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RE-ENACTMENT ÁND F'IRST AMEIYDMENT TO
AGREEME¡IT FOR PROVISIONS OF'\ryATER SERVICE
THIS RE-ENACTMENT AND FIRST AMENDMENT TO AGREEMENT FOR PROVISION
OF U/ATER SERVICE ("FirstAmendment") amends the Agreement for Provision for Water Service
dated December 31, 1985 ("Agreement") heretofore enteredinto by and betweenthe City of Fresno("City"), a Califomia municipal corporation, and the Pinedale County Water District 1.,öistricf), a
public entity created by and under the laws of the St¿te of Califomia. City and Distriòt may herãinafter
be individually refened to as a "Part/" and collectively as the "Parties." Regardless of the date of
execution, this First Amendment is effeotive January l,Z0I3.
RECITALS
A. District is a county water district providing water services pursuant to provisions of Water Code
Section 30000 et seq.
B. A segment of State Route 41 running between Bullard and Herndon Avenues was constructed on or
about 1985 and bisected a portion of District's water servic e area. As a result, District was
required to abandon a well located in or near the route of State Route 41, leaving a service .,island,'
separated by State Route 41 from the remainder of District's water delivery systãm but within
District's water service area. This portion of District's service ut"a g"ne.ailyconsists of an area
situated east of State Route 41, west of Fresno Street, south of Hemãon Avenue and north of East
Magill Avenue, and is more particularly depicted in Exhibit "4" ("Affected Area,,). A list by
Assessor Parcel Number of the District's customers currently in the Affected Areais attached as
Exhibit "B."
C' On December 31, 1985, District and City entered into an Agreement for the Provision of Water
Services (the "Agreement"), attached as Exhibit,,C.,'
D' A connection was established at City's water main in Fresno Stree! which was then used to supply
water to District for its use and distribution through the District's infrastructure to its customersln
the Affected Area. A connection was also established at City's water main in Herndon Avenue,
which was then used to supply water to the District for its use and distribution through the
District's infrastructure to its customer at 1470 West Hemdon.
E. City receives a substantial portion of its water supply from the Federal Central Valley project under
a water service contract with the United States Bureau of Reclamation, dated August 18, i005 and
designated Contract No. 14-06-200-8901 ("CVI' Water Contract"), as may be amlnded. Among
others, the CVP Water Contract requires City to install water meters on all service connections.
located within its service area on or before January I , 2013, and requires City's charges to
customers be based upon actual volume oideliveries as measured by a water meter ol other water
measuring device.
F. A dispute arose between the Parties regarding the provision of water services to the Affected fuea,
resulting in the filing of an action , Pinedale County Water District v. City of Fresno, Fresno
County Superior Court Case No. i2 CE CG 03874, filed in the Fresno County Superior Court on
December 13,20L2 (the "Action").
G. District and City now desire to enter into this First Amendment to the Agreement to allow for
continued supply of water pursuant to this First Amendment to District for use in the Affected Area
Page I of5
consistent with the City's obligations under the CVP Water Contract, state and federal law.
Additionally, District and Cþ now desire to settle the Action.
NoW, THEREFORE, in consider-::Ïr-i-*ing and of the covenants, conditions, and
promises hereinafter contained to be kept and performed by the respective Parties, it is mutually agreed
the Agreement is amended and superseded by this First Amendment as follows:
l. Recitals. The above Recitals are incorporated into and made a part of this First
Amendment.
2. Amendment of Agreement. This First Amendment amends and supersedes all terms of
the Agreement except for Paragraphs 2 and 3 of Section III, which are speoifically retained and
incorporated herein.
3. District as Customer. City shall continue to provide water to District, as its customer,
for District use and distribution to District's customers in the Affected Area.
