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HomeMy WebLinkAboutWSA-12-1006_WestValleyWDREPORT/RECOMMENDATION TO THE BOARD OF SUPERVISORS OF THE SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT AND RECORD OF ACTION December 18, 2012 FROM: GERRY NEWCOMBE, Director Flood Control District AGREEMENT WITH WEST VALLEY WATER DISTRICT TO TEMPORARILY SPREAD TREATED WATER IN CACTUS BASIN NO. 2 Acting as the governing body of the San Bernardino County Flood Contra[ District (District), approve Agreement No.12-1006 between the District and West Valley Water District (WVWD) to allow WVWD to temporarily spread Treated Water (water) in the District's Cactus Basin No. 2 (Basin 2), (Presenter., Gerry Newcombe, Director, 387-7906) rsue County Goals and Objectives by Working with Other Governmental Agencies. Approval of this item will not result in any Discretionary General Funding (Net County Cost). In accordance with this Agreement, the District will receive a one time payment of $25,000 for the use of District's Basin 2. 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 temporary spreading of water in Basin 2. BACKGROUND INFORMATION Approval of this item will allow WVWD to utilize District's Cactus Basin 2, located in the City of Rialto, for temporary spreading of water. As part of its Groundwater Wellhead Treatment System Project, the WVWD constructed a Water Treatment Facility to pump out and treat groundwater for nitrate, perchlorate contaminants and Volatile Organic Compounds (VOC) from two drinking water wells, located in the City of Rialto, California. WVWD desires to discharge approximately 1,193 acre-feet of water over a period of 208 days in District's Basin 2, after which, the discharge into Basin 2 will cease. WVWD obtained an encroachment permit, P-22011022, from the District and constructed a discharge pipe into Basin 2. Special Provision No, 2 of Permit No. P-22011022 requires that prior to the discharge pipe becoming operational, WVWD and District shall enter into a Water Spreading Agreement. In accordance with their respective acts and powers and in compliance with Special Provision No. 2 of the permit P-22011022, District and WVWD desire to cooperate in a program to temporarily cc: PW/Flood Control -Eke w/agreement & Newcombe Contractor c/o Flood Control w/agreement Auditor-Controlleriireasurerf Tax Collector -Accounts Payable Manager wlagreement EBIX-SPO clo Risk Management CAO-Valdez File - w/agreement ml 02/05/13 ITEM 98 MOTION LAURA H. Record Page 1 of 2 7"�oard of Supervisors � CALENDAR) ARD1N0 Dlstriet SECOND AYE •� 4 6 Rev }1 -12 1 1 DATED: December 18, 2012 AGREEMENT WITH WEST VALLEY WATER DISTRICT TO TEMPORARILY SPREAD TREATED WATER IN CACTUS BASIN NO.2 DECEMBER 18, 2012 PAGE 2 OF 2 spread water in Basin 2 to accommodate WVWD's testing and certification of its Water Treatment Facility. This Water Spreading Agreement specifies maintenance responsibilities and requires WVWD to indemnify the District, as well as secure and maintain insurance for the protection of the District, Water conservation is part of the District's mission, therefore, the District will benefit from the activity of this agreement as it augments the District's mission. 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 implemented of the mitigation measures. The treated water will be temporarily discharged into Basin 2, located near the western edge of the groundwater plumes associated with the B.F. Goodrich 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 temporary water spreading activity by WVWD in Basin .2 will not adversely affect the movement of contaminated groundwater. REVIEW BY OTHERS This item has been reviewed by County Counsel (Scott M. Runyan, Deputy County Counsel, 387- 5455) on December 5, 2012 and the County Administrative Office (Beatdz Valdez, Public Works Chief Financial Officer, 387-1852) on December G, 2012. 12/18/12 #98 FOR COUNTY USE ONLY New FAS Vendor Code Dept Contract Number q0Change r V % f 9— 1VV4 Cancel / ePro Vendor Number ePro Contract Number County Department Dept. Oren. Contractor's Lhxnse No. Public Works - Flood Control 007 097 San Bernardlno County FLOOD CONTROL DISTRICT If FAS STANDARD CONTRACT Kenneth C. Eke (909M--7995 $25,000 Fund I Dept I organization I Appr. I ObyRev Source GRC/PROJ/JOB No Amount RFF 092 092 . 8842 AP22011022 1 $25.000 WEST VALLEY WATER DISTRICT FY Amount VD FY Amount IID WATER SPREADING 12113 AGREEMENT THIS CONTRACT ("Agreement„) is entered into in the State of Califomia by and between the San Bemardino County Flood Control District, hereinafter called the District, and Name WEST VALLEY WATER DISTRICT heralneftercelled: WVWD Address 855 WEST BASELINE ROAD RIALTO CA 92377 Telephone Federal ID No. or social security No. IT IS HEREBY AGREED AS FOLLOWS: 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, the DISTRICT issued an encroachment permit P-22011022, a copy of which is attached Hereto as Exhibit A and incorporated herein by this reference, to the WVWD to construct, operate, and maintain a 24-inch reinforced concrete pipe into DISTRICT'S Cactus Basin No. 2 (BASIN 2) to temporarily spread Treated Water (WATER); and dltor/ Controller — Recorder Use On& Page 1 of 14 O Contract Database O FAB Input Deb I Keyed By 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 WHEREAS, a Technical Memorandum, dated October 30, 2012, prepared by WVWD and incorporated herein by reference, provides technical data, including quantity and duration