HomeMy WebLinkAboutWSA_16-256_WVWD-20160524REPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS
OF THE SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT
AND RECORD OF ACTION
May 24, 2016
GERRY NEWCOMBE, Director
Flood Control District
SUBJECT: AGREEMENT WITH WEST VALLEY WATER DISTRICT TO SPREAD TREATED
WATER IN CACTUS BASIN NO. 2
RECOMMENDATION(S)
Acting as the governing body of the San Bernardino County Flood Control District (District),
approve Agreement No. 16-256 between the District and West Valley Water District (WVWD) to
allow WVWD to spread treated water in District's Cactus Basin No. 2 for the period of May 24,
2016 to May 24, 2021.
(Presenter: Gerry Newcombe, Director, 387-7906)
Operate in a Fiscally -Responsible and Business -Like Manner
Pursue County Goals and Objectives by Working with Other Agencies.
Approval of this item will not result in the use of any Discretionary General Funding (Net County
Cost). In accordance with this Agreement, the District will receive annual payments at the rate of
$20.00 per acre-foot of Water for WVWD's use of District's Cactus Basin No. 2 (Basin 2) for
Water spreading activities. Also, the District will be reimbursed for all expenses incurred,
including overhead costs, for work performed at WVWD's request that is associated with the
spreading of treated water (Water) in Basin 2. Sufficient appropriation and revenue have been
included in the District's 2015-16 budget (RFA 091 AP22011022) and will be included in future
On December 18, 2012, the Board approved Agreement No. 12-1006 (Item No. 88) with WVWD
to allow the temporary spreading of Water in Basin 2. Agreement No. 12-1006 allowed WVWD to
discharge Water in an amount not -to -exceed 1,193 acre feet over a period of 208 days.
Agreement No. 12-1006 was authorized for a period of one year and therefore expired on
December 18. 2013. WVWD wants to resume its Water spreading activities for an annual amount
not to exceed 128 acre feet for the ongoing operation of its Groundwater Wellhead Treatment
Project (Project).
cc: SBCFCD - Newcombe; Eke w/Agree.
Contractor c/o FCD w/Agree.
ATC - Acct. Pay. Mgr. w/Agree.
EBIX-BPO c/o Risk Mgmt.
CAO - Garth
File - w/Agree.
ss 5/31/16
Page 1 of 2
Record of Action of the Board of Supervisors
MOTION SEC
LAURA H. W
BY ���
CALENDAR)
MOVE AYE
4 5
Rev 0.14.15
ITEM 189
DATED: May 24, 2016
AGREEMENT WITH WEST VALLEY WATER DISTRICT TO SPREAD
TREATED WATER IN CACTUS BASIN NO. 2
MAY 24, 2016
PAGE 2 OF 2
The District and WVWD desire to continue to cooperate in a program to spread Water in Basin 2
to accommodate the operation of WVWD's Project. This Water Spreading Agreement specifies
maintenance responsibilities and requires WVWD to indemnify the District and the County, as
well as secure and maintain insurance for the protection of the District. Water conservation is
part of the District's mission; therefore, the activity of this Agreement augments the District's
mission as set forth in the San Bernardino County Flood Control District Act and has been found
by the District to not interfere with District's primary statutory objectives and purposes to provide
for the control of flood and storm waters. WVWD is the lead agency on this project under the
California Environmental Quality Act (CEQA) and adopted a Mitigated Negative Declaration
(MND) for this Project. District staff reviewed the MND and concurs that the Project will not have
a significant effect on the environment with implementation of the mitigation measures.
Under this Agreement, Water will be discharged into Basin 2, located near the western edge of
the groundwater plume associated with the Rockets, Fireworks, and Flares Superfund Site. The
United States Environmental Protection Agency (USEPA) and the Santa Ana Regional Water
Quality Control Board (SARWQCB) reviewed this Project and found the additional Water
spreading activity by WVWD in Basin 2 will not adversely affect the movement of contaminated
groundwater.
This Agreement is a cooperative effort between the District and WVWD to facilitate Water
Conservation and Water Quality, therefore, it is consistent with County Goals and Objectives of
Operating in a Fiscally -Responsible and Business -like Manner and that of Working with Other
Agencies.
PROCUREMENT
Not applicable.
REVIEW BY OTHERS
This item has been reviewed by County Counsel (Sophie Akins, Deputy County Counsel, 387-
5455) on May 2, 2016; Finance (Deborah Garth, Administrative Analyst, 387-5426) on May 3,
2016; and County Finance and Administration (Mary Jane Olhasso, Administrative Executive
Officer, 387-4599) on May 5, 2016.
