HomeMy WebLinkAbout1991 Atas. Mutual Water Co. AGREEMENT BETWEEN AGENCY AND CITY
This agreement is made upon the date of execution, as set
forth below, by and between Atascadero Mutual Water Company, a
Corporation, hereinafter referred to as "Agency", and the City of
Atascadero, California, a Municipal Corporation, hereinafter
referred to as "City" . The parties hereto, in consideration of the
mutual covenants contained herein, hereby agree to the following
terms and conditions:
1. 00 GENERAL PROVISIONS
1. 01 TERMS OF AGREEMENT: This agreement will become effective
on the date of execution set forth below, and will continue in
effect until termination as provided herein.
1. 02 TERM OF WORK: All work must be completed 72 hours after
it commences.
1. 03 OTHER PARTIES: All terms of this agreement apply to any
consultant, contractor or other agent performing work for the
Agency under this agreement.
1. 04 GENERAL: This agreement sets forth provisions for the
drilling of up to two test holes for water supply, the first
on the lower portion of the lot and the second on the upper
portion of the lot. Said lot is located on Sycamore road and
has A.P.N. 28-092-09. See exhibits A,B,C and D.
2.00 OBLIGATIONS OF AGENCY
2 . 01 WORKER'S COMPENSATION AND OTHER EMPLOYEE BENEFITS: City
and Agency intend and agree that agency is an independent
Agency and agrees that Agency and Agency's employees and
agents have no right to worker's compensation and other
employee benefits from City. If any worker insurance
protection is desired, Agency agrees to provide worker's
compensation and other employee benefits, where required by
law, for Agency's employees and agents. Agency agrees to hold
harmless and indemnify City for any and all claims arising out
of any claim for injury, disability, or death of any of Agency
and Agency's employees or agents.
2. 02 INDEMNIFICATION. Agency hereby agrees to, and shall,
hold City, its elective and appointive boards, officers,
agents and employees, harmless and shall defend the same from
any liability for damage or claims for damage, or suits or
actions at law or in equity which may allegedly arise from
Agency's or any of Agency's employees' or Agents operations by
Agency or by any one or more persons directly or indirectly
employed by, or acting as agent for, Agency; provided as
follows:
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a. That the City does not, and shall not, waive any rights
against Agency which it may have by reason of the aforesaid
hold-harmless agreement, because of the acceptance by City, or
the deposit with City by Agency, or any of the insurance
policies hereinafter described.
b. That the aforesaid hold-harmless agreement by Agency shall
apply to all damages and claims for damages of every kind
suffered, or alleged to have been suffered, by reason of any
of the aforesaid operations or Agency or any agent or employee
of Agency regardless of whether or not such insurance policies
shall have been determined to be applicable to any of such
damages or claims for damages.
2.03 INSURANCE. Agency and Agency's Agent shall not commence
work under this contract until she/he shall have obtained all
insurance required under this section and such insurance
shall have been approved by City as to form, amount and
carrier:
a. Public Liability and Property Damage Insurance. Agency
shall take out and maintain during the life of this contract
such public liability and property damage insurance as shall
protect City, its elective and appointive boards, officers,
agents and employees, and Agency and any Agents or employees
performing work covered by this contract from claims for
damages for personal injury, including death, as well as from
claims for property damage which may arise from Agency,
whether such operations be by Agency or by anyone directly or
indirectly employed by Agency, and the amount of such
insurance shall be as follows:
(1) Public Liability Insurance
In an amount not less than $300, 000 for injuries,
including, but not limited to death, of any one person
and, subject to the same limit for each person, in an
amount not less than $300, 000 on account of any one
occurrence;
(2) Property Damage Insurance.
In an amount of not less than $300, 000 for damage to the
property of each person on account of any one occurrence.
(3) Comprehensive Automobile Liability.
Bodily injury liability coverage of $300, 000 for each
person in any one accident and $300, 000 for injuries
sustained by two or more persons in any one accident.