of water spreading 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 issued a letter dated November 13, 2012, copies of each letter 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 temporary water spreading activity in BASIN 2 will not adversely affect the movement of contaminated groundwater; and WHEREAS, WVWD has satisfied the requirements of the California Environmental Quality Act; and WHEREAS, such temporary spreading of WATER will be of benefit to the DISTRICT in as much as DISTRICT is empowered to effect Water Conservation for the benefit of the citizens of San Bernardino County; and WHEREAS, DISTRICT and WVWD, in accordance with their respective acts and powers, desire to cooperate in a program to temporarily 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 in so far as this use does not conflict with DISTRICT's activities within BASIN 2 and DISTRICT's rights as a property owner. Discharge and Spreading facilities and appurtenances are defined as. 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) Perform in accordance with the applicable state and federal permits acquired by WVWD grading work, at WVWD's request and at WVWD's sole cost and expense, within DISTRICT right-of-way, according to the plans and specifications prepared by WVWD and approved by DISTRICT (which approval shall not be unreasonably withheld, conditioned or delayed), required to maintain the spreading operation in BASIN 2 and perform the spreading of WATER consistent with a schedule Page 2 of 14 to be submitted by WVWD and approved (which approval shall not be unreasonably withheld, conditioned or delayed) in advance and in writing by the Director of the DISTRICT. C) Perform in accordance with the applicable state and federal permits acquired by WVWD operation and maintenance work, at WVWD's request and at WVWD's sole cost and expense. within DISTRICT right-of-way for BASIN 2 necessary for the spreading of WATER. D) Notify WVWD, in accordance with Section IV., when it is necessary to suspend or terminate use of BASIN 2 for the temporary spreading of WATER by WVWD. E) Maintain records of labor, equipment and materials expended by DISTRICT on behalf of the 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. F) 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. li. WVWD SHALL: A) Seek and obtain all necessary and applicable permits and approvals from other property owners, if any, necessary for the development of the delivery facilities for the proposed temporary water spreading operation in BASIN 2 at no cost whatsoever to DISTRICT. WVWD to be solely responsible for all costs. B) Arrange, deliver and temporarily spread a not -to -exceed amount of one thousand one hundred ninety-three (1193) Acre -Feet of WATER into BASIN 2 that meets all applicable water quality standards. DISTRICT understands that the foregoing amount of water is an approximation. The actual amount of water spread may be less than the aforementioned amount. C) Maintain all necessary operations, control, and surveillance of WVWD's water spreading facilities. WVWD is responsible for controlling any and all vectors that may occur due directly or indirectly to WVWD's water spreading operation in BASIN 2. D) Regularly patrol and maintain surveillance of all areas directly affected by the temporary spreading of WATER to deter trespass. Records of surveillance shall be kept by the WVWD and made available to DISTRICT upon request. Page 3 of 14 E) 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 weekly basis. F) obtain as required by law in advance, all necessary and applicable permits, authorization, or approvals as may be necessary or required by Local, State, or federal, Health or Water Quality Control regulating agencies for WVWD's handling, spreading or conserving WATER in BASIN 2 at no cost to the DISTRICT. G) WVWD shall be responsible for all regulatory costs associated with WVWD's obligations under Paragraph F of this Section, as well as all other costs associated with the handling, spreading or conserving 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. H) Cause repairs to be made as soon as possible to restore to prior condition, DISTRICT's facilities, utilities, roads, and/or other improvements damaged by, or as a result of WVWD's activities ender this Agreement, wear and tear included. DISTRICT's facilities included under this provision are Cactus Basins 1 and 2 and Rialto Channel, downstream to its confluence with Santa Ana River. 1) 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 samples results shall be provided to the DISTRICT upon written request, J) 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 I above, Section IV, B, Schedule " % and for all other expenses incurred by the DISTRICT that are directly or indirectly associated with the temporary spreading of WATER by WVWD in BASIN 2. DISTRICT shall be reimbursed for DISTRICT's actual costs, plus overhead at a billing factor of 2.38. K) Immediately suspend water spreading operations at the request of the DISTRICT in accordance with Sections I. and IV. of this ,agreement and allow DISTRICT to operate BASIN 2 as specified. L) Maintain measurements and records of flows into BASIN 2 including depth of ponded water. Copies of all such measurements and reoords of flows shall be provided to the DISTRICT upon written request, Page 4 of 14 M) Provide and maintain an automated system to interrupt the water spreading to accommodate emergency conditions and the