Attachment A
Consultant-Professional
Services Provider Agreement
CIP# 74520
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CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT
BY AND BETWEEN
VICTORVILLE WATER DISTRICT
AND
BESST, INC.
FOR
WELL 109A DRILLING AND PROFILING, PROJECT CFC26-127
THIS CONSULTANT/PROFESSIONAL SERVICES PROVIDER AGREEMENT (hereinafter “Agreement”), dated this __________________ day of ______________, 20___, for reference purpose only, is made and entered into by and between the VICTORVILLE WATER DISTRICT , a County water district and subsidiary district of the City of Victorville, organized and existing in the County of San Bernardino under and by virtue of the laws of the State of California, hereinafter referred to as the “District”, and Besst, Inc., a California corporation, hereinafter referred to as “ Consultant.” District and Consultant are sometimes hereinafter referred to individually as a “Party” and collectively referred to as the “Parties.”
RECITALS:
WHEREAS, the District requires Consultant/Professional Services for Well 109A Drilling and Profiling; and
WHEREAS, Consultant represents that it is fully qualified to perform the consulting and/or professional services required for performance under this Agreement by virtue of its experience and the training, education and expertise of its principals and its employees; and
WHEREAS, in light of the facts set forth above, the District desires to retain the services of a qualified Consultant to provide, on an independent contractor basis, Well 109A Drilling and Profiling; and
NOW THEREFORE, IN CONSIDERATION OF THE COVENANTS, CONDITIONS, AND
PROMISES CONTAINED HEREIN AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:
Section 1. RECITALS
The Recitals set forth above are true and correct and are hereby incorporated into this Agreement by this reference, as though set forth fully herein.
Section 2. PROPOSAL
Consultant shall provide to the District those services set forth in the Proposal , attached hereto as Exhibit “A”, and incorporated as part of this Agreement by this reference.
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Section 3. COMPENSATION
The District shall pay to Consultant a sum not to exceed One Hu ndred Forty Two Thousand Five Hundred Twenty Three and 75/100 D ollars ($142,523.75) for faithful performance of the services to be rendered under this Agreement, subject to the Bid Quotation Sheet provisions of Section 4, below. No expense reimbursements, including, but not limited to, reimbursements for travel, parking, lodging, and/or meals shall be paid to Consultant unless such expense reimbursements: (i) are specifically provided for and described by nature and type in Exhibit “B”, below; (ii) appear on Consultant ’s monthly invoices to District ; (iii) are supported by the appropriate receipts and other such documentation as the District shall require; and (iv) are directly related to the Scope of Services to be performed under this Agreement. In addition, any and all reimbursements shall be made in accordance with any District policy governing same.
Section 4. BID QUOTATION SHEET
The District shall pay Consultant as provided in the Bid Quotation Sheet, attached hereto as Exhibit “B”, and incorporated as part of this Agreement by this reference. The provisions of Exhibit “B” notwithstanding, in order to receive payments, Consultant shall be required to submit to the District detailed monthly invoices which include, if applicable, a description of all services/tasks performed, the number of hours expended on each service/task, the name of the person performing the service/task, and expense reimbursement information, if any, as required by Section 3, above. Provided that services have been satisfactorily rendered, invoices shall be paid by the District approximately thirty (30) working days following receipt of Consultant ’s invoice.
Section 5. RESERVED
Section 6. TERM OF AGREEMENT
This Agreement shall be for an Initial Term of one (1) year commencing on the date of full execution of the Agreement (the “Commencement Date”) and expiring on June 30, 2027 (the “Termination Date ”) (the “Term”) , unless terminated earlier pursuant to Section 21 of this Agreement. From and after the Termination Date, and upon subsequent agreement by the Parties, this Agreement may continue on a month- to-month basis until terminated pursuant to Section 21 below.
This Agreement may be extended for one (1) additional one-year periods (hereinafter “Option Periods”), at the option of the District, subject to satisfactory performance as determined by the District. District shall give Service Provider sixty (60) days advance written notice prior to the expiration of the initial Term and sixty (60) days advance written notice prior to the expiration date of each subsequently exercised Option Period, if any, should the District decide to exercise its option(s) to extend. In the event District does not give Consultant such written notice of its option to extend, this Agreement shall terminate at the end of the then -current Term or Option Period without further notice from either Party, unless terminated earlier pursuant to the provisions of Section 21 below. Should the District fail to give Consultant the sixty (60) days written notice of its intention to exercise any Option Period, the District may, in its sole CIP# 74520
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discretion, elect to exercise any Option Period at a later date, following written inquiry from Consultant.
Section 7. INDEPENDENT CONTRACTOR STATUS
It is the express intention of the Parties that Consultant is an independent contractor and not an employee, agent, joint venturer, or partner of the District. Nothing in this agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between the District and Consultant or any employee or agent of Consultant . Both Parties acknowledge that Consultant is not an employee for state or federal tax purposes or any other purpose. Consultant shall retain the right to perform services for others during the term of this agreement.
