GRant-Funded MAIN iNSTALLATION Agreement
(re: VIS/South Linwood Avenue between West Crowley Drive and Mineral King Avenue) This Grant-Funded Main Installation Agreement (this Agreement), dated _________ (the Effective Date), is made by and between the City of Visalia, a charter city (the City) and California Water Service Company, a California corporation (Cal Water), who are each referred to as a Party and collectively referred to as the Parties.
Background
The City received a grant (the Grant) from the California Department of Water Resources (DWR) to plan, design, and construct a potable water main and related facilities to connect twelve (12) homes near 119 South Linwood Avenue, between West Crowley Drive (to the north) and Mineral King Avenue (to the south), in the City of Visalia, County of Tulare, State of California (the Project Area) to Cal Water’s existing potable water distribution system (collectively, the Project).
The customers reside in Cal Water’s service area in the City of Visalia, but are not customers of or connected to Cal Water’s potable water distribution system.
The City has proposed and is able to use the Grant to reimburse Cal Water for cost and expenses to plan, design, and construct the potable water main and facilities, service meters, and service lines for the Project (i.e., the Work, as more particularly defined below).
Cal Water is willing to undertake the Work, according to its usual standards and practices and in consideration of and subject to the terms of this Agreement.
Agreement
NOW, THEREFORE, for and in consideration of the Background above and of the terms and conditions below, the Parties agree as follows:
Work
Independent Contractor
. All of the labor, materials, and equipment to complete the Project are more fully defined in those plans and drawings prepared by Cal Water, dated October 29, 2021 and approved by the City (the Plans) and which work is summarized in Exhibit A (the Work). Except as otherwise provided in this Agreement, Cal Water will be responsible for all of the Work, including planning, design, permitting, and construction. Cal Water reserves the right to make such changes in design or materials as it may deem necessary. Cal Water may hire contractors or subcontractors to perform any part or portion of the Work as Cal Water deems necessary or desirable. Cal Water is and will be deemed an independent contractor, and not an employee, representative, or agent of the City.
Reasonable Cooperation
. The Parties will reasonably cooperate to coordinate the Work to facilitate the completion of the Project and to avoid reasonably foreseeable disruptions and delays, and to fulfill the purposes of this Agreement. Each Party will designate a primary point of contact and any key personnel within a reasonable time of the Effective Date. A Party may substitute or designate additional contacts or key personnel in writing to the other at:
CWS: Business Development
Cal. Water Service Company
1720 N. First Street
San Jose, CA 95112
Attn: Dir. of Integration
City: Engineering Division
City of Visalia
315 E. Acequia Avenue
Visalia, CA 93291
Attn: Cody McLaughlin
Copy: Legal Department
Cal. Water Service Company
1720 N. First Street
San Jose, CA 95112
Attn: Assoc. General Counsel
Copy: City Attorney’s Office
City of Visalia
707 W. Acequia Avenue
Visalia, CA 93291
Attn: City Attorney
Project
Project Area
. The Project Area is described or shown in Exhibit B.
Project Term
. The construction phase of the Project will begin on the date when Cal Water has obtained the necessary or sufficient materials, equipment, labor, and approvals or permits to begin and prosecute the Work to completion (the Start Date) and end ninety (90) days from the Start Date, unless completed earlier or otherwise extended by written agreement of the Parties (the End Date). Cal Water will perform all construction activities during the hours of 8:00 A.M. (PST/PDT) and 5:00 P.M. (PST/PDT).
Construction Delay
. Cal Water will not be responsible for any delay in construction resulting from any cause beyond its reasonable and foreseeable control, including, without limiting the generality of the foregoing, any delay resulting from inability to obtain sufficient or proper materials and supplies, labor disturbances or shortages, or weather conditions, or inability to obtain necessary permits, licenses, franchises or other governmental authorizations or approvals.
Facilities Ownership
. The facilities installed by Cal Water under this Agreement and the Work (except for facilities owned by a customer, i.e., facilities behind a customer meter), and any plans, drawings, designs, and intangible personal property of Cal Water will be and remain at all times the property of Cal Water, and the City shall have no right, title or interest whatsoever in or to the same. Promptly on the completion of the Project, the City will have signed, notarized, and delivered to Cal Water two (2) original copies of the Quitclaim Bill of Sale in the form and content attached as Exhibit E.
