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Chino Basin Watermaster A2017-153 A2017-153 AGREEMENT BETWEEN CHINO BASIN WATERMASTER AND CITY OF CHINO HILLS REGARDING THE CHINO HILLS ASR PILOT PROJECT ' I This Cost Sharing Agreement ("Agreement") is entered into as of June 27, 2017, by and between the CHINO BASIN WATERMASTER ("Watermaster") and the CITY OF CHINO HILLS ("Chino Hills") (each a "Party" and collectively, the "Parties") for the purposes of establishing a framework for the implementation and funding of the Chino Hills Aquifer Storage and Recovery Pilot Project ("ASR Project"). RECITALS A. Watermaster is an agent of the Court and serves as the Court's special master in order to administer and enforce the provisions of the Chino. Basin Watermaster Judgment, San Bernardino County Superior Court Case No. RCV RS51010 (formerly Case No. SCV 164327); B. Chino Hills is a municipal corporation and general law city organized and existing under the laws of the State of California; C. Pursuant to its November 15, 2007 Order on Motion for Approval of Watermaster's Long Term Plan for the Management of Subsidence, the Watermaster Court approved the Long Term Plan for the Management of Subsidence ("Long Term Plan"). The Long Term Plan describes an injection feasibility study at a production well within Management Zone 1 ("MZ-1"). The objective of this test is to help determine if aquifer injection is a viable tool to manage subsidence within MZ-1 while maximizing the use of existing infrastructure (i.e. wells); -� D. In preparing the 2010 Recharge Master Plan Update and the 2013 Amendment to the 2010 Recharge Master Plan Update (Collectively, the "RMPU"), Watermaster considered whether existing groundwater production facilities owned or controlled by producers within MZ1 could be used in connection with an aquifer storage and recovery project so as to further enhance recharge in specific locations and to otherwise meet the objectives of the RMPU; E. Watermaster's approved budget for fiscal year 2008-2009 included a task item for an ASR pilot test at Chino Hills' Well CH-16. The ASR Project is that pilot test. Watermaster has included this budget item in its annual budgets each fiscal year since; F. The primary objective of the ASR Project is to determine the feasibility of using an existing well within an area prone to land subsidence for aquifer storage and recovery and the management of land subsidence and ground fissuring; 1 G. On behalf of Chino Hills, Watermaster submitted an AB303 grant application to help fund the ASR Project. This application was approved in the amount of $250,000. Chino Hills entered into a contract with Department of Water Resources ("DWR") on December 30, 2008 in order to make use of these funds and all such funds have been appropriated and expended; and H. Chino Hills has begun to implement the ASR Project pursuant to its agreement with DWR ("DWR Grant Agreement") and its amendments, and shall ensure completion of the ASR Project and compliance with all DWR terms. In March 2014, Amendment 3 to the DWR Grant Agreement was approved. Amendment 3 revised the scope of work, budget, schedule, and some of the terms of the DWR Grant Agreement. The ASR Project scope of work was revised to include two phases. Phase 1 includes tasks that will be completed under the DWR Grant Agreement and funded through the DW R Grant Agreement and in, part, by Watermaster and Chino Hills; Phase 2 will include additional tasks necessary to complete the project, but which are not subject to this Cost Sharing Agreement. Chino Hills expects to expend approximately $500,000 on Phase 2 of the DWR Project. AGREEMENT TERMS 1. PURPOSE Through this Agreement, the Parties wish to clarify the respective responsibilities of each Party for the purpose of the implementation and funding of Phase 1 of the ASR Project. Much of this work has already been completed, and thus this agreement reflects the understanding between the Parties of each Party's responsibility for funding and paying remaining invoices. 2. SCOPE This Agreement establishes a cost sharing arrangement for the tasks composing Phase 1 of the ASR Project, as the Phase 1 tasks are defined in the Scope of Work included in that document referenced above as "Amendment 3" to the DWR Grant Agreement 4600008330 dated March 20, 2014, attached as Exhibit A and incorporated by reference into this Agreement ("Scope of Work"). 3. WATERMASTER RESPONSIBILITIES a. Watermaster will fund the Phase 1 tasks in an amount not to exceed the $368,058. Watermaster shall not fund any activities not described in the Scope of Work as Phase 1 tasks, including, but not limited to, the purchase of water to be used for aquifer recharge in the ASR Project. 2 b. For any Phase 1 work performed by Wildermuth Environmental, Inc. ("WEI"), which administered the ASR Project on behalf of Watermaster, Watermaster will pay the invoices for such work from the money budgeted in the Watermaster budget to fund the Scope of Work. The remaining total to be paid to WEI shall not exceed $101,412.13. Watermaster will provide Chino Hills with copies of the WEI invoices for submission to DWR within thirty (30) days of the execution of this Agreement. c. Watermaster will assist Chino Hills in the preparation of status reports required under the DWR Grant Agreement, and such assistance shall be funded as a part of the work plan. d. Schedule of Payment. Within thirty (30) days of execution of this agreement, Watermaster shall reimburse the City for expenditures of $155,256.85 made to vendors, on invoices that the City has already submitted to Watermaster. ii. Within thirty (30) days of the execution of this Agreement, Watermaster shall also pay three 2014 invoices submitted by Geoscience to Watermaster in the total amount of$15,952.00 directly to Geoscience. iii. Within thirty(30) days of completion of the Scope of Work, Watermaster shall reimburse City an additional $29,285.99 for payment of invoices to contractors on the Scope of Work. iv. These payments set forth in this Article 3 are obligations of Watermaster and shall survive the termination of this Agreement pursuant to Section 6 below. 4. CHINO HILLS RESPONSIBILITIES a. Chino Hills shall lead all aspects of ASR Project administration (i.e., invoicing, grant funds, grant administration, sub-contractors, etc.) except for the work done by WEI and the payment of invoices submitted by Geoscience in 2014 totaling $15,952.00. b. Chino Hills has submitted invoices for qualifying work to DWR for reimbursement pursuant to the terms the DWR Grant Agreement and been paid the full $250,000 under the DWR Grant. c. For any work performed by Chino Hills or its consultants that qualifies for reimbursement by Watemmaster, Chino Hills has already or will submit invoices for such work to Watermaster for reimbursement. 3 5. BUDGET AND COST ALLOCATION a. Total Financial Contribution. Amendment 3 of the DWR Grant Agreement modified the anticipated project costs for Phase 1 of the ASR Project. The ASR Project shall be funded according to the following allocations: Total funding from DWR Grant Agreement $250,000 Maximum Watermaster contribution, including $167,563.16 $368,058 already paid and $ 184,542.84 pending payments to City of Chino Hills and $15,952 pending payments to Geoscience Expected Chino Hills total contribution $46,306.20 Expected total ASR Project Costs, Phase 1 $664,364.20 Chino Hills is responsible for any additional costs associated with the ASR Project, including tasks in Phase 1 and Phase 2 described in this Agreement in the Recitals, at section "H". b. Project Expenditures. The Parties agree that the following project contributions have been paid or will be paid as follows: DWR Invoices $250,000.00 Watermaster Contributions: includes $184,542.84 pending $368,058.00 payments to the City and $15,952 pending payments to Geoscience Chino Hills Contribution: this reflects $75,592.19 currently $46,306.20 expended, less the $29,285.99 reimbursement from Watermaster withheld until completion of the Scope of Work Total Expenditures $664,364.20 6. TERM a. Term. This agreement shall remain in effect from June 27, 2017 ("Effective Date") through completion of the ASR Project, unless terminated pursuant to Section 6.2, below. b. Termination. This Agreement shall be mutually terminable at any time by majority vote of either Party's governing body, within each Party's sole discretion. Termination shall not relieve the terminating party from its obligations accruing prior to termination, including the payment of monies due for work performed prior to the date of termination and project settlements costs thereof, which shall all be paid after receipt of an invoice as provided in Article 3, above. The parties agree that the responsibilities of Watermaster to pay invoices to Chino Hills and Geoscience set forth in Article 3 of this Agreement above accrue upon execution of 4 this Agreement, so termination shall not relieve Watermaster of its duty to pay such obligations. 7. INDEMNITY 7.1 Chino Hills shall indemnify Watermaster against and hold Watermaster harmless from any and all claims, suits, losses, damages, and liability for damages of every name, kind and description, including attorneys' fees and other costs of defense incurred, brought for, or on account of, injuries to or death of any person, including, but not limited to, workers, the public, or damage to property, or any economic or consequential losses, which are claimed to or in any way arise out of or are connected with Chino Hills' activities pursuant to this Agreement. The provisions of this Section 7 shall survive termination of this Agreement. 7.2 Watermaster shall indemnify Chino Hills against and hold Chino Hills harmless from any and all claims, suits, losses, damages, and liability for damages of every name, kind and description, including attorneys' fees and other costs of defense incurred, brought for, or on account of, injuries to or death of any person, including, but not limited to, workers, the public, or damage to property, or any economic or consequential losses, which are claimed to or in any way arise out of or are connected with Watermaster's activities pursuant to this Agreement. The provisions of this Section 7 shall survive termination of this Agreement. 