S
2213.SR.JD
CITY OF SIMI VALLEY
MEMORANDUM
J
anuary 23, 2023
TO
: Board of Directors, Ventura County Waterworks District No. 8 F
ROM: Department of Public Works
S
UBJECT: DETERMINATION OF INCONGRUOUS VENDOR AND APPROVAL OF
CONTRACT TO PROVIDE CROSS -CONNECTION CONTROL
SERVICES FOR WATERWORKS DISTRICT CONNECTIONS AND
AUTHORIZE THE DISTRICT MANAGER OR DESIGNEE TO RENEW THE
CONTRACT
STAFF RECOMMENDATION
I
t is recommended that the Board of Directors determine the County of Ventura to be an incongruous vendor and approve the attached contract (page 4) for an amount not to exceed $150,000, retroactively effective to July 1, 2022, to provide cross -connection control services for connections to the Waterworks District distribution system for an initial five (5) year term, authorize the District Manager or their designee to approve the option to renew the contract for two (2) additional two (2) year terms , negotiate a not to exceed amount upon exercising each two (2) year term renewal, and ratify any fees incurred and paid by the District since July 1, 2022 under this agreement.
BACKGROUND AND OVERVIEW
It is the responsibility of Ventura County Waterworks District No. 8 (District) to protect its potable water system and comply with the State Water Resource Control Board and the California Code of Regulations (Title 17), for the installation and maintenance of backflow prevention assemblies. The District is also responsible for the implementation of a cross- connection control program to prevent and identify connections between the drinking water supply and potential sources of contamination. Since July 1977, the City has contracted with Ventura County to perform cross-connection control services for backflow prevention devices and to enforce unprotected cross-connections, on behalf of the District.
There are approximately 1,970 backflow prevention assemblies in the District’s service area. Required for all commercial, multi -family residential, fire protection systems, alternative non- potable water supplies, and some single- family residential customers , backflow prevention assemblies prevent contaminants from a customer’s service line from entering the District’s water system . Backflow prevention assemblies are owned and maintained by the property owner and must be tested annually to ensure that they are functioning properly.
AGENDA ITEM NO.
Consent (7)
S2213.SR.JD
FINDINGS AND ALTERNATIVES
Since 1977, t he District has had an agreement with the County of Ventura (County) to manage the District’s backflow prevention assembly and cross -connection control program. Due to amendments to the City’s Purchasing Ordinance adopted by the City Council in 2017 (Section 2- 9.101 et seq. of the Municipal Code), contracts that exceed five (5) years must be approved by the Board of Directors (See Section 2-9.110(b)). The template used is the County’s agreement.
The agreement allows County staff to inspect all locations in Simi Valley where cross- connections are used and regulates the proper installation and maintenance of backflow prevention assemblies on behalf of the District. The County also assists the District with Title 17 compliance by sending notices to customers to submit their annual backflow prevention assem bly test results, receiving test reports, maintaining a database, and certifying approved backflow inspectors. On behalf of the District, the County may send up to three written notices to District customers , as reminders, to test their backflow prevention assemblies and submit annual certified inspection reports to prevent cross - connections.
Without this contract, the District would need to hire additional staff to manage the cross connection program and backflow prevention assembly compliance at a cost greater than the value of the annual contract with the County.
Staff recommends that the Board of Directors approve the new contract with the County of Ventura to continue to provide cross- connection control services for District connections. Funding for this contract is budgeted annual ly in the District operating budget.
The following alternatives are available to the Board of Directors:
1. Determine that the County of Ventura is an incongruous vendor in accordance with the City’s Purchasing Ordinance, Section 2 -9-201 ( e), which makes bidding unnecessary when the purchase is not suitable to the bid procedure;
2. Approve the attached contract with the County of Ventura for an amount not to exceed $150,000, to provide cross-connection control services for connections to the Waterworks distribution system for an initial five (5) year term, and authorize the District Manager or his designee to authorize the option to renew the contract for two (2) additional two (2) year terms , negotiate a not to exceed amount up on exercising each two (2) year term renewal , and ratify any fees incurred and paid by the District since July 1, 2022 under this agreement;
3. Do not approve the contract at this time and provide direction to staff.
Staff recommends Alternative No. 1 and 2.
2 S2213.SR.JD
SUGGESTED BOARD OF DIRECTORS MOTION
I
move that the District find the County of Ventura is incongruous to the bidding process and to approve the attached contract with the County of Ventura, for an amount not to exceed $150,000, retroactively effective to July 1, 2022, to provide cross -connection control services for connections to the Waterworks District system, authorize the District Manager or their designee to approve the option to renew the contract for two (2) additional two (2) year terms, negotiate a not to exceed amount upon exercising each two (2) year term renewal, and ratify any fees incurred and paid by the District since July 1, 2022 under this agreement.