Section 8. REPRESENTATIONS AND ACKNOWLEDGMENTS
REGARDING INDEPENDENT CONTRACTOR’S STATUS OF
CONSULTANT
a. Consultant represents and acknowledges the following:
(1) The District is not required to provide any training or legal counsel to Consultant or its employees in order for Consultant to perform the services described in this Agreement.
(2) Performance of the services described in this Agreement does not have to be integrated into the daily business operations of the District.
(3) The services described in this Agreement can be performed without the use of District equipment, materials, tools, or facilities, unless otherwise provided under a separate agreement.
(4) Nothing in this Agreement shall be interpreted to imply that the District must maintain any contractual relationship with Consultant on a continuing basis after termination of this Agreement.
(5) The District will not be requested or demanded to assume any liability for the direct payment of any salary, wage, or other such compensation to any person employed by Consultant to perform the services described in this Agreement.
(6) Consultant shall not at any time or in any manner represent that it or any of its officers, employees, or agents are employees of the District.
b. The District represents and acknowledges the following:
(1) Consultant is solely responsible for determining who, under the supervision or direction of Consultant, will perform the services set forth in this Agreement.
(2) The District will not hire, supervise, or pay any employees or assistants working for Consultant pursuant to this Agreement.
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(3) Nothing in this Agreement shall be interpreted to imply that Consultant must maintain any contractual relationship with the District on a continuing basis after termination of this Agreement.
(4) It is the sole responsibility of Consultant to set the hours in which Consultant performs or plans to perform the services set forth in this Agreement.
(5) Consultant is not required to devote full time to the business operations of the District in order to perform the services set forth in this Agreement.
(6) Unless deemed necessary under certain circumstances, Consultant is not required to perform the services set forth in this Agreement at City Hall or on District -owned property.
(7) Other than attendance at required public meetings and public hearings, and complying with the provisions of the Bid Quotation Sheet set forth in Exhibit B and any procedural requirements set forth by law, Consultant is not required to perform the services set forth in this Agreement in any particular order or sequence.
(8) Nothing in this Agreement shall be interpreted to preclude Consultant from working for other persons or firms, provided that such work does not create a conflict of interest.
Section 9. NOT AGENT OF THE DISTRICT
a. Nothing contained in this Agreement shall be deemed, construed, or represented by the District or Consultant or by any third person to create the relationship of principal and agent.
b. Consultant shall have no authority, express or implied, to act on behalf of the District in any capacity whatsoever as an agent, nor shall Consultant have any authority, express or implied, to bind the District to any obligation whatsoever.
Section 10. LICENSES AND PERMITS
Consultant represents that it has obtained and will maintain at all times during the I nitial Term (and during the Option Period, if applicable) of this Agreement all business licenses, including but not limited to a City of Victorville business license, professional licenses or certifications, or permits necessary for performing the services described in this Agreement.
Section 11. STANDARD OF PERFORMANCE; WARRANTY
a. Consultant agrees to perform all services required by this Agreement in a professional and competent manner, in accordance with the degree of skill and diligence which is normally employed by reputable professionals performing similar services under similar conditions in the same or similar locality. Such services shall also be performed in a manner which is reasonably satisfactory to Doug Mathews, Director of Public Works and Water , or his designee.
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b. By executing this Agreement, Consultant warrants that it:
(1) Has thoroughly investigated and considered the services and work to be performed;
(2) Has investigated the issues regarding the scope of services to be provided;
(3) Has carefully considered how the services and related work should be performed; and
(4) Fully understands the facilities, difficulties and restrictions associated with performance of the services required by this Agreement.
Section 12. FAMILIARITY WITH WORK
Should Consultant discover any latent or unknown conditions materially differing from those inherent in the services or as represented by the District , Consultant shall immediately inform the District of such fact and shall not provide any services, except at Consultant's risk, until written instructions are received from Doug Mathews, Director of Public Works and Water, or his designee.
Section 13. CONFLICTS OF INTEREST
Consultant covenants that it does not have any interest, nor shall it acquire any interest, directly or indirectly, which would conflict in any manner with the performance of Consultant’s services under this Agreement. Consultant further covenants that in the performance of services under this Agreement, no officer, employee or agent of Consultant having such interest shall be employed by it. In the event the District determines that Consultant must disclose its financial interests by completing and filing a Fair Political Practices Commission Form 700, Statement of Economic Interests, Consultant shall file such Form 700 with the District Secretary’s Office pursuant to the written instructions provided by the District Secretary.
Acquisition or maintenance of a conflicting interest by Consultant may result in termination of this Agreement by the District.
Section 14. COMPLIANCE WITH LAWS
Consultant shall comply with all local, state, and federal laws and regulations applicable to the services to be rendered hereunder, including any rule, regulation, or bylaw governing the conduct or performance of Consultant or its employees, officers, or board members.