5/24/16 #189
FOR COUNTY USE ONLY
San Bernardino County
FLOOD CONTROL DISTRII
FAS
STANDARD CONTRACT
New FAS Vendor Code �+�+ Dept. Contract Number
Mr,
SC 092
C!�-S�
fl ancel
Public Works - Flood Control 092 092
County Department Contract Representative Telephone Total Contract Amount
Kenneth C. Eke (909) 387-8120 $12,800
L &*1-1 !
Fund
Dept.
Organization
Appr.
Obj/Rev Source
GRC/PROJ/JOB No
Amount
RFF
092
092
8842
AP22011022
$
Fund
Dept.
Organization
Appr.
Obj/Rev Source
GRC/PROJ/JOB No.
Amount
Fund
Dept.
Organization
Appr.
Obj/Rev Source
GRC/PROJ/JOB No.
Amount
$
Project Name
WEST VALLEY WATER
DISTRICT
WATER SPREADING
AGREEMENT
FY
Amount I/D
16/17
2,560 _
17/18
2,560
18/19
2,560
FY Amount I/D
19/20 2,560 _
20/21 2,560
iIS CONTRACT ("Agreement") is entered into in the State of California by and between the San Bernardino County
Hood Control District, hereinafter called DISTRICT, and
Name
West Valley Water District
Address
855 West Baseline Road: P. O. Box 920
Rialto, CA 92377
Telephone Federal ID No. or Social Security No.
(909) 875-1804
IT IS HEREBY AGREED AS FOLLOWS:
hereinafter called: WVWD
WITNESSETH
WHEREAS, WVWD has constructed a Water Treatment Facility as part of WVWD's Groundwater
Wellhead Treatment System Project (Project); and
WHEREAS, as part of the Project, DISTRICT issued encroachment permit P-22011022, a copy of which is
attached hereto as Exhibit A and incorporated herein by this reference, to WVWD to construct, operate, and
maintain a 24-inch reinforced concrete pipe to spread Treated Water (WATER) into DISTRICT's Cactus
Basin No. 2 (BASIN 2); and
WHEREAS, Special Provision No. 2 of permit P-22011022 requires that prior to the 24-inch reinforced
concrete pipe becoming operational, WVWD and DISTRICT shall enter into a Water Spreading Agreement;
and
Page 1 of 15
WHEREAS, a Technical Memorandum, dated January 27, 2016, prepared by WVWD and incorporated
herein by reference, provides technical data, including groundwater quality, quantity and duration of planned
WATER spreading activities in BASIN 2; and
WHEREAS, both the United States Environmental Protection Agency (USEPA) and the Santa Ana
Regional Water Quality Control Board (SARWQCB) reviewed the Technical Memorandum and each agency
issued a letter dated February 8, 2016, copies of which are attached hereto as Exhibit B and incorporated
herein by this reference; and
WHEREAS, both USEPA and SARWQCB stated in their respective letters that the WATER spreading
activity in BASIN 2 will not adversely affect the movement of the existing contaminated groundwater; and
WHEREAS, such spreading of WATER will benefit DISTRICT, since water conservation and recharge are
part of DISTRICT's mission as set forth in the San Bernardino County Flood Control District Act and this
activity has been found by DISTRICT to not interfere with DISTRICT's primary statutory objectives and
purposes to provide for the control of flood and storm waters; and
WHEREAS, DISTRICT and WVWD, in accordance with their respective acts and powers, desire to
cooperate in a program to conserve WATER for the purpose of recharging the underground aquifer within
BASIN 2.
NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS:
I. DISTRICT SHALL:
A) Permit WVWD to supervise, operate and maintain discharge and spreading facilities and
appurtenances into BASIN 2 provided that said use does not conflict with DISTRICT's activities
within BASIN 2 and/or DISTRICT's rights as a property owner. Discharge and spreading facilities
and appurtenances are defined as including, but not limited to: pipes, head walls, energy
dissipaters, splash pads, rip -rap slope protection, outlet structure with side walls, end and/or cut-
off -walls, flap gates and debris grates. As of the date of this Agreement, the parties do not
envision that WVWD's activities will conflict with DISTRICT's flood control activities.
B) Notify WVWD, in accordance with Section IV, when it is necessary to suspend or terminate
WVWD's use of BASIN 2 for the spreading of WATER.
C) Maintain records of labor, equipment, and materials expended by DISTRICT on behalf of WVWD
for activities associated with the spreading of WATER pursuant to this Agreement, and make such
records available to WVWD (or copies thereof) upon request.
