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Resolution No. 86191 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 8619 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPROVING AND AUTHORIZING THE EXECUTION OF AN AGREEMENT FOR INDEMNIFICATION BY AND BETWEEN THE CITY OF VERNON AND THE WATER REPLENISHMENT DISTRICT OF SOUTHERN CALIFORNIA WHEREAS, the Water Replenishment District of Southern California ("WRD") is a water replenishment district organized and existing pursuant to the Water Replenishment District Act, Water Code §§ 60000 et seq., as amended, and manages the groundwater in the Central and West Coast Groundwater Basins; and WHEREAS, WRD is responsible for maintaining adequate groundwater supplies, preventing seawater intrusion into the groundwater aquifers, and protecting groundwater quality against contamination; and WHEREAS, the City of Vernon is situated in the Central Groundwater Basin and purveys potable water to most industries located within its boundaries; and WHEREAS, WRD is empowered to undertake capital improvement projects and legal actions, among other activities, in order to prevent contaminants from entering the groundwater supplies; and WHEREAS, the California Department of Health Services has issued Draft Regulations regarding the replenishment of aquifers using recycled wastewater that may impact potable wells located near recharge areas; and WHEREAS, to mitigate potential problems, WRD established various investigation and treatment projects as part of its water quality and replenishment responsibilities; and 1 WHEREAS, WRD selected City of Vernon Well No. 18 located at 2 2070 51st Street ("Well No. 18") for testing; and 3 WHEREAS, Well No. 18 has water quality problems relating to 4 volatile organic compounds and perchlorate and has been off-line since 5 October of 2003; and 6 WHEREAS, WRD and the City mutually recognize that water 7 quality entering Well No. 18 from different zones across the perforated 8 intervals need to be identified and isolated to improve the overall 9 water quality produced from Well No. 18; and 10 WHEREAS, WRD entered into a Professional Well Testing 11 Services Agreement with General Pump Company to perform the testing and 12 evaluation of Well No. 18 in the following phases: Phase I -Project 13 Assessment and Data Collection; Phase II -Remove Equipment; Phase III- 14 Dynamic Test of Well; Phase IV -Re -install Pump Equipment; and Phase V 15 Final Report; and 16 WHEREAS, all costs pertaining to the performance of the test 17 and evaluation on Well No. 18 will be borne by WRD and the work product 18 produced shall be for the benefit of City in the pursuit of its 19 responsibilities as a water purveyor; and 20 WHEREAS, WRD and the City desire to enter into an Agreement 21 for Indemnification to clarify the role of each party with respect to 22 any damages that may result from the testing and evaluation of Well 23 No. 18. 24 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE 25 CITY OF VERNON AS FOLLOWS: 26 SECTION 1: The City Council of the City of Vernon hereby 27 finds and determines that the recitals contained hereinabove are true 28 and correct. 2 - 1 2 3 4 5 6' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 2: The City Council of the City of Vernon hereby approves the Agreement for Indemnification with WRD, a copy of which is attached hereto as Exhibit A and incorporated by reference. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor to execute said Agreement for, and on behalf of, the City of Vernon and the City Clerk is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby directs the City Clerk, or his designee, to transmit an executed Agreement to the following: Water Replenishment District of Southern California Attn. Helene Mendoza, Technical Support Specialist 12621 E. 166th Street Cerritos, CA 90703 SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 5th day of January, 2005. �SC�.MA��BU, Mayor ATEON TEST• BRUCE V.''MALKENHORST, City Clerk - 3 - STATE OF CALIFORNIA ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 8619, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, January 5, 2005, and thereafter was duly signed by the Mayor of the City of Vernon. �t BRUCE V. MALKENHORST, City Clerk (SEAL) EXHIBIT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AGREEMENT FOR INDEMNIFICATION THIS AGREEMENT is made, entered into and executed in duplicate originals, either copy of which may be considered and used as the original hereof for all purposes,,as of this 5th day of January, 2005, in the City of Vernon, County of Los Angeles, California BY AND BETWEEN THE CITY OF VERNON (hereinafter referred to as "City") 4305 Santa Fe Avenue Vernon, California 90058-0805 AND WATER REPLENISHMENT DISTRICT OF SOUTHERN CALIFORNIA (hereinafter referred to as "WRD") 12621 E. 166th Street Cerritos, CA 90703 RECITALS WHEREAS, WRD is a water replenishment district organized and existing pursuant to the Water Replenishment District Act, Water Code §§ 60000 et seq., as amended, and manages the groundwater in the Central and West Coast Groundwater Basins;' and WHEREAS, WRD is responsible for maintaining adequate groundwater supplies, preventing seawater intrusion into the groundwater aquifers, and