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HomeMy WebLinkAboutContracts & Agreements_24-2021SECOND AMENDMENT TO THE AGREEMENT FOR THE COOPERATIVE USE OF UNUSED WELL CAPACITY, THE TEXAS GROVE RESERVOIR, AND THE CENTRAL FEEDER This Second Amendment to the Agreement for the Cooperative Use of Unused Well Capacity, the Texas Grove Reservoir, and the Central Feeder ("Second Amendment") is made and entered into this 16th day of February, 2021 ("Effective Date"), by and between the City of Redlands ("City") and the San Bernardino Valley Municipal Water District ("Valley District"). City and Valley District are sometimes individually referred to herein as a "Party" and, together, as the "Parties." RECITALS WHEREAS, Valley District owns a well on San Bernardino Avenue within city of Redlands ("Well") which is connected to City's water system; and WHEREAS, by letter agreement dated April 25, 2005 ("Letter Agreement"), a true and correct copy of which is attached hereto as Exhibit "A," and incorporated herein by this reference, City regularly paid Valley District to pump water from the Well into City's water system, paying Valley District for the costs associated with such pumping; and WHEREAS, the Letter Agreement expired on December 31, 2010; and WHEREAS, the Well is located within the boundaries of the San Bernardino Valley Water Conservation District ("Conservation District") which has assessed each well within its service area to fund the Conservation District's operations; and WHEREAS, the Agreement for the Cooperative Use of Unused Well Capacity, the Texas Grove Reservoir and the Central Feeder ("Original Agreement") was entered into on the 2nd day of April, 2013, by and between City and Valley District, a true and correct copy of which is attached hereto as Exhibit "B," and incorporated herein by this reference; and WFIEREAS, Amendment No. 1 to the Original Agreement was entered into on the 6th day of October, 2015, by and between City and Valley District and provided backup cooling water for Valley District's Citrus Pump Station, atrue and correct copy ofwhich is attached hereto as Exhibit "C," and incorporated herein by this reference, and the Original Agreement, as amended, shall be hereinafter referred to as the "Agreement;" and WHEREAS, per Section 3.d. of the Original Agreement, the Parties acknowledge that the Agreement was intended not only to serve as the basis for cooperative operations at the time the Agreement was executed, but it was also intended to serve as the basis for long-term cooperation. The Parties also agreed to consider amending the Agreement at appropriate times to reflect additional facilities and new opportunities to improve the conjunctive management of the San Bernardino Basin Area ("SBBA") and/or water supply reliability for the San Bernardino Valley; and WHEREAS, in or around 2015, certain local water agencies formed the San Bernardino Amendment No. 2 L:\ca\djm\Agrecmcnts\SBVMWn 2nd Amend.FY20-0077.docxjn Page 1 Basin Groundwater Council ("Groundwater Council") to coordinate the delivery of supplemental water to the SBBA and the corresponding maintenance of related facilities. The Groundwater Council develops an annual budget which apportions the cost of these activities among the member agencies that pump from the SBBA. A portion of the Groundwater Council costs are for Conservation District to fund its recharge operations. For member agencies of the Groundwater Council, payments to the Groundwater Council replace the Conservation District assessment; and WHEREAS, Valley District is a member agency of the Groundwater Council and is paying the Groundwater Council costs allocated for the Well; and WHEREAS, City and Valley District have jointly negotiated this Second Amendment to provide terms and conditions for City's continued use of the Well; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained in this Second Amendment, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: AGREEMENT Section 1. Recitals; Defined Terms. The Recitals are material to this Second Amendment, and by this reference are hereby incorporated herein. For purposes of this Second Amendment, all capitalized terms shall have the meanings given to such terms in the Agreement, unless such terms are otherwise defined herein. Section 2. City Use of Well. Subject to the terms and conditions of this Second Amendment and the Agreement, Valley District hereby agrees to allow City to use the Well to pump water into City's water system. A. Requests to Use Well. Valley District expressly reserves the right to use the Well for any purpose, including without limitation providing "exchange water" and "in lieu" water. City must obtain prior written approval from Valley District to use the Well to pump water into the City water system. City shall submit to Valley District a written request, including supporting documentation satisfactory to Valley District, to use the Well at least fifteen (15) working days in advance. Each request shall specify the dates and times of operation requested and the quantities of water proposed to be pumped. Valley District may request additional information it deems reasonably necessary to evaluate each request. Valley District shall respond to each request, in writing, within ten (10) working days from the date of City's written request. Valley Distrietwill use reasonable, good faith efforts to accommodate City's requests. B. Modification of Valley District Approval. The Parties understand and acknowledge that a number of factors, including but not limited to greater/lesser precipitation or changes in customer demand for water, may modify Valley District's ability to accommodate City's requests to use