Page 2 of 15
D) Provide WVWD with names and phone numbers of DISTRICT emergency contact personnel to be
included in Exhibit C titled "EMERGENCY CONTACT PERSONNEL" attached hereto. DISTRICT
shall provide a revised list of emergency contact personnel within thirty (30) days of any such
revision to DISTRICT emergency contact personnel.
II. WVWD SHALL:
A) Procure and maintain all necessary and applicable permits and approvals from other property
owners, if any, necessary for the delivery facilities for the proposed WATER spreading operation in
BASIN 2 at no cost whatsoever to DISTRICT. WVWD is to be solely responsible for all costs
associated with its WATER spreading activities pursuant to this Agreement.
B) Arrange, deliver and discharge WATER to BASIN 2 in an amount not to exceed four hundred (400)
acre feet of WATER during the period covering May 24, 2016 thru December 31, 2016. DISTRICT
understands that the foregoing amount of WATER is an approximation and that the actual amount
of WATER spread may be more or less than the aforementioned amount.
C) Arrange and deliver discharges for the period covering January 1, 2017 thru December 31, 2020,
for an annual amount not to exceed one hundred twenty eight (128) acre feet of WATER into
BASIN 2. DISTRICT understands that the foregoing amount of WATER is an approximation and
that the actual amount of WATER spread may be more or less than the aforementioned amount.
D) Subject to the volume limitations in paragraphs (B) and (C), above, the monthly discharges into
BASIN 2 shall not exceed a flow rate of one thousand eight hundred (1,800) gallons per minute or
approximately 4 cubic feet per second within a 24 hour period from May 24, 2016 thru December
31, 2020. DISTRICT understands that the foregoing flow rate is an approximation and that the
actual flow rate may be more or less than the aforementioned amount.
E) Ensure that all WATER discharged into BASIN 2 meets any and all applicable federal and state
water quality standards, including, but not limited to, the Porter -Cologne Water Quality Control Act
(Cal. Water Code section 13000 et seq.) and any and all permits, plans, policies, waste discharge
requirements, National Pollution Discharge Elimination System permits under the federal Clean
Water Act (33 U.S.C. section 1251 et seq.; Cal. Water Code sections 13263 and 13377) developed
and implemented by the State Water Resources Control Board, the applicable regional water
quality control boards, and California Department of Public Health. Copies of such permits and
approvals shall be provided to the DISTRICT.
Page 3 of 15
F) Maintain all necessary operations, control, and surveillance of WVWD's WATER spreading
facilities. WVWD is responsible for all maintenance activities related to WVWD's WATER
spreading activities, including, but not limited to, controlling any and all vectors and vegetation that
may occur either directly or indirectly due to WVWD's WATER spreading operation in BASIN 2,
including any impacts to the Rialto Channel downstream.
G) Regularly patrol and maintain surveillance of all areas directly affected by the spreading of WATER
to deter trespass. Records of surveillance shall be kept by WVWD and made available to
DISTRICT upon request.
H) Maintain a detailed weekly record of the amount of WATER discharged into BASIN 2. The detailed
weekly report prepared by the WVWD shall be submitted to the DISTRICT on a monthly basis.
The DISTRICT may revise the frequency of reporting by providing written notice to WVWD.
I) Obtain all legally required applicable permits, authorization, or approvals as may be necessary or
required by any local, state, or federal agencies for WVWD's handling, spreading, or conserving
WATER in BASIN 2 at no cost to DISTRICT.
J) Be responsible for all regulatory costs associated with WVWD's obligations under Paragraph I of
this Section, as well as all other costs associated with the handling, spreading or conserving of
WATER in BASIN 2. Such costs may include, but are not limited to, regulatory permitting costs,
compliance and enforcement costs, as well as regulatory costs and/or increased operation and
maintenance costs incurred by DISTRICT.
K) Cause repairs to be made as soon as possible to restore to prior condition any DISTRICT facilities,
utilities, roads, and/or other improvements damaged by, or as a result of, WVWD's activities under
this Agreement, wear and tear included. DISTRICT's facilities include, but are not limited to, Cactus
Basins 1 and 2 and Rialto Channel, downstream to its confluence with the Santa Ana River.
L) Effect such well water level measurements and take water quality samples in BASIN 2 and at other
sites designated by the parties in the course of normal operations. Copies of all such well water
level measurements and water quality sample results shall be provided to the DISTRICT upon
written request.
