HomeMy WebLinkAboutUnivar Solutions USA Inc - Monitoring Well Agreement - 06.26.23L/UUUolylI CI IVCIUF tC IL). 4u4uo1 UC-IOU V-4/1DJ-ODLIO-4Gl,000z7FI IU,+,-,
PW File No. 13306 City of Fresno
Monitoring Well Permit #2022-66, 67, 68, 69 & 70 Department of Public Works
MONITORING WELL AGREEMENT
This Agreement (Agreement) is entered into as of the 26th day of June , 2023,
between the CITY OF FRESNO (City), a California municipal corporation, and Univar
Solutions USA Inc., a Washington corporation (Applicant).
RECITALS
A. WHEREAS, at the northeast corner of East Church Ave. and Golden State
Blvd. certain properties as described and depicted in Exhibit A, commonly known as 2376
South Railroad Ave., Fresno, California, more particularly described as Assessor's Parcel
Number 478-903-117 (Property); and
B. WHEREAS, Applicant has been directed by the State of California
Environmental Protection Agency Department of Toxic Substances Control (Regulatory
Agency or DTSC) to conduct investigative and remedial work in connection with known or
suspected contamination on the Property; and
C. WHEREAS, to comply with the DTSC instructions, Applicant, through its
contractor, is undertaking an investigation of groundwater in and around the Property and
desires to install ten monitoring wells in the public right-of-way (Monitoring Wells) as
described and depicted in the work plan attached as Exhibit B; and
D. WHEREAS, City is willing to permit such installation if Applicant enters into
this Agreement to protect such public right-of-way and protect City from liability arising
from such installation.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
promises set forth below, City and Applicant agree as follows:
1. City grants to Applicant and its authorized representatives, agents,
contractors, and subcontractors (Applicant Parties) a non-exclusive, revocable permit to
install, monitor, maintain, and collect samples from the Monitoring Wells.
2. Before beginning to drill or install the Monitoring Wells, Applicant
Parties shall obtain approval of all plans, drawings, and specifications for such
installation from City's Department of Public Works Director (Director). Upon such
approval, Applicant Parties shall obtain a Street Work Permit in accordance with
Fresno Municipal Code Sections 13-202, 13-203, and 13-204; and shall install the
Monitoring Wells as promptly as practicable in accordance with any and all applicable
local, state, and federal requirements. During installation, Applicant Parties shall take
all steps necessary to minimize disruption of vehicular and pedestrian traffic in the
vicinity of the permitted site. No change shall be made in the approved plans,
drawings, or specifications without the prior written approval of the Director or
designee.
3. Applicant Parties shall be responsible for any and all waste and hazardous
materials produced as the result of well drilling activities or well development, in
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accordance with this Agreement. Waste or hazardous materials shall not be stored within
the public right-of-way. Any and all material known or suspected to be hazardous or
contaminated shall be handled and disposed of in accordance with all applicable federal,
state, and local laws and regulations.
4. Applicant Parties shall safeguard the public and public right-of-way from
exposure to any and all contaminants produced as the result of well installation activities
conducted by Applicant Parties under this Agreement.
5. Upon installation of the Monitoring Wells, Applicant Parties shall submit a
copy of any and all logs including, but not limited to Well Driller's Reports, Lithographic
Logs, and Geophysic Logs, to City's Department of Public Utilities, the Water Division of
the Department of Public Utilities, and the Plan Check and Permit Services Division of the
Department of Public Works.
6. Applicant Parties shall be solely responsible for the operation and
maintenance of the Monitoring Wells including, without limitation, all costs associated with
such operation and maintenance. Applicant Parties shall at all times operate and maintain
the Monitoring Wells so there is no interference with vehicular or pedestrian traffic.
7. This Agreement shall in no way be construed as a grant by City of any right
to Applicant Parties to trespass upon land rightfully in possession of, or owned by,
another, whether such land be private or publicly owned.
8. City shall not unreasonably revoke this Agreement and agrees the
Monitoring Wells may be maintained through the duration of the monitoring period agreed
to by Applicant with DTSC, except that City reserves the right to revoke this Agreement
where continued existence of the Monitoring Wells is determined to negatively impact
public health, safety, or convenience. Applicant Parties, within thirty calendar days after
receiving written notice from City of revocation of this Agreement, shall decommission the
Monitoring Wells and restore the public right-of-way to substantially the same condition it
was in prior to installation of the Monitoring Wells. Applicant Parties shall be fully
responsible for all costs related to such removal and restoration.
9. To the furthest extent allowed by law, Applicant shall indemnify, hold
harmless and defend City and each of its officers, officials, employees, and agents
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 City, Applicant, or any other
person that arise out of or result from any and all claims, demands and actions in law
or equity (including attorneys' fees and litigation expenses), arising or alleged to have
arisen directly or indirectly out of the negligence or willful misconduct of Applicant
Parties in conducting the work authorized by this Agreement. The obligations of
Applicant under the preceding sentence shall not apply to any loss, liability, fines,
penalties, forfeitures, costs, or damages caused by the gross negligence or willful
misconduct of City or any of its officers, officials, employees, or agents.
