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WATER SYSTEM CONSOLIDATION AGREEMENT
THIS AGREEMENT is made and entered into effective _______________, 202 , (Effective Date) by and between the CITY OF FRESNO, a California municipal corporation (City), and Three P alms MH Park, LLC, a California Limited Liability Company (Owner).
RECITALS
A. The Three Palms Mobile Home Park (Three Palms MHP), located at 1941 N Golden State Blvd, Fresno, CA 93705 (APN 442-122-12 and APN 442-122-26), is currently served by a single well and in March 2018 was issued a compliance order by the State Water Resources Control Board (SWRCB) for exceedance of the 1,2,3-tricholorpropane Maximum Contaminant Level in the raw well water.
B. The Owner operates the Three Palms Mobile Home Park Water System (Three Palms MHP WS), a community water system, and has requested that the City provide water service (Services) to Three Palms MHP, which is located within the City’s existing water service area and within the City’s corporate boundaries.
C. The Services to be provided by the City will serve the demands for the Owner’s facilities at the Three Palms MHP, wh ich can generally be described as a residential community.
D. The City applied for and was awarded funding to connect Three Palms MHP to the City’s Water System. This will be accomplis hed by (a) installin g a 6-inch water service connection, meter, and meter vault to connect Three Palms MHP to the City’s water system and (b) accomplishi ng the physical disconnection of the existing Three Palms MHP Well 3 and destruction of the three onsite wells (Project). On January 2, 2024, the City executed a Drinking Water Construction Grant Agreement (Grant Agreement) with the SWRCB.
E. The City will be responsible for completing and paying for the following: (a) tap water main in front of entrance; (b) installation of 6” service lateral and shut off valve; (c) installation of meter box with street lid; (d) installation of 6” water meter; and (e) patching of asphalt associated with the preceding items (City Work).
F. The Owner will be responsible for comple ting the following with the costs to be funded under the Grant Agreement in accordance with the terms of this Agreement and the Grant Agreement: (a) locate and expose existing distribution system connection points; (b) installation of 6” C900 pipe from meter to distribution system; (c) installation of 6” shut off valve at meter box; (d) patching of asphalt associated with items a, b, and c; (e) disconnect we lls from distribution system; (f) flush well water from distribution system; and (g) aba ndon all three wells on the property in accordance with the requirements set forth in this Agreement (On-Site Work).
G. The Grant Agreement requires that the City enter into a Water System Consolidation Agreement with the Owner under certain terms specified in the Grant Agreement.
H. The Parties now desire to set forth the terms of the consolidation.
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AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto, agree as follows:
A. Term. This Agreement shall commence upon the Effective Date, as evidenced in the preamble, and shall remain in effect until September 30, 2061.
B. Master Meter Consolidation.
1. The Parties agree that the Project constitutes a master meter consolidation.
Upon completion of the Project, the Three Palms MHP WS will cease to operate as a community water system and the Three Palms MHP will become a City water customer.
2. Consistent with Health & Safety Code section 116280, following consolidation, the Three Palms MHP WS will meet all the following conditions:
a. Three Palms MHP WS will consist onl y of distribution facilities and will not have any treatment facilities.
b. Three Palms MHP WS will obtain all of its water from, but will not be owned and operated by, the City’s public water system; and c. Three Palms MHP WS will not sell water to any person or user. This prohibition does not prevent Owner from submetering and/or passing through the monthly water rates to the residents of Three Palms MHP.
3. The Parties agree that following conso lidation, the City will be the restructured water system, and the Owner will be the consolidated water system.
C. Construction Necessary to Establish Water Service. Connection to City’s public water system by the Owner shall be subject to the following conditions:
1. Metered Service Connection. Connecti on to the City’s water system requires installation of a master meter and meter vault for all domestic and irrigation water uses required for the Three Palms MHP. As required by the Grant Agreement, the City shall install a 6-inch water service connection, meter, and meter vault to establish connection. The City shall be responsible for performing all City Work.
2. Disconnection and Destruction of Existing Onsite Wells. a. Prior to the City commencing water service, the Owner shall physically disconnect the existing Three Palms Mobile Home Park Well 3. b. Owner must also destroy the three (3) existing onsite wells in compliance with the State of California Well Standards, Bulletin 74-81 and 74-90 or current revisions issued by California Department of Water Resources and City of Fresno standards (Well Destruction). All Well Destruction work must be performed by a C-57 licensed contractor. The Owner must complete the well destruction no later than two months after the establishment of a water service connection to the City’s water system.