M) Reimburse DISTRICT for all expenses incurred for work performed, at WVWD's request, within
thirty (30) days of receipt of an invoice therefor, in accordance with all of the provisions under
Section J above, and Exhibit D and for all other expenses incurred by the DISTRICT that are
Page 4 of 15
directly or indirectly associated with the spreading of WATER by WVWD in BASIN 2. DISTRICT
shall be reimbursed for DISTRICT's actual costs, plus overhead.
N) Immediately suspend WATER spreading operations at the request of DISTRICT in accordance
with Sections I and IV of this Agreement and allow DISTRICT to operate BASIN 2 as specified
therein.
O) Maintain measurements and records of flows into BASIN 2 including depth of ponded water.
Copies of all such measurements and records of flows shall be provided to the DISTRICT upon
written request.
P) Provide and maintain an automated system to interrupt the WATER spreading to accommodate
emergency conditions and DISTRICT's operation and maintenance of BASIN 2.
Q) On an annual basis, pay twenty dollars ($20.00) per acre-foot of WATER to DISTRICT for the use
of Basin 2 for WATER spreading.
R) Prior to exercising any of its rights under this Agreement, WVWD shall provide in writing to
DISTRICT the names and phone numbers of WVWD emergency contact personnel to be included
in Exhibit C, titled "EMERGENCY CONTACT PERSONNEL" attached hereto. WVWD shall provide
a revised list of emergency contact personnel within thirty (30) days of any such revision of WVWD
emergency contact personnel.
S) Be responsible for the supply of WATER at the outlet of the turnout structures.
T) Submit plans for DISTRICT's review and approval where WVWD desires to construct
improvements within BASIN 2, which approval shall not be unreasonably withheld, delayed or
conditioned. With DISTRICT's written concurrence, which concurrence shall not be unreasonably
withheld, delayed or conditioned, WVWD may contract with any other public or private entity or
entities to provide said improvements. When other than DISTRICT provides improvements, WVWD
shall defend, indemnify and hold the DISTRICT and the County of San Bernardino ("County') free
and harmless from all claims, damages, losses or expenses arising out of the construction of said
improvements in accordance with Section II, U of this Agreement. Any and all procurement of
labor, equipment, materials, and services necessary to carry out construction of improvements
shall be in accordance with the normal bidding and procurement procedures and policies of
WVWD and shall comply with all applicable provisions of state law, including but not limited to, the
Labor Code.
Page 5 of 15
U) To the fullest extent permitted by law, WVWD shall indemnify, defend (at WVWD's sole cost and
expense and with legal counsel approved by DISTRICT, which approval shall not be unreasonably
withheld), protect, and hold harmless DISTRICT, County, and all of their respective authorized
representatives, designees, officers, employees, consultants, agents, volunteers, successors and
assigns, (collectively, the "Indemnified Parties"), from and against any and all claims (including,
without limitation, claims for bodily injury, death or damage to property), demands, obligations,
damages, actions, administrative actions, administrative orders, investigations, causes of action,
suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorneys' fees, disbursements and court costs, and all other professional, expert or
consultants' fees and costs and DISTRICT's general and administrative expenses) of every kind
and nature whatsoever (individually, a "Claim"; collectively, "Claims") which may arise from or in
any manner related (directly or indirectly) to any work performed or services provided under this
Agreement (including, without limitation, defects in workmanship or materials, or a release or
threatened release of any hazardous substance or hazardous waste into the environment, land
subsidence, liquefaction, seepage to low lying lands, and introduction and/or mobilization of
contamination or pollutants in groundwater) or WVWD's presence or activities conducted on the
Project (including, without limitation, the negligent and/or willful acts, errors and/or omissions of
WVWD, its principals, officers, agents, employees, vendors, suppliers, consultants,
subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose
acts they may be liable or any or all of them), regardless of any active or passive negligence or
strict liability of an Indemnified Party. As used herein, the phrases "contamination", "pollutants",
"hazardous substance" and "hazardous waste" shall coincide with the broadest definition thereof
contained in any present or future federal or state laws (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601
et seq., as amended or superseded, and the regulations promulgated thereunder; the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended and superseded,
and the regulations contained in 40 CFR Parts 260-281; the Toxic Substances Control Act (15
U.S.C. Sections 2601 et seq.) and the regulations contained in 40 CFR Parts 761-766; the
California Porter -Cologne Water Quality Control Act of 1969, Water Code Section 13000 et seq.,
including all applicable regulations; the California Health and Safety Code, Section 25117 (West
1992 & Supp. 1996); the California Public Resources Code, Section 40141 (West 1996); the
Carpenter -Presley -Tanner Hazardous Substance Account Act (California Health and Safety Code
Section 25300 et seq.), and Titles 22 and 26 of the California Code of Regulations and other
regulations promulgated thereunder; radioactive materials which are source, special nuclear or by-
product material as defined by the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.)
and the regulations contained in 10 CFR Part 40). WVWD understands and acknowledges that
Page 6 of 15
the indemnification obligation hereunder is intended to constitute a "Type 1" indemnity under
California law and extends to and includes Claims arising from the active or passive negligence of
Indemnified Parties. Notwithstanding the foregoing, nothing herein shall be construed to require
WVWD to indemnify the Indemnified Parties from any Claim arising from the gross negligence,
intentional acts or willful misconduct of the Indemnified Parties, or any of them with respect to the
operation and maintenance of DISTRICT's BASIN 2. This provision shall survive the termination of
any other agreement between the WVWD and the DISTRICT. THE FOREGOING INDEMNITY
SHALL NOT HAVE ANY DOLLAR LIMITATION. The foregoing indemnity is for the exclusive
benefit of the Indemnified Parties and in no event shall such indemnity inure to the benefit of any
third party.
The duty to defend hereunder is wholly independent of and separate from the duty to indemnify.
Such defense obligation shall arise immediately upon presentation of a Claim by any party and
written notice of such Claim being provided to WVWD. Payment to WVWD by any Indemnified
Party or the payment or advance of defense costs by any Indemnified Party shall not be a
condition precedent to enforcing such Indemnified Party's rights to indemnification hereunder.
WVWD's indemnification obligation and duty to defend hereunder shall survive the expiration or
earlier termination of this Agreement until such time as action against the Indemnified Parties for
such matter indemnified hereunder is fully and finally barred by the applicable statute of limitations
or statute of repose. WVWD's liability for indemnification hereunder is in addition to any liability
WVWD may have to DISTRICT for a breach by WVWD of any of the provisions of this Agreement.
Under no circumstances shall the insurance requirements and limits set forth in this Agreement be
construed to limit WVWD's indemnification obligation or other liability hereunder. The terms of this
Agreement are contractual and the result of negotiation between the parties hereto. Accordingly,
any rule of construction of contracts (including, without limitation, California Civil Code Section
1654) that ambiguities are to be construed against the drafting party shall not be employed in the
interpretation of this Agreement.
III. INSURANCE
A) Without in anyway affecting the indemnity herein provided and in addition thereto, the WVWD shall
secure and maintain throughout the Agreement the following types of insurance with limits as
shown:
1) Commercial/General Liability — WVWD shall carry General Liability Insurance covering all
operations performed by or on behalf of WVWD providing coverage for bodily injury and
property damage with a combined single limit of five million dollars ($5,000,000), per
occurrence. The policy coverage shall include:
A) Premises operations and mobile equipment.
Page 7 of 15
B) Products and completed operations.
C) Broad form property damage (including completed operations).
D) Explosion, collapse and underground hazards.
E) Personal injury.
F) Contractual liability.
G) Pollution liability.
2) Workers' Compensation - A program of Worker's Compensation insurance or a state -
approved Self -Insurance Program in an amount and form to meet all applicable
requirements of the Labor Code of the State of California, including Employer's Liability with
one million dollars ($1,000,000) limits, covering all persons providing services on behalf of
the WVWD and all risks to such persons under this Agreement.
3) Automobile Liability Insurance - This coverage shall be written on ISO Business Auto
coverage form for all owned, hired and non -owned vehicles or symbol 1 (any auto). The
policy shall have combined single limits for bodily injury and property damage of not less
than one million dollars ($1,000,000) for bodily injury and property damage, per occurrence.
4) Environmental Impairment Liability — Provide liability insurance for environmental
impairment including cleanup costs, and endorsed for "Sudden and Accidental"
contamination or pollution. Such coverage shall be in an amount and form to meet all
applicable state and federal requirements but in no event less than five million dollars
($5,000,000) per occurrence, or fifteen million dollars ($15,000,000) aggregate limit.
B) Additional Named Insured - All policies, except for the Workers' Compensation, Errors and
Omissions and Professional Liability policies, shall contain additional endorsements naming the
DISTRICT and the County and each of their respective officers, employees, agents and volunteers
as additional named insured with respect to liabilities arising out of the performance of this
Agreement. Such additional insured coverage shall be at least as broad as Additional Insured
Endorsement Form ISO, CG 2010.11 85 (Form B). The additional insured endorsements shall not
limit the scope of coverage for the DISTRICT or the County to vicarious liability but shall allow
coverage for the DISTRICT and the County to the full extent provided by the policy.
C) Waiver of Subrogation Rights - WVWD shall require the carriers of the above required coverage's
to waive all rights of subrogation against the DISTRICT, the County, and each of their respective
officers, employees, agents, volunteers, contractors and subcontractors. All general or auto
liability insurance coverage provided SHALL NOT prohibit WVWD and WVWD's employees or
agents from waiving the right to subrogation prior to a loss or claim. WVWD hereby waives all
rights or subrogation against DISTRICT and County.
Page 8 of 15
D) Policies Primary and Non -Contributory - All policies required above are to be primary and non-
contributory with any insurance of self-insurance programs carried or administered by the
DISTRICT and/or the County.
E) Severability of Interests — WVWD agrees to ensure that coverage provided to meet these
requirements is applicable separately to each insured and there will be no cross liability exclusions
that preclude coverage for suits between WVWD and the DISTRICT or between WVWD and the
County or between the DISTRICT or the County and any other insured or additional insured under
the policy.
F) Proof of Coverage - WVWD shall immediately and prior to exercising any of its rights under this
Agreement, furnish certificates of insurance to the DISTRICT evidencing the insurance coverage,
including endorsements, required herein, which certificates shall provide that such insurance shall
not be terminated or expire without thirty (30) days prior written notice to the DISTRICT, and
WVWD shall maintain such insurance from the time WVWD commences performance of this
Agreement until the expiration of any applicable statute of limitations for filing a claim or lawsuit by
a third party arising from WVWD's activities pursuant to this Agreement. Within sixty (60) days of
the commencement of this Agreement, the WVWD shall furnish certified copies of the policies and
all endorsements.
G) Acceptability of Insurance Carrier — Unless otherwise approved in writing by the County's Risk
Manager, insurance shall be written by insurers authorized to do business in the State of California
and with a minimum "Best" Insurance Guide rating of "A-VII".
H) Deductibles and Self -Insured Retentions — Any and all deductibles or self -insured retentions in
excess of $10,000 shall be declared to and approved in writing by the County's Risk Manager.
1) Subcontractor Insurance Reguirements — WVWD agrees to require all parties or subcontractors,
including architects or others it hires or contracts with related to the performance of this Agreement
to provide insurance covering the contracted operations with the same coverage and subject to the
same insurance specifications set forth herein (including waiver of subrogation rights), and naming
the DISTRICT and County as an additional insured. WVWD agrees to monitor and review all such
coverage and assumes all responsibility for ensuring that such coverage is provided as required by
this Section.
J) Insurance Review - The above insurance requirements are subject to periodic review by the
DISTRICT and the County. The County's Risk Manager is authorized, but not required, to reduce
or waive any of the above insurance requirements whenever the Risk Manager determines that
any of the above insurance is not available, is unreasonably priced, or is not needed to protect the
Page 9 of 15
interests of the DISTRICT and the County. In addition, if the Risk Manager determines that
heretofore unreasonably priced or unavailable types of insurance coverage or coverage limits
become reasonably priced or available, the Risk Manager is authorized, but not required, to
change the above insurance requirements, to require additional types of insurance coverage or
higher coverage limits, provided that any such change is reasonable in light of past claims against
the DISTRICT and the County, inflation, or any other item reasonably related to the DISTRICT and
the County's risk. Any such reduction or waiver for the entire term of this Agreement and any
change requiring additional types of insurance coverage or higher coverage limits must be made
by amendment to this Agreement. WVWD agrees to execute any such amendment within thirty
(30) days of receipt.
IV. IT IS FURTHER UNDERSTOOD AND AGREED:
A) 1) WVWD's use of DISTRICT's BASIN 2 for WATER spreading activities shall at all times be
subordinate to the basic flood control and water conservation purposes of BASIN 2. If
DISTRICT determines, in its sole discretion at any time, that WVWD's use of BASIN 2
pursuant to this Agreement conflicts with these purposes, DISTRICT expressly reserves the
right hereunder to suspend WVWD's WATER spreading activities, effective immediately
upon DISTRICT providing said notice of suspension to WVWD. Upon WVWD's receipt of
such notice, WVWD shall immediately stop the discharge of any further WATER into BASIN
2 and take any further action as required in the DISTRICT's sole discretion. DISTRICT also
expressly reserves the right to terminate this Agreement should the DISTRICT determine in
its sole discretion that WVWD's WATER spreading activities conflict with BASIN 2's flood
control and water conservation functions. WVWD agrees to permanently terminate any
WATER spreading activities thirty (30) days after the date of written notification provided by
DISTRICT to WVWD, unless DISTRICT determines, in its sole discretion, that WVWD has
cured any such conflict prior to the expiration of the thirty (30) day period. If WVWD's use
of BASIN 2 is terminated pursuant to this provision, WVWD shall, as soon as reasonably
practicable, remove any physical WATER spreading or related facilities from the area in
question at its sole cost and expense. BASIN 2 shall be left in a reasonably neat and
graded manner. WVWD agrees to provide any work, at its sole cost and expense,
necessary to restore BASIN 2 to a condition acceptable to DISTRICT.