Section 15. COMMERCIAL GENERAL AND AUTOMOBILE LIABILITY
INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement (and during the Option Period, if applicable) , Commercial General Liability Insurance, of not less than One Million Dollars ($1,000,000) per occurrence, and Two Million Dollars ($2,000,000) in the aggregate, for bodily injury, personal injury, death, loss, or damage CIP# 74520
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resulting from the wrongful or negligent acts by Consultant or its officers, employees, servants, volunteers, and agents and independent contractors.
b. Consultant shall further procure and maintain, at its own expense, during the Initial Term of this Agreement, (and during the Option Period, if applicable), Commercial Vehicle Liability Insurance covering personal injury and property damage, of not less than One Million Dollars ($1,000,000) combined single limit, covering any vehicle utilized by Consultant or its officers, employees, servants, volunteers, agents and independent contractors in performing the services required by this Agreement.
Section 16. WORKERS' COMPENSATION INSURANCE
a. Consultant shall procure and maintain at its own expense, during the I nitial Term of this Agreement (and during the Option Period, if applicable), Workers' Compensation Insurance, providing coverage as required by the California State Workers' Compensation Law.
b. If any class of employees employed by the Consultant pursuant to this Agreement is not protected by the California State Workers' Compensation Law, Consultant shall provide adequate insurance for the protection of such employees to the satisfaction of the District.
Section 17. PROFESSIONAL LIABILITY INSURANCE
Professional Liability Insurance or Errors and Omissions insurance as appropriate to Consultant’s profession shall be required and written on a policy form specifically designed to provide coverage for and protect against the negligent acts, errors and omissions of the Consultant in the performance of the services required by this Agreement. A minimum limit of $1,000,000 per claim and in the aggregate must be provided.
Section 18. ADDITIONAL INSURED
Notwithstanding any inconsistent statement in any required insurance policies or any subsequent endorsements attached thereto, all insurance policies, except for the Workers' Compensation, shall be endorsed to name the District , the City of Victorville, their officers, employees, servants, volunteers, agents and independent contractors, including, without limitation, the District Legal Counsel, as Additional Insureds.
Section 19. WAIVER OF SUBROGATION RIGHTS
Consultant shall require the carriers of all required insurance policies , to waive all rights of subrogation against the District, the City of Victorville, and their officers, employees, servants, volunteers, agents, and independent contractors and subcontractors. Each policy of insurance shall be endorsed to reflect such waiver.
Section 20. PROOF OF INSURANCE COVERAGE; REQUIRED
ENDORSEMENTS
a. Consultant shall secure from a good and responsible company or companies authorized to transact insurance business in the State of California, the policies of insurance CIP# 74520
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required by this Agreement and furnish to the Clerk certificates of insurance evidencing the required coverage, and policy endorsements at least two (2) weeks prior to the commencement of any services to be performed under this Agreement.
b. The policies and certificates of insurance shall be endorsed to provide that in the event of cancellation or amendment of any required insurance policy for any reason whatsoever, the District shall be notified by mail, postage prepaid, not less than thirty (30) days before the cancellation or amendment is effective. In the case of cancellation for non -payment, ten (10) days advance written notice shall be given.
c. Each policy and certificate of insurance shall be endorsed to provide that the policy shall not be terminated or expire without first providing thirty (30) days written notice to the District of such termination or expiration.
d. Each policy and certificate of insurance shall be endorsed to provide that the policy will be maintained throughout the Initial Term (and during the Option Period, if applicable), of this Agreement.
e. The commercial general liability and vehicle liability policies shall be endorsed to contain the following provision: “For any claims related to this contract, the Consultant’s insurance coverage shall be primary and non- contributory and at least as broad as ISO CG 20 01 04 13 as respects the District, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the District, its officers, officials, employees, or volunteers shall be excess of the Consultant’s insurance and shall not contribute with it. This requirement shall also apply to any Excess or Umbrella liability policies.”
Section 21. TERMINATION OR SUSPENSION
a. This Agreement may be terminated or suspended without cause by either Party at any time, provided that the Party initiating the termination provides the other Party at least thirty (30) days advance written notice of such termination or suspension. In the event of such termination, the District shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
b. This Agreement may be terminated or suspended with cause by either Party at any time, provided that the Party initiating termination provides the other Party at least ten (10) days advance written notice of s uch termination or suspension. In the event of such termination, the District shall only be liable for payment under the payment provisions of this Agreement for satisfactory services rendered or supplies actually furnished prior to the effective date of termination.
Section 22. TIME OF THE ESSENCE
Time is of the essence in the performance of this Agreement.