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c. In no case shall the physical disconnection of the existing Three Palms Mobile Home Park Well 3 or the well destruction occur after September 30, 2025.
d. Compliance with Grant Agreement Requirements. In the performance of the On-Site Work, the Owner shall comply with all SWRCB Drinking Water Construction Grant requirements, including those requirements set forth in the Grant Agreement No. D2202042 which is attached as Exhibit A and incorporated into this Agreement. This includes all requirements pertaining to the prevailing wage and competitive bidding. i. The Owner must assist the City in the completion of progress reports and project completion reports, as addressed in Exhibit A.5 and A.6 in the Grant Agreement. The Owner must provide information requested for any reports required by the Grant Agreement within 14 calendar days of a request from the City.
ii. Once the SWRCB has authorized commencement of
construction and the Owner has commenced the On-Site
Work, the Owners shall submit monthly invoices to the City documenting the contractor’s performance of the On-Site Work.
iii. The City will pay the Owner no more than $169,000 per month to pay the Owner’s contractor’s monthly invoices. In no event shall the City pay the Owner more than the actual cost of the work performed by the contractor.
iv. The City will submit the monthly invoices from the Owner’s contractor to the SWRCB and will receive reimbursement
from the SWRCB for those invoiced amounts.
3. Surrender of Water System Permits. Upon connection to the City’s Water System, the Owner shall contact the SWRCB Drinking Water Division and surrender any domestic water supply permits or water system permits to ensure that the Three Palms MHP WS ceases to exist and operate as a community water system.
4. City to Provide Water Service. Upon the Owner’s full and complete performance of all obligations and responsibilities under this agreement, City agrees to commence water service, fr om City’s public water system to the Owner. The Parties agree that, as set forth below, commencement of water service is also conditioned on payment of all water capacity fees and connection fees required by the City. All water capacity fees and connection fees shall be paid for by grant funding, consistent with the terms of the Grant Agreement.
a. Continuing Obligations and Responsibilities of Owner. The Three Palms MHP will be established as a city water customer and the Owner shall be responsible to pay the fees and rates established for City water service and set forth in the City’s Master Fee Schedule.
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The Owner shall comply with and be subject to all regulations applicable to City of Fresno water customers, including but not limited to the water use regulati ons and utility billing and collection procedures set forth in the Fresno Municipal Code.
b. Water Capacity and Water Connection Fees. The City’s obligation to provide Services is conditioned on payment to City of all required fees as determined by the City, which may be amended from time to time, including any and all water capacity fees and water connections fees required to establish service.
The Parties acknowledge that once calculated, the invoice for these fees will be submitted, by the City, as water capacity and water connection fees for reimbursement under the Grant Agreement. The Owner is not obligated to directly pay any water capacity fees or connection fees to the City.
5. Maintenance and Repair. The Owner shall be responsible for operation, maintenance, repair, and replacement of all “Private Portions” of the water system beyond the City’s Point of Se rvice/Master Meter. Under no circumstances shall City be required or accountable to maintain, repair or replace the Private Portion or internal distribution system within Three Palms MHP. The Owner’s obligation to maintain, repair and replace the Private Portion of the water system shall include, without limitation, any operation and maintenance, repair, replacement or modification of the Private Portion of the water system as may be reasonably required by City. Should the Owner fail to operate, maintain, repair and replace t he Private Portion of the water system as needed for proper operation of the Public Portion, the City shall have the right, but not the obligation to stop providing water service. The City will be responsible for maintaining the lateral from the City water main located at Golden State Boulevard to the property line (Public Portion).
6. Fire Protection Upgrades. The Owner shall be solely responsible for meeting any fire protection upgrades beyond the Point of Connection to the City’s water supply facilities that may be required by the City as the enforcement agency responsible for enforcing the requirements of the Mobilehome Parks Act, Division 13, Part 2.1 of the California Health and Safety Code, commencing with section 18200, and the implementing regulations set forth in Title 25, California Code of Regulations Division 1, Chapter 2.
7. Right to Access and Inspect Water Meters. City shall have the right of entry to access and inspect all water meters for compliance with AWWA standards, whether located on the Private or Public Portions.
8. Exclusive Use of Private Portion. The Private Portion is for the exclusive use of the Owner. After connection to the Public Portion, the Owner shall not permit the Private Portion to be used, either directly or indirectly, to provide water service to any other property regardless of whether the other property is owned by the Owner or a third party. The Private Portion will be maintained solely for the purpose of distributing water to the residents of Three Palms MHP.
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9. Construction of Public Water Facilitie s. All public water facilities shall be constructed in accordance with City’s Public Works Department Standard Specifications and Drawings, standards, specifications, and policies. The Parties agree that the City will be constructing all public water facilities to be funded by SWRCB funding.