2) Should WVWD default in making timely payment of the fee provided herein at Section II Q
above, DISTRICT reserves its right to provide WVWD written notice of such default.
WVWD shall have ten (10) days after receipt of such written notice to cure the default prior
to DISTRICT exercising its right to terminate this Agreement.
Page 10 of 15
3) If WVWD should fail to perform, keep, or observe any of the other terms, conditions, or
covenants as set forth in this Agreement, DISTRICT reserves its right to give WVWD
written notice to correct such condition or cure such default. DISTRICT reserves the right
to terminate this Agreement should it determine in its sole discretion that WVWD has failed
to cure any such default thirty (30) days after providing WVWD with such written notice.
Such election to terminate shall not be construed as a waiver of any claim the DISTRICT
may have against WVWD. If, however, the DISTRICT determines in its sole discretion that
WVWD's activities pursuant this agreement constitutes a hazard, threat to public safety, or
emergency, WVWD shall perform its obligations to correct such problems immediately. If
WVWD fails to perform its obligations immediately, DISTRICT may perform the obligations
and be reimbursed by WVWD for all costs expended to remedy said situation, including but
not limited to charges for DISTRICT's equipment and personnel.
4) Upon any termination of this Agreement, WVWD covenants and agrees to surrender and to
forfeit this Agreement, and restore BASIN 2 to the condition specified in Section IV A 1
above immediately upon any such termination. If WVWD shall remain in possession of
said premises after any termination of this Agreement, WVWD shall be deemed guilty of an
unlawful detention of BASIN 2 and shall be subject to eviction and removal, forcibly or
otherwise, at any time thereafter, with or without process of law. In the event of the failure
of WVWD to remove personal property, machinery or fixtures, if any, belonging to it from
BASIN 2 within thirty (30) days after termination of this Agreement, DISTRICT may remove
such personal property and place the same in storage at the expense of WVWD and
without liability to DISTRICT for loss thereof. WVWD agrees to pay DISTRICT on demand
all expenses incurred in such removal, including court costs and attorney's fees and
storage charges and/or without notice sell all or any part of said personal property at public
or private sale for such prices as DISTRICT may obtain, and apply the proceeds of such
sale upon any amounts due under this Agreement from WVWD and to any expense
incidental to the removal and sale of said personal property, with the surplus, if any, being
refunded to WVWD.
5) The receipt by the DISTRICT of any fees or of any other sum of money paid by WVWD
after any default, the termination and forfeiture of this Agreement for any reason, or after
the giving by DISTRICT of any notice to effect such termination, shall not waive the default,
reinstate, continue or extend the term of this Agreement, or destroy, or in any manner
impair the efficacy of any such notice of termination as may have been given hereunder by
DISTRICT to WVWD prior to the receipt of any such sum of money or other consideration,
Pagel 1 of 15
unless so agreed to be in writing and signed by DISTRICT. Any act of the DISTRICT or its
agents or employees during the term of this Agreement shall not be deemed to be an
acceptance or a surrender of said BASIN 2, excepting an agreement in writing signed by
the DISTRICT agreeing to accept such surrender.
B) DISTRICT, at its sole discretion, may perform any maintenance work requested by WVWD
resulting from WVWD's WATER spreading activities in BASIN 2, provided such maintenance work
is to be performed on property either owned in fee by DISTRICT or subject to DISTRICT's
easement interest and in accordance with all state and federal permits acquired by WVWD per
Section [IA. WVWD shall be responsible for reimbursing DISTRICT for all expenses incurred in the
performance of said maintenance work.
C) The schedule of DISTRICT costs and WVWD payments is attached as Exhibit D to this Agreement
and is expressly incorporated herein by reference.
D) Unless terminated earlier as provided herein, this Agreement shall terminate sixty (60) months from
the Agreement's Effective Date, as defined below.
E) That this Agreement can be terminated on ninety (90) days written notice by either party without
cause.
F) Except as otherwise may be provided for under this Agreement, all WATER conveyance, discharge
and spreading facilities constructed under this Agreement by WVWD shall be removed from BASIN
2 and/or property owned in fee or easement by DISTRICT at WVWD's costs within thirty (30) days
after the termination of this Agreement.