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Section 23. INDEMNIFICATION
a. Except as set forth in Subsection b of this Section 23, and to the fullest extent permitted by law, Consultant shall immediately defend, indemnify, and hold harmless the District, its officers, employees, representatives, and agents (the “District Indemnitees”), from and against those actions, suits, proceedings, claims, demands, losses, costs, and expenses, including legal costs and reasonable attorneys’ fees, for any personal injuries, deaths, or property damage, including property owned by the District (collectively “Claims”) which may arise out of Consultant's negligence or willful misconduct in the performance of the services described in this Agreement, unless such Claims are proven to be caused by the negligence or willful misconduct of the District Indemnitees.
b. The provisions of this Subsection b apply only in the event that Consultant is a design professional within the meaning of California Civil Code section 2782.8 (“Design Professional”). The term Design Professional, as defined in said section, is limited to licensed architects, licensed landscape architects, registered professional engineers, professional land surveyors, and the business entities that offer such services in accordance with the applicable provisions of the California Business and Professions Code.
(1) Notwithstanding the provisions of Subsection a above, to the extent that the services to be provided under this Agreement are those of a Design Professional, Consultant's duty to indemnify, hold harmless, and defend the District Indemnitees shall be limited to the extent that any Claims arise out of, pertain to, or relate to the negligence, recklessness, or willful misconduct of the Consultant, its officers, agents, employees or subconsultants in the performance of the services described in this Agreement.
(2) In no event shall the costs of defense charged to Consultant exceed the Consultant’s proportionate percentage of fault, except as otherwise set forth in said Civil Code section 2782.8, the provisions of which are incorporated into this Agreement by this reference.
Nothing in this Subsection b shall be construed to require Consultant to provide indemnification for Claims caused by the active negligence or willful misconduct of the District Indemnitees.
c. The District does not and shall not waive any rights that it may have against Consultant under this Section, because of the acceptance by the District, or the deposit with the District, of any insurance policy or certificate required pursuant to this Agreement. The hold harmless and indemnification provisions of this Section 23 shall apply regardless of whether said insurance policies are determined to be applicable to the claim, demand, damage, liability, loss, cost, or expense described herein.
d. The obligation to indemnify and defend, as set forth in this Section 23, is binding on the successors, assigns, or heirs of Consultant and shall survive the expiration or any early termination of this Agreement.
Section 24. REPORTS
Upon request by Doug Mathews, Director of Public Works and Water , or his designee, or as otherwise required by this Agreement, including but not limited to, the Scope of CIP# 74520
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Services set forth in Exhibit “A”, Consultant shall prepare and submit reports to the District concerning Consultant's performance of the services required by this Agreement.
Section 25. RECORDS
a. Consultant shall keep such books and records as shall be necessary to perform the services required by this Agreement and enable Doug Mathews, Director of Public Works and Water, or his designee, to evaluate the cost and the performance of such services.
b. Books and records pertaining to costs shall be kept and prepared in accordance with generally accepted accounting principles.
c. Doug Mathews, Director of Public Works and Water , or h is designee, shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records.
d. Records and supporting documents pertaining to the use of funds paid to Consultant hereunder shall be retained by Consultant and made available to Doug Mathews, Director of Public Works and Water, or his designee, for purposes of performing an audit for a period of five (5) years from the date of termination of this Agreement.
Section 26. RESERVED
Section 27. CONFIDENTIALITY; OWNERSHIP OF WORK
a. Any and all documents and information obtained from the District or prepared by Consultant for the District shall be kept strictly confidential unless otherwise provided by applicable law. All District data, documents and information shall be returned to the District upon termination of the Agreement.
b. Any drawings, specifications, reports, records, documents, or other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of to Doug Mathews, Director of Public Works and Water, or his designee, or as required by applicable law.
c. Consultant shall not disclose to any other entity or person any information regarding the activities of the District , except with the prior written approval of Doug Mathews, Director of Public Works and Water, or his designee, or as required by applicable law.
d. All original documents, reports, designs, computer files and all other materials prepared by Consultant in the course of performing the services pursuant to this Agreement, whether completed or in progress, are the property of the District and shall be surrendered to the District upon the completion of Consultant’s services or when requested by Doug Mathews, Director of Public Works and Water, or his designee. Such materials may be used, reused or otherwise disposed of by the District without the permission of Consultant.
e. Consultant’s covenants under this Section 27 shall survive the termination of this Agreement.
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Section 28. PRINCIPAL REPRESENTATIVES
a. Stefan McLin, Project Manager, is designated as the principal representative of Consultant for purposes of communicating with the District on any matter associated with the performance of the services set forth in this Agreement.
b. Doug Mathews, Director of Public Works and Water, or his designee, shall be the principal representative of the District for purposes of communicating with Consultant on any matter associated with the performance of the services set forth in this Agreement.
c. Either Party may designate another individual as its principal representative by giving written notice of such designation to the other Party.
Section 29. MODIFICATIONS AND AMENDMENTS; EXTRA SERVICES
a. This Agreement may be modified or amended only by a written instrument signed by both Parties.
b. During the Initial Term, the District may request that the Consultant perform Extra Services. As used herein, "Extra Services" means any services, which are determined by the District to be necessary for the proper completion of Well 109A Drilling and Profiling but which the Parties did not reasonably anticipate would be necessary at the execution of this Agreement. A written instrument signed by both Parties shall be required to authorize performance of and payment for Extra Services.