SUMMARY
Staff recommends that Ventura County be determined an incongruous vendor in accordance with the City’s Purchasing Ordinance, Section 2-9- 201 ( e), which makes bidding unnecessary when the purchase is not suitable to the bid procedure and approve the attached contract with the County of Ventura, for an amount not to exceed $150,000, to provide cross -connection control services for connections to the Waterworks distribution system for an initial five (5) year term, and authorize the District Manager or his designee to authorize the option to renew the contract for two (2) additional two (2) year terms, negotiate a not to exceed amount upon exercising each two (2) year term renewal, and ratify any fees incurred and paid by the District since July 1, 2022 under this agreement. Since 1977, the District has had an agreement with the County of Ventura (County) to manage the District’s backflow prevention assembly and cross -connection control program that automatically renews. Due to amendments to the City’s Purchasing Ordinance adopted by the City Council in 2017 (Section 2-9.101 et seq. of the Municipal Code), contracts that exceed five (5) years, must now be approved by the Board of Directors (See Section 2- 9.110(b)).
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_________________________________
Ronald K. Fuchiwaki
Public Works Director
P
repared by: Lisett Bautista, Budget and Administration Manager INDEX Page
Contract ........................................................................................... 4 3 CONTRACT TO IMPLEMENT CROSS-CONNECTION CONTROL PROGRAM This contract is made and entered into by and between the County of Ventura, hereinafter referred to as "County," and City of Simi Valley Waterworks District No. 8 hereinafter referred to as "Purveyor," to provide for implementation of a cross connection control program for Purveyor by the Environmental Health Division of County's Resource Management Agency ("Division") pursuant to California Code of Regulations, Title 17, Section 7584. Now, therefore, in consideration of the mutual promises contained herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Services. County, acting through Division, shall perform services necessary to implement a cross-connection control program for Purveyor, as described in Exhibit A attached hereto and made a part hereof.
2. Payment. Purveyor shall pay County compensation as described in Exhibit B attached hereto and made a part hereof.
3. Term. The term of this contract shall commence on July 1, 2022, and shall continue until June 30, 2027, with an option to renew the contract two (2), additional two (2) year terms, and approved by the Purveyors' proper authority. Notwithstanding anything to the contrary, this contract may be terminated on July 1 of each year without cause by Purveyor or County by giving a written notice to the other p~rty of such intention to terminate no later than the preceding May 1 of that year.
4. Independent Contractor. County is an independent contractor, and no relationship of employer and employee is created between the parties by this contract. Except as otherwise provided in this contract, Purveyor will have no control over the means or methods by which County will perform services under this contract.
5. Indemnification. Purveyor agrees to defend, through attorneys approved by County, indemnify and hold harmless County and its boards, agencies, departments, officers, employees, agents and volunteers (collectively, "lndemnitee") from and against any and all third party claims, lawsuits, judgments, debts, demands, and liability (including attorney fees and costs) (collectively, ''Third Party Claims"), including, without limitation, those arising from injuries or death of persons and/or damage to property, whether against Purveyor, County or others, arising directly or indirectly out of, pertaining to or related to this contract, or operations conducted or subsidized in whole or in part by Purveyor, including the condition of Purveyor's property and facilities.
However, this indemnity provision does not apply to Third Party Claims arising from the sole negligence or willful misconduct of lndemnitee or to the extent caused by the active negligence of lndemnitee. Purveyor shall not settle or otherwise compromise a Third Party Claim covered by this section without County's advance written approval .
4 6. Miscellaneous.
a. Entire Agreement. This contract is an integrated agreement and constitutes the final expression, and the complete and exclusive statement of the terms of, the parties' agreement with respect to the subject matter hereof. This contract supersedes all contemporaneous oral and prior oral and written agreements, understandings, representations , inducements, promises, communications or warranties of any nature whatsoever, by either party or any agent, principal, officer, partner, employee or representative of either party, with respect to the subject matter hereof. b. Modifications. No modification, waiver, amendment or discharge of this contract shall be valid unless the same is in writing and signed by duly authorized representatives of both parties.
c. Third Party Beneficiaries . Except for indemnitees under section 5, above, this contract does not, and the parties to this contract do not intend to, confer a third party beneficiary right of action on any third party whatsoever, and nothing set forth in this contract will be construed so as to confer on any third party a right of action under this contract or in any manner whatsoever.