4. Installation of Water Meter. City shall install a $/atü meter or other water measuring
device to be located upstream of the Service Connection to measure the volume of water to be proviãed
to the District for its use and distribution to customers in the Affected Area. As used in this Agreement
the term "Seryice Connection" shall mean and refer to the point at which the City water main connects
to the District's infrastructure or water lines used to distribute water to the Affected Area. Within 30
days of being invoiced, District shall pay City the cost of installing the water meter and any related
infrastructure, but in no event shall be required to pay more than $24,000. District shall take any
reasonable steps necessary to allow the City to complete installation of the meter and related
infrastructure including connecting the meter to District's infrastructure, if necessary. City shall own,
operate, maintain and repair the water meter and assembly and any related infrastructure installed at
District expense; District shall continue to retain its ownership, control and operations of its water
service infrastructure located downstream of the Service Connection.
5. Pal¿ment of Metered Rate. District shall be charged and pay to the City the fixed and
variable fees and charges for water service pursuant to the rates set by City's Master Fee Schedule, as
may be amended, applicable to customers of the City forplanned communities with property owners'
associations. This rate is currently identified in the Master Fee Schedule as the "Water, Metered
Service Rate," including rates for "standby charge, meter size (per month)" and "Customers Other
Than Single Family Residential." The relevant excerpt of the Master Fee Schedule is attached in
Exhibit "D" ând is incorporated by reference. District shall be billed for, pay and shall be required to
pay the same interest charges or penalties for late payment or nonpayment as are applicable to any
other customer of the City for planned oommunities with property owners' associations according to
City's Master Fee Schedule. At its sole discretion, the City may unilaterally amend or approve a
revised Master Fee Schedule to adjust rates at any time, including the addition of tiered rates,
consistent with any applicable local, state or federal laws.
6.
Obligations. It is the Parties' intent First Amendment to the Agreement be in compliance with the
CVP Water Contract, as may be amended, and City's obligations therein including the metering
requirement. Additionally, the Parties acknowledge legislative and regulatory actions may be taken at
the state and federal level that could impose obligations on City or District potentially inconsistent with
this Agreement as modified by this First Amendment. Notwithstanding any other term of this First
j.
I
Page2 of 5
Amendment, District and City agree that if any term or part of this Agreement as modified by this First
Amendment is not enforceable or in conflict with any contractual or lègal obligation of either party,
including the CVP Water Contract as may be amended, the Parties shaú promftly re-open the
Agreement and take all reasonable steps necessary to further amend the offending term or part in order
to bring the Agreement into compliance with contractual or legal obligations otCity or Diitrict.
"Reasonable steps" shall not include requiring City or District to incur penalties, pay fines or otherwise
be responsible for unreimbursed costs incurred as a result of such inconsistency. lnthe event the
Agreement as modified by this First Amendment can¡ot be reasonably further amended to be
consistent with any contractual or legal obligation of City or District, the Agreement, including this
First Amendment, will terminate.
7 - Provision of Water Services Outside the Affected Area: Except as expressly provided
in this First Amendment, City shall not be obligated to provide water supply tı Oistriãt for use in
District's service area except for the Affected Area. Currently, the only-other location receiving water
services from City within District's service area is 1470 West Hemdon Avenue. District has
infrastructure located in Fruit Avenue capable of serving this address. District will install the
necessary infrastructure for District to provide all water services to 1470 West Avenue by March l,
2013, and the City shall promptly discontinue water services upon notice from the Distriôt the
necessary infrastructure has been installed. District shall coordinate and cooperate with City before
and during the installation to ensure the integrity of any City infrastructure pioviding servicê b 1470
WestHemdon.
8. . In frrll and final
settlement and satisfaction of the Action, District agrees to dismiss the Action with prejudice within 30
days of the last Party to execute this First Amendment. It is expressly understood by the parties, by
reason of the consideration hereinabove mentioned, that the Parties admit absoluteþ no liability of any
sort and have made no representations as to any liabilities or obligations and have made no agreements
or promises to do or omit to do any act or thing not herein set forth. With regard to the Action and the
negotiation and execution of this First Amendment in settlement of such Action, it is agreed that each
Party shall bear its respective costs and attomeys, fees.