Section 30. ENTIRE AGREEMENT
a. This Agreement supersedes any and all prior or contemporaneous agreements, either oral or written, between the District and Consultant with respect to the subject matter of this Agreement.
b. This Agreement contains all of the covenants and agreements between the Parties with respect to the subject matter of this Agreement, and each Party to this Agreement acknowledges that no representations, inducements, promises, or agreements have been made by or on behalf of any Party, except those covenants and agreements in this Agreement.
c. No agreement, statement, or promise with respect to the subject matter of this Agreement, which is not contained in this Agreement, or in a valid modification or amendment to this Agreement, shall be valid or binding on either Party.
Section 31. AMBIGUITIES
This Agreement is in all respects intended by each Party hereto to be deemed and construed to have been jointly prepared by the Parties and the Parties hereby expressly agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them.
Except as expressly limited by this paragraph, all of the applicable rules of interpretation of contract shall govern the interpretation of any uncertainty or ambiguity of this Agreement.
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Notwithstanding the foregoing, the Parties agree that Exhibits “A” and “B” are attached hereto for reference purposes and to the extent there are any ambiguities, inconsistencies or conflicts between the terms of this Consultant/Professional Services Standard Provider Agreement and Exhibit s “A” and “B” the terms of this Consultant/Professional Services Standard Provider Agreement shall control and nothing set forth in Exhibit s “A” and “B” shall be deemed to supersede any of the provisions of this Consultant/Professional Services Standard Provider Agreement.
Section 32. NOTICES
a. Any notice to be provided pursuant to this Agreement shall be in writing, and all such notices shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the Parties as follows:
To the District: Doug Mathews,
Director of Public Works and Water
Public Works Department
City of Victorville
14343 Civic Drive
Victorville, CA 92392
To Consultant: Noah Heller, MS PG (CA 5792)
CEO – President / Senior Hydrogeologist
Besst, Inc.
50 Tiburon, Suite 7
San Rafael, CA 94901
b. Notices, payments, and other documents shall be deemed delivered upon receipt by personal service or as of the second (2nd) day after deposit in the United States mail.
Section 33. NON-LIABILITY OF DISTRICT OFFICERS AND
EMPLOYEES
No officer or employee of the District shall be personally liable to Consultant, or any successor in interest, in the event of any default or breach by the District or for any amount, which may become due to Consultant or to its successor(s), or for any breach of any obligation of the terms of this Agreement.
Section 34. REVIEW BY ATTORNEYS
Each Party hereto has had its attorney(s) review this Agreement and all related documents. Each Party hereto has consulted with its attorney(s) and has negotiated the terms of this Agreement based on such consultation.
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Section 35. WAIVER
a. No waiver shall be binding unless executed in writing by the Party making the waiver.
b. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision.
c. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of the right to compel enforcement of such provision or any of the remaining provisions of this Agreement.
Section 36. ASSIGNMENT
This Agreement shall not be assigned by either Party without prior written consent of the other Party.
Section 37. CARE OF WORK
The performance of services by Consultant or the payment of money by the District shall not relieve Consultant from any obligation to correct any incomplete, inaccurate, or defective work at no further cost to the District, when such incomplete, inaccurate or defective work is due to the negligence of Consultant.
Section 38. CAPTIONS AND HEADINGS
The captions and headings contained in this Agreement are provided for identification purposes only and shall not be interpreted to limit or define the content of the provisions described under the respective caption or heading.
Section 39. SUCCESSORS, HEIRS, AND ASSIGNS
Except as otherwise expressly provided herein, this Agreement shall be binding upon the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties to this Agreement and, likewise, shall inure to the benefit of the successors, endorsees, assigns, heirs, and personal representatives of each of the Parties.
Section 40. GENDER
In this Agreement, unless the context clearly requires otherwise, the masculine, feminine and neuter genders and the singular and the plural shall include one another.
Section 41. SEVERABILITY
If any one or more of the sentences, clauses, paragraphs, or sections contained herein is declared invalid, void, or unenforceable by a court of competent jurisdiction, the same shall be CIP# 74520
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deemed severable from the remainder of this Agreement and shall not affect, impair, or invalidate any of the remaining sentences, clauses, paragraphs, or sections contained herein.
Section 42. GOVERNING LAW
The validity of this Agreement and any of its terms or provisions, as well as the rights and duties of the Parties under this Agreement, shall be construed pursuant to and in accordance with California law.
