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HomeMy WebLinkAboutColton Joint Unifieed School District-2006-08 - I STORMWATER DRAINAGE FACILITIES MEMORANDUM OF UNDERSTANDING This STORM WATER DRAINAGE FACILITIES MEMORANDUM OF UNDERSTANDING ("Agreement") is entered into by and between THE CITY OF GRAND TERRACE, a California municipal corporation ("City") and COLTON JOINT UNIFIED SCHOOL DISTRICT, a California public school district ("District"). The City and District are sometimes referred to herein individually as "Party" and collectively as"Parties." RECITALS: A. District and Community Redevelopment Agency of the City of Grand Terrace ("Agency") are parties to that certain School Site Purchase Agreement and Escrow Instructions dated as of January 12, 2006 ("School Site Purchase Agreement") pursuant to which District is to acquire certain real property located within the City upon which District intents to locate school facilities. The proposed school site is located north of Main Street, south of Van Buren Avenue, east of Taylor Street, west of Michigan Street in the City of Grand Terrace, State of California(the "School Site"). B. Currently, stormwater flows generated from upstream properties are conveyed through the School Site via Pico Street. However, the construction of school facilities on the School Site will require the vacation of Pico Street and will therefore create the need for a stormwater drainage facility to convey stormwater flows through the School Site to historic flow areas (the "Stormwater Drainage Facilities"). The Storm Water Drainage Facilities consists of the following major components: (I) inlet structures at the upstream end of the School Site to capture stormwater flows from upstream properties; (2) a forty-eight(48) inch pipe ("Pipe") to convey stormwater flows collected at the inlet structures below the surface of the School Site; (3) outlet structures located at the downstream end of the School Site; and (4) a retention basin ("Retention Basin") into which the outlet structures shall discharge. The Retention Basin will be located on a portion of certain real property located immediately adjacent to the School Site and commonly known as Assessor's Parcel No. 1167-151-58. Said parcel is currently owned by the Agency, a portion of said parcel is to be conveyed the Agency to the District pursuant to the School Site Purchase Agreement, and the Retention Basin will be located on that portion of said parcel retained by the Agency after such conveyance. C. District shall, in conjunction with its construction of a school on the School site, pay for the costs of designing and constructing the Stormwater Drainage Facilities. The City shall reimburse the District, in the manner hereinafter set forth, for a portion of the costs of constructing the Stormwater Drainage Facilities. D. As more fully described in that certain "Preliminary Construction Cost Estimate — Pico Storm Drain" prepared by Epic Engineers dated August 2006, a copy of which is attached hereto as EXHIBIT A and incorporated herein by reference, the current estimated costs for construction of the Stormwater Drainage Facilities is Three Hundred Twenty-Eight Thousand Two Hundred Fifty Dollars and No Cents ($328,250.00) plus a fifteen percent (15%) contingency amount of Forty-Nine Thousand Two Hundred Thirty- Seven Dollars and Fifty Cents ($49,237.50), for a total estimated cost of Three Hundred Seventy-Seven Thousand Four Hundred Eighty Seven Dollars and Fifty Cents ($377,487.50) ("Total Estimated Construction Costs"). E. The Parties desire to enter this Agreement for the purpose of developing an understanding between the City and District for the design, construction, and funding of the Stormwater Drainage Facilities. NOW, THEREFORE, IN CONSIDERATION of the foregoing Recitals, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: AGREEMENT: 1. Incorporation of Recitals. The Parties agree that the Recitals constitute the factual basis upon which the City and District have entered into this Agreement. City and District each acknowledge the accuracy of the Recitals and agree that the Recitals are incorporated into this Agreement as though fully set forth at length. 2. Effective Date. The Parties hereto have executed this Agreement on the dates set forth below next to their respective signatures. This Agreement shall be effective as of the date ("Effective Date") all of the following are true: 2.1 This Agreement has been approved by the Parties respective governing boards or delegated representatives and signed by all Parties;and 2.2 Fee title to the School Site has been conveyed to District pursuant to the School Site Purchase Agreement. If the Effective Date has not occurred by March 1, 2010, then this Agreement shall be null and void and of no force and effect. 3. Design. 3.1 Stormwater Drainage Facility and Retention Basin. Within thirty (30) days of the Effective Date, and subject to approval by District's Board of Education, District agrees to enter into a contract with Epic Engineer to begin design of the Stormwater Drainage Facilities. The contract with Epic Engineers will require Epic Engineers to design the Stormwater Drainage Facilities under the existing WLC Architects, Inc. contract for the School Site, and based on the City of Grand Terrace Stormwater Layout, as prepared by Kicak and Associates (Work Order No. 12.428, 1989), in accordance with all applicable federal, state, and local laws, rules and regulations. The contract with Epic Engineers shall specify that Epic Engineers shall take into consideration the depth of the future San Bernardino 48-inch water supply pipeline to be installed in Taylor Street and shall design the Stormwater Drainage Facility so that they may be extended downstream in the future without impact to the water supply pipeline. 