9. Indemnification.
(a) District shall indemnifu, hold harmless and defend City and each of its officers,
officials, employees, agents and volunteers from any and all loss, liability, finàs, 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 City, District or any other person, and from
any and all claims, demands and actions in law or equity (including attomey's fees and litigation
expenses), arising or alleged to have arisen directly or indirectly from the negligent or intentional acts
or omissions of District or any of its officers, officials, employees, agents or volunteers in the
performance of this Agreement as modified by this First Amendment or otherwise associated with
District's provision of water services to its customers in the Affected Area (including issues related to
the District's maintenance, repair and repair of its infrastructure; provision of adequate fire flows to
meet local and state requirements; or its compliance with Proposition 218 and other laws regulating the
setting of fees). Nothing herein shall constitute a waiver by District of government¿l immunities
including California Government Code Section 810 et seq.
(b) City shall indemniS', hold harmless and defend Dishict 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 liabilþ, including but not limited to personal
injury, death at any time and property damage) incuned by City, District or any other person, and from
Page 3 of5
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 the negligent or intentional acts
or omissìons of City or any of its officers, officials, employees, agents or volunteers in the performance
of this Agreement as modified by this First Amendment or otherwise associated with City's provision
of water services to District for use in the Affected Area (including issues related to the City's
maintenance, repair and repair of its infrastructure; provision of adequate fire flows to meet local and
state requirements; or compliance with Proposition 218 and other laws regulating the setting of fees);
provided. Nothing herein shall constitute a waiver by City of governmental immunities including
Califomia Government Code Section 810 et seq.
(c) In the event of concurrent negligence on the part of District or any of its
officers, officials, employees, agents or volunteers, and City or any of its off,rcers, offîcials, employees,
agents or 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
Califomia's theory of comparative negligence as presently established or as may be modified hereafter.
(d) Notwithstanding the preceding paragraphs (b) and (c) of this Paragraph 9, City
shall not be liable for damage or loss caused by any failure of the City water system to deliver water to
the Affected Area, whenever such failure is caused by, or results from, any natural disaster including
drought, shortages of water delivered or available to City, act of God, riot or insurrection, aot of war or
sabotage, fire, flood, epidemic, quarantine restriction, or other condition which is beyond the control
and without the fault of City in the exercise of good and effrcient management and maintenance of the
City water system.
(e) This Paragraph shall suryive expiration or termination of this Agreement.
10. Attome)¡'s Fees and Costs. If either Party is required to oommence any proceeding or
legal action to enforce or interpret any term, covenant or condition of the Agreement as modified by
this First Amendment, the prevailing Parfy in such proceeding or action shall be entitled to recover
from the other Party its reasonable attorney's fees, costs and legal expenses.
11. Termination b)¡ Mutual Aereement. The Agreement as modified by this First
Amendment shall be perpetual and may not be cancelled or terminated except by mutual written
consent ofthe Parties hereto.
12. Compliance With Law. The Parties shall at all times comply with all applicable laws of
the United States and the State of California, and with all applicable regulations promulgated by
federal, state, regional, or local administrative and regulatory agencies, now in force and as they may
be enacted, issued, or amended during the term of the Agreement as modified by this First
Amendment.
13. Interpretation. The Parties acknowledge that this First Amendment in its final form is
the result of the combined efforts of the Parties and that, should any provision of this First Amendment
be found to be ambiguous in any way, such ambiguity shall not be resolved by conshuing this
Agreement in favor of or against either Party, but rather by construing the terms in accordance with
prevailing rules of contract interpretation not otherwise in conflict with this Paragraph 13.
14. Precedence of Documents. Each Exhibit referenced in this First Amendment, except
for the Agreement as already addressed in Paragraph 2, is, by reference, incorporated into and made a
part of this First Amendment. In the event of any conflict between the text of this First Amendment or
1
Page 4 of5
any Exhibit, the terms and conditions ofthe text of this First Amendment shall control and take
precedence over the terms and copditions exprêssed within the Exhibit.
15. No Third Party Beneficiaries. The rights, interests, duties and obligations defined
within the Agreement as modified by this First Amendment are intended for the specific Parties hereto
as identified in the preamble of this First Amendment. Notwithstanding anything stated to the contrary
in the Agreement as modified by this First Amendment, it is not intended that any rights or interests in
the Agreement as modified by this First Amendment benefit or flow to the interest of any third parties.
