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HomeMy WebLinkAboutMETROPOLITAN WATER DISTRICT 2 -2005AGREEMENT TERMINATION Please complete this form when the attached agreement is no longer in effEct FEB -6 PM � 23 Return form to the Sr. Deputy Clerk of the Council (M-30). CaU�CL4any questions. The agreement with fw4yopDji I-Q-✓, \Oft r`w:NStnC+ , No. was completed on �Q 1 ROO-1 , and final payment has been made. Department: aaGA Signature: (64,�— Date: 0 Al2n ig City of Santa Ana Revised 8-7-03 Clerk of the Council ',' , N-2005-087 AGREEMENT NO. 69877 SYNTHETIC TURF PROGRAM FUNDING AGREEMENT BETWEEN THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA AND CITY OF SANTA ANA TABLE OF CONTENTS Section Page Recitals...................................................................................................................... .......................1 Project Description...................................................................................................1 Project Funding.. ....... ..... .... ... ............ ... ..... ... ..... .,. ...... ... ... ...... .... ....... ............. ... .......1 Agreement Term ...... .... .... ...... .... ... ... ... .......... ... ... ... ..... ... .., ....... ....... ... .... ... ... .... ... ... ..2 Agreement Administrators.............................. ...... ........... ... ........... ... .... ... ... .... ... ......2 Responsibilities and Ownership.. ............. ... .............. ............ .............. ................ ... ..2 Intellectual Property.................................................................................................2 Rate Structure Integrity Provisions...... ........ .............. ..... ........................... ....... .......3 Performance Provisions .., .......... ... ... ..... ... ..... ... ...... ... ..... ... ... .... ....... ....... ... ... .... ...... ..5 Notice...................................................................................................................... .5 Other Terms ... .... ....... .... ........... ...... ... ..... ..... ... ... ...... ... ..... ... ........ ... ... .... ... ... .,. .... .......6 Section 1. Section 2. Section 3. Section 4. Section 5. Section 6. Section 7. Section 8. Section 9. Section 10. Exhibits Exhibit NO.1.. ....... ...... ...... .,. ... .... ........ .... .... ... ............ ..... ... ..... .., ...... ............ .., .... .......... ... .......... ......8 Exhibit No.2........ ... ... .,. ... ... ....... ................ ....... ... ..... ... ..... ... ..... ... '" .,. ........ .... ..................................9 City of Santa Ana - Santa Ana Stadium - 1 - STP Agreement No. 69877 . .' AGREEMENT NO. 69877 SYNTHETIC TURF PROGRAM FUNDING AGREEMENT BETWEEN THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA AND CITY OF SANTA ANA THIS AGREEMENT (Agreement) is made and entered into as of , 2005 by and between The Metropolitan Water District of Southern California (Metropolitan) and City of Santa Ana (Santa Ana). Metropolitan and Santa Ana may be collectively referred to as "Parties" and individually as "Party." RECITALS A. Metropolitan's Synthetic Turf Program (Program) provides financial incentives to develop reliable data on synthetic turf installation process, uses, projected water savings, maintenance requirements, urban runoff issues, and ancillary environmental benefits. In addition, the Program will help identify municipal requirements and better understand public reaction and level of acceptance; B. The Program also provides financial incentives encouraging participants to install synthetic turf on existing, irrigated landscape areas on public and municipal lands; C. The Program is funded in part by a grant from the United States Bureau of Reclamation and Metropolitan. D. Santa Ana desires to participate in the Program by installing synthetic turf at the Santa Ana Stadium, (Project). NOW, THEREFORE, in consideration of the promises and covenants hereinafter set forth, the Parties do agree as follows: Section I. Proiect Description 1.1. . Project is located at 602 N. Flower Street, Santa Ana, CA 9270 I, and is also described in more detail in Exhibit 1. Section 2. Proiect Funding 2.1. Santa Ana shall be responsible for all project costs. 2.2. Metropolitan's maximum funding contribution shall be $50,000. City of Santa Ana - Santa Ana Stadium - 1 - STP Agreement No. 69877 2.2. Metropolitan shall make incentive payment within 60 days upon receipt of an acceptable final report (See Exhibit 2 for detailed Final Report requirements). Section 3. Agreement Term 3.1. This Agreement will be effective until May I, 2007. 