the Well. It is the intent of the Parties that this Second Amendment not interfere with Valley District's obligation to serve its customers. (1) Upon five (5) working days' written notice, Valley District may suspend its Amendment No. 2 L:\ca\djm\Agreements\SBVMWD 2nd Arneud.FY20-0077.docx.jn Page 2 permission for City to use the Well at any time as may be reasonably necessary to provide water service to Valley District's customers. Valley District shall promptly consult with City and jointly develop a plan that will resume City's use of the Well as soon as practicable after the conclusion of the circumstances necessitating suspension. (2) In the event of an emergency, as defined in California Public Contract Code Section 1102, Valley District may take any actions it deems reasonably necessary to respond to the emergency and provide water service to its customers. Valley District shall promptly consult with City and jointly develop a plan that will provide City with use of the Well as soon as practicable after the conclusion of the emergency. C. Well Modifications. City shall not make any modifications to the Well without the prior written consent of Valley District, which consent may be withheld or conditioned in Valley District's sole discretion. City shall submit to Valley District a written request, including plans and specifications and other supporting documentation satisfactory to Valley District, for any modification City desires to make to the Well. Valley District will review such requests to modify the Well and will approve or disapprove such requests within twenty (20) days after receipt of satisfactory documentation upon which to make its determination. Section 3. City Responsibilities. A. Compliance with law. City shall, at City's sole cost and expense, obtain and maintain at all times any and all permits required by City in connection with providing water from the Well into City's water system, and shall operate the Well in strict compliance with all laws, rules, and regulations of any agency having jurisdiction over the use of the Well and maintain the connection of the Well to City's water system in working order. B. Books and Records. City shall keep and maintain accurate well production records and other appropriate books and records related to City's use of the Well, and Valley District shall have access to and the right to examine and copy City's pertinent books and records (including without limitation records contained on electronic media) relating to the performance of City's obligations pursuant to this Second Amendment. City shall retain all such books and records to facilitate such review for at least four (4) years after any termination of this Agreement. Access to City's books and records shall be during normal City business hours only, at times agreed to in advance by the Parties. Nothing in this Sub -section B shall be construed to operate as a waiver of any applicable privileges. The obligations of this Sub -section B shall survive any termination of this Agreement. C. RWQCB Reports. City shall provide Valley District with copies of all reports submitted to the Santa Ana Regional Water Quality Control Board or any other agency having jurisdiction over the use of the Well. D. Without limiting City's obligations under the Agreement, City shall be responsible for any consequential damages arising out of or related to City's use of the Well and shall indemnify, defend, and hold harmless Valley District and its directors, officers, employees, Amendment No. 2 L.\ca\djm\Agreemcnts\SnVMWD 2nd Amend.FY20-0077.docxjn Page 3 SECOND AMENDMENT TO THE AGREEMENT FOR THE COOPERATIVE USE OF UNUSED WELL CAPACITY, THE TEXAS GROVE RESERVOIR, AND THE CENTRAL FEEDER This Second Amendment to the Agreement for the Cooperative Use of Unused Well Capacity, the Texas Grove Reservoir, and the Central Feeder ("Second Amendment") is made and entered into this 16th day of February, 2021 ("Effective Date"), by and between the City of Redlands ("City") and the San Bernardino Valley Municipal Water District ("Valley District"). City and Valley District are sometimes individually referred to herein as a "Party" and, together, as the "Parties." RECITALS WHEREAS, Valley District owns a well on San Bernardino Avenue within city of Redlands ("Well") which is connected to City's water system; and WHEREAS, by letter agreement dated April 25, 2005 ("Letter Agreement"), a true and correct copy of which is attached hereto as Exhibit "A," and incorporated herein by this reference, City regularly paid Valley District to pump water from the Well into City's water system, paying Valley District for the costs associated with such pumping; and WHEREAS, the Letter Agreement expired on December 31, 2010; and WHEREAS, the Well is located within the boundaries of the San Bernardino Valley Water Conservation District ("Conservation District") which has assessed each well within its service area to fund the Conservation District's operations; and WHEREAS, the Agreement for the Cooperative Use of Unused Well Capacity, the Texas Grove Reservoir and the Central Feeder ("Original Agreement") was entered into on the 2nd day of April, 2013, by and between City and Valley District, a true and correct copy of which is attached hereto as Exhibit "B," and incorporated herein by this reference; and WHEREAS, Amendment No. 1 to the Original Agreement was entered into on the 6th day of October, 2015, by and between City and Valley District and provided backup cooling water for Valley District's Citrus Pump Station, atrue and correct copy of which is attachedhereto as Exhibit "C," and incorporated herein by this reference, and the Original Agreement, as amended, shall