d. Time of the Essence. Time limits stated herein are of the essence. e. Governing Law; Venue. This contract is made and entered into in the State of California and shall, in all respects, be interpreted , governed and enforced in accordance with the laws of the State of California applicable to contracts entered into and fully to be performed therein . The venue for any action, suit, arbitration, judicial reference or other proceeding concerning this contract shall be in Ventura County, California. f. Notice. All notices, requests , claims, and other official communications under the contract shall be in writing and transmitted by one of the following methods to the physical address, fax number or e-mail address set forth in this section: personal delivery; facsimile; courier; e-mail, where receipt is confirmed; or registered or certified mail, postage prepaid, return receipt requested. Such notices and communications shall be deemed given and received upon actual receipt in the case of all except registered or certified mail; and in the case of registered or certified mail, such notices and communications shall be deemed given and received on the date shown on the return receipt or the date delivery during normal business hours was attempted. All notices and communications shall be sent as follows:
5 To County:
To Purveyor:
Charles Genkel, Director
Ventura County Environmental Health Division
800 S. Victoria Avenue Ventura, CA 93009-1730
Phone : 805-654-2813
Joe Deakin, District Engineer
City of Simi Valley, Waterworks District No. 8
500 West Los Angeles, Simi Valley, CA 93063
JDeak in@simiva lley.org; Phone: (805) 583-6401
Either party may change its contact information by providing written notice of the change to the other party in accordance herewith. g. Further Actions. The parties hereto agree that they will execute any and all documents and take any and all other actions as may be· reasonably necessary to carry out the terms and conditions of this contract. h. Legal Represe ntation. Each party warrants and represents that in executing this contract, the party has relied upon legal advice from attorneys of the party's choice (or had a reasonable opportunity to do so); that the party has read the terms of this contract and had their consequences (including risks, complications and costs) completely explained to the party by the party's attorneys (or had a reasonable opportunity to do so); and that the party fully understands the terms of this contract. Each party further acknowledges and represents that the party has executed this contract freely and voluntarily without the undue influence of any person, and the party has not relied on any inducements, promises or representations made by any person not expressly set forth in this contract.
i. No Waiver. Failure by a party to insist upon strict performance of each and every term, condition and covenant of this contract shall not be deemed a waiver or relinquishment of the party's rights to enforce any term, condition or covenant.
j. Interp retation of Contract. For purposes of interpretation, this contract shall be deemed to have been drafted by both parties, and no ambiguity shall be resolved against any party by virtue of the party's participation in the drafting of the contract. Accordingly, Civil Code section 1654 shall not apply to the interpretation of this contract. Where appropriate in the context of this contract, the use of the singular shall be deemed to include the plural, and the use of the masculine shall be deemed to include the feminine and/or neuter.
6 k. Counterparts. This contract may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same contract.
IN WITNESS WHEREOF, the parties hereto have executed this contract.
Dated: -----------
Dated: -----------
Dated: 9 ... 2.1- Z. 2-----'----------
CITY OF SIMI VALLEY, WATERWORKS
DISTRICT NO. 8
By:
By:
Keith L. Mashburn, Board of
Directors City of Simi Valley
Waterworks District No. 8
APPROVED AS TO FORM
David L. Caceres, City Attorney
COUNTY OF VENTURA
By:
Charles Genkel, Director
Ventura County Environmental Health
Division
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See revised District signature page
7 CITY OF SIMI VALLEY, WATERWORKS DISTRICT NO. 8
Attest: City of Simi Valley, Waterworks District No. 8
By:
Lucy Blanco, District Secretary Fred D. Thomas, Board of Directors City of Simi Valley, Waterworks District No. 8
Approved as to Form: Approved as to Content:
___________________________________
David L. Caceres, City/District Counsel Brian Paul Gabler, City/District Manager
___________________________________
Ronald K. Fuchiwaki, Public Works Director
8 1. Overview of the Work
EXHIBIT A
SCOPE OF WORK
Purveyor has retained County, acting through Division, to implement a legally compliant cross-connection program on Purveyor's behalf that complies with applicable law and in order to prevent backflow contamination of Purveyor's water system.
2. Standard Services
Division shall perform the cross-connection program services listed in this section, which are referred to in this contract as "Standard Services":
I. Backflow Prevention Assembly Testing Program
A. Division will implement and maintain a testing program for backflow prevention assemblies (also referred to herein as "assemblies" or "devices").
This program shall consist of the following :
1. A database will be maintained of all known major backflow assemblies in service, paired with testing results on all such assemblies .
2. A website and mobile phone application will be maintained, which allows assembly testing results to be reported directly to Division. The website will also allow Purveyor to check the testing status of any backflow prevention assembly.