Labor Compliance
. The construction in this project by Cal Water and Cal Water subcontractors under this agreement are subject to compliance with the City of Visalia Labor Compliance Manual attached as Exhibit E.
Prevailing Wage
. This project will be subject to all applicable State Wage Determinations. Cal Water and Cal Water subcontractors will be responsible for paying wages from the State Wage Determinations for all trades. The wages are set forth in the General Prevailing Wage Rates for this project, available at City of Visalia address and available from the California Department of Industrial Relations’ Internet web site: http://www.dir.ca.gov/dlsr/PWD/index.htm. .
Payment
Estimated Cost
. The Estimated Cost of the Work is [Reserved and No/100 Dollars] ($[]), a statement of which is attached as Exhibit C. The City understands that the Estimated Costs are an estimate only and that the actual cost and expense Cal Water may incur to complete the Project may exceed the Estimated Costs. The City will pay or reimburse Cal Water for all of the Cal Water’s costs and expenses necessary to complete the Project in an amount not to exceed: [Grant Fund Totals].
Progress Payments
. Cal Water will invoice the City no more than once per calendar month during the term of the Project. The City will remit payment to Cal Water within thirty (30) calendar days of the date of an invoice by check, payable to “California Water Service Company”, to the following address:
Accounts Payable
California Water Service Company
1720 N. First Street
San Jose, CA 95112
Cal Water Rights and Responsibilities
Revised Estimates
. Within sixty (60) days after Cal Water has ascertained its actual costs for the Work, it will provide the City with a statement of the same showing in reasonable detail the costs incurred for material, labor and other direct and indirect costs, overheads and total costs, or unit costs or contract costs, whichever are appropriate.
Pass-Through Warranty
. Cal Water will assign to customers any standard warranty from Cal Water’s contractor or its subcontractor for work, materials, or workmanship for the Work done to install a customer’s facilities (i.e., facilities behind a customer meter), subject, however, to any terms, conditions, or limitations of such warranty.
City Responsibilities
Access to Project Area
. The City grants to Cal Water, its employees, representatives, contractors, subcontractors, agents, and all others deemed necessary by Cal Water (collectively, Cal Water Parties), the right to enter and use the portions of the Project Area to perform the Work. The City will obtain from customers in or along the Project Area written permission for Cal Water and Cal Water Parties to temporarily enter on and use the Project Area or portions as necessary for the purposes of the Project, in the form and content of the Right of Entry attached as Exhibit D.
Permits
. The City will use its best efforts to assist Cal Water to obtain any permits, approvals, or authorizations required for the Project.
Easements
. If any easements are required in, on, over, or under any private property for the installation of the facilities or performance of the Work, the City will convey or cause to be conveyed such easements in the name and for the benefit of Cal Water. The facilities that are constructed, placed, or installed on, in, under, or over property and rights of way owned by the City will be kept and maintained under the terms of the franchise agreement between the City and Cal Water then in effect.
Indemnification; Limitation on Liability
Mutual Indemnification
. Each Party will indemnify, defend, and hold the other party harmless from any and all claims, demands, costs, liabilities, losses, expenses, and damages, including, but not limited to reasonable attorney’s fees and costs, arising out of or in connection with claims of third-parties for personal injury, property damage, breach of contract, tort, inverse condemnation, or otherwise arising from the Project, the Work, or the Parties entry into this Agreement, but only to the extent and proportion such damage or loss is caused by the indemnitor, it being the Parties understanding that each Party will bear its respective liability and portion of fault.
Property Damage
. Nothing in this Agreement limits a Party’s responsibility for costs and expenses for damage or destruction to the other Party’s property caused by a Party, including any employee, agent, contractor, subcontractor, or representative.
Limitation on Liability
. Neither Party will be liable for consequential, incidental, indirect, punitive, or special damages (including loss of profits or anticipated profits, business data, interest or carrying charges on its investment, or goodwill), regardless of whether such liability is based on breach of contract, tort, strict liability, breach of warranties, failure of essential purpose or otherwise, and even if advised of the likelihood of such damages.
