, on the terms and subject to the conðit¡ons of this
Agreement. The Parties acknowledge that this Agreement (a) solely concerns the
delivery of water, as further described herein, and does not constitúte olStRlCT's
agreement to provide water supplies, and (b) does not amend or modifu the 1976
Cooperative Agreement between DISTRICT and the ClTy.
2. Term. The term of this Agreement shall commence on January 1,2015
and end December 3'1,2015. CITY shall remain responsible for any costs acðrued and
unpaid hereunder as of December 91,2015.
2O15-D112, Dí 13, D384 - J1 572 - Agmt.#2
3. Ooerational Periods, CITY may receive water from the District Facilities
for the Treatment Plant during the period from approximately February 2, 2015 through
October 31, 2015 (the "Plant Operation Window"). DISTRICT shall use reasonable
efforts to deliver water to the Treatment Plant during such period, but does not
guarantee such deliveries, and reserves the right to shut down the District Facilities if
DISTRICT deems such shutdown to be reasonably necessary. DISTRICT shall use
reasonable efforts to schedule normal maintenance activities for the District Facilities
during periods outside of the Plant Operation Window. DISTRICT will use its best
efforts to notiff Clry in advance of any shutdown.
4. Treatment Plant Operations and Repairs.
(a) At all times during the Plant Operation Window, CITY shall use its
best efforts to accept water from the District Facilities at a constant flow rate, twenty-
four (24) hours per day, seven (7) days per week, but does not guarantee that it shall doso. CITY shall give DISTRICT twenty-four Qa\ hours' notice of any change in
Treatment Plant flow rate requirements.
(b) CITY shall give DISTRICT thirty (30) days' notice prior to making
any repair, alteration, or modification to the Treatment Plant that affects the operation
DISTRICT's conveyance system, including, but not limited to, the District Facilities.
Such repair, alteration, or modification shall not occur without DISTRICT's consent
during the period from February 2,2015 to October 31,2015, except as required during
an emergency.
(c) lf, during an emergency or unplanned shutdown, the Treatment
Plant is unable to accept water already scheduled for delivery that cannot be diverted
elsewhere, DISTRICT shall route such water through the Gould Canal to the CITY's
recharge facility at Leaky Acres. CITY shall maintain a reserve capacity in Leaky Acres
as necessary to receive such excess flows, based on twelve (12) hours at then-current
rates of delivery to Treatment Plant. DISTRICT shall reserve a corresponding capacity
to accept such excess flows in the Gould Canal.
5, Water QualiV.
(a) DISTRICT makes no representation or warranty regarding the
quality of the water delivered hereunder or its compliance with applicable standards or
guidelines for public domestic water supply systems. DISTRICT does not guarantee in
any respect or assume any responsibility for the chemical, bacterial, or other content or
quality of water made available to the Treatment Plant. The CITY acknowledges that
storm waters and aquaticides (as described in Section 5(d) below) are occasionally
present in the DISTRICT's conveyance system, including the District Facilities.
(b) Treatment of water delivered to make it potable shall be the sole
responsibility of the CITY, and the CITY shall assume all risk and responsibility therefor.
Notwithstanding any other provision of this Agreement, CITY shall defend, indemnify,
and hold DISTRICT harmless from and against any claims regarding failure of water
201ïD112, D1 13, D3E4 - J1 572 - Agmt.#z
produced by the Treatment Plant to meet drinking water standards, however arising,
and regardless of any negligence by DISTRICT in the delivery of water to the Treatment
Plant.
(c) In the event of a circumstance occurring in DISTRICT's delivery
system that would negatively affec't the CITY's ability to treat the water delivered for
potable water, but would otherwise be allowable for agricultural purposes, DISTRICT
will notiff the CITY of the circumstance, and the Parties will meet and confer as
necessary to attempt to resolve the matter. CITY shall reimburse DISTRICT for any
expenses incurred to increase the quality of water delivered to the Treatment Plant to
higher levels than required for agricultural purposes.
(d) DISTRICT reserves the right to treat its conveyance system,
including the District Facilities, with copper sulfate, Magnacide (acrolein) and other
aquaticides as permitted by law and consistent with good irrigation agency practice.
Except in emergencies, DISTRICT will provide CITY with five (5) days' notice prior to
the application of any aquaticides that might reasonably be expected to reach the
Treatment Plant. ln emergencies, DISTRICT shall notifi7 CITY as soon as reasonably
possible. Notice shall be provided by e-mail as described in Section 6 below.