Property damage liability of $300, 000 for each accident.
(4) Worker's Compensation Insurance.
In the amounts required by law as set forth in Section
2 . 01 above.
b. PROOF OF INSURANCE
Agency shall furnish City, concurrently with the
execution hereof, with satisfactory proof of carriage of
the insurance required, and adequate legal assurance that
each carrier will give City at least thirty (30) days'
prior notice of the cancellation of this contract. This
certificate or policy of liability insurance shall name
City as an additional insured with the Agency.
3 . 00 TERMINATION OF AGREEMENT
3 . 01 TERMINATION ON NOTICE: Notwithstanding any other
provision of this agreement, any party hereto may terminate
this agreement, at any time,without cause by giving at least
30 days prior written notice to the other parties to this
agreement.
3 . 02 TERMINATION ON OCCURRENCE OF STATED EVENTS: This
agreement shall terminate automatically on the occurrence of
any of the following events:
(1) Bankruptcy or insolvency of any party;
(2) The end of the thirty (30) days as set forth in Section
3 .01. ;
(3) Assignment of this agreement by Agency without the
consent of the City.
3 . 03 TERMINATION BY ANY PARTY FOR DEFAULT OF CONTRACT: Should
any party default in the performance of this agreement or
materially breach any of its provisions, a nonbreaching party,
at their option, may terminate this agreement, immediately, by
giving written notice of termination to the breaching party.
3 . 04 TERMINATION: This agreement shall terminate on 7/01/91
unless extended as set forth in this Section. The City, with
the agreement of Agency, is authorized to extend the term of
this Agreement beyond the termination date, as needed, under
the same terms and conditions set forth in this Agreement.
Any such extension shall be in writing and be an amendment to
this Agreement.
4. 00 SPECIAL PROVISIONS
4.00 NOISE, DUST AND DEBRIS: Agency and Agency's Agents shall
conduct and carry out work in such a manner as to avoid
unnecessary inconvenience and annoyance to the general public
and occupants of neighboring property. In the performance of
the work, the Agency shall take appropriate measures to
reduce, to the fullest possible extent, noise, dust and
unsightly debris.
4. 01 NOISE CONTROL: The noise level from all operations,
shall not exceed 86 dbA at a distance of 50 feet. This
requirement shall in no way relieve any responsibility for
complying with local ordinances regulating noise levels. Said
noise level requirements shall apply to all equipment at the
work site or related to the work at the site.
4. 02 HOURS OF WORK: The hours of work shall be limited to
the period of time between 8:00 a.m. and 5:00 p.m. , Monday
thru Friday.
4. 03 PRESERVATION OF PROPERTY: Due care shall be exercised
to avoid injury to existing improvements of facilities,
utility facilities, adjacent property and trees, shrubs and
other plants. Agency shall provide and install suitable
safeguards, approved by the City, to protect such objects from
injury or damage. If such objects are injured or damaged by
reason of the Agency's operations, they shall be replaced or
restored in kind at the Agency's expense. In no case shall
trees be removed.
4. 04 TEST WELL LOCATIONS PRIOR TO BEGINNING WORK: The test
well locations shall be determined and identified on Exhibit
A and approved by the City prior to beginning work. No other
test wells shall be made on the subject property without an
amendment to this agreement as set forth in Section 5. 13 .
4 . 05 RETURN OF PROPERTY TO ORIGINAL CONDITION: Agency shall
return the real property to the condition it was in, or
better, prior to the test wells being drilled unless directed
otherwise by the City.
5.00 MISCELLANEOUS
5.01 REMEDIES: The remedies set forth in this agreement shall
not be exclusive but shall be cumulative with, and in addition
to, all remedies now or hereafter allowed by law or equity.
5. 02 NO WAIVER: This waiver of any breach by any part of any
provision of this agreement shall not constitute a continuing
waiver or a waiver of any subsequent breach of this agreement.