8. GENERAL PROVISIONS a. Notices. Any notice under this Agreement shall be deemed sufficient if given by one Party to the other in writing and: delivered in person; transmitted by electronic mail or facsimile (with acknowledgement of receipt provided by the receiving Party); or, by mailing the same by United States mail (postage prepaid, registered or certified, return receipt requested) or by Federal Express or other similar overnight delivery service, to the Party to whom the notice is directed at the address of such Party as follows: Chino Basin Watermaster: City: Chino Basin Watermaster City of Chino Hills Attn: General Manager Attn: City Manager 9641 San Bernardino Road 14000 City Center Drive Rancho Cucamonga, CA 91730 Chino Hills, CA 91709 Any communication given by mail shall be deemed delivered two (2) business days after such mailing date, and any written communication given by overnight delivery service shall be deemed delivered one (1) business day after the dispatch date. Either Party may change its address by giving the other Party notice of its new address. 5 b. Assignability. The Parties may not assign all or any part of this Agreement without advance written consent of each Party's governing board. c. Waiver. No waiver by any Party of any of the provisions shall be effective unless explicitly stated in writing and executed by the Party so waiving. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representations, warranties, covenants, or agreements contained in this Agreement, and in any documents delivered or to be delivered pursuant to this Agreement. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. d. Headings. The section headings contained in this Agreement are for convenience and reference only and shall not affect the meaning or interpretation of this Agreement. e. Severability. If any term, provision, covenant or condition of this Agreement shall be or become illegal, null, void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and shall not be affected, impaired or invalidated. The term, provision, covenant or condition that is so invalidated, voided or held to be unenforceable, shall be modified or changed by the Parties to the extent possible to carry out the intentions and directives set forth in this Agreement. f. Governing Law. This Agreement shall be governed by, and interpreted in accordance with, the laws of the State of California. This Agreement shall be specifically enforceable in the Court maintaining jurisdiction over the case Chino Basin Municipal Water District v. City of Chino, San Bernardino Superior Court Case No. RCV 51010. g. Parties in Interest. Nothing in this Agreement, whether expressed or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the Parties to it and their respective successors and assigns, nor is anything in this Agreement intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement, nor shall any provision give any third persons any right of subrogation or action against any party to this Agreement. h. Attorney Fees. In any dispute under this agreement between the Parties, each Party shall bear its own legal costs and expenses. i. Good Faith. The Parties agree to exercise their best efforts and utmost good faith to effectuate all the terms and conditions of this Agreement and to execute such further instruments or documents as are necessary or 6 appropriate to effectuate all of the terms and conditions of this Agreement. j. Construction. The provisions of this Agreement should be liberally construed to effectuate its purposes. The language of all parts of this Agreement shall be construed simply according to its plain meaning and shall not be construed for or against either Party, as each Party has participated in the drafting of this document and had the opportunity to have their counsel review it. Whenever the context and construction so requires, all words used in the singular shall be deemed to be used in the plural, all masculine shall include the feminine and neuter, and vice versa. k. Entire Agreement. This Agreement contains the entire understanding and agreement of the Parties with respect to the implementation and funding of the ASR Project, and supersedes all prior agreements and understandings, oral and written, between the Parties concerning the subject matter of this agreement. There have been no binding promises, representations, agreements, warranties or undertakings by any of the Parties, either oral or written, of any character or nature, except as stated in this Agreement. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the Parties to this Agreement and by no other means. Each Party waives its future right to claim, contest or assert that this Agreement was modified, canceled, superseded or changed by any oral agreement, course of conduct, waiver or estoppels. i. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same instrument. 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first above written. CITY OF CHINO HILLS CHINO BASIN WATERMASTER 4 :y Marq ez (Signature) Mayor ATTEST: (Title) el Wird Cheryl Balz • (Signature) City Clerk APPROVED AS TO FORM: �'-�— (Title) Mark D. Hensley City Attorney 8