D. Additional Provisions:
The following provisions shall apply to this entire Agreement:
1. Successors and Assigns. The covenants and agreements contained in this Agreement shall be binding upon and shall inure to the benefit of the heirs, successors, and assigns of the parties hereto. The Owner may not assign its rights and/or obligations under this Agreement without the prior written consent of the City, which consent shall not be unreasonably withheld. Any such consent by City shall not, in any way, re lieve the Owner of its obligations and responsibilities under this Agreement.
2. Notice. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party’s address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notice served by United States mail in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof.
3. Binding. Subject to Section 17, below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties’ respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.
4. Compliance With Law. In providing the services required under this Agreement, the Owner shall at all times, comply with all applicable laws of the United States, the State of California and City, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement.
5. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein.
6. Indemnification of City. To the furthest extent allowed by law, the Owner shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict
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liability, but not limited to personal injury, death at any time, and property damage) incurred by City, the Owner or any other person, and from any and all claims, demands, liabilities, damages and actions in law or equity (including attorney’s fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of the performance of this Agreement and the performance of any or all work to be done in and upon the street rights-of-way or within the Owner’s property boundary, and premises adjacent thereto, pursuant to this Agreement, or arising or alleged to have arisen directly or indirectly in any way related to the construction, installation and operation of the new supply pipeline or its appurtenances by anyone occupying any portion of the Owner’s property including, without limitation, any such claims, causes of action, damages, liabilities, fees, costs, expenses, and attorney fees arising from water quality compliance, a lack of volume of water, inadequate fire flow, lack of water pressure in, from or delivered to the new water supply pipeline, or lack of flow capacity in the new water supply pipeline. The Owner’s obligations under the preceding shall apply regardless of whether City or any of its officers, officials, boards, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers.
If the Owner should subcontract all or any portion of the work to be performed under this Agreement, the Owner shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Agreement.
7. Insurance Requirements.
(a) Throughout the life of this Agreement, OWNER shall pay for and maintain in full force and effect all insurance as required herein with an insurance company(ies) either (i) admitted by the California Insurance Commissioner to do business in the State of California and rated no less than “A-VII” in the Best’s Insurance Rating Guide, or (ii) as may be authorized in writing by CITY'S Risk Manager or his/her designee at any time and in his/her sole discretion. The required policies of insurance as stated herein shall maintain limits of liability of not less than those amounts stated therein. However, the insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified therein or the full limit of any insurance proceeds to the named insured. (b) If at any time during the life of the Agreement or any extension, OWNER or any of its subcontractors fail to maintain any required insurance in full force and effect, all services and work under this Agreement shall be discontinued immediately, and all payments due or that become due to OWNER shall be withheld until notice is received by CITY that the required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to CITY. Any failure to maintain the required insurance
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shall be sufficient cause for CITY to terminate this Agreement. No action taken by CITY pursuant to this section shall in any way relieve OWNER of its responsibilities under this Agreement. The phrase “fail to maintain any required insurance” shall include, without limitation, notification received by CITY that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the insurer is insolvent.
(c) The fact that insurance is obtained by OWNER shall not be deemed to release or diminish the liability of OWNER, including, without limitation, liability under the indemnity provisions of this Agreement. The duty to indemnify CITY shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by OWNER. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of OWNER, vendors, suppliers, invitees, contractors, sub- contractors, subcontractors, or anyone employed directly or indirectly by any of them.
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01, providing liability coverage arising out of your business operations. The Commercial General Liability policy shall be written on an occurrence form and shall provide coverage for “bodily injury,” “property damage” and “personal and advertising injury” with coverage for premises and operations (including the use of owned and non-owned equipment), products and completed op erations, and contractual liability (including, without limitation, indemnity obligations under the Agreement) with limits of liability not less than those set forth under “Minimum Limits of Insurance.”
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01, providing liability coverage arising out of the ownership, maintenance or use of automobiles in the course of your business operations. The Automobile Policy shall be written on an occurrence form and shall provide coverage for all owned, hired, and non-owned automobiles or other licensed vehicles (Code 1- Any Auto).
3. Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance.