If Applicant should subcontract all or any portion of the work to be performed under
this Contract, Applicant shall require each subcontractor to indemnify, hold harmless and
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defend City and each of its officers, officials, employees, agents and volunteers in
accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Contract.
10. Applicant, or any contractor they hire, shall pay for and maintain in full force
and effect all policies of insurance required hereunder with an insurance company(ies)
either: (i) admitted by the California Insurance Commissioner to do business in the State
of California and rated not less than "A- VII" in Best's Insurance Rating Guide, or (ii)
authorized by City's Risk Manager. The following policies of insurance are required:
(i) COMMERCIAL GENERAL LIABILITY insurance which shall be at
least as broad as the most current version of Insurance Services Office (ISO)
Commercial General Liability Coverage Form CG 00 01 and include insurance for
"bodily injury," "property damage" and "personal and advertising injury" with
coverage for premises and operations (including the use of owned and non -owned
equipment), products and completed operations, and contractual liability
(including, without limitation, indemnity obligations under this Agreement) with
limits of liability of not less than the following:
$2,000,000 per occurrence for bodily injury and property damage
$1,000,000 per occurrence for personal and advertising injury
$4,000,000 aggregate for products and completed operations
$4,000,000 general aggregate
(ii) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be
at least as broad as the most current version of Insurance Service Office (ISO)
Business Auto Coverage Form CA 00 01, and include coverage for all owned,
hired, and non -owned automobiles or other licensed vehicles (Code 1 -Any Auto)
with limits of liability of not less than $1,000,000 per accident for bodily injury and
property damage.
(iii) COMMERCIAL POLLUTION LIABILITY insurance with limits of
liability of not less than $2,000,000 per occurrence for bodily injury and property
damage and $4,000,000 general aggregate.
(iv) WORKERS' COMPENSATION insurance as required under the
California Labor Code.
(v) EMPLOYERS' LIABILITY insurance with limits of liability of not less
than $1,000,000 each accident, $1,000,000 disease policy limit and
$1,000,000 disease each employee.
In the event Applicant purchases an Umbrella or Excess insurance policy(ies) to
meet the minimum limits of insurance set forth above, this insurance policy(ies) shall
"follow form" and afford no less coverage than the primary insurance policy(ies).
Applicant shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and Applicant shall also be responsible for
payment of any self -insured retentions. Any deductibles or self -insured retentions must
be declared to, and approved by, the City's Risk Manager or designee. At the option of
the City's Risk Manager or designee, satisfactory to City's Risk Manager or designee,
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guaranteeing payment of losses and related investigations, claim administration and
defense expenses. At no time shall City be responsible for the payment of any deductibles
or self -insured retentions.
All policies of insurance required hereunder shall be endorsed to provide that the
coverage shall not be cancelled, non -renewed, reduced in coverage or in limits except
after thirty calendar day written notice has been given to City. Upon issuance by the
insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage
or in limits, Applicant shall furnish City with a new certificate and applicable endorsements
for such policy(ies). In the event any policy is due to expire during the term of this
Agreement, Applicant shall provide a new certificate, and applicable endorsements,
evidencing renewal of such policy not less than fifteen calendar days prior to the
expiration date of the expiring policy.
The General Liability, Automobile Liability, and Pollution Liability insurance
policies shall be written on an occurrence form and shall name City, its officers,
officials, agents, and employees as an additional insured. Such policy(ies) of
insurance shall be endorsed so Applicant's insurance shall be primary and no
contribution shall be required of City. The coverage shall contain no special limitations
on the scope of protection afforded to City, its officers, officials, employees, and
agents. Any insurance policies, including the Workers' Compensation insurance
policy, shall contain a waiver of subrogation as to City, its officers, officials, agents,
employees, and volunteers.
Applicant shall furnish City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the City's Risk Manager or
designee prior to City's execution of this Agreement and before work
commences. Upon request of City, Applicant shall immediately furnish City with a
complete copy of any insurance policy required under this Agreement, including all
endorsements with said copy certified by the underwriter to be a true and correct copy
of the original policy. This requirement shall survive for two years after expiration or
termination of this Agreement.
If at any time during the term of this Agreement or any extension, Applicant or
any of its subcontractors that conduct work in the public right-of-way related to the
Monitoring Wells, fails to maintain any required insurance in full force and effect, all
work under this Agreement shall be discontinued immediately until notice is received
by City that the required insurance has been restored to full force and effect and that
the premiums therefore have been paid for a period satisfactory to City. Any failure
to maintain the required insurance shall be sufficient cause for City to terminate this
Agreement. No action taken by City hereunder shall in any way relieve Applicant of
its responsibilities under this Agreement. The phrase "fail to maintain any required
insurance" shall include, without limitation, notification received by City that an insurer
has commenced proceedings, or has had proceedings commenced against it,
indicating that the insurer is insolvent.