General Terms
Notices
. Any notice required or given under this Agreement will be deemed to have been duly given when deposited in the United States mail, registered or certified, postage prepaid to the address above. Either Party may change its address or contact for notice by giving notice to the other Party.
Integration
. This Agreement constitutes the entire agreement between the Parties respecting the subject matter of this Agreement, and all prior communications, agreements, or understandings between the Parties, whether oral or written, are merged and integrated in this Agreement.
No Third-Party Beneficiary
. This Agreement will not constitute or be deemed, construed, or interpreted to create any rights or benefits in any third-party. No third-party may claim or enforce any term or condition of this Agreement against any Party or on behalf of any Party.
No Partnership
. This Agreement will not create or be deemed or construed to create a partnership or joint venture between the Parties.
Amendment
. This Agreement cannot be amended, except by a written instrument signed or acknowledged by the Parties.
No Recordation
. No Party may record this Agreement, except with the other Party’s prior written consent.
Survival
. The following Sections survive the termination of this Agreement: Section 1.2 (Reasonable Cooperation); Section 6 (Indemnification; Limitation on Liability); and Section 5.3 (Easements).
Governing Law; Venue
. This Agreement, regardless of where executed, shall be governed by and construed to the laws of the State of California. Venue for any action regarding this Agreement shall be in the Superior Court of the County of Tulare.
Counterparts
. This Agreement may be signed in one or more counterparts, by electronic, facsimile, PDF, or other electronic means. Each counterpart will be deemed an original and all counterparts, when taken together, will form one and the same instrument. [Remainder of page intentionally left blank. Signatures on following page(s).] IN WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective Date.
Approved By City Council
on [Insert Date]
City of Visalia
a charter city, State of California
By:
By:
Leslie Caviglia
Brian Poochigian
Its:
City Manager/City Clerk
Its:
Mayor
Approved as to Form:
By:
Kenneth J. Richardson
Its:
City Attorney
City
California WATER SERVICE COMPANY
a California corporation
By:
Thomas Smegal, III
Its:
VP, Treasurer & CFO
By:
Michelle Mortensen
Its:
VP, Corporate Secretary
Cal Water
(Summary of Work)
Installation:
700ʹ of 8ʺ Ductile Iron Pipe
30ʹ of 18ʺ Steel Casing
2 8ʺ CL&C Offsets
1 Tie-In (see Detail “A” of Plans)
1 Tie-In (see Detail “B” of Plans)
8 1ʺ Short-Side Service Reconnections
9 1ʺ Long-Side Service Reconnections
1 Fire Hydrant Connection
Removal:
1 8ʺ Blow-Off
(Map of Project Area)
(Estimated Cost)
(Right of Entry)
[Form attached behind cover.]
RIGHT OF ENTRY
(re: [Owner/Address], South Linwood Avenue, Visalia, CA 93277) On this , the undersigned (Grantor) grants to CALIFORNIA WATER SERVICE COMPANY, a California corporation (Grantee) a temporary right of entry to access and use a portion of Grantor’s property at [], South Linwood Avenue, City of Visalia, County of Tulare, State of California, 93277 and as shown in the attached Exhibit A (the Work Area), subject to the terms hereof, in connection with the Work (below):
Excavation and installation of water main, service lines, meters, valves, and boxes Grading or regrading of Work Area
Temporary storage and staging of materials, vehicles, and equipment Due Care
. Grantee will use due care for public safety and shall hold the Grantor harmless from and against any claim or demand for loss, liability, or damage, including claims for bodily injury, wrongful death, or property damage, during the term and that arise out of or result from: (1) Grantee’s use, occupancy, maintenance, or enjoyment of the Work Area; (2) Grantee’s failure to maintain the Work Area; and (3) from and against all actions, suits, damages, and claims arising from Grantee’s non-observance or non-performance of any of the terms, covenants, and conditions of this Right of Entry or the rules, regulations, ordinances, and laws of the federal, state, municipal or county governments.
Compliance with Laws
. Grantee will observe and abide by all laws, ordinances, rules and regulations applicable to the Work and Work Area and shall secure all licenses, permits and authorizations, including but not limited to all necessary environmental and governmental permits required for the Work.
Non-Interference
. Grantee will use appropriate precautions and measures to minimize inconveniences to occupants of Grantor’s property (identified above) and residents adjacent to the Work Area.