DISTRICT's operation and maintenance of BASIN 2, N) On or before the execution of this Agreement, make a onetime payment of Twenty -Five Thousand Dollars ($25,000.00) to the DISTRICT for the use of DISTRICT's BASIN 2 for temporary water spreading. O) 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 "D", 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 Personnel. P) Be responsible for the supply of WATER at the outlet of the turnout structures. Q) Submit plans for DISTRICT's review and approval where WVWD desires to provide 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, R of this Agreement. Any and all procurement of labor, equipment, materials and services necessary to cant' out construction of improvements shall be in accordance with the normal bidding and procurement procedures and policies of WVWD. R) 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, 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 Page 5 of 14 relate (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 water quality 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 passive negligence of an indemnified party. As used herein, the phrases "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.A. Section 9601 et seq., as amended or superseded, and the regulations promulgated thereunder; the Resource Conservation and Recovery Act, 42 U.S.C.A. 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 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 the indemnification obligation hereunder extends to and includes. Claims arising from the 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 active negligence, intentional acts or willful misconduct of the Indemnified Parties, or any of them. 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. Page 6 of 14 WVWD's indemnification obligation and duty to defend hereunder shelf 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. Ill. INSURANCE A) Without in anyway affecting the indemnity herein provided and in addition thereto, the WVWD shall secure and maintain throughout the contract 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 ($6,000,000), per oocurrence. The policy coverage shall Include: A) Premises operations and mobile equipment. 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,D00) 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 ISC 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' Page 7 of 14 oontamination 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, shell 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 (Form B) endorsement form ISO, CG 2010.11 85. 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 1NVWD'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. 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 Page 8 of 14 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 WWI,". 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 Requirements, — 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 some 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 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) Use of the DISTRICT's BASIN 2 for WATER spreading activities shall be subordinate to the basic flood control and water conservation purposes of BASIN 2 as determined by the DISTRICT Flood Control Engineer in his/her sole discretion and shall in no way conflict with Page 9 of 14 these purposes. The DISTRICT's Flood Control Engineer reserves the right to immediately suspend WVWD's WATER spreading activities in the event the DISTRICT's Flood Control Engineer determines, in his sole discretion, that there is a conflict_ The DISTRICT shall provide WVWD notice of suspension. Upon receipt of such notice by WVWD, WVWD shall immediately stop the discharge of any further WVWD WATER into BASIN 2 and take any further action as required by DISTRICT. The DISTRICTS Flood Control Engineer also reserves the right to terminate from this Agreement any WVWD WATER spreading activity should there develop a substantial incompatibility between the temporary WATER spreading uses, flood control and water conservation uses arising from any cause whatsoever, on the notice set forth below. Said use shall be terminated sixty (60) days after the date of a thirty (30) day written notification given by the DISTRICT Flood Control Engineer or designee to the WVWD to "cure" the conflict if the conflict has not been "cured." If any use is terminated pursuant to the provision of this Paragraph A, WVWD shall 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. 2) If there should be any default in payment by WVWD of the fee provided herein, DISTRICT may give WVWD written notice of such default. This Agreement will not be terminated if within ten (10) days after receipt of such written notice the WVWD shall cure the default or breach. If WVWD should fail to perform, keep or observe any of the terms, conditions or covenants as set forth in this Agreement, other than payment of fees as provided hereinabove, DISTRICT may give WVWD written notice to correct such condition or cure such default. This Agreement will not be terminated if within thirty (30) days after receipt of such written notice, WVWD shall cure the condition or default. If such condition or default should continue for thirty (30) days after receipt of written notice of default, DISTRICT may at its option elect to terminate this Agreement Such election to terminate shall not be construed as a waiver of any claim the DISTRICT may have against WVWD, consistent