protecting groundwater quality against contamination; and WHEREAS, City is situated in the Central Groundwater Basin and purveys potable water to most industries located within its boundaries; and WHEREAS, WRD is empowered to undertake capital improvement projects and legal actions, among other activities, in order to prevent contaminants from entering the groundwater supplies; and 1 WHEREAS, the California Department of Health Services has 2 issued Draft Regulations regarding the replenishment of aquifers using 3 recycled wastewater that may impact potable wells located near recharge 4 areas; and 5 WHEREAS, to mitigate potential problems, WRD established 6 various investigation and treatment projects as part of its water 7 quality and replenishment responsibilities; and 8 WHEREAS, WRD selected two production wells, City of Vernon 9 Well No. 18 located at 2070 51st Street ("Well No. 18") and South 10 Montebello Well No. 5, for testing; and 11 WHEREAS, Well No. 18 has water quality problems relating to 12 volatile organic compounds and perchlorate and has been off-line since 13 October of 2003; and 14 WHEREAS, WRD and the City mutually.recognize that water 15 quality entering Well No. 18 from different zones across the perforated 16 intervals need to be identified and isolated to improve the overall 17 water quality produced from Well No. 18; and 18 WHEREAS, WRD requested proposals from qualified 19 contractor/consulting firms to (a) perform testing consisting of 20 spinner logging, zone sampling and appropriate mass balance analysis to 21 identify the flow rates and water quality entering the well from 22 different zones across the perforated intervals; and (b) prepare a 23 report of test results to identify the potential of sealing off poor 24 quality zone(s) to improve the overall water quality pumped from Well 25 No. 18, and the affect of any changes upon the overall yield of the 26 well; and 27 WHEREAS, WRD has reviewed the proposals submitted by the 28 qualified firms and entered into a Professional Well Testing Services 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Agreement with General Pump Company to perform the testing and evaluation of two groundwater productions wells, one of which is Well No. 18; and WHEREAS, General Pump Company will perform the testing and evaluation in the following phases: Phase I -Project Assessment and Data Collection; Phase II -Remove Equipment; Phase III -Dynamic Test of Well; Phase IV -Re -install Pump Equipment; and Phase V-Final Report; and WHEREAS, General Pump Company's estimated cost for performing the test and evaluation on Well No. 18 is the sum of Forty Thousand Seven Hundred Four Dollars and No Cents ($40,704.00), plus an amount not to exceed Nine Thousand Six Hundred Dollars and No Cents ($9,600.00) for the groundwater geological services of Richard C. Slade & Associates LLC for Well No. 18 and South Montebello Well No. 5; and WHEREAS, all costs pertaining to the performance of the test and evaluation on Well No. 18 by General Pump Company and Richard C. Slade & Associates LLC shall be borne by WRD and the work product produced by General Pump Company and Richard C. Slade & Associates LLC jshall be for the benefit of City in the pursuit of its responsibilities as a water purveyor; and WHEREAS, by the terms hereof, WRD and City intend to clarify the role of each party and the indemnification of the City for any damages that may result from WRD's performance of this Agreement and the testing and evaluation performed by General Pump Company and Richard C. Slade & Associates LLC. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS SET FORTH HEREIN: 1. INSURANCE. WRD shall require all contractors and subcontractors - 3 - 1 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 involved in the testing and evaluation of Well No. 18 to obtain, keep in force, and maintain the following policies of insurance at all times while this Agreement is in effect: 1.1 Commercial General Liability Insurance (contractual, products, and completed operations coverages included) with a combined single limit of no less than $1,000,000 and a general aggregate limit of no less than $2,000,000. 1.2 Business or Comprehensive Automobile Liability Insurance for owned, scheduled, non -owned, or hired automobiles, with a combined single limit of no less than $1 million per accident. 1.3 Professional Liability Insurance with limits of $1,000,000 per claim and $2,000,000 in the aggregate. 1.4 Employers' Liability Insurance with limits of $1,000,000 per claim and $1,000,000 in the aggregate. 1.5 Workers' Compensation Insurance as required under the Workers' Compensation Insurance and Safety Act of the State of lCalifornia. WRD and City, and their respective officers, employees, and representatives shall be named as additional insureds on each such Policy of insurance. Each such policy shall provide that the policy is not subject to cancellation except upon thirty (30) days prior written notice to both WRD and City. WRD shall require that each contractor involved in the testing and evaluation provide to both WRD and City certificates evidencing such insurance prior to commencing any work on Well No. 18. 