G) That this Agreement can be modified and/or extended at any time upon written approval by the
governing body of both parties hereto.
V. MISCELLANEOUS
A) Entire Agreement — This Agreement contains the entire understanding between the parties relating
to the rights created herein. All prior or contemporaneous agreements, understandings,
representations, statements, oral or written, are merged into this Agreement and shall be of no
further force or effect. Only a writing signed by the parties may amend this Agreement. The
Effective Date of this Agreement shall be deemed the later of the dates it is approved and signed
by authorized representatives of both DISTRICT and WVWD.
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B) Headings — The Article and Section Headings and Section Indexes contained in this Agreement
are for reference purposes only and are not intended to govern, limit or aid the interpretation of this
Agreement and shall not in any way affect the meaning of this Agreement.
C) Interpretation — Whenever the context so requires, the singular and the plural shall each be
deemed to include the other, and each of the masculine, the feminine and the neuter shall be
deemed to include the others.
D) Notices — Any notice, consent, approval or other communication required or permitted relative to
this Agreement shall be in writing and may be personally served, in one of the following manners:
delivered by over -night courier or deposited in the United States mail, first-class, certified or
registered, postage prepaid, return receipt requested, addressed to such party, or electronic
transmission as available, at its address shown below. Either party may change its address for the
purposes of this Section by giving written notice of such change to the other party in the manner
provided in this Section.
E)
F)
G)
DISTRICT: WVWD:
San Bernardino County
West Valley Water District
Flood Control District
855 West Baseline Road
825 East Third Street
P O Box 920
San Bernardino, CA 92415-0835
Rialto, CA 92377-0920
Any such notice, consent, approval or other communication shall be deemed received, in the case
of a facsimile, on the date of sending if transmitted prior to 5:00 P.M. PST or PDT, whichever is
applicable on the date of transmission; in the case of overnight mail, the next business day
following the date of mailing; and, in the case of regular mail, three (3) business days after the date
of deposit into the United States mail.
Governing Law — This Agreement shall be construed under and governed by the laws of the State
of California without reference to conflicts of law.
Waiver — No waiver by either party of any provision of this Agreement shall be deemed a waiver of
any other provision of this Agreement or of any subsequent breach by the other party of the same
provision.
Time of Essence — Time is of the essence of this Agreement and of each and every provision of
the same.
Page 13 of 15
H) Reference to Days — Each reference in this Agreement to days shall be deemed a reference to
calendar days.
I) Other Documents — Each party agrees to sign any other and further documents and instruments as
may be reasonably necessary in order to accomplish the intent of this Agreement.
J) Venue — Any action arising under, growing out of, or in any way related to this Agreement, shall be
brought only in the Superior Court of the State of California, San Bernardino County, Central
District, and each party hereto expressly waives its rights (whether arising by statute or otherwise)
to cause any such action or proceeding to be brought elsewhere.
K) Counterparts — This Agreement may be executed in multiple counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the same Agreement.
L) Severability — If any one or more of the provisions of this Agreement shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained in this Agreement.
Page 14 of 15
M) Attorney Fees and Costs — If any legal action is instituted to enforce or declare any party's rights
hereunder, each party, regardless of which party is the prevailing party, must bear its own costs
and reasonable attorneys' fees. This paragraph shall not apply to those costs and attorneys' fees
directly arising from any third party legal action against a party hereto and payable under Section
ll, U relating to indemnification.
THIS AGREEMENT shall inure to the benefit of and be binding upon the successors and assigns of both parties.
SAN BERNARDINO CO FLOOD CONTROL DISTRICT
110. X�?17 ---
James Ramos, hair, Board of Supervisors
Dated: MAY 2 4 2016
SIGNED AND CERTIFIED THAT A COPY OF THIS
DOCUMENT HAS BEEN DELIVERED TO THE
CHAIRMAN OF THE BOARD
Laura H. Welch, Clerk of the Board
Deputy
Approve as to Legal Form Rev,
Counsel
Date /2Ilk Date
WEST VALLEY WATER DISTRICT
(Print or typ name of cor oration, compan r contractor, etc.)
By �
(Authorized si v ture - sign in blue i 1
Name Thomas J. Crowley P.E.
(Print or type name of person signing contract)
Title General Manager
(Print or Type)
Dated:
Address 855 West Baseline Road P. O Box 920
Ci Z�
IZU/6
Rialto CA 92377-0920
Date
Page 15 of 15