3.2. This Agreement may be amended at any time by written mutual agreement executed by both of the Parties. 3.3. Either Party, for any reason, may terminate this Agreement 30-days after written notice to the other Party. Section 4. Agreement Administrators 4.1. Mr. Bill Eubank is appointed Agreement Administrator for Metropolitan for the purpose of administering this Agreement and making any decisions in connection therewith on behalf of Metropolitan. Mr. Ron Ono is appointed Agreement Administrator for Santa Ana for the purpose of administering this Agreement and making any decisions in connection therewith on behalf of Santa Ana. Providing written notice to the other Party as outlined in Section 9 may change the designated Agreement Administrators. Section 5. Responsibilities and Ownership 5.1. All materials and supplies necessary to implement the Project shall be the exclusive responsibility of Santa Ana. Metropolitan shall have no ownership, right, title, security interest, or other interest in any Project facilities, materials or supplies, nor any rights, duties, responsibilities for operation or maintenance thereof. 5.2. Santa Ana is responsible for assuring that the Project complies with all federal, state, and local requirements. . 5.3. Santa Ana is solely responsible for the performance of its staff or representatives in complying with the terms of this Agreement and for the proper allocation of funds provided by Metropolitan under this Agreement. Section 6. Intellectual Propertv 6.1. Santa Ana agrees that Metropolitan and its member public agencies have the right to use at no cost all intellectual property conceived or developed in the course of Project development and operation under this Agreement by Santa Ana or any contractor and consultant employed by Santa Ana. As used herein, the term "intellectual property" includes, but is not limited to, all inventions, patents, copyrightable subject matter, copyrights, test data, trade secrets, other confidential information and software. This right to use intellectual property is limited to producing potable water by Metropolitan and/or its member public agencies within their respective service areas. City of Santa Ana - Santa Ana Stadium -2- STP Agreement No. 69877 6.2. Santa Ana shall notify Metropolitan in writing of all intellectual property conceived or developed in the course of Project development and operation under this Agreement. 6.3. Santa Ana shall cooperate in the execution of all documents necessary to perfect Metropolitan's and its member public agencies' right to intellectual property under this Agreement, as requested by Metropolitan. 6.4. When requested by Metropolitan or its member public agencies or upon termination of this Agreement, Santa Ana shall furnish a copy of all documents and other tangible media containing intellectual property developed by Santa Ana during the course of this Agreement, including all prototypes and computer programs. Section 7. Rate Structure Integritv Provisions 7.1. Santa Ana agrees and understands that Metropolitan's rate structure as of January I, 2004 ("Existing Rate Structure") provides the revenue necessary to support the development of new water supplies by local agencies through incentive payments in the Local Resources Program (LRP), Conservation Credits Program (CCP), and the Seawater Desalination Program (SDP). In particular, the Water Stewardship Rate is the component of Existing Rate Structure that provides revenue for the LRP, CCP and SDP. Further, Santa Ana acknowledges that Existing Rate Structure and all components within that rate structure were developed with extensive public input and member agency participation, and that the elements of Existing Rate Structure have been properly adopted in accordance with Metropolitan's rules and regulations. 7.2. (a) Santa Ana agrees that Metropolitan's rates set under the Existing Rate Structure may be reset throughout the term of this Agreement to account for the cost of service, and that Santa Ana will address any and all future issues, concerns and disputes relating to Existing Rate Structure, through administrative opportunities available to them pursuant to Metropolitan's public board process. If Santa Ana files or participate in litigation or support legislation to challenge or modify the Existing Rate Structure, including changes in overall rates and charges that are consistent with the current cost-of-service methodology, Metropolitan may initiate termination of this Agreement consistent with Section 7.4. Metropolitan agrees that any change in Existing Rate Structure, including changes in cost-of-service philosophy or methodology would be enacted only after collaboration and discussion