5. 03 ASSIGNMENT: This agreement is specifically not
assignable by Agency to any person or entity. Any assignment
or attempt to assign by Agency, whether it be voluntary or
involuntary, by operation of law or otherwise is void and is
a material breach of this agreement giving rise to a right to
terminate as set forth in Section 4 . 03 .
5. 04 ATTORNEY FEES: In the event of any controversy, claim
or dispute between the parties hereto, arising out of or
relating to this agreement, or the breach thereof, the
prevailing party shall be entitled, in addition to other such
relief as may be granted, to reasonable sum and as for
attorney fees.
5.05 TIME FOR PERFORMANCE: Except as otherwise expressly
provided for in this agreement, should the performance of any
act required by this agreement to be performed be prevented or
delayed by reason of any act of God, strike, lockout, labor
trouble, inability to secure materials, or any other cause
except financial inability not the fault of the party required
to perform the act, the time for performance of the act will
be extended for a period of time equivalent to the period of
delay will be excused; provided, however, that nothing
contained in this Section shall exclude the prompt payment by
either party as required under this agreement or the
performance of any act rendered difficult or impossible solely
cause of the financial condition of the party required to
perform the act.
5. 06 NOTICES: Except as otherwise expressly provided by law,
any and all notices or other communications required or
permitted by this agreement or by law to be served on or given
to any party to this agreement shall be in writing and shall
be deemed duly served and given when personally delivered or
in lieu of such personal service when deposited in the United
States mail, first-class postage prepaid to the following
address for each respective party:
PARTY ADDRESS
A. City of Atascadero %Public Works Department
6500 Palma Avenue
Atascadero, CA 93422
(805) 461-5020
B. Atascadero Mutual %Bob Hamilton
Water Company 5005 E1 Camino Real
Atascadero, CA 93422
(805) 466-2428
5. 07 GOVERNING LAW: This agreement and all matters relating to
this agreement shall be governed by the laws of the State of
California in force at the time any need for the
interpretation of this agreement or any decision or holding
concerning this agreement arises.
5.08 BINDING EFFECT: This agreement shall be binding on and
shall insure to the benefit of the heirs, executors,
administrators, successors and assigns of the parties hereto,
but nothing in this Section shall be construed as a consent by
City to any assignment of this agreement or any interest in
this agreement.
5. 09 SEVERABILITY Should any provision of this agreement be
held by a court of competent jurisdiction or by a legislative
or rulemaking act to be either invalid, void or unenforceable,
the remaining provisions of this agreement shall remain in
full force and effect, unimpaired by the holding, legislation
rule.
5. 10 TIME Time is expressly declared to be of the essence of
this agreement.
5. 11 DUE AUTHORITY: The parties hereby represent that the
individuals executing this agreement are expressly authorized
to do so on and in behalf of the parties.
5. 12 CONSTRUCTION: The parties agree that each has had an
opportunity to have their counsel review this agreement and
that any rule of construction to the effect that ambiguities
are to be resolved against the drafting shall not apply in the
interpretation of this agreement of any amendments or exhibits
thereto. The captions of the sections are for convenience and
reference only, and are not intended to be construed to define
or limit the provisions to which they relate.
5. 13 AMENDMENTS: Amendments to this agreement shall be made
only with the mutual written consent of all of the parties to
this agreement.
Executed on the 25th day of June 1991 at Atascadero,
California.
CITY: AGENCY:
CITY OF ATASCADERO, ATASCADERO MUTUAL WATER COMPANY
a municipal corporation a corporation
BY: BY: lJ�
r
ROBERT B. LILL FRANK Pt,ATZ
Mayor President
ATT/EST:
YEA RABOI
IN
City Clerk
APPROVED AS TO CONTENT:
GREG LUKE
Director of Public Works
APPROVED AS TO FORM:
ART ER 140NIIA ON
City Attorney
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