MINIMUM LIMITS OF INSURANCE
OWNER shall procure and maintain for the duration of the contract insurance with limits of liability not less than those set forth below. However, insurance limits available to CITY, its officers, officials, employees, agents and volunteers as additional insureds, shall be the greater of the minimum limits specified herein or the full limit of any insurance proceeds available to the named insured:
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1. COMMERCIAL GENERAL LIABILITY
(i) $1,000,000 per occurrence for bodily injury and property damage; (ii) $1,000,000 per occurrence for personal and advertising injury; (iii) $2,000,000 aggregate for products and completed operations; and, (iv) $2,000,000 general aggregate applying separately to the work performed under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY
$1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation Insurance as required by the State of California with statutory limits and EMPLOYER’S LIABILITY with limits of liability not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
UMBRELLA OR EXCESS INSURANCE
In the event OWNER purchases an Umbrella or Excess insurance policy(ies) to meet the “Minimum Limits of Insurance,” this insurance policy(ies) shall “follow form” and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
OWNER shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and OWNER shall also be responsible for payment of any self-insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
(i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits except after thirty (30) calendar days written notice has been given to CITY, except ten (10) days for nonpayment of premium. OWNER is also responsible for providing written notice to the CITY under the same terms and conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-renewal, or reduction in coverage or in limits, OWNER shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, OWNER shall provid e a new certificate, and applicable endorsements, evidencing renewal of such policy not less than seven (7) calendar days following to the expiration date of the expiring policy. (ii) The Commercial General and Autom obile Liability insurance policies shall be written on an occurrence form.
(iii) The Commercial General and Automobile Liability insurance policies shall be endorsed to name City, its officers, officials, agents, employees and
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volunteers as an additional insured for all ongoing and completed operations.
The Commercial General endorsements must be as broad as that contained in ISO Forms: GC 20 10 11 85 or both CG 20 12 04 13 or CG 20 26 04 13. (iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the OWNERS’ insurance shall be primary to and require no contribution from the City. The General Liability endorsement shall be as broad as that contained in ISO Form CG 20 01 04 13. These coverages shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. (v) If OWNER maintains higher limits of liability than the minimums shown above, City requires and shall be entitled to coverage for the higher limits of liability maintained by OWNER.
(vi) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits.
(vii) All policies of insurance shall contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees and volunteers.
PROVIDING OF DOCUMENTS
OWNER shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required herein. All certificates and applicable endorsements are to be received and approved by the CITY’S Risk Manager or his/her designee prior to CITY’S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. Upon request of CITY, OWNER shall immediately furnish CITY with a complete copy of any insurance policy required under this Agreement, including all endorsements, with said copy certified by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. All subcontractors working under the direction of OWNER shall also be required to provide all documents noted herein.
SUBCONTRACTORS
If OWNER subcontracts any or all of the services to be performed under this Agreement, OWNER shall be solely responsible for ensuring that its subcontractors maintain the insurance coverage required herein.
8. Public Health, Safety, and Welfare. Nothing contained in this Agreement shall limit City’s authority to exercise its police powers, governmental authority or take other appropriate actions to address threats to public health, safety and welfare, including temporarily suspending water services as deemed appropriate by City in its sole determination and discretion.
9. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California,
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excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California.
10. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify, or add to the interpretation or meaning of the provisions of this Agreement.
11. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of any one provision in this Agreement shall not affect the other provisions.
12. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provisions of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
13. Attorney’s Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceedings or action shall be entitled to recover from the other party its reasonable attorney’s fees and legal expenses.
14. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement.
15. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.
16. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
17. No Third-Party Benefits. The rights, interests, duties, and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.
18. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be modified only by written agreement duly authorized and executed by both City and the Owner.
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IN WITNESS THEREOF, the parties have executed the Agreement at Fresno, California, the day and year first above written.
CITY OF FRESNO, a California
municipal corporation
By:__________________________
Brock D. Buche, PE, PLS
Director of Public Utilities
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By:__________________________
Jennifer M. Quintanilla Date
Senior Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
By:__________________________
Deputy Date
Three Palms MH Park, LLC, a California
Limited Liability Company
By:
Name: Elias Weiner
Title: Manager
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
By:
Name:
Title:
(If corporation or LLC., CFO,
Treasurer, Secretary or Assistant
Secretary)
REVIEWED BY:
_____________________________
Peter A. Maraccini, Licensed Engineering
Mana
ger, Department of Public Utilities
Addresses:
CITY:
City of Fresno
Attention: Brock D. Buche, PE, PLS
Director of Public Utilities
1626 E Street
Fresno, CA 93706
Phone: (559) 621-8610
E-mail: Brock.Buche
@fresno.gov
OWNER:
Three Palms MH Park, LLC
Attention: Elias Weiner, Manager
1910 Terracina Dr.
Sacramento, CA 95834
Phone: 530-400-2354
E-mail: [email protected]
Attachments: Exhibit A – Grant Agreement
EXHIBIT A