be hereinafter referred to as the "Agreement;" and WHEREAS, per Section 3.d. of the Original Agreement, the Parties acknowledge that the Agreement was intended not only to serve as the basis for cooperative operations at the time the Agreement was executed, but it was also intended to serve as the basis for long-term cooperation. The Parties also agreed to consider amending the Agreement at appropriate times to reflect additional facilities and new opportunities to improve the conjunctive management of the San Bernardino Basin Area ("SBBA") and/or water supply reliability for the San Bernardino Valley; and WHEREAS, in or around 2015, certain local water agencies formed the San Bernardino Amendment No. 2 L:\ca\djm\Agrecments\SBVMWD 2nd Amend.PY20-0077.docx.jn Page 1 Basin Groundwater Council ("Groundwater Council") to coordinate the delivery of supplemental water to the SBBA and the corresponding maintenance of related facilities. The Groundwater Council develops an annual budget which apportions the cost of these activities among the member agencies that pump from the SBBA. A portion of the Groundwater Council costs are for Conservation District to fund its recharge operations. For member agencies of the Groundwater Council, payments to the Groundwater Council replace the Conservation District assessment; and WHEREAS, Valley District is a member agency of the Groundwater Council and is paying the Groundwater Council costs allocated for the Well; and WHEREAS, City and Valley District have jointly negotiated this Second Amendment to provide terms and conditions for City's continued use of the Well; NOW, THEREFORE, in consideration of the mutual covenants and conditions contained in this Second Amendment, and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: AGREEMENT Section 1. Recitals; Defined Terms. The Recitals are material to this Second Amendment, and by this reference are hereby incorporated herein. For purposes of this Second Amendment, all capitalized terms shall have the meanings given to such terms in the Agreement, unless such terms are otherwise defined herein. Section 2. City Use of Well. Subject to the terms and conditions of this Second Amendment and the Agreement, Valley District hereby agrees to allow City to use the Well to pump water into City's water system. A. Requests to Use Well. Valley District expressly reserves the right to use the Well for any purpose, including without limitation providing "exchange water" and "in lieu" water. City must obtain prior written approval from Valley District to use the Well to pump water into the City water system. City shall submit to Valley District a written request, including supporting documentation satisfactory to Valley District, to use the Well at least fifteen (15) working days in advance. Each request shall specify the dates and times of operation requested and the quantities of water proposed to be pumped. Valley District may request additional information it deems reasonably necessary to evaluate each request. Valley District shall respond to each request, in writing, within ten (10) working days from the date of City's written request. Valley Distrietwill use reasonable, good faith efforts to accommodate City's requests. B. Modification of Valley District Approval. The Parties understand and acknowledge that a number of factors, including but not limited to greater/lesser precipitation or changes in customer demand for water, may modify Valley District's ability to accommodate City's requests to use the Well. It is the intent of the Parties that this Second Amendment not interfere with Valley District's obligation to serve its customers. (1) Upon five (5) working days' written notice, Valley District may suspend its Amendment No. 2 L:\ca\djm\Agreemcnts\SBVMWD 2nd Amend.FY20-0077.doex.jn Page 2 permission for City to use the Well at any time as may be reasonably necessary to provide water service to Valley District's customers. Valley District shall promptly consult with City and jointly develop a plan that will resume City's use of the Well as soon as practicable after the conclusion of the circumstances necessitating suspension. (2) In the event of an emergency, as defined in California Public Contract Code Section 1102, Valley District may take any actions it deems reasonably necessary to respond to the emergency and provide water service to its customers. Valley District shall promptly consult with City and jointly develop a plan that will provide City with use of the Well as soon as practicable after the conclusion of the emergency. C. Well Modifications. City shall not make any modifications to the Well without the prior written consent of Valley District, which consent may be withheld or conditioned in Valley District's sole discretion. City shall submit to Valley District a written request, including plans and specifications and other supporting documentation satisfactory to Valley District, for any modification City desires to make to the Well. Valley District will review such requests to modify the Well and will approve or disapprove such requests within twenty (20) days after receipt of satisfactory documentation upon which to make its determination. Section3. City Responsibilities. A. Compliance with law. City shall, at City's sole cost and expense, obtain and maintain at all times any and all permits required by City in connection with providing water from the Well into City's water system, and shall operate the Well in strict compliance with all laws, rules, and regulations of any agency having jurisdiction over the use of the Well and maintain the connection of the Well to City's water system in working order. B. Books and Records. City shall