3.2 Costs of Design and Construction. Subject to reimbursement from the City as described in Section 5.2, District shall advance all costs and expenses associated with the design and construction of the Stormwater Drainage Facilities. 4. Issuance of License, Approvals and Permits. Subject to the provisions of this Agreement, City agrees to issue all licenses, permits and approvals required to construct and/or install the Stormwater Drainage Facilities, including, without limitation, approvals necessary for the Stormwater Drainage Facilities to outlet onto the Retention Basin, upon normal and typical review of applications for such matters. The City shall not require the District to pay any fees or charges for the issuance of such licenses, approvals or permits. 5. Construction. 5.1 Stormwater Drainage Facilities. Subject to reimbursement from the City as described in Section 5.2, District shall be responsible for the construction of the Stormwater Drainage Facilities. District shall secure appropriate bids and award the contract to a qualified contractor for the construction of the Stormwater Drainage Facilities in compliance with all applicable federal, state, and local laws, rules and regulations. District shall complete construction of the Stormwater Drainage Facilities before removal of existing flood way and public right-of-way. 5.2 Costs of Construction. At the completion of the construction of the Stormwater Drainage Facilities, District shall provide to City an invoice ("Invoice") for all costs related to construction of the Stormwater Drainage Facilities, together with supporting documentation for all item(s) shown thereon, including bills and copies of cancelled checks (front and back) evidencing District's payment of such costs. Within thirty (30) calendar days following City's receipt of the Invoice, City shall pay to District the amount of One Hundred Thirty Thousand Dollars and No Cents($130,000.00). 6. Indemnification. 6.1 Indemnification by City: City hereby agrees to defend, indemnify and hold free and harmless District and District's elected and appointed officals, officers, and employees from and against any and all liability, expense, including defense costs and legal fees and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, personal injury, death or property damage, arising from or connected with City's actions under this Agreements, including any Worker's Compensations suits, liability or expense, arising from or connected with services performed on behalf of City by any persons pursuant to this Agreement, whether such claims, damages, liabilities, costs and/or judgments are based upon alleged negligence, a dangerous condition of public property, or any other theory of liability. City's duty to indemnify District shall survive the termination of this Agreement as to any injuries, occurrences or claims occurring or alleged to have occurred prior to its termination. 6.2 Indemnification by District: District herby agrees to defend, indemnify, and hold free and harmless City and City's elected and appointed officials, officers, and employees from and against any and all liability, expense, including defense costs and legal fees, and claims for damages of any nature whatsoever, including, but not limited to, bodily injury, personal injury, death or property damage, arising from or connected with the District's actions under this Agreement, including any Worker's Compensation suits, liability, or expense, arising from or connected with services performed on behalf of District by any person pursuant to this Agreement, whether such claims, damages, liabilities, costs and/or judgments are based upon alleged negligence, a dangerous condition of public property, or any other theory of liability. District's duty to indemnify City shall survive the termination of this Agreement as to any injuries, occurrences or claims occurring or alleged to have occurred prior to its termination. 6.3 Tort Indemnification: The Parties recognize that this Agreement is subject to the provisions of Section 895 a seq. of the Government Code. Pursuant to Section 895.4 of the Government Code, the Parties as part of this Agreement will provide for contribution or indemnification upon any liability arising out of the performance of this Agreement. Each Party shall defend, indemnify, and hold harmless the other Party, its directors, elected officials, officers, employees, and agents from any and all actual or alleged claims, demands, causes of action, liability, loss, damage, or injury, to property or persons, including wrongful death, whether imposed by a court of law or administrative action of any federal, state, or local governmental body or agency, arising out of or incident to the performance of the Agreement and resulting from the negligence or wrongful act of that Party, its directors, elected officials, officers, employees, and agents. This indemnification includes, without limitation, the payment of all penalties, fines,judgments, awards, decrees, attomey's fees, and related costs and expenses relating to this section. 7. Termination for Cause. In the event that either Party defaults in the performance of this Agreement, the other Party shall have the option to terminate this Agreement upon thirty (30) days prior written notice to the defaulting Party. 