Section 43. DEFAULT
a. Failure or delay by any Party to this Agreement to perform any material term or provision of this Agreement shall constitute a default under this Agreement; provided however, that if the Party who is otherwise claimed to be in default by the other Party commences to cure, correct, or remedy the alleged default within fifteen (15) days after receipt of written notice specifying such default and shall diligently complete such cure, correction, or remedy, such Party shall not be deemed to be in default hereunder.
b. The Party claiming that a default has occurred shall give written notice of default to the Party in default, specifying the alleged default. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default; provided, however, the injured Party shall have no right to exercise any remedy for a default hereunder without delivering the written default notice, as specified herein.
c. Any failure or delay by a Party in asserting any of its rights or remedies as to any default shall not operate as a waiver of any default or of any rights or remedies associated with a default.
d. In the event that a default by any Party to this Agreement may remain uncured for more than fifteen (15) days following written notice, as provided above, the injured Party shall be entitled to seek any appropriate remedy or damages by initiating legal proceedings.
Section 44. CUMULATIVE REMEDIES
Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default of any other default by the other Party.
Section 45. VENUE
All proceedings involving disputes over the terms, provisions, covenants, or conditions contained in this Agreement and all proceedings involving any enforcement action related to this Agreement shall be initiated and conducted in the applicable court or forum in San Bernardino County, California.
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Section 46. ATTORNEYS’ FEES
In the event any action, suit, or proceeding is brought for the enforcement of, or the declaration of any right or obligation pursuant to this Agreement, or as a result of any alleged breach of any provision of this Agreement, the prevailing Party in such suit or proceeding shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, from the losing Party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
Section 47. EFFECTIVENESS OF AGREEMENT
This Agreement shall not be binding upon the District, until signed by the authorized representative(s) of Consultant, approved by the District ’s Risk Manager, and executed by the authorized District personnel or Mayor.
Section 48. REPRESENTATIONS OF PARTIES AND PERSONS
EXECUTING AGREEMENT
a. Each of the Parties to this Agreement hereby represents that all necessary and appropriate actions of their governing bodies have been taken to make this Agreement a binding obligation of each of the Parties hereto.
b. The persons executing this Agreement warrant that they are duly authorized to execute this Agreement on behalf of and bind the Parties each purports to represent.
Section 49. COUNTERPARTS
This Agreement may be executed by the P arties in counterparts, and when executed by each of the Parties, each counterpart shall be deemed to be a part of this Agreement.
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the dates written below.
VICTORVILLE WATER DISTRICT BESST, INC.
By:______________________________ By:__________________________ Elizabeth Becerra, Noah Heller, MS PG (CA 5792) Board Chairman CEO – President
Dated: ___________________________ Dated:_______________________
ATTEST:
By:_______________________________
Jennifer Thompson,
District Secretary
Dated:_____________________________
APPROVED AS TO STANDARD FORM:
By: _______________________________
Andre de Bortnowsky,
District Legal Counsel
Dated:________________________ _
By: _________________________ _
Sandra Bostick,
District Risk Manager
Dated:_______ _______________
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EXHIBIT A
PROPOSAL
See Attachment
1 BESST, Inc., 50 Tiburon Street, #7, San Rafael, CA / 1380 Greg Street, #225, Sparks, NV / O: 415.453.2501 / www.besst-inc.com March 25th, 2026
To: Mr. Tom Porter
Water Supply Supervisor
Water Department
City of Victorville
O: 760.403.7071 / [email protected]
Cc: Arnold Villareal, Water Manager, 760.955.2993 [email protected] Cc: Daniel Best, Assistant Director of Water, 760.955.2482 [email protected] Subject: BESST Proposal for Hydrogeological Services – Long Screened Test Well From: Noah Heller, Principal Hydrogeologist, BESST, Inc.
Dear Mr. Porter:
BESST is pleased to provide you and your team members with our proposal for professional hydrogeological services to plan, oversee drilling and construction and to perform testing of a long-screened test well. Our quoted services include assistance and support in writing the technical specifications to be incorporated into the City’s Front Ends bid package that will be submitted to eligible drilling firms. BESST’s field services are abbreviated in part to save on cost and include logging of drill cuttings an supervision of downhole geophysics that are combined with oversight and QAQC of drilling activities during this time. Following this effort, BESST will only be on site to “spot-check” follow-on activities including well construction and development. Spot checks include observation of how the casing, well screen, gravel pack and bentonite seals are installed and that the well development meets the NTU criteria as stated in the driller’s contract.