The fact that insurance is obtained by Applicant shall not be deemed to release
or diminish the liability of Applicant, including, without limitation, liability under the
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indemnity provisions of this Agreement. The duty to indemnify City shall apply
regardless of whether any insurance policies are applicable. The policy limits do not
act as a limitation upon the amount of indemnification to be provided by Applicant.
Approval or purchase of any insurance contracts or policies shall in no way relieve
from liability nor limit the liability of Applicant, its principals, officers, agents,
employees, persons under the supervision of Applicant, vendors, suppliers, invitees,
consultants, sub -consultants, subcontractors, or anyone employed directly or indirectly
by any of them.
If Applicant should contract all or any portion of the services to be performed
under this Agreement, Applicant shall require each contractor to provide insurance
protection in favor of City, its officers, officials, employees, and agents in accordance
with the terms of each of the preceding paragraphs, except that the contractors'
certificates and endorsements shall be on file with Applicant and City prior to the
commencement of any work by the contractor.
11. This Agreement is personal to Applicant and there shall be no assignment
by Applicant of its rights or obligations under this Agreement without the prior written
approval of City. Any attempted assignment by Applicant or its successors or assigns,
shall be null and void unless approved in writing by City.
12. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision or part thereof shall not affect the validity of any
other provisions.
13. Any notice required or intended to be given to either party under the terms
of this Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent
by United States registered or certified mail, with postage prepaid, return receipt
requested, addressed to the party to which notice is to be given at the party's address set
forth on the signature page of this Agreement or at such other address as the parties may
from time to time designate by written notice. Notices served by United States mail in the
manner above described shall be deemed sufficiently served or given at the time of the
mailing thereof.
14. This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California, excluding, however, any conflict of
laws rule which would apply the law of another jurisdiction. 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.
15. If either party is required to commence any proceeding or legal action to
enforce or interpret any term, covenant or condition of this Agreement, the prevailing party
in such proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
16. Each exhibit and attachment referenced in this Agreement is, by the
reference, incorporated into and made a part of this Agreement.
17. The parties acknowledge that this Agreement in its final form is the result
of the combined efforts of the parties and that, should any provision of this Agreement be
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found to be ambiguous in any way, such ambiguity shall not be resolved by construing
this Agreement in favor of or against either party, but rather by construing the terms in
accordance with their generally accepted meaning.
18. In the event of any conflict between the body of this Agreement and any
exhibit or attachment hereto, the terms and conditions of the body of this Agreement shall
control and take precedence over the terms and conditions expressed within the exhibit
or attachment. Furthermore, any terms or conditions contained within any exhibit or
attachment hereto which purport to modify the allocation of risk between the parties
provided for within the body of this Agreement shall be null and void.
19. No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
20. The rights, interests, duties, and obligations defined within this Agreement
are intended for the specific parties hereto as identified in the preamble of this Agreement.
Notwithstanding anything stated to the contrary in this Agreement, none of the rights or
interests in this Agreement shall benefit or flow to the interest of any third parties.
21. Each party acknowledges that they have read and fully understand the
contents of this Agreement. This Agreement 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. This
Agreement may be modified only by written instrument duly authorized and executed by
City and Applicant.
[Signatures follow on the next page.]
M.
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IN WITNESS WHEREOF, the parties have executed this Agreement at
Fresno, California, the day and year first above written.
CITY OF FRESNO,
a California municipal corporation
By: FDocuSigned by:
AVI"
Andre .8@wFa#fi4PE
City Engineer/Assistant Director
Department of Public Works
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By: FDocuSigned by:
kZh, 1 3/2023
Je ArliferqML20iufntanilla Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
,—DOCUSIgned by:
By 6/26/2023
❑e A13B8820964E3 Date
CITY:
City of Fresno
Attention: Tahereh "Sami" Jafarzadeh
Ghehi, Engineer II
2600 Fresno Street, Rm. 4064
Fresno, CA 93721-3623
Phone: (559) 621-8718
FAX: (559) 457-1192
Univar Solutions USA Inc.
a Washington corporation
pocuSigned by:
By: _ [
2C07F9C62C38a7A...
Name: Jim Holcomb
Title: President
(If corporation or LLC., Board Chair, Pres. or
Vice Pres.)
DocuSigned by:
By:
5349535BDABA4E4...
Name: Julie Halperin
Title: Assistant Secretary
(If corporation or LLC., CFO, Treasurer,
Secretary or Assistant Secretary)
APPLICANT:
Univar Solutions USA Inc.
6000 Parkwood Place
Dublin, OH 43016
Phone: (614) 477-6376
Attachments:
1. Exhibit A - Description of Monitoring Wells in Public Right -of -Way
2. Exhibit B- Work Plan
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