2. PAYMENT OF COSTS. WRD shall be the contracting party for the evaluation and testing of Well No. 18 by General Pump Company and Richard C. Slade & - 4 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Associates LLC. WRD shall pay for all costs associated with the evaluation and testing of Well No. 18. 3. RIGHTS OFWRDAND CITY. 3.1 City shall provide WRD and its contractors and subcontractors reasonable access to the site of Well No. 18 in order to complete the work that commences upon the issuance of a Notice to Proceed from WRD and terminates no later than June 30, 2005. WRD and its contractors and subcontractors will take all reasonable ,precautions tominimizeany damage to the property, including underground utilities. WRD shall agree to defend and indemnify City from any claims arising from entering or working on the site which is the subject of the work. 3.2 WRD and General Pump Company have executed a Professional Well Testing Services Agreement concurrently with this Agreement for Indemnification. 3.3If, as a result of the above -described rights of WRD and those specified in the Professional Well Testing Services Agreement concerning selecting, hiring, supervising, directing and controlling the work of the contractors and subcontractors, the City sh,QTd be named as a party defendant in litigation, WRD shall undertake affirmatively to defend.the City in such action and shall indemnify and hold harmless City against any loss or risk of loss, including attorney's-fees and court costs, as a result of the right of WRD to direct and control the work of the contractors and subcontractors. This obligation by WRD to defend and indemnify the City shall not preclude apportionment of the cost of the City's defense between the City and WRD in the event that the City is found liable on other grounds in such litigation. - 5 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3.4 City shall make available to WRD all files and records of City pertaining to Well No. 18, including copies of all test data associated with the operation of Well No. 18. WRD shall cause its contractor or subcontractor, as applicable, to make available to City, on request of City, all test data associated with Well No. 18. 4. TERMINATION.OF THE AGREEMENT. 4.1 Right of Termination. This Contract may be terminated by the City, with or without cause, upon at least fifteen' (15) calendar days' written notice delivered to WRD. 4.2 Termination by the City for Cause or by WRD without Cause. If WRD breaches this Contract, the City shall notify WRD in writing of said breach and if WRD has not cured or begun reasonable efforts to cure within fifteen (15) calendar days of delivery of said notice, and fails to diligently pursue corrective action, the City shall have the right to cancel this Contract on the 15th day following delivery of notice to WRD for cause. WRD shall be responsible for all direct and indirect costs due to the City's procurement of the equivalent services cancelled pursuant to this Paragraph. 4.3 Actions Subsequent to Termination. Following the termination date, regardless of whether the Contract is terminated with or without cause, the City shall have no further, duties, liabilities or obligations whatsoever under this Contract. 4.4. Notices. All notices required or permitted by this Contract shall be in writing and may be delivered in person (by hand or by messenger or courier service) or may be sent by certified or registered mail, return receipt requested, or by facsimile - 6 - I transmission during normal business hours, if delivery is confirmed 2 and provided a copy is also delivered via delivery or mail, and shall 3 be deemed effective upon delivery or refusal to accept delivery. If a 4 notice is delivered on a Saturday, Sunday, or holiday, it shall be 5 deemed delivered on the next business day. Notices to the parties 6 shall be sent to the addresses set forth below, or such other address 7 as is provided by one party to the other in writing. 8 City: CITY OF VERNON 9 ATTN: BRUCE V. MALKENHORST CITY ADMINISTRATOR 10 4305 SANTA FE AVENUE VERNON, CA 90058-0805 li 12 WRD: WATER REPLENISHMENT DISTRICT OF SOUTHERN CALIFORNIA ATTN: GENERAL MANAGER 13 12 621 E . 16 6TH STREET 14 - CERRITOS, CA 90703 15 5. CONFIDENTIAL INFORMATION. 16 5.1 Access to Confidential Information. City may 17 provide WRD and/or its subcontractor with, or allow WRD access to, 18 certain information deemed relevant by City, not available to the 19 public concerning City, or businesses located in City. The 20 information may include company information, taxes, sales, value of 21 assets, utility usage or other such information. All such information 22 shall be known as "Confidential Information" and shall not be used to 23 circumvent the responsibility of either party to this Agreement. 