With such termination. If, however, WVWD shall have commenced the elimination of such default within thirty (30) days after receipt of such notice and shall continuously and diligently proceed in good faith to eliminate such default, then the period for correction shall be extended for such length of time as is reasonably necessary to complete such correction. If, however, in the sole discretion of DISTRICT'S Flood Control Engineer, the problem represents a hazard or emergency, WVWD shall perform its obligations immediately. If WVWD fails to perform its obligations immediately, DISTRICT may perform the obligations and have the right to be reimbursed for the sum it actually expends (including charges for DISTRICTs equipment and personnel) in the performance of WVWD's obligations. Page 10 of 14 3) Upon any termination of this Agreement, WVWD covenants and agrees to surrender and to forfeit this Agreement, and deliver up BASIN 2 peaceably to the DISTRICT immediately upon any such termination. If said WVWD shall remain in possession of said premises after any termination of this Agreement, said 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 pries 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. 4) 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 the WVWD prior to the receipt of any such sum of money or other consideration, 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) That, subject to the provisions of this Agreement related to passing costs on the WVWD, the actual costs and billings by the District and payments by the WVWD shall be according to the following Schedule 'T" SCHEDULE °I" 1) Direct labor costs and labor -related costs to DISTRICT due to the temporary spreading of WATER. Page 11 of 14 2) Labor cost is determined by step 11 of the salary listed in the Consolidated Memorandum of Understanding (MOU) between the County and the San Bernardino public Employees Association (SBPEA). 3) Actual cost (if any) to DISTRICT for materials incorporated or used in the work to temporarily spread WATER. 4) Actual cost (if any) to DISTRICT for use of DISTRICT equipment, County owned equipment, and other related equipment used in additional work attributable to the temporary spreading of WATER. 5) A billing factor rate of 2.38 will be added to Item 1 above or cover general and administrative overhead costs. DISTRICT may perform additional work related to the temporary spreading of WATER operations activities upon receipt of written authorization at cost in accordance with Schedule I. B) Conditions of payment by WVWD to DISTRICT for these costs are as follows: I. DISTRICT shall provide monthly or quarterly invoices of monies due to the DISTRICT. ii. WVWD shall make payment to the DISTRICT within thirty (30) days after receipt of said invoice. C) Unless terminated earlier as provided herein, this Agreement shall terminate twelve (12) months from the Agreement's effective date. D) That this Agreement can be terminated on ninety (90) days written notice by either party without cause. E) That all water conveyance, discharge and spreading facilities constructed under this Agreement by WVWD shall be removed from DISTRICT right-of-way at WVWD's costs within thirty (30) days after the termination of this Agreement. F) 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 Page 12 of 14 B) C) D) E) F) G) H) writing signed by the parties may amend this Agreement. This Agreement shall take effect on the date it is approved and signed by authorized representatives of both DISTRICT and WVWD. Headinas — 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. Interpretation — Whenever the context so requires, 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 neater shall be deemed to include the others. 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. DISTRICT: WVWD: San Bernardino County West Valley Water District Flood Control District 855 West Baseline Road 825 East Third Street P 0 Box 820 San Bernardino, CA 92415-0835 Rlalto, 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. Reference to Days — Each reference In this Agreement to days shall be deemed a reference to calendar days. Page 13 of 14 1) 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 gray 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) Counte[parts — 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) Severabilit►i -- 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. M) Attorney Fees and Costs — If any legal action is instituted to enforce or declare any parry'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 parry legal action against a party hereto and payable under Section 11, R relating to indemnification. THIS AGREEMENT shall inure to the benefit of and be binding upon the successors and assigns of both parties. SAN BERNARDINO COUNTY FLOOD CONTROL DISTRICT Josie Gores ir,13 of u e so Dated: DEC I S SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS ERED TO THE CHAIRMAN OF l� �t 0. �n�' allNIH. Cleric of the Board By - --I v of X - 1 4 Rev pBlp5r72 a Approved Counsel Date I l WEST VALLEY WATER DISTRICT nt or type ofcorporRWh, campany, wntracW, etc.) B // �r y (Authorized sIg lure - sign to to Name Anthony W. Araiza (Print or type name ofperson &Vning contrast} Title General Manager (Print or Type) Dated: 12112/2012 Address 855 WEST BASELINE ROAD, P. O. SOX 820 RIALTO. CA 92377-0920 Revtewed�bract C�piia� n�e �q�sented to Board for Signature Date cz Date � I Z { ► Z��2 3 L 1 � Page 14 of 14