The purpose of being onsite for the entirety of the drilling portion of the effort and the downhole geophysics is to ensure that the borehole is straight (alignment surveys), that there is no to minimal lost circulation and that cuttings are logged properly to ensure that the casing, screen intervals and bentonite seals are assigned to the correct depth intervals and that the downhole geophysical survey is properly run and produces useable data. Following development, BESST will use its proprietary profiling technology and methods (1US Patents) to profile the long-screened test well. We will coordinate with the City as to the number of sample bottle sets that will be required for the profiling effort. BESST staff will fill out the bottle labels and chain of custody and then transfer the bottles in coolers to the City’s representative for transport to the laboratory.1 We believe that a pre-design test well approach will work best for this project and will save the City money and time. The pre-design approach consists of BESST reviewing the driller’s logs from nearby wells and then using this data to formulate what the test well construction will be in the tech spec. This will allow the eligible drilling companies to establish pricing for these materials as part of their bid package. The drilling firm that receives the project award will then be required to order these materials in advance and stage them in a protective manner close to the drilling site. BESST’s review of the drill cuttings and the downhole geophysics will be performed as a QAQC check on the pre-design before the casing and annular materials are installed into the borehole to construct the test well. Given the statistical nature of how arsenic and hexavalent chromium are distributed in the subsurface, identification of aquitard boundaries and interbedded fines with more permeable sediments are of particular interest in the test well design and well profiling injection and sampling plan (ISP). Other analytes of concern that might be considered for sample analysis are 1 US 12,416,235, US 10,738,603 B2, US 10,677,626 B2
EXHIBIT A
PROPOSAL, PROJECT CFC26-127
17/ Consultant/Professional Services Provider Agreement/Besst, Inc./Project CFC26-127 2 BESST, Inc., 50 Tiburon Street, #7, San Rafael, CA / 1380 Greg Street, #225, Sparks, NV / O: 415.453.2501 / www.besst-inc.com total and dissolved iron and manganese, both of which are sometimes associated with arsenic and hexavalent chromium. Total dissolved solids should also be tested for and will be useful in calibrating and performing a QAQC check on the flow profiling and mass balanced chemistry.
After the profiling is completed, BESST will demobilize from the site. The driller will likely stay behind to construct a concrete pad around the test well and to install bollards to protect it. BESST will then begin its review of the data, including water chemistry, sieve analysis results, further review of the cuttings and downhole geophysics as well as the driller’s logs and reporting to provide a report that will detail the well construction as well as the profiling flow and water chemistry results. The final report will be stamped with a Professional Geologist seal by one of our California licensed geologists and provide recommendations for the final design of a public supply well.
We look forward to working closely with you and your team and providing you with excellent service and results. Please feel free to reach out with any questions or thoughts.
Kind Regards,
Noah Heller, MS PG (CA 5792)
President, Principal Hydrogeologist
BESST, Inc.
M: 415,302.7354 / [email protected]
Stefan McLin, Hydrogeologist, Project Manager
BESST, Inc.
M: 702743.6339 / [email protected]
EXHIBIT A
PROPOSAL, PROJECT CFC26-127
18/ Consultant/Professional Services Provider Agreement/Besst, Inc./Project CFC26-127 CIP# 74520
19 Consultant/Professional Services Provider Agreement/Besst, Inc./Project CFC26-127
EXHIBIT B
B
ID QUOTATION SHEET
S
ee Attachment
Quotation Date: 3/24/2026
City of Victorville, California
Item Quantity Unit Price Total
50 hrs. 170.00$ 8,500.00$
15 hrs. 195.00$ 2,925.00$
7 hrs. 235.00$ 1,645.00$
1 trip 2,952.00$ 2,952.00$
16,022.00$
3 ea. $ 2,152.00 $ 6,456.00
7 day(s) $ 273.00 $ 1,911.00
7 day(s) $ 1,700.00 $ 11,900.00
12 hrs. $ 195.00 $ 2,340.00
15 ea. $ 188.25 $ 2,823.75
5 hrs. $ 195.00 $ 975.00
5 hrs. $ 235.00 $ 1,175.00
$ 27,580.75
1 ea. 3,416.00$ 3,416.00$
5 day(s) $ 546.00 2,730.00$
1 ea. 2,500.00$ 2,500.00$
5 day(s) 9,950.00$ 49,750.00$
15 hrs. 195.00$ 2,925.00$
5 hrs. 235.00$ 1,175.00$
62,496.00$
0 ft. $ 3.35 $ -
1 ea. $ 500.00 $ 500.00
1 ea. $ 250.00 $ 250.00
1 ea. $ 250.00 $ 250.00
$ 1,000.00
0 ea. $ 330.00 $ -
0 Liters $ 30.00 $ -
0 day(s) 1,700.00$ $ -
$ -
$ 91,076.75
Spot-Check Oversight: borehole drilling, lithology logging, geophysics, construction, and well development. Assume 7 days of spot-checking per 25 days of drilling per well location, 1000' borehole. Daytime work only, including weekends.
Attend on site pre-construction meeting, including travel and time costs Spot Oversight Mob/Demob
Per diem Hydrogeologist 1: food, lodging and fuel
Final Test Well Design: Analyze Geophysical Logs and Compare to Cuttings Full Sieve Analysis: includes 10% administrative markup on subcontracted services Senior Hydrogeologist Field Support
Subtask 2D: Optional Services
Extra Zones
Extra Volume
Complete Chain of Custody
Subtotal #2A
TASK 2 - TEST WELL SUPPORT SERVICES - ASSUME REVERSE ROTARY DRILLING
HYDROGEOLOGIC SERVICES
Payment Terms: Net 30
Victorville, CA 92392
Phone:760.955.2993
[email protected]
TASK 1 - TEST WELL TECH SPEC + PLANNING and MEETINGS
[email protected]
Office: 415.453.2501 / Direct: 805.729.2909
50 Tiburon, Suite 7 San Rafael, CA 94901
BESST INC
Quote Valid for 90 Days
Planning, Meetings - Senior Hydrogeologist / Project Manager Support and Assist in preparation of tech-specification and bid sheet.