24 5.2 No Disclosure. Except as expressly permitted, WRD 25 and/or its subcontractor shall not disclose, .permit the disclosure of, 26 release, disseminate, or transfer, whether orally or by any other 27 means, any part of such Confidential Information to any other person 28 or entity, whether corporate, governmental, or individual, without the 7 - 1 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 express prior written consent of an authorized representative of City. WRD and/or its subcontractor shall return any and all written Confidential Information and all copies made of such items to City upon City's written request, but in any event not later than the date that WRD has performed all services to be.performed pursuant to this Agreement. However, WRD may retain one copy of the Confidential Information for its legal records. WRD hereby agrees that such Confidential Information and any documents provided may be used by WRD and/or its subcontractor only as authorized by City. WRD's contracts with subcontractors shall include provisions that bind the subcontractors to this non -disclosure requirement. WRD shall take reasonable measures to avoid any disclosure of any such Confidential Information to any unauthorized person. 5.3 Court Ordered Disclosure. WRD shall immediately notify the City of any court order or subpoena or other directive of a court, administrative agency, quasi-judicial body or arbitration panel requiring disclosure of Confidential Information, and shall cooperate with legal counsel in the appeal or challenge of any such order or subpoena. WRD may only disclose Confidential Information required to be disclosed pursuant to a valid court order or subpoena after legal counsel has exhausted any lawful and timely appeal or challenge, to the extent that such appeal or challenge does not hinder WRD from its obligations under such court order or subpoena. 5.4 Remedies. In addition to any other remedies that it may have at law or in equity, City shall be entitled to a temporary and permanent injunction by a court of competent jurisdiction against any breach or threatened breach of the Confidential Information provisions of this Agreement. WRD acknowledges that in case of such - 8 - 1 2 M 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 breach or threatened breach of said provisions, City would have no adequate remedy at law. 6. INDEMNIFICATION. 6.1 WRD's Indemnity. To the fullest extent permitted by law, WRD shall defend, indemnify and hold harmless City and its elected officials, officers, agents and employees from all claims, suits, actions, demands, damages, liabilities, expenses, judgments, settlements and penalties, losses, fines, and all costs and expenses incurred in _connection therewith, including reasonable attorneys' fees and all costs of defense, arising out of or attributable to the negligent or wrongful acts of WRD or its employees or agents in the delivery of _services under this Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of the City, its officers, agents or employees. The terms of this indemnity shall survive the termination of this Agreement. The obligations in this Paragraph are in addition to WRD's duty to provide insurance and shall not be limited by any limitation on the amount or type of insurance coverage carried by WRD. 6.2 Indemnity Process. The City shall notify WRD in writing of any suits, claims or demands covered by this indemnity. Promptly after receipt of such .notice, WRD shall assume the defense of such claim with counsel reasonably satisfactory to City. If WRD fails, within a reasonable time after receipt of such notice, to assume the defense with counsel reasonably satisfactory to City, or if, in the reasonable judgment of City, a direct or indirect conflict of interest exists between the parties with respect to the claim, or if in the sole judgment of City the assumption and conduct of the defense by WRD would materially and adversely affect City in any - 9 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 manner or prejudice its ability to conduct a successful defense, then the City shall have the right to undertake the defense, compromise and settlement of such claim for the account and at the expense of WRD. Notwithstanding the above, if the City in its sole discretion so elects, City may also participate in the defense of such actions by employing counsel at its expense, without waiving the City's obligations to indemnify or defend. WRD shall not settle or compromise any claim or consent to the entry of any.judgment without the prior written consent of the City and without an unconditional release of all liability by each claimant or plaintiff to the City. 7. Governing Law. The validity, interpretation and performance of this Agreement shall be controlled and construed under the laws of the State of California. 8. Assignment. Neither City nor WRD shall assign or transfer its interest in this Agreement without the written consent of the other party. 9. Attorney's Fees. If either party institutes an action or legal proceeding arising out of or related to this Contract or the relationship of the parties or their rights or duties in connection with the matters set forth in this Contract, whether sounding in tort, contract, or otherwise, the prevailing party in.such action or proceeding shall be entitled to recover from the other party all costs and expenses, including attorneys' fees, in addition to any other remedy awarded by the court. 10. Amendments. This Agreement may be modified or amended only by a written document executed by both WRD and City. 11. Entire Agreement. This Agreement constitutes the complete and final expression of the agreement of the parties and is - 10 - .......... 