16. Extent of Agreement. Each Party acknowledges that they have read and fully
understand the contents of this First Amendment. The Agreerhent as modified by this First
Amendment represents the entire and integrated agreement between the Parties with respect to the
subject matter hereof and supersedes all prior negotiations, representations or agreements, either
written or oral.
17. Counterparts. This First Amendment may be executed in two or more counterparts, by
facsimile or scanned document sent by email, and with originals following by mail or express delivery.
In the event of a dispute, a facsimile or scanned copy sent by email shall be deemed to be an original.
IN WITNESS WHEREOF, the Parties have executed this First Amendment at Fresno,
Califomia, the day and year first above written.
City of Fresno,
a Califomia munioipal corporation
Pinedale County Water District,
a public entþ created by and under the laws of
Patrick Wiemiller, Director
Department of Public Utilities
ATTEST:
Yvonne Spence
City Clerk
Pinedale County Water
APPROVED AS TO
Francine
By:
Interi
Attachments:
1.
2.
3.
4.
-'--/'
Attorney
Exhibit A - Map of Affected Area.
Exhibit B - List of Customers in Affected Area.
Exhibit C - Agreement for Provisions of Water Service dated December 31, 1985.
Exhibit D - Clty of Fresno Master Fee Schedule,page 137.
Neal E. Costanzo, Esq.
. Attorney for Pinedale County
Water District
Page 5 of5
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Exhibit "B"
Assessor Parcel Numbers of the District's Customers in the Affected Area:
1. 408-062-18
2. 408-062-t7
3. 408-062-t6
4. 408-062-1s
l. 408-A62-31 (formerly 409-062-12, 408-062- 1 3 and 408-0 62-14)6. 408-062-2s
7. 408-063-06
8. 408-063-07
9. 408-063-08
10.408-063-09
1I.408-063-10
12. 408 -063-29 (formerly 40 8 -063 - 1 1 and 408 -0 63 -12)
13.408-062-07
14.408-062-08
15.408-062-09
16,408=062-10
t7. 408-062-Il
18. 408-063-20
19.408-063-19
20. 408-063-18
2r.408-063-17
22.408-063-t6
23.408-063-ts
24.408-063-14
25. 408-063-13
26.408-070-08
EHIS ÀGREEMENT ie macle anâ eDtereð lnto on thts 8/ç¿
-
dlay of fudæ-, lg}JÍ' by and betneen PfNDDÀr"8 cþoNrY
!l7åÎER DISTRT(T (herelnafter the iDlstrlct'r, andl the cr!'y oP FRESNo
therelnafter the "cltyrl, agrsê ae tolrowe¡'-\.
RBCIIÀLS
I{REREAS, the Oletrlct ls furnfshlng water servloe to ousÈonêrE
purauant to the provislon of ffate¡ Code 30.000 et Eeg wíthln the
County of Fregno andt ClÈy of, fEesnof
!ÍI|EREÀS, túe servLce area wlÈhin whl.ch Èlre Dletrlct proviÉlee
water sèrvlce (herelnafte¡ the "aervLcê ¿reat). ls located wiÈhln
Fresno Coünty and portlone of the City¡ ¡ndt
¡{BÞREÀS' the DlÉtrl,ct an¿ ttte Clty dlesire to P¡ovíðê $å!êr
eervl,ce to thelr reepectlve customers ln Ètre nost efflqlenÈ and
econornlcal way;
Nolitf !¡HEREFORE. in oonsi¿leratlon of tlre mutual pronises and
oovenanùs reclted hereln, Èbe parti,es aEree ¿B lollorrs:
I
. CoyenanÈs oE Èhe CltY
l. gfhen mutualfy" aEreeêble, the Clty wtll provJ-de watêr to
custonêrs wlthln the Dlst¡icL servlce area '
2. The n'ater Eervioe charges to Èhe cuEtonetr I'n the ctisÈrlct
se¡více area¡ shall be bille¿ by the ¿llstllot in aooordlancè rtfth
thE Élf¡trl-cts sÇhedules of fees and o-hargee
3. the ctty ågrees Ëo acÇePt as payurent for water useitl, an
amount egual to 60t of the applicablø CiÈy ratq(s!.
4. ,fhe Clþr agrees Èo a bL-monthly. irayment anit þllling qy.qlê.
5. tsl¡e€t+:r¿gf€€+-Ëo*¡¿tr-Èbe-oi.stlrlc!-ã.og-s"c¡ndcA-CbargeÃ.
ûrftoæfi€t¡s-..M-sl.}eoLeè-jþn-aceogdlance-t+tl*lrtåå+Ègt'eenrêût,
r+i+bir.få daÎs.orÊ.qlo'+e+É -Þ!Þåag-p er*ed¡
6. The Cttf¡ agr€es to be resPonsible for rnalntênance of clÈy
owned maLns ancl servfceg.
7. The City agreès, ùhe attached Exhibit nÀrr l-s the ligt of
cuebo¡¡ers ln the ciÈy serv!.oê area servedl by the Distri.ct.
8. The CIty açlrees, the atÈached ExhÍblts nÀ'r snô rBÛ, may
be changedl by addendum¡ aitdJ.nE, or delettnE ft'eme ligtedt.
{lu
tadoaþ
A.oÍts
cdgn
AO
å$
t
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I
AclitendE shall be slgned by the Clty andl DlsÈrict ¡Ìatê8 Månåger.
T
covenants of the Dfstrtct
I. llhen rnutually agneeabte, the Dlstrlot wfII providtê rtrter
servlce to cuatonêrg wlthln tha CfÈy servfce araa.
2. :rhe wêter service charges to ùl¡e suEèom€r ln the cttY eervtce$
area, shall be btlleal Uy ttre cJ.ty ln accordtanca wlth the cltyrs t'A
6, Íhe DlstrlaÈ agrees to be responEíble for m¡lntenance of
diBtaicè owned naLne and êervlce8.
7. îhe Dlst¡fcÈ agreel, the aùtacheå EÌbtbtù iBn ls the llsÈ of
êuEÈorìerF ln Èhe ttl,strlct servlce area Eerveô by the olt':'.
' 8. r:[tre Distt.ùct agrees, È]¡e attached Exhtbtùs ilA¡ andl ¡Bnr
may be changed by adiilendlumr adlding, or tlèIetlng I'teug llstedl.
Àddenda phall be elgned by the cfty andl DlsÈülct W¿Uer MaÂâgers'
III
' Other Provl-giong
f. ifhJ.s agreeurent gt¡all eqnt.ùnue unlese ter¡nin¡Ëedl by the flrat
one o.f the foltor'rl.ng eventB¡ (a) adoptlon of an. agree¡nênÈ suPEr-
cedf.ng this aErreenent¡ (b) Èhe dlellvery gf a nÖÈlce of te¡¡rinaÈfon,
180 alayÉ ¡nini¡¡u¡n by elther parÈy.
2. Thls Àgreement shall be bíndíng uPon and to the beneflt of
the DistrLct and the C1èy andt their rèepectlve successors and
aÊeigns
3. Thfs ÀEreenent shall be iteb¡nedt to be a sontrêct u¡rdler the
law of the stste of Calífornia and for ¡11 PurÞoBeE shall be
consLruedl ln accordance with the laws of saldl stête.
4. Àrticles and Êeation headllnEs used Ln tlrie Àgreenent are
for conventence only and shall riot affecl tÌ¡e conBtruatLon of tl¡ls
agrreement,.
f,
Ë
b'
ü
s
Þl
F¡
5. ' Ìhls Àgreemeot may be executed fn coturtcq,¡Ìt¡¡ each of
rshloh oncE so exeout€A anit dellvered Eh¡U be deême¿t to be,an
origlnal andl all of whlch togethet ah¡II oonatltutÉ but one and
tha sane AgEeement.
IN I{ITNESS IISEREOF, the parÈJ.es hcrcto have caugedl tlrls
Àgrêènenf to be exeoutêd by.thel¡ duly authori¡ccl offioerr andt
rêÞresêntatl,veÊ aE of tt¡e .itay andl yêã¡ râcl,tèdl hcrelnbelowr rrhlch
ehalt be the effêêtl,ve date of ùhle àEre€nent.
CITY OF FSESNO
Þlnetlale eounty Wåter DiÈtrlct
p¡'"/rg
8/7/8s
lrrtovE ls I0 80n¡t
o¡rtrt¡omEfrsotFtcE
I l$i.r
8y¡
EXETETI iÀD
CuDto¡ûer€ in tl¡e CLty Sewlca À^ùet aÊrveal
by the dlstrloÈ
DATE
CustomerE Ín the District service area served bythe City
SERVfCE NN4E/ADDRESS
Sizer/llypê
4r' Fire Service
2¡' Commercíal Slater
Servíce
CITY OF ERESTIO
a
Date:/-3 -8é , 1986
Pinedale County irtater District
APN
L/86
L/e6
Kingsview Corp.
1470 !{. Herndon
Fresno, CA 9371I
Kingsview Corp.
1470 W. Ilerndon
Fresno, CA 93711
40s-370-01
405-3 70- 0 I
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-icipal corporatí
Date ,
Y,-..,.-
z , :llaø ,v \>u-^ r-"-. , Ø.,-.Ìt4-*
EX.UI&rIE_ ¡Br'
c¡r!Èoñ.rr l.n: Èhê BI,rÈFlcb se¡ulco lEGr rÊrvèð by the Ctty
DÀTE'
3/96
9ERVICE
AII In ot 3/Atrerídentlal t€rvlce¡
IIA!'8./ÀDDRE9S
t2O E. igarher Àvenue
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DEPÁRTI¡EIIT OF PI¡BI¡C UflI,IrIES
Deceaber 71,zOtL
I,ECENÐ
-2'& +" P|PE
-." 6. F|PE
, -8" & to'P|PE
t2' & ABOVE
RAW YVA'ÍER PIPE
-PIPE
OASING
PRIVÀÎE PIPE
CIry OF FRESNO
MASTER FEE SCHEDULE
PUBLIC UTILITIES DEPARTMENT
Water, Metered Servlce Rate total charge shall be standby charge
plus quantity drarge based on usage.
Standby cherge, meter s¡ze (per month):
3/4-inch or smaller
l-inch
1-1|2-indl
2-inch
3-inch
4inch
ôinch
8-inch
'lOjnch
Quant¡ty charge:
Customers Other Than Single Family Residential
Each 100 Cubic Feet (HCF)
1,000 gallons
Single Family Resident¡al
Each 100 Cubic Feet (HCF)
1,000 galtons
Water drawn from a fire hydrant/ Minimum per month
Wells, private (used for inigation or commercial purposes when
required to be metered)
Each HCF
1,000 gallons
Backflow Prcvention, Service lnspection, and Ma¡ntenance
Doubl+check and/or pÍessure vacuum breaker ass€mblies (per month):
3/4-and 1-lnch
1-1 14-, 1 -1 12-, and 2-inch
2-1t2-,9, and 4-inch
6- and &lnch
lGinch
Reduced pressure principle assemblles (per month);
3/¿l-inch
l-inch
'l-11Çinch
1-112- and2-inch
2-112- and 3inch
4-inch
6Jnch
8-inch
l0inch
* Rates eftqtive 9/1/08n Rales shall be adjueted annually by staff dwing the budget process to refled the retes in efied as per
Res. No.2007-79
All èes effect¡vø 0il01112 un¡ess othelu,lse noted
MFS Anendment #510 (June 20121 lgt1ot201z11:s2 ftÀ'Itl
0.610
0.810
29.97
o.218
0.290
10.03
13.51
18.89
27.æ
45.07
63.02
99.01
152.96
179.83
0.745
0.995
ô.70
8,92
17.83
2e.73
4.57
6.70
LS2
11.12
13.42
16.62
17.83
26.73
35.65
53.48
Amend
Efredive
9/112008
ß7
Effeclíve
3t1t2010
I
.:
I
h
I
I
ln-Lieu
06/05
P€e 137