3. Division will notify major assembly owners when an assembly is due for annual testing . A second notice will be generated when Division does not receive a passing test result by the date specified on the first notice.
4. The water user will be provided with a list of certified backflow prevention assembly testers at the time of notification to have the assembly tested.
5. In the event the water user fails to have the assembly tested, repaired or replaced in accordance with the requirements, Division will notify Purveyor to take appropriate enforcement action.
6. The results of backflow prevention assembly testing shall be evaluated by Division staff for inadequacies in testing, approved assemblies or parts thereof.
9 B. Division will conduct refresher courses in backflow prevention assembly testing. The course shall be designed to meet the requirements for certification in Ventura County of persons as backflow prevention assembly testers. The refresher course and procedures will conform to applicable County ordinance(s) and the policies and procedures of Division.
II. Compliance Assistance and Enforcement Support
A Where unprotected cross-connections are found on a water user's premises, Division shall do the following:
1. Send a letter to the user describing the unprotected cross-connections found on the premises and the measures necessary to correct the problem(s), and providing a compliance deadline. A copy of the letter will be provided to Purveyor for enforcement action.
2. Inform Purveyor of major assemblies not tested or failed device tests monthly for appropriate enforcement by Purveyor.
3. Provide the water user with lists of approved backflow prevention assemblies compiled from the Foundation for Cross-Connection Research Laboratory, University of Southern California.
4. In conjunction with Purveyor, provide the water user with diagrams and other appropriate information and/or consultation for the proper installation of backflow assemblies.
B. Division will, in conjunction with Purveyor, re-inspect the water user's premises after the specified compliance deadline to:
1. Determine compliance;
2. Determine that backflow prevention assemblies were installed correctly; and
3. Record data on major backflow prevention assemblies for future testing purposes.
C. In the event the water user fails to take the necessary measures to correct unprotected cross-connections within the specified compliance period, Division will notify Purveyor so that Purveyor may undertake appropriate enforcement action.
10 Ill. Reports
Division will provide an annual report to Purveyor with an inventory of all active assemblies in the database , including a summary report for the previous calendar year of the number of active assemblies and the number of assemblies tested, installed, repaired, delinquent for testing and inactivated.
3. Additional Services
"Additional Services" are services related to the work described in section 1 of this Exhibit A that are not Standard Services and have been authorized by Purveyor.
Additional Services may include, without limitation: plan checking; technical consultation with Purveyor, property owners, builders, and backflow assembly manufacturers ; coordination of cross-connection control program elements with other jurisdictions; providing testimony and documents in proceedings involving Purveyor's cross-connection control program; and conducting water use surveys (other than the initial water use survey referenced in section 4 of this Exhibit A). A water use survey is a thorough inspection of all water uses for cross-connection hazards to determine the degree of protection needed. County may suggest and prioritize water use surveys according to complaints or special hazards such as sewage and chemical plants, plating shops, hospitals and heavy water use.
4. Purveyor Responsible for Enforcement
Except as explicitly provided in section 2 of this Exhibit A, Purveyor is solely responsible for taking any and all appropriate actions to enforce all requirements standards , and regulations related to the cross-connection control program undertaken on Purveyor's behalf.
11 1. Per Device Fee
EXHIBIT B
FEES AND PAYMENT
For Standard Services, Purveyor shall pay to County a fee equal to Purveyor's pro rata share of the total cost of Division's program to provide cross-connection control program services to water purveyors, based on the ratio of the number of Purveyor's devices to the total number of devices in Division's program database . This per device fee shall be recomputed annually and adjusted as necessary to compensate County for actual costs incurred in performing Standard Services for all participating water purveyors.
Purveyor shall pay County as set forth herein Section 1 and 2 below. However, in no event shall the total amount paid exceed $150,000 based on the initial 5-year contract term, unless otherwise agreed to by the parties in writing and approved by the Purveyor's proper authority. Parties will negotiate a not to exceed amount upon exercising each 2-year term renewal of this contract.
2. Additional Service Fee
For Additional Services, Purveyor shall pay County for the actual hours of Additional Services performed by County employees at the hourly rate most recently established by County's Board of Supervisors for the County employees performing such services.
3. Payments
Purveyor shall make payments to County under the contract as follows:
• County will submit bills for the per device fee quarterly anq bills for the fee for Additional Services within 30 days of performing such services. A bill for fees must be paid within 30 days of receipt of the bill. The fee for Start-Up Services must be paid within 30 days of the date this contract is fully executed. • If the invoice is defective, Purveyor shall notify County, in writing, of the reasons within seven (7) days of receipt of invoice .
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