keep and maintain accurate well production records and other appropriate books and records related to City's use of the Well, and Valley District shall have access to and the right to examine and copy City's pertinent books and records (including without limitation records contained on electronic media) relating to the performance of City's obligations pursuant to this Second Amendment. City shall retain all such books and records to facilitate such review for at least four (4) years after any termination of this Agreement. Access to City's books and records shall be during normal City business hours only, at times agreed to in advance by the Parties. Nothing in this Sub -section B shall be construed to operate as a waiver of any applicable privileges. The obligations of this Sub -section B shall survive any termination of this Agreement. C. RWQCB Reports. City shall provide Valley District with copies of all reports submitted to the Santa Ana Regional Water Quality Control Board or any other agency having jurisdiction over the use of the Well. D. Without limiting City's obligations under the Agreement, City shall be responsible for any consequential damages arising out of or related to City's use of the Well and shall indemnify, defend, and hold harmless Valley District and its directors, officers, employees, Amendment No. 2 L:\ca\djm\Agreements\SBVMWD 2nd AmendFY20-0077.docxjn Page 3 agents, and representatives from and against any and all third -party claims, losses, damages, liabilities, fines, penalties, costs and expenses (including all legal costs such as reasonable attorneys' fees, expert costs, court costs, and settlement expenses) (collectively, "Claims") arising out of or related to City's use of the Well and the provision of water from the Well into City's water system; provided, however, that City's indemnification obligations under this Sub- section D shall not apply to the extent any Claims are caused by the negligence or willful misconduct of Valley District. The obligations of this Sub -section D shall survive any termination of this Second Amendment. Section 4. Payment by for Water. A. Payments for Costs. City shall pay Valley District the actual production cost for water produced by the Well and pumped into the City water system, as determined below. (1) Payment for Production Costs. City shall pay Valley District for Valley District's actual cost of producing water pumped into the City water system pursuant to this Second Amendment based on the methodology set forth in Section 3.b.(1) of the Original Agreement. (2) Payment for OMR Costs. City shall pay its fair share of Valley District's actual OMR costs for the Well based on the methodology set forth in Section 3.b.(2) of the Original Agreement. (3) Payment for Southern California Edison ("SCE") Standby Fees. City shall pay the annual standby fee charged by SCE to Valley District for maintaining service availability to the Well. If water is produced for both Valley District and City during any calendar year, the standby fee paid by City for such year shall be the total standby fee divided by the total water pumped from the Well for the year, in acre- feet, and then multiplied by the number of acre-feet delivered to the City water system. (4) Payment of Groundwater Council Costs. City shall pay the costs allocated by the Groundwater Council to Valley District for the WellAf water is produced for both Valley District and City during any budgetary period, the costs paid by City for such period shall be the total allocated costs for the Well divided by the total water pumped from the Well for the period, in acre-feet, and then multiplied by the number of acre- feet delivered to the City water system. B. Invoices to City. Valley District shall invoice City for all costs at least quarterly in arrears and City shall pay such invoices within thirty (30) calendar days of the date of the invoice. Invoices shall indicate, in reasonable detail, Production Cost (including which method was used to calculate such costs), OMR Cost, SCE Standby Fee, and Groundwater Council Costs, all as described above. For OMR costs and work outside of what should normally be expected, Valley District shall identify costs and/or work performed and include the date such costs were incurred or work performed, the individuals or company, and the costs of any materials or services. In the event City objects to any costs identified on an invoice, City shall pay the undisputed costs and shall invoke the dispute resolution process in the Agreement for Amendment No. 2 L:\ca\djm\Agreements\SBVMWD 2nd Amend.FY20-0077.docx.jn Page 4 the disputed costs. Section 5. No Other Modifications. The Parties acknowledge that this Second Amendment evidences the entire agreement between the Parties with respect to the matters addressed herein and supersedes all previous negotiations and discussions related thereto. Except to the extent specifically provided in this Second Amendment, the Agreement shall continue in full force and effect as previously written. Section 6. Counterparts. This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original and all of which when taken together shall constitute one and the same instrument. [Signature Page Follows] Amendment No. 2 L:\ca\djmlAgreements\SBVMWn 2nd Amend.FY20-0077.docx.jn Page 5 IN WITNESS WHEREOF, the Parties hereby execute this Second Amendment as of the Second Amendment Effective Date. Dated: 2 �p , 2021 Dated: 2021. CITY OF SANDS l By. Paul T. Barich, Mayor ATTEST: By: D_ anne Donaldson, City Clerk SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT President, Board of Directors ATTEST: By: Heather Dyer Secretary, Board of Directors Amendment No. 2 Page 6