Notice of Entry
. Grantee will notify Grantor at least three (3) days before entry on the Work Area.
Repair; Restoration
. Grantee will restore the surface of the Work Area to the same condition that existed prior to commencement of the Work as nearly as reasonably possible.
Term; Termination
. The term of this Right of Entry begins on the date written above and automatically terminates on Grantee’s completion of the Work.
IN WITNESS WHEREOF, the person(s) below have signed this Right of Entry as of the year and date first written above.
By:
Its:
By:
Its:
Grantor
CALIFORNIA WATER SERVICE COMPANY,
a California corporation
By:
Its:
By:
Its:
Grantee
Exhibit A
(Work Area)
(Quitclaim Bill of Sale)
[Form attached behind cover.]
Recording Requested By, and WHEN RECORDED MAIL TO:
NAME California Water Service Company
ADDRESS 1720 North First Street
CITY San Jose
STATE CA
ZIP 95112
Title:
Space above this line for Recorder’s Use
Quitclaim Bill of Sale
Parties:
Grantor:
Civty of Visalia, a charter city, [address]
Grantee:
California Water Service Company, a California corporation, 1720 North First Street, San Jose, California 95112 Affected APN(s): N/A
The undersigned declares that the documentary transfer tax is County $-0-, City $-0-, and is:
☒ computed on the full value of the interest or property conveyed, or is (Consideration less than $100. R&T Code § 11911.)
☐ computed on the full value less the value of liens or encumbrances remaining thereon at the time of sale.
The land, tenements, or realty is located in the: ☐ unincorporated area of /☒ City of Visalia.
Quitclaim BILL OF SALE
Know all by these presents:
That the City of Visalia, a charter city (Seller), for good and valuable consideration, the receipt whereof is hereby acknowledged, does hereby remise, release, set over, and quitclaim unto and California Water Service Company, a California corporation (Buyer), all of Seller’s right, title, and interest in and to that tangible personal property described in the attached Exhibit A (the Property).
To Have and to hold the same unto said Buyer and its successors and assigns, as-is, and where-is, absolutely and forever.
Seller covenants with Buyer and its successors and assigns, that Seller, at the request of Buyer, shall execute and deliver further instruments of transfer and assignment and take such other action as Buyer may reasonably request to more effectively transfer and assign to and vest in Buyer the Property.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in that unrecorded Grant-Funded Main Installation Agreement, dated ______________, between Seller and Buyer.
Nothing in this Quitclaim Bill of Sale is intended to or shall expand, enlarge, modify, restrict, limit, or abridge any of the terms, representations, warranties, covenants, conditions, agreements, provisions, rights, benefits, obligations, or liabilities of any party beyond that set forth in the Grant-Funded Main Installation Agreement. If there is any conflict, ambiguity, or discrepancy between the terms or conditions of that agreement and this Quitclaim Bill of Sale, the terms and conditions of the Grant-Funded Main Installation Agreement will control. [Remainder of page intentionally left blank. Signatures on following page.] In Witness Whereof, the Seller has executed this Quitclaim Bill of Sale on this ____________.
Approved By City Council on:
City of Visalia
a charter city
By:
By:
[]
Its:
City Clerk
Its:
Approved as to Form:
By:
[]
Its:
City Attorney
Seller
CALIFORNIA ACKNOWLEDGMENT CIVIL CODE § 1189
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
)
County of )
On before me,
Date Here Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
Place Notary Seal and/or Stamp Above Signature of Notary Public
OPTIONAL
Completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer’s Name:
☐ Corporate Officer – Title(s):
☐ Partner – ☐ Limited ☐ General
☐ Individual ☐ Attorney in Fact
☐ Trustee ☐ Guardian or Conservator
☐ Other:
Signer is Representing:
Signer’s Name:
☐ Corporate Officer – Title(s):
☐ Partner – ☐ Limited ☐ General
☐ Individual ☐ Attorney in Fact
☐ Trustee ☐ Guardian or Conservator
☐ Other:
Signer is Representing:
©2018 National Notary Association
Exhibit A
(Property)
[Description of Property]
(City of Visalia Labor Compliance Manual)
[Manual attached behind cover.]
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit F