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HomeMy WebLinkAboutAGR-6773.A - MUNICIPAL WATER DISTRICT OF ORANGE COUNTY (MWDOC) - WATER LOSS CONTROL PARTICIPATIONDocusign Envelope ID:6DCFEFF6-78A8-8789-81 E8-0ED90DF03280 l0773. A- WATER LOSS CONTROL PARTICIPATION AGREEMENT This Water Loss Control Participation Agreement ("Agreement") is made and effective as of the 1st day of July 2026, by and between the Municipal Water District of Orange County MWDOC") and City of Orange, a municipal corporation ("Participating Agency"). MWDOC and Participating Agency may be collectively referred to as "Parties" and individually as a "Party." RECITALS A. MWDOC offers its member agencies ("Member Agencies") the benefits of certain programs known as choice services, that they may elect to participate in ("Choice Services"). These Choice Services provide cost-sharing and shared services components that allow a Participating Agency to obtain economies of scale and save money. If a Member Agency elects to receive certain Choice Services, the Participating Agency executes an agreement with MWDOC that sets forth the terms and conditions for those Choice Services. B. With input from its Member Agencies, MWDOC previously prepared a Water Loss Control Shared Services Business Plan, which proposed five water loss control shared services ("Shared Services") to be provided to Member Agencies by MWDOC staff and, as necessary and as determined by MWDOC, by third-party vendors/contractors Contractor or Contractors"). C. MWDOC also entered into a professional services agreement with E Source Companies, LLC ("Consultant" or "E Source") for E Source to provide Water Loss Control Technical Assistance ("Technical Assistance") to Member Agencies Consultant Agreement"). D. The purpose of this Water Loss Control Participation Agreement is to create a unified agreement between MWDOC and Participating Agency that combines all of the water loss control Shared Services and Technical Assistance programs ("Programs") into one agreement. Addenda to this Agreement will be issued annually. E. Participating Agency may elect which of the Shared Services and/or Technical Assistance (jointly referred to as WLC Services), if any, it wishes to receive from MWDOC by completing annual election forms ("Election Forms"). The Election Forms include the selected tasks, total required payments and costs, and any additional information and/or requirements specific to each Participating Agency. The annual Election Forms may also be used to tailor the types and amounts of WLC Services that each Participating Agency will receive, as well as the costs. The Election Forms are attached as Addenda A and B to this Agreement. F. At the end of each year, the Participating Agency may change the WLC Services that it elects to receive for the following year by completing the annual Election Forms under this Agreement. 1 Docusign Envelope ID:6DCFEFF6-78A8-8789-81 E8-OED90DF03280 G. The Parties desire to enter into this Agreement, whereby the Participating Agency elects to receive, on the terms and conditions described herein, the water loss control shared services provided by MWDOC. NOW THEREFORE, in consideration of the promises and covenants hereinafter set forth, the Parties do agree as follows: TERMS 1. Scope of Services. MWDOC will provide the Participating Agency with the water loss control Shared Services and Technical Assistance identified in the Election Forms attached hereto as Addenda A and B. The actual scheduling of Shared Services and/or Technical Assistance shall be done only upon request of the Participating Agency. The Parties agree that MWDOC may provide the WLC Services by utilizing MWDOC staff or Contractors as determined by MWDOC. 2. Term of Agreement. This Agreement will be effective on July 1, 2026, and shall terminate on June 30, 2036 ("Term") 3. Administration of Consultant and Contractors. MWDOC will provide project management assistance regarding all Contractors and the Consultant, which includes working closely with and managing Contractors and Consultant to ensure compliance with any agreements, facilitating interactions between the Participating Agency and Consultant and/or Contractors, and communicating regularly with the Participating Agency regarding the Shared Services and/or Technical Assistance, as needed. 3.1.MWDOC shall make payments to any Contractor and/or Consultant on a time and materials basis. 3.2. Participating Agency shall provide all documents, information, and assistance requested by any Contractor and/or Consultant during the performance of the WLC Services. 3.3.Addenda A and B are incorporated into this Agreement by reference and include separate attachments for Participating Agencies that include the selected tasks, total required payments and costs, and any additional information and requirements that are specific to each Participating Agency. 3.4.Addenda A and B may be updated as Member Agencies execute this Agreement and become Participating Agencies or pursuant to mutual agreement between a respective Participating Agency and MWDOC. 4. Annual Election Addenda. Prior to July 1 of each year of the Agreement and consistent with the requirements of this Section, Participating Agency may change the Shared Services and/or Technical Assistance that it elects to receive for the following fiscal year July 1 — June 30) by completing the annual Election Forms, which will replace and become new Addenda A and/or B to this Agreement ("Election Addenda" or "Election Addendum"). The Election Addenda may contain terms that differ from those in the initial 2 Docusign Envelope ID:6DGFEFF6-78A8-8789-81 E8-0ED90DF03280 Election Forms, including adjustments to service types and the addition of new WLC Services as they become available. 5. Cost Sharing by Participating Agencies. 5.1 .MWDOC shall: 5.1.1. Collect from Participating Agency upon execution of this Agreement the amount indicated in Addenda A and B that is specific to said Participating Agency, which is the total cost of the selected WLC Services for the Participating Agency. 5.1.2. Inform the Participating Agency of any proposed extra work that would result in an increase in the payments under this Agreement. MWDOC and the Participating Agency must both approve such extra work before MWDOC will notify any Contractor or Consultant to proceed with the work. 5.1.3. On or about February of each year, prepare a final annual accounting for the Participating Agency and either distribute any remaining funds collected back to the Participating Agency, consistent with the amounts in Addenda A and B, roll over any remaining funds for use by the Participating Agency in the following year or, when there are funds due, issue a final bill to the Participating Agency. 5.2. Participating Agency shall: 5.2.1. Pay to MWDOC upon execution of this Agreement, the full amount indicated in Addenda A and B that is specific to the Participating Agency. 5.2.2. Pay to MWDOC, upon approval of any extra work, the full amount owed for any approved extra work. The Participating Agency shall bear all costs associated with extra work it approves. 6. Pricing and Payment. Participating Agency shall pay MWDOC for the WLC Services provided pursuant to this Agreement in the unit cost amounts for each type of elected WLC Service as set forth in Addenda A and B. The unit costs in Addenda A and B may be adjusted each year by MWDOC in MWDOC's discretion. MWDOC will provide each Participating Agency with notice of any changes to unit costs for the next fiscal year by March 1 of the previous fiscal year, and such adjusted costs shall be reflected in the Election Addenda. With respect to WLC Services that are provided by Contractors/Consultants who are under contract with MWDOC, MWDOC reserves the right to change the unit cost for such WLC Services if there is a change in unit cost by the Contractor, provided, however, that MWDOC gives the Participating Agency no less than sixty (60) days' notice of such change, during which period the Participating Agency may elect to terminate such WLC Services from the Election Addenda. In addition, Participating Agency is not obligated to request any WLC Services and is only required to pay for WLC Services performed by MWDOC at the request of Participating Agency. 7. Billing Procedure and Payment. Within thirty (30) days of receiving Addenda A and/or B, MWDOC shall invoice the Participating Agency for the full unit cost of the WLC Services that have been chosen by the Participating Agency for the upcoming fiscal year. 3 Docusign Envelope ID:6DGFEFF6-78A8-8789-81 E8-0ED9ODF03280 Participating Agency shall pay MWDOC within thirty (30) days of receipt of the invoice. In the event that there is a subsequent change in the scope of the WLC Services that were elected in Addenda A and/or B, MWDOC will provide a revised invoice for such change, and in the event that the change results in a credit to the Participating Agency, then the Participating Agency will have the option to apply the credit to the annual invoice for the next fiscal year or to be issued a refund. 8. Termination. Either Party may terminate this Agreement upon thirty (30) days' written notice to the other. In such an event, the Parties shall be responsible to each other for any obligations incurred prior to the termination date. 9. Standard of Care. MWDOC will require that all Contractor and/or Consultant services be performed in accordance with generally accepted professional practices and principles, and in a manner consistent with the level of care and skill ordinarily exercised in performing the WLC Services. 10.Accountinq. MWDOC shall, for a reasonable time, keep accurate and detailed records of the WLC Services performed and the financial details in connection with such WLC Services, including all accounting books and records related to any payments to Contractors/Consultants (collectively, the "Records"). All Records must be maintained in accordance with generally accepted accounting principles applicable to local government agencies in the State of California and must be sufficiently complete and detailed to permit an accurate evaluation of the Services provided by MWDOC under this Agreement. Upon request from the Participating Agency, MWDOC will provide copies of the Contractor/Consultant invoices and MWDOC's payment records, and shall give the Participating Agency reasonable access, during normal business hours, to such Records. 11.Independent Contractor. The Consultant/Contractor is not a party to this Agreement and is not an employee or agent of MWDOC or any of the Participating Agencies, either as a result of this Agreement or because of the Consultant Agreement between MWDOC and the Consultant/Contractor. The Consultant/Contractor is an independent contractor to MWDOC. 12.Indemnification. MWDOC agrees to indemnify and hold the Participating Agency harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death (collectively, "Claims"), in any manner arising out of any sole and active negligent acts or willful misconduct of MWDOC in connection with the provision of WLC Services. MWDOC will require any Contractors/Consultants to indemnify and hold harmless Participating Agency from any and all Claims arising out of the negligent acts or willful misconduct of the Contractor/Consultant, its agents and employees, and Participating Agency agrees that it will look solely to the Contractor/Consultant for such Claims, provided, however, that MWDOC will act as the agent of the Participating Agency to enforce the terms of the indemnity with Contractor/Consultant and make any related insurance claims with respect to the insurance coverage provided by Contractor/Consultant. . MWDOC shall use its best efforts in administering the Consultant Agreement, but makes no representations, guarantees, or warranties to the Participating Agency as to the quality 4 Docusign Envelope ID:6DCFEFF6-78A8-8789-81 E8-0ED90DF03280 or timeliness of work product provided by the Consultant/Contractor pursuant to the Consultant Agreement. The Participating Agency agrees to indemnify MWDOC, its directors, officers, employees and agents against, and will hold and save them harmless from, any and all actions, claims, penalties, obligations or liabilities, in law or in equity, of every kind or nature whatsoever, that may be asserted or claimed by any person, firm, entity, corporation, political subdivision or other organization arising out of or in any manner directly or indirectly connected with the Consultant Agreement or E Source Services provided for the benefit of the Participating Agency. Participating Agency agrees and acknowledges that MWDOC is not responsible for the maintenance and quality of any of Participating Agency's facilities, and Participating Agency is responsible for any costs, expenses, liability, loss, damage, or injury of any kind, in law or equity, to property or persons, including wrongful death, arising from such. 13.Insurance. MWDOC shall obtain prior to commencing work and maintain in force and effect throughout the term of this Agreement, all insurance set forth below. MWDOC insurance is provided through the Association of California Water Agencies Joint Powers Insurance Authority and such other insurers as MWDOC may determine from time to time. 13.1.Workers' Compensation Insurance. MWDOC will maintain workers' compensation insurance for its employees, covering all work covered by this Agreement, in accordance with applicable law. Upon request, MWDOC will provide an ACORD certificate of insurance or other certificate of insurance satisfactory to the Participating Agency, evidencing such coverage. 13.2.Liability and Other Insurance. MWDOC will maintain during the term of this Agreement general liability coverage of not less than $1,000,000 per occurrence for bodily injury, personal injury and property damage; automobile liability (owned, scheduled, non-owned or hired) of at least $1,000,000 for bodily injury and property damage each accident limit; workers' compensation (statutory limits) and employer's liability ($1,000,000) (if applicable); requiring 30 days (10 days for non-payment of premium) notice of cancellation to Participating Agency. 13.3.Contractor Insurance Coverage. If MWDOC employs Contractors to provide services covered by this Agreement, MWDOC shall require that each Contractor meet MWDOC's minimum insurance requirements. Contractor will provide a certificate of insurance to MWDOC, which will be required to name MWDOC and Participating Agencies as additional insureds to any Consultant or Contractor's liability coverage. 13.4.Expiration of Coverage. If any of the required coverages expire during the term of the Agreement, MWDOC and its Contractors, as applicable, shall provide updated renewal certificate(s), including the general liability additional insured endorsement, at least ten (10) days prior to the expiration date. 14.Independent Contractor. MWDOC shall act as an independent contractor in the performance of the WLC Services provided for in this Agreement and shall furnish such WLC Services in MWDOC's own manner and method, and in no respect shall MWDOC or any of its agents be considered an agent or employee of Participating Agency. No provisions of this Agreement shall be intended to create a partnership or joint venture between MWDOC or any of its agents and Participating Agency, and neither Party shall 5 Docusign Envelope ID:6DCFEFF6-78A8-8789-81 E8-OED9ODF03280 have the power to bind or obligate the other Party, except as expressly set forth in this Agreement. 15.Notices. All notices permitted or required under this Agreement shall be given to the respective parties at the following addresses, or at such other address as the respective parties may provide in writing for this purpose. Such notice shall be deemed made when personally delivered or sent via commercial overnight courier and shall be effective upon receipt. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service. MWDOC: Participating Agency: Harvey De La Torre, General Manager Jarad L. Hildenbrand, City Manager Municipal Water District of Orange County City of Orange, a municipal corporation 18700 Ward St. 300 E. Chapman Avenue P.O. Box 20895 Orange, CA 92866 Fountain Valley, CA 92728 16.Jurisdiction and Venue. In all matters concerning the validity, interpretation, performance, or effect of this Agreement, the laws of the State of California shall govern and be applicable. The Parties hereby agree and consent to the exclusive jurisdiction of the courts of the State of California, and that venue of any action brought hereunder shall be in Orange County, California. 17.Counterparts and Facsimile. This Agreement may be executed by the Parties in counterparts, which counterparts shall be construed together and have the same effect as if all the Parties had executed the same instrument. Counterpart signatures may be transmitted by facsimile, email, or other electronic means and have the same force and effect as if they were original signatures. All parties have participated in the drafting of this Agreement. 18.Severability. If any provision of this Agreement shall be held illegal, invalid, or unenforceable, in whole or in part, the legality, validity, and enforceability of the remaining provisions shall not be affected thereby. 19.Entire Agreement. This Agreement contains the entire agreement of the Parties relating to the subject matter hereof, and the Parties have made no agreements, representations, or warranties, either written or oral, relating to the subject matter hereof that are not set forth herein. Except as provided herein, this Agreement may not be modified or altered without prior written approval from both parties. 20.Authority to Execute. Each Party represents and warrants to the other Party that all necessary action has been taken by such Party to authorize the undersigned to execute this Agreement and to bind it to the performance of its obligations hereunder. 21.Incorporation of Recitals. The Recitals and section titles set forth herein are incorporated herein and are an operative part of this Agreement. 6 Docusign Envelope ID:A37A65F5-1647-8FD1-80B4-AB4F1310EE83 Docusign Envelope ID:35A45A65-13FA-814B-8300-D587EA8294DC IN WITNESS WHEREOF, the Parties have hereunto affixed their names as of the day and year thereinafter written, which shall be and is the effective date of this Agreement. MWDOC: PARTICIPATING AGENCY: 5Do. Signal w igned or allovAi IA,ta.11m- OBOEStt 78.,2 Date 4/22/2026 13:45 PM PDT Date 4/9/26 Harvey De La Torre Name: Jarad L. Hildenbrand General Manager Title: City Manager Municipal Water District of Orange County Agency: Approved as to Form: Approved as to Form CiOStftw tr.L CCovaterF978990/4k Date 4/22/2026 I 3:22 PM PDT Date 03/25/2026 Name: Joseph Byrne, Esq. Name: Connor Hyland Senior Assistant City Attorney J ATTEST: ameba oleman, City Clerk 7