8. Delivery of Notices an Other Communications. All notices and other communications required or permitted between the Parties hereunder shall be in writing, and shall be (i) personally delivered, (ii) sent by United States registered or certified mail, postage prepaid, return receipt requested, (iii) sent by facsimile transmission with confirmation of receipt, or (iv) sent by nationally recognized overnight courier service (e.g., Federal Express or United Parcel Service), addressed to the Party to whom the notice is given at the addresses provided below, subject to the right of any Party to designate a different address for itself by notice similarly given. Any notice so given by registered or certified United States mail shall be deemed to have been given on the third business day after the same is deposited in the United States mail. Any notice not so given by registered or certified mail, such as notices delivered by personal delivery, facsimile transmission or courier service, shall be deemed given upon receipt, rejection or refusal of the same by the Party to whom the notice is given. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice or other communication sent. To City: City of Grand Terrace 22795 Barton Road Grand Terrace, California 92313-5295 Attn: City Manager Telephone: (909) 824-6621 Facsimile: (909)783-7629 With a Copy to: Harper& Bums 453 South Glassell Street Orange, California 92866-1906 Attn: John R. Harper, Esq. Telephone: (714) 771-7728 Facsimile: (714) 774-3350 To District: Colton Joint Unified School District 1212 Valencia Drive Colton, California 92324-1798 Attn: Dennis Byas, Superintendent Telephone: (909) 580-5000 (x 6642) Facsimile: (909)433-9468 With a Copy to: Best Best & Krieger LLP 3750 University Avenue Post Office Box 1028 Riverside, CA 92502 Attn: Kendall H. MacVey Telephone: (951) 686-1450 Facsimile: (951)682-7308 9. Relationship of Parties. Nothing contained in this Agreement shall be deemed or construed by the Parties or by any third person to create the relationship of principal and agent, or partnership or joint venture, or any association between City and District, and none of the provisions contained in this Agreement or any act of the Parties shall be deemed to create any relationship other than as specified herein with respect to the matters contained herein, not shall this Agreement be construed, except as expressly provided herein,to authorize either Party to act as the agent for the other Party. 10. Resolution Without Arbitration. In the event any dispute arises over the terms of this Agreement, City and District Representatives shall meet and confer with the object of resolving such disputes within forty-eight (48) hours of the request of either Party. If, within seven (7) days, or such longer period as my be agreed upon by the Parties, the dispute cannot be resolved by the City and District Representatives to their mutual satisfaction, the City and District Representatives shall then convene a committee composed of themselves and two (2) members each of the City Council of City and Board of Education of District, selected by such legislative bodies, in their discretion. The committee shall meet as soon as possible to attempt to resolve the dispute to the mutual satisfaction of City and District. 11. Arbitration of Disputes. If the committee convened pursuant to Section 11 is unable to resolve any dispute between City and District within fourteen (14) days, or such longer period as may be agreed upon by the Parties, such disputes shall be decided by arbitration in accordance with the then current rules of the American Arbitration Association, unless the Parties mutually agree in writing otherwise. No arbitration shall include any party other than City and District and any other person substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in the arbitration. The award rendered by the arbitrator(s) shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Notice of a demand for arbitration shall be filed with the other Party and with the American Arbitration Association within a reasonable time and in no event after the date on which legal or equitable proceedings based on such claim, dispute or matter in question would be barred by the applicable statute of limitations. 12. Severability. If any terms or provisions of this Agreement shall be held invalid or enforceable, the remainder of this Agreement shall not be affected. 13. Construction. This Agreement shall be interpreted in accordance with and governed by the laws of the State of California. The language contained herein shall be construed according to its fair meaning and not strictly for or against either Party. The paragraph headings are for purpose of convenience only, and shall not be construed to limit or extend the meaning of this Agreement. 14. Attorney's Fees. In the event any action is commenced to enforce or interpret any term or condition of this Agreement, in addition to costs an any other relief, the prevailing party shall be entitled to reasonable attomey's fees and costs. 15. Entire Agreement. The Agreement contains the entire agreement of the Parties with respect to the matters contained herein. No prior agreement or understanding of the Parties with respect to the matters referred to herein shall be valid or of any force or effect. 16. Assignment. This Agreement shall not be assigned without the written consent of the Parties, any assignment without such written consent shall be void and ineffective. 17. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns to the Parties hereto. 18. Amendment to Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the Parties. IN WITNESS WHEREOF, the Parties have executed this Agreement on the date(s) set forth next to their respective signatures below. CITY OF GRAND TERRACE a California Municipal Corporation Date: January 27, 2009 By: 61%/Qif/ // Maryetta rre' Mayor ATTEST:ey M City Clerk