6. Notifications. ln the event of Treatment Plant shutdown or interruption of
deliveries through District Facilities, the Parties shall notify each other by telephone and
email as follows:
To DISTRICT: Jim lnruin, Watermaster
Telephone: (559) 233-7'161
E-mail: jirwin@fresnoirrigation.com
To CITY:Ken Heard, Water Production Chief
Telephone: 559-621 -5350
E-mail: ken. heard@fresno. gov
Any other communications not specified to be given by telephone or email shall be
given in writing, shall be effective (i) when personally delivered, (ii) when sent by
facsimile on a business day between the hours of 8 a.m. and 5 p.m. (with written
confirmation of transmission) at the numbers set forth below, provided that a copy is
mailed as indicated below, or (iii) three business days after deposit in the United States
mail, registered or certified, postage fully prepaid and addressed to the respective
parties as follows:
To DISTRICT: Bill Stretch, Assistant General Manager
Fresno lrrigation District
2907 South Maple Ave
Fresno, CA 93725-2218
Facsimile No.: (559) 223-8227
201sD1 12, Di 13, D384 - J1572 -Agmt.#2
To CITY:Thomas Esqueda, Director of Public Utilities
City of Fresno, Department of Public Utilities
2600 Fresno Street
Fresno, CA9372'l
Facsimile No.: (559) 488-1024
7. Telemetry. CITY shall provide DISTRICT with real-time information
regarding Treatment Plant Operations, including, but not limited to, flow rate, water
quality (i.e. turbidity), times of operation and non-operation, via access to CITY's
SCADA system or other reasonable means,
8. Maintenance Patrols. The District Facilities shall be added to and
included within the existing Enterprise Canal patrols currently done by the cities of
Clovis and Fresno for the purpose of monitoring, removing trash and debris, etc.
9. Payments for Operations and Maintenance Costs.
(a) CITY shall pay DISTRICT the sum of $4.000 for the cost of
preparing this agreement. This is a one-time fee to cover FID's Legal and Staff time.
District shall include this cost in the first invoice sent to the C¡ty.
(b) CITY shall also pay DISTRICT the sum of $ 65.00 per day for water
defivered prior to May 1 ,2015 and after October 31, 2015, to compensate DISTRICT for
additional labor to run the District Facilities when the rest of the DISTRICT'S
conveyance system is normally shut down. DISTRICT shall invoice CITY monthly for
water delivered under this Agreement
(c) All amounts owing from CITY to DISTRICT under this Agreement
shall be immediately due and payable, and delinquent if not paid within th¡rty (30) days.
Delinquent amounts shall bear interest at the rate of ten percent (10%) per annum.
10. Ownership of Facilities. All District Facilities and related improvements
historically owned and operated by DISTRICT shall remain the property of DISTRICT.
The Treatment Plant and related improvements constructed by the CITY shall remain
the property of the CITY. Neither Party shall have any ownership interest in or
responsibility for the property of the other Party.
11. lndemniV.
(a) CITY shall indemnify, hold harmless and defend DISTRICT and
each of its officers, officials, employees, agents and volunteers from any and all loss,
liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or
strict liability, including but not limited to personal injury, death at any time and property
damage) incurred by DISTRICT, CITY or any other person, and from any and all claims,
demands and actions in law or equity (including attorney's fees and litigation expenses),
arising or alleged to have arisen directly or indirectly from (i) the operation of the
Treatment Plant, (ii) the negligent or intentional acts or omissions, or willful misconduct,
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2015-D1 12, Dl I 3, D384 - Jl 572 - Agmt.#2
of Clry or any of its officers, officials, employees, agents or volunteers in the
pedormance of this Agreement; provided nothing herein shall constitute a waiver by
CITY of governmental immunities including California Government Code section 810 et
seq.
(b) ln the event of concurrent negligence on the part of CITY or any of
its officers, officials, employees, agents or authorized volunteers, and DISTRICT or any
of its directors, officers, employees, agents or authorized volunteers, the liability for any
and all such claims, demands and actions in law or equity for such losses, fines,
penalties, forfeitures, costs and damages shall be apportioned under the State of
California's theory of comparative negligence as presently established or as may be
modified hereafter.
(c) lt is understood and agreed that CITY and DISTRICT maintain
insurance policies or self-insurance programs to fund their respective liabilities. The
Parties agree that such respective programs or policy coverage for Workers'
Compensation shall contain a waiver of subrogation as to the other Party and each of its
officers, officials, agents, employees and volunteers. Evidence of lnsurance, e.9.,
Certificates of lnsurance or other similar documentation, shall not be required of either
Party under this Agreement.
(d) This section shall survive expiration or termination of this
Agreement.
12. No Precedent. The Parties expressly agree that (a) they have entered
into this Agreement solely for the 2015 calendar year for the operation and maintenance
of the Treatment Plant and the District Facilities, and (b) that no precedent or obligation
regarding DISTRICT delivery of CITY water for surface water treatment purposes
(including, but not límited to, the operation and maintenance of the Treatment Plant or
the District Facilities) is established hereby. The Parties shall remain obligated to
develop the separate operation and maintenance agreement contemplated at Section g
of the Reimbursement Agreement.
13. Further Assurances. From time to time and at any time after the execution
and delivery hereof, each of the Parties, at its own expense, shall execute,
acknowledge and deliver any further instruments, documents and other assurances
reasonably requested by the other Party, and shalltake any other action consistent with
the terms of this Agreement that may reasonably be requested by the other Party, to
evidence or carry out the intent of this Agreement.
14. Costs. The costs and expenses incurred for the preparation of this
Agreement shall be paid by the respective Parties.
15. Time and Computation of Time. Time is of the essence of this Agreement
and each and all of its provisions. The Parties agree that the time for performance of
any action permitted or required under this Agreement shall be computed as if such
action were "an act provided by law" within the meaning of California Civil Code 910,
2O15-D1 12, Dl 1 3, D384 - J1572 - Agml.#2
which provides: "The time in which any act provided by law to be done is computed by
excluding the first day and including the last, unless the last day is a holiday, and then it
is also excluded."
16. Effect of Headings. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only and
shall not affect the construction or interpretation of any of its provisions.
17. Entire Agreement. This Agreement constitutes the entire agreement
between the Parties pertaining to the subject matter contained in it and supersedes all
prior and contemporaneous agreements, representations, and understandings of the
Parties. No supplement, modification, or amendment of this Agreement shall be binding
unless executed in writing by all of the Parties hereto.
18. Waiver. Waiver of any breach of this Agreement by any party hereto shall
not constitute a continuing waiver or a waiver of any breach of the same or another
provision of this Agreement.
19. Counterparts: Fax and Email Siqnatures. This Agreement may be
executed in any number of counterparts and each such counterpart shall be deemed to
be an original instrument, all of which together shall constitute one and the same
instrument. Facsimile and electronic mail signature pages shall constitute originals,
however, without affecting the enforceability of such signatures as originals, each party
shall provide original signature pages to the other Parties within five (5) business days
of the execution of this Agreement.
20. Assionment: Bindinq Effect. Neither Party shall assign any interest in this
Agreement without the express written consent of the other Party, which shall not be
unreasonably withheld. This Agreement shall be binding upon and inure to the benefit
of the heirs, executors, administrators, assigns, and successors of the Parties hereto.
21. lnterpretation. lt is agreed and acknowledged by the Parties that this
Agreement has been arrived at through negotiation, and that each Party has had a full
and fair opportunity to revise the terms of this Agreement. Consequently, the normal
rule of construction that any ambiguities are to be resolved against the drafting Party
shall not apply in construing or interpreting this Agreement.
22. Professionals' Fees. Should any action or proceeding be commenced
between the Parties hereto concerning this Agreement, or the rights and duties of any
Party in relation thereto, the Party prevailing in such action or proceeding shall be
entitled, in addition to such other relief as may be granted, to recover from the losing
Party a reasonable sum for its attorneys', paralegals', accountants', and other
professionalfees and costs incurred in connection with such action or proceeding.
23. Governinq Law. This Agreement shall be governed by the laws of the
State of California. Venue for purposes of the filing of any action regarding the
enforcement or interpretation of this Agreement and any rights and duties hereunder
shall be Fresno County, California.
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2o15-D112, D1 13, D384 - Ji572 - Asmt.l.2
24. Construction. All words used in this Agreement shall be construed to
ínclude the plural as well as the singular number and vice versa. Words used herein in
the present tense shall include the future as well as the present, and words used in the
masculine gender shall include the feminine and neuter genders.
25. Parties in lnterest. Nothing in this Agreement, whether expressed or
implied, is intended to confer any rights or remedies on any persons other than the
Parties hereto and their respective successors and assigns, nor is anything in this
Agreement intended to relieve or discharge the obligation or liability of any third person
to any Party to this Agreement, nor shall any provision give any third person any right of
subrogation or action over and against any Party to this Agreement.
26. Survival. Each of the terms, provisions, representations, warranties, and
covenants of the Pañies shall be continuous and shall survive the closing or other
consummation of the transactions contemplated in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement to be
effective as of the date first above written,
CITY DISTRICT
City of Fresno, a Galifornia municipal
corporation
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Fresno lrrigation District, a California
Collet
2015-D112, D1 I 3, D384 - Jl 572 - Agmt.#2