Planning, Meetings - Principal Hydrogeologist - Project Executive MS PG BESST Preliminary Quotation: City of Victorville - Well 109A Test Well Hydrogeological Services (Spot Check
Approach)
CLIENT INFORMATION:
Mr. Arnold Villarreal, Water Manager
14343 Civic Dr
Estimators: Noah Heller, PG. Stefan McLin, Project Manager Task 1 Subtotal
Subtotal #2B
Subtotal #2C
Subtotal #2D
Task 2 Subtotal
PFAS Dedicated Tubing for Depth-Dependent Sampling
Complete Sample Bottle Labels
Step Test to Estimate Hydraulic Properties
Package Samples
Subtask 2B - Well Testing
Subtask 2A - Construction Support (Spot Checking Approach) Subtask 2C: Sample Handling and Coordination
Senior Hydrogeologist Field Support
Principal Hydrogeologist, MS PG Field Support
Mob/Demob - Includes Profiling Rig and Personnel
Profiling Rig setup
Operation: Dynamic Flow and Water Quality Profiling requires two scientists. Up to 20 Per diem Hydrogeologists 1 & 2: food, lodging and fuel
Principal Hydrogeologist, MS PG Field Support
1 of 2
EXHIBIT B
BID QUOTATION SHEET, PROJECT CFC26-127
20/ Consultant/Professional Services Provider Agreement/Besst, Inc./Project CFC26-127 Quotation Date: 3/24/2026
City of Victorville, California
Item Quantity Unit Price Total
HYDROGEOLOGIC SERVICES
Payment Terms: Net 30
Victorville, CA 92392
Phone:760.955.2993
[email protected] [email protected]
Office: 415.453.2501 / Direct: 805.729.2909
50 Tiburon, Suite 7 San Rafael, CA 94901
BESST INC
Quote Valid for 90 Days
BESST Preliminary Quotation: City of Victorville - Well 109A Test Well Hydrogeological Services (Spot Check
Approach)
CLIENT INFORMATION:
Mr. Arnold Villarreal, Water Manager
14343 Civic Dr
Estimators: Noah Heller, PG. Stefan McLin, Project Manager 1 ea. $ 12,000.00 $ 12,000.00
1 ea. $ 20,000.00 $ 20,000.00
$ 32,000.00
1 wk. $ 200.00 $ 200.00
1 wk. $ 1,000.00 $ 1,000.00
1 wk. $ 1,250.00 $ 1,250.00
1 wk. $ 350.00 $ 350.00
5 day(s) $ 125.00 $ 625.00
$ 3,425.00
0 day(s) $ 1,700.00 $ -
0 hr. $ 275.00 $ -
0 hr. $ 235.00 $ -
0 hr. $ 195.00 $ -
0 hr. $ 170.00 $ -
0 day(s) $ 7,960.00 $ -
0 ea. $ 2,903.60 $ -
0 ea. $ 2,152.00 $ -
0 day(s) $ 546.00 $ -
0 day(s) $ 273.00 $ -
$ -
$ 142,523.75
Task 5 Subtotal
Oversight Per Diem (1 Hydrogeologist)
Profiling Mob/Demob: 2 Hydrogeologist Crew Swap
Profiling Dynamic Profiling Operation - additional days Profiling Crew Per Diem (2 Hydrogeologists)
Oversight Mob/Demob: 1 Hydrogeologist
Client Purchase Order Number_____________________________________ Client Signature_________________________________ Test Well Completion Report with PG Signoff including recommendations for production well design.
TOTAL:
Senior Hydrogeologist Review and Support
Hydrogeologist Oversight, Well Construction Support
Task 3 Subtotal
Task 4 Subtotal
Standby
Principal Hydrogeologist Review and Support
Spot Check Oversight - additional days
TASK 5 - OVERRUN CONTINGENCY
TASK 3 - TEST WELL COMPLETION REPORT
TASK 4 - INSTRUMENTATION
Plot and Analyze lithology, geophysics, water chemistry and flow data, and sieve analysis for the public supply well design
Water Level Meter
Pressure Transducer + Non-Vented Cable
Multi Water Parameter Meter and Flowcell
Hach 2100Q Portable Turbidity meter
Generator Rental
2 of 2
EXHIBIT B
BID QUOTATION SHEET, PROJECT CFC26-127
21/ Consultant/Professional Services Provider Agreement/Besst, Inc./Project CFC26-127