with its member public agencies, and Metropolitan's public board review and approval process. (b) Notwithstanding the foregoing, Santa Ana may file and/or participate in litigation and/or support legislation without triggering the termination of this Agreement if there are material changes to Existing Rate Structure or changes in cost-of-service methodology used to set rates by future Metropolitan board action. Santa Ana also retains the right to file and/or support litigation should Metropolitan, in setting rates under Existing Rate Structure, fail to comply with public notice, open meeting, or other legal requirements associated with the process of setting water rates and related taxes, fees, and charges. Santa Ana shall not without triggering the termination provisions of this section file or participate in litigation, nor support legislation affecting City of Santa Ana - Santa Ana Stadium - 3 - STP Agreement No. 69877 Metropolitan's rate structure after any such change in rate structure or violation of the law regarding rate setting processes until, and unless, they have exhausted all administrative opportunities available to them pursuant to Metropolitan's public board process. 7.3. Santa Ana agrees that all users ofthe Metropolitan conveyance and distribution system should support the LRP, CCP, and SDP; that such projects provide benefits to Metropolitan and the users of the system by making existing distribution and conveyance capacity available for additional delivery; and, that under Existing Rate Structure, the Water Stewardship Rate is an element of charges properly adopted by the Metropolitan Board and properly applied to water wheeled through the Metropolitan conveyance and distribution system. 7.4. Should Santa Ana file or support litigation, or sponsor or support legislation, that would challenge or be adverse to Existing Rate Structure, as described in Section 7.2, Metropolitan's Chief Executive Officer may file a 90-day notice of intent to terminate this Agreement with Metropolitan's Executive Secretary, with copies to all members of Metropolitan's Board of Directors, and contemporaneously provide Santa Ana with a copy of the notice. Within 30 days of receipt of such notice, Santa Ana shall have the right to request, in writing, mediation of the dispute by a neutral third party with expertise in finance and rate setting. The mediator shall be selected by agreement of the parties, or failing agreement within 60 days of such request for mediation, a mediator shall be selected by the Metropolitan Board of Directors from a list of at least four candidates, two from Santa Ana, and two of which will be supplied by Metropolitan's Chief Executive Officer. The cost of the mediation shall be borne equally by the parties. The request for mediation shall also serve to stay the 90-day notice of intent to terminate, but for no more than 90 days beyond the filing of the notice of request for mediation, unless otherwise agreed in writing by the parties. If mediation does not result in an agreement acceptable to each Party to this Agreement within the time provided herein, the notice of intent to terminate shall be reinstated. The Metropolitan Board of Directors shall act to approve or disapprove termination of this Agreement, and all of Metropolitan's obligations hereunder shall terminate if approved, on or before the ninetieth day following filing of the notice to terminate or, if mediation has been requested as described above, the ninetieth day following the request for mediation (or other date agreed in writing by the Parties). 7.5. Should litigation or legislation be brought forth or sponsored by a party or parties not referenced herein, resulting in changes to the Existing Rate Structure, this Agreement will continue in effect unless mutually agreed in writing by the Parties. 7.6. Should Metropolitan and its member agencies agree on an alternative rate and revenue structure that obviates the need for this Section on Rate Structure Integrity Provisions, this section shall be amended or deleted to conform to such action. 7.7. Notwithstanding the foregoing, Metropolitan shall have no power or authority under this Section to terminate this Agreement, and Metropolitan's Chief Executive Office shall not file a 90-day notice of intent to terminate this Agreement, if Santa Ana files or City of Santa Ana - Santa Ana Stadium - 4- STP Agreement No. 69877 participates in any litigation or supporting legislation to challenge or modify Existing Rate Structure, but Santa Ana transmits in writing to Metropolitan's Chief Executive Officer within thirty (30) days of request therefore from Metropolitan, stating that Santa Ana has not participated directly or indirectly in the filing or prosecution of any litigation or the drafting or advocacy of any legislation to challenge or modify Existing Rate Structure, and indicates support for Existing Rate Structure. 