1 2 3 4 5 6 7 8 9 10 1 11 12 13 14 15 16 17 18 19 20 21 22 1 23 24 25 26 27 intended as a complete and exclusive statement of the terms of their agreements and supersedes all prior and contemporaneous offers, promises, representations, negotiations, discussions, communications and agreements which may have been made in connection with the subject matter hereof. All exhibits are incorporated by reference. WRD represents that in entering into this Agreement, it has not relied on any previous representations or understandings of any kind or nature. 12. Benefit of Agreement. This Agreement shall bind and benefit the parties hereto and their heirs, successors, and permitted assigns. This Agreement shall not create any rights or benefits to parties other than City or WRD. Nothing contained in this Agreement shall create a contractual relationship with or cause of action in favor of a third party against either the City or WRD. No third -party shall have the right to rely on WRD's opinion rendered in connection with WRD's services without WRD's written consent and the third- party's agreement to be bound to the same terms and conditions as City. 13. Forum Selection. Any action brought relating to this Agreement shall be brought and held exclusively in a State Court in the County of Los Angeles, California. 14. Force Majeure. Neither party shall be considered to be in default in any of its obligations under this Agreement when a failure of performance shall be due to an uncontrollable force. The terms "uncontrollable force" shall mean any cause beyond the control of the party affected, including, but not limited to, flood, earthquake, storm, fire, lightening, epidemic, war, riot, civil disturbance or disobedience, labor dispute, labor material shortage, sabotage, federal, state, or municipal action, statute, ordinance, or regulation, 1 embargoes or the United States Government or any other government, 2 which by exercise of due diligence such party could not reasonably have 3 been expected to avoid and by exercise of due diligence has been unable 4 to overcome. Either party rendered unable to fulfill any of its 5 obligations under this Agreement by reason of an uncontrollable force, 6 shall give written notice within five (5) business days of such fact to 7 the other party and shall exercise due diligence to remove such 8 inability with all reasonable dispatch. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTEST: BRUCE V. MALKENHORST, City Clerk APPROVED AS TO FORM: ERIC T. FRESCH, City Attorney Approved as to Form: WESTON, BENSHOFF, ROCHEFORT, RUBALCAVA & MACCUISH, LLP L__� /)�?� �- Attorneys for -the Water Replenishment District of Southern California { IN WITNESS WHEREOF, the parties have caused this Agreement .o be executed by and through their authorized officers on the date, ionth and year first written above. CITY OF VERNON By: LEONIS C. MALBURG, Mayor WATER REPLENISHMENT DISTRICT OF SOUTH RN CALIFORNIA By: Name: CdS rr _ Title: By: Name: AA 14,ce-t CS Title: S�.0 r la - 13 - SUPPORTING DOCUMENTS DATE: December 27, 2004 SUBJECT: AGREEMENT FOR PROFESSIONAL PUMA' TESUNG SERV'ICES'WrIH THE WATER REPLENTSffiVENT DISTRICT ('WELL 19) The City Aumney's office has prgmcd an went between the city anal tbe, water RePlexudmient District (WRD) to perf = spinner 1099M sampling and mass balance testing to identify flow raves and the water quality entming well 18. As you will roc A well 18 has tested positive for the containmm s Perchlorate and 1,2 Dicbloaathaue (1,2 DCA). The PerdAorate was detected iu Febn=y of 2000 at a level of 12 ug/L 'Ibis level exceeded the Action Level of 4 ug/L As a. insult, the City was directed by the California Depsunent of Heaidt Services (CDHS) to notif'Y its City Council in writing of the potential problems associated with the oo The City immediately complied with the CDHS reporting requirement request. The Acraon Level does, however, allow the City to continue to produce and sell water from this facility as long as it has met the reporting requirenwt- 1-he 1,211CA was detected in September of 2003 at a level of 0 66ug/1. This exceeded the MwdM11m ConwMent ,=I (MCL.) of .5 Ug/L 'The City was diteded by the CDM to take one sample per -month for six months and thentake au average at the eonchmm ofthe sample period. Tlro results ofthe six MOB indicated an average level of 1.004 ug/l, which exceeded the MCL. The City notified the CDHS of the results and was directed to take fts facility off-IM umil some means of treatmart is detmnmed. Thee ultimate goal ofthe test pumping is to de z=rte which zones am mVacted by the above - mentioned c0nW&Mxntr,. Wo this dam, thc kqpcmdmx= can then be blocked off to prevent the ocummmeuz from Wig the water supply. If suooesSK this would allow me City to put this Y back - on -line. It is &aef a memnended that City Council approve the agreement. The agreement has been O=ged by the'WRD. please place this itann on the Jarmary 5, 2004 City Council agenda. 'Thaolk you. SKW/sr Fmclosure a City Atm[ueY XO z�nsdx T J.NdS ' S9d 6T,00 I d9VSn 90:9T 8Z/ZT HKIZ 'ZS H Hd'I t QI NOIZ9XNN09 ssMaysns 6£%T9M 'IHI NOIZ9dNN09 £900 ON %2VXZ X0 NOISSINISWU sxodFlx xs T0016 NONHHA dO A1I9 V96L T85 £Z£ XVd L0:9T VOOZ/8Z/ZT