APRIL 14, 2015, Special City Council Meeting

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Note from TheGardeningSnail: Some of This document may have been prepared by running a PDF Image file through a program that converts Image to Text. My apologies for any Textual Gremlins that may have crept in. I’ve also included a map showing the locations of Livingston’s Wells.

CITY COUNCIL SPECIAL MEETING AGENDA

APRIL 14, 2015

6:00 P.M.

Notice is hereby given that the City Council will hold a Special Meeting on April 14, 2015, at the City Council Chambers, 1416 C Street, Livingston, California. Persons with disabilities who may need assistance should contact the Deputy City Clerk at least 24 hours prior to this meeting at (209) 394-8041, Ext. 121. Any writings or documents pertaining to an open session item provided to a majority of the members of the legislative body less titan 24 hours prior to the meeting shall be made available for public inspection at Livingston City Hall, 1416 C Street. The Special Meeting will begin at 6:00 p. m. Members of the public may address the City Council concerning any item described in this notice and agenda before consideration of that item. No City business other titan that described in this notice and agenda shall be considered by the City Council.

CALL TO ORDER

Roll Call.

Pledge of Allegiance. Next Resolution No. 2015-16 Next Ordinance No. 623

Changes to the Agenda.

CITIZEN COMMENTS

At a special meeting, members of the public wishing to address the Council for any matter on the agenda may do so at this time. Note, under the provisions of the California Government Code, the City Council is prohibited from discussing or taking action on any item not on the agenda. Comments are normally limited to three (3) minutes.

Please note that under California Government Code section 54954.J (a) (The Brown Act ). Special Meeting agendas need only provide an opportunity for members of the public to directl y address the legislative body concerning any item that has been described in the meeting agenda before or during consideration ofthe item. The public will have an opportunity to comment on matters not on the agenda at regularly scheduled Council Meetings.

DISCUSSION AND POTENTIAL ACTION ITEMS

1. Resolution Approving a Memorandum of Understanding with Foster Farms to Repair the Submersible Pump at Well #14 and Making Findings Explaining Why Public Bidding is Not Required for this Project.

ADJOURNMENT

STAFF REPORT

AGENDA ITEM: Resolution Approving a Memorandum of Understanding with Foster Farms to Repair the Submersible Pump at Well #14 and Making Findings Explaining Why Public Bidding is Not Required for this Project.

MEETING DATE: April 14, 2015

PREPARED BY: Alfonso Manrique, Alternate City Engineer

REVIEWED BY: Odi Ortiz, Interim City Manager

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RECOMMENDATION:

City Council to adopt Resolution , authorize the Interim City Manager to sign a Memorandum of Understanding (MOU) with Foster Farms to repair the submersible pump at Well #14 and making findings explaining why public bidding is not required for this project.

BACKGROUND:

Well Locations with Local Landmarks

On April 3, 2015, Well #14 experienced a sudden and unexpected failure. Shannon Pump inspected the above ground electrical system and determined that the problem was at the submersible pump. At the time that Well #14 failed, Well Nos. 9 and No. 1lB were still out of service due to the large quantities of sand they produce.

Foster Farms received the City purchased filters to remove sand from Well Nos. 9 and l lB on March 20, 2015, and they were making arrangements to install them when Well #14 failed. Foster Farms installed the filters on Well Nos. 9 and 1 lB on April 4th and those two wells are now back in operation. Having Well Nos. 9 and 1lB back in operation has restored the water system’s supply capacity which is now able to meet peak hour demand.

However, Well #14 is still out of service and the City needs to repair the submersible pump to maintain redundancy in case another well fails unexpectedly. Water demands are increasing with the warm weather and staff would like to complete these repairs as soon as possible to avoid any service interruptions if another well fails.

DISCUSSION:

Foster Farms has approached the City to assist in the repairs of Well #14. Foster Farms wants to restore the water system’s redundancy as soon as possible to avoid any disruptions to their production. Foster Farms would like to purchase and install a new submersible pump at Well #14. Foster Farms is the largest water user in the City and benefits from having a reliable supply. Thus, Foster Farms is not asking to be reimbursed for these repairs. The estimated cost of the repairs is $40,000.

The City has prepared a Memorandum of Understanding (MOU) with Foster Farms to serve as a formal agreement to complete the repairs at Well #14. The MOU contains adequate language to ensure that the work is completed in accordance with City standards and to mutually protect the City and Foster Farms against any claims. A copy of the MOU is attached to this Staff Report.

The attached Resolution also finds that given the emergency described in this staff report and in the Resolution, and pursuant to California Public Contract Code section 20168, public bidding is not required for the project.

The Resolution further makes the finding that pursuant to Graydon v. Pasadena Redev. Agency, 104 CA3d 631 (1980), competitive bidding is not required when it would be impossible or not in the public interest, such that no competitive advantage can be gained by soliciting bids. In this case, Foster Farms is willing to purchase the equipment and install it; no competitive advantage can be gained by the City conducting public bidding for such equipment or work.

The Resolution requires four-fifths (4/5) vote of the City Council for approval.

FISCAL IMPACT:

There is no fiscal impact associated with signing the MOU. Foster Farms is not asking for any reimbursement for the repairs. The City has already spent most of the emergency funds in the water enterprise for FY 2014-15.

ATTACHMENTS:

1. Resolution No. 2015-

2. Memorandum of Understanding

RESOLUTION NO. 2015-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGSTON AUTHORIZING THE INTERIM CITY MANAGER TO SIGN A MEMORANDUM OF UNDERSTANDING WITH FOSTER FARMS FOR THE REPAIR OF A SUBMERSIBLE PUMP AT WELL #14 AND MAKING FINDINGS REGARDING PUBLIC BIDDING

WHEREAS, the City of Livingston owns and operates a community water system under permit No. 03- 11-lOPA-006 (Permit) issued on May 3, 2010; and

WHEREAS, the City is permitted to use Wells Nos. 8, 9, 1IB, 12, 13, 14, 15, and 16 as active sources in the water system; and

WHEREAS, the City supplies drinking water to residential, commercial and industrial users within the City’s service area; and

WHEREAS, Foster Farms is the largest water user in the City and requires a reliable water supply to maintain its operations; and

WHEREAS, the City’s Well No. 14 provides redundancy to the water supply system and is key in providing an adequate supply of water to Foster Farms when other wells in the system are out of service; and

WHEREAS, the City’s Well No. 14 is currently out of service because of a sudden failure in the submersible pump motor; and

WHEREAS, Well No. 14 is a key source of water and serves a significant role in meeting water demand in the system during peak hours. The City finds that the purchase of the equipment and labor required to repair Well No. 14 must be done immediately in order to avoid further water service interruptions to City residents and businesses; and

WHEREAS, on January 17, 2014, the Governor of the State of California declared a state of emergency due to widespread drought conditions and the United States Drought Monitor currently classifies Merced County as experiencing an exceptional drought, the most serious designation; and

WHEREAS, the prolonged drought has caused the water table to fall throughout Merced County, which creates a serious risk that other City-owned wells may decrease capacity, increasing the importance of quickly repairing Well No. 14; and

WHEREAS, pursuant to California Public Contract Code section 20168, "in case of an emergency, the legislative body may pass a resolution by a four-fifths vote of its members declaring that the public interest and necessity demand the immediate expenditure of public money to safeguard life, health, or property. Upon adoption of the resolution, it may expend any sum required in the emergency without complying [public bidding requirements]"; and

WHEREAS, pursuant to Public Contract Code section 1102, "Emergency," is defined as: "a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impainnent of life, health, property, or essential public services"; and

WHEREAS, the failure of Well No. 14 was sudden, and unexpected and requires immediate action for the reasons stated above; and

WHEREAS, new water service interruptions may continue as long as Well No. 14 is out of service, which is a serious impairment of an essential public service.

WHEREAS, further, pursuant to Graydon v. Pasadena Redev. Agency, 104 CA3d 631 (1980), competitive bidding is not required when it would be impossible or not in the public interest, such that no competitive advantage can be gained by soliciting bids. In this case, Foster Farms is willing to purchase the equipment and install it; no competitive advantage can be gained by the City conducting public bidding for such equipment or work; and

WHEREAS, given Foster Farm’s interest in a reliable water supply for their operations, Foster Farms has agreed to partner with the City and purchase the equipment necessary and repair the submersible pump at Well No. 14 using its own staff and resources. This will assist the City in quickly addressing this emergency; and

WHEREAS, the City would like to sign a Memorandum of Understanding (MOU) with Foster Farms to serve as a formal agreement for the completion of the repairs.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Livingston as follows:

Section 1. The above recitals are true and correct findings of the Livingston City Council.

Section 2. The City Council finds that given the emergency described in the recitals above, and pursuant to California Public Contract Code section 20168, public bidding is not required for the project.

Section 3. The City Council finds that, pursuant to Graydon v. Pasadena Redev. Agency, 104 CA3d 631 (1980), competitive bidding is not required when it would be impossible or not in the public interest, such that no competitive advantage can be gained by soliciting bids. In this case, Foster Farms is willing to purchase the equipment and install it; no competitive advantage can be gained by the City conducting public bidding for such equipment or work.

Section 4. The Interim City Manager is hereby authorized and directed to sign the MOU with Foster Farms so that the repairs to Well #14 can be completed as soon as possible, in a form approved by the City Attorney.

Section 5. This Resolution shall take effect from and after the date of its adoption. This Resolution shall require four-fifths (4/5) vote of the City Council for approval.Passed and adopted this 14th day of April, 2015, by the following vote:

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AYES:

NOES:

ABSENT:

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Rodrigo Espinoza, Mayor of the City of Livingston

ATTEST:

I, hereby certify that the foregoing resolution was regularly introduced, passed and adopted at a Special Meeting of the City Council of the City of Livingston this 14th day of April, 2015.

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Antonio Silva, City Clerk of the City of Livingston

MEMORANDUM OF UNDERSTANDING BETWEEN

THE CITY OF LIVINGSTON AND

FOSTER FARMS, INC. ON

THE REPAIR OF SUBMERSIBLE PUMP AT WELL NO. 14

This Memorandum of Understanding ("MOU"), made and entered into this day of April, 2015 by and between the City of Livingston ("City"), and Forster Farms, Inc. ("Foster Farms"), referred to collectively as the Parties. This MOU shall serve as a framework of understanding between the Parties for the repair of the submersible pump at Well #14.

WHEREAS, the City of Livingston owns and operates a community water system under permit No. 03-11-lOPA-006 (Permit) issued on May 3, 2010; and

WHEREAS, the City is permitted to use Wells Nos. 8, 9, 118, 12, 13, 14, 15, and 16 as active sources in the water system; and

WHEREAS, the City supplies drinking water to residential,commercial and industrial users within the City’s service area; and

WHEREAS, Foster Farms is the largest water user in the City and requires a reliable water supply to maintain its operations; and

WHEREAS, the City’s Well No. 14 provides redundancy to the water supply system and is key in providing an adequate supply of water to Foster Farms when other wells in the system are out of service; and

WHEREAS, the City’s Well No. 14 is currently out of service because of a sudden failure in the submersible pump motor; and

WHEREAS, Well No. 14 is a key source of water and serves a significant role in meeting water demand in the system during peak hours. The City finds that the purchase of the equipment and labor required to repair Well No. 14 must be done immediately in order to avoid further water service interruptions to City residents and businesses; and

WHEREAS, on January 17, 2014 the Governor of the State of California declared a state of emergency due to widespread drought conditions and the United States Drought Monitor currently classifies Merced County as experiencing an exceptional drought, the most serious designation; and

WHEREAS, the prolonged drought has caused the water table to fall throughout Merced County, which creates a serious risk that other City-owned wells may decrease capacity, increasing the importance of quickly repairing Well No. 14; and

WHEREAS, pursuant to California Public Contract Code section 20168, "in case of an emergency, the legislative body may pass a resolution by a four-fifths vote of its members declaring that the public interest and necessity demand the immediate expenditure of public money to safeguard life, health, or property. Upon adoption of the resolution, it may expend any sum required in the emergency without complying [public bidding requirements]"; and

WHEREAS, pursuant to Public Contract Code section 1102, "Emergency/’ is defined as: "a sudden, unexpected occurrence that poses a clear and imminent danger, requiring immediate action to prevent or mitigate the loss or impairment of life, health, property, or essential public services"; and

WHEREAS, the failure of Well No. 14 was sudden, and unexpected and requires immediate action for the reasons stated above; and

WHEREAS, new water service interruptions may continue as long as Well No. 14 is out of service, which is a serious impairment of an essential public service.

WHEREAS, further, pursuant to Graydon v. Pasadena Redev. Agency, 104 CA3d 631 {1980}, competitive bidding is not required when it would be impossible or not in the public interest, such that no competitive advantage can be gained by soliciting bids. In this case, Foster Farms is willing to purchase the equipment and install it; no competitive advantage can be gained by the City conducting public bidding for such equipment or work; and

WHEREAS, given Foster Farm’s interest in a reliable water supply for their operations, Foster Farms has agreed to partner with the City and purchase the equipment necessary and repair the submersible pump at Well No. 14 using its own staff and resources. This will assist the City in quickly addressing this emergency.

NOW, THEREFORE, the Parties do hereby agree as follows:

Article I – Purpose and Term of MOU

The purpose of this MOU is to memorialize an agreement between the Parties for the repair of the submersible pump at Well No. 14. The repairs will restore Well No. 14 and resume its production.

This MOU shall terminate on the date Foster Farms completes the repairs on Well No. 14 as provided for in this MOU.

Article II – City’s Responsibilities

A. The City will provide access to the well site as necessary for Foster Farms to complete the repairs.

B. The City will be responsible for piping disinfection and start up.

Article III – Foster Farms’ Responsibilities

A. Foster Farms will provide the following:

1} All labor and materials to remove and reinstall the pump at Well No. 14.

2} A new inverter-duty submersible motor for Well No. 14.

3} Labor and materials, as necessary, to repair the bowls on the existing pump at Well No. 14.

B. Foster Farms agrees to complete the repairs to the submersible pump in accordance with best industry practices. Foster Farms will assign workers to repair the pump that are qualified and have the required certifications and licenses to complete the work.

C. Foster Farms will maintain statutory Workers’ compensation insurance on all workers assigned to the repair of the submersible pump.

D. Foster Farms will maintain adequate liability insurance, as determined by the City, while performing work on City Well No. 14. Foster Farms will provide proof of insurance to the City prior to beginning work under this MOU.

Article IV – Warranty

A. Foster Farms guarantees that the repairs and installation of the submersible pump will be done in accordance with the manufacturer’s recommendations.

B. Foster Farms guarantees the installation of the submersible pump to be free from defects and workmanship for twelve (12) months from the date installation is complete.

C. Foster Farms agrees to comply with all applicable state and local laws while performing or causing to perform any work under this MOU.

Article V – Indemnification

A. City agrees to defend, indemnify and hold harmless Foster Farms, its officers, directors, employees, and affiliates from and against all liability, loss, cost or expense imposed on Foster Farms, its officers, directors, employees and affiliates arising out of or in any way related to the negligence or willful misconduct of the City in the repair of the submersible pump under this MOU.

B. Foster Farms agrees to defend, indemnify and hold harmless the City, its officers, directors, employees, and affiliates from and against all liability, loss, cost or expense imposed on the City, its officers, directors, employees and affiliates arising out of or in any way related to the repair of the submersible pump under this MOU.

Article VI – Miscellaneous Provisions

A. In the event that either party brings any action against the other under this MOU, the Parties agree that trial of such action shall be vested exclusively in the state courts of California in the County of Merced or in the United States District Court for the Eastern District of California.

B. If a court of competent jurisdiction finds or rules that any provision of this MOU is invalid, void, or unenforceable, the provisions of this MOU not so adjudged shall remain in full force and effect. The invalidity in whole or in part of any provision of this MOU shall not void or affect the validity of any other provision of this MOU.

C. If a party to this MOU brings any action, including an action for declaratory relief, to enforce or interpret the provision of this MOU, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose

IN WITNESS WHEREOF, the Parties to this MOU have caused this MOU to be executed on their behalf as of the date specified below, respectively, as follows:

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CITY OF LIVINGSTON

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Odi Ortiz, Interim City Manager Dan

FOSTER FARMS

Chaffee, Director of Engineering and Construction

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Date Date

2425947.2

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One thought on “APRIL 14, 2015, Special City Council Meeting

  1. Pingback: “Broken” Wells, State Mandates, A Contract Public Works Director, A Council Member Resigns, And a Brief Summary of APRIL, 2015 | Thegardeningsnail's Weblog (because not every critter is hiding under a rock...)

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