7.8. If Metropolitan's Board of Directors adopts provisions regarding rate structure integrity for inclusion in LRP, CCP, and SDP agreements, which differs from that contained above in this Section, the Parties agree that the new provisions shall apply to this Agreement. Section 8. Performance Provisions 8. I. The Project must start installation within eight months after signing this Agreement. If installation does not start within eight months, this Agreement will terminate unless otherwise approved by Metropolitan. 8.2. Following installation of the synthetic turf, Santa Ana shall collect and compile actual water savings developed from historical water use data and a minimum of 90 days of water use savings, operation and maintenance data for inclusion into the final report, (See Exhibit 2 for content of final report). If the 90 day water savings I operation and maintenance data is not completed and accepted by Metropolitan, Santa Ana will forfeit Metropolitan's grant payment, unless otherwise approved by Metropolitan. 8.3. Santa Ana agrees to complete the Project and submit final report to Metropolitan by November 1, 2006, unless otherwise approved by Metropolitan. 8.4. Santa Ana agrees to allow Metropolitan's Agreement Administrator and/or designated staff to visit the Project site on dates that are mutually determined. 8.5. Santa Ana agrees to present the Final Report or Project status update, at no cost to Metropolitan, in public workshops sponsored by Metropolitan at a site determined by Metropolitan. Section 9. Notice 9.1. Any communication required to administer this Agreement shall be in writing and will be deemed received upon personal delivery or 48 hours after deposit in any United States mail depository, first class postage prepaid, and addressed to the Party for whom intended, as follows: If to Metropolitan: The Metropolitan Water District of Southern California P. O. Box 54153 Los Angeles, CA 90054-0153 Attention: Mr. Bill Eubank City of Santa Ana - Santa Ana Stadium - 5 - STP Agreement No. 69877 . , If to Santa Ana: City of Santa Ana Parks, Recreation & Community Services Agency 888 W. Santa Ana Blvd. Suite 200 Santa Ana, CA 92702 Attention: Mr. Ron Ono Either Party may change such address by giving notice to the other Party as provided herein. Section 10. Other Terms 10.1. Metropolitan and Santa Ana agrees that each party shall be responsible for its own actions, and the actions of its officers, employees and agents, in performing services under this Agreement. Metropolitan and Santa Ana each agree to indemnify and hold the other Party and its officers and agents harmless and agree to defend the other Party against any claim or asserted liability arising out of its actions, either willful or negligent, or the actions of its officers, employees and agents, in performing services pursuant to this Agreement. Such indemnity will include any losses relating to any claim made, whether or not a court action is filed, and will include attorney fees and administrative and overhead costs related to or arising out of such claim or asserted liability. However, Santa Ana is solely responsible for any such actions arising under the California Enviromnental Quality Act (Pub.Res.Code ~21000 et seq.). 10.2. Any alteration or variation of the terms of this Agreement will not be valid unless made in writing and signed by both Parties, and that this Agreement constitutes the entire Agreement between both Parties. 10.3. This Agreement will inure to the benefit of and be binding upon Metropolitan, Santa Ana, and their respective successors. This Agreement is not assignable by either Party in whole or in part. 10.4. The partial or total invalidity of one or more parts of this Agreement will not affect the intent or validity of this Agreement. 10.5 This Agreement will be deemed a contract under the laws of the State of California, and for all purposes will be interpreted in accordance with such laws. Metropolitan and Santa Ana hereby agree and consent to the exclusive jurisdiction of the courts of the State of California, and that the venue of any action brought hereunder will be in Los Angeles County, California. II II II II City of Santa Ana - Santa Ana Stadium -6- STP Agreement No. 69877 . , . ,. . IN WITNESS WHEREOF, the Parties hereto have executed this Agreement. APPROVED AS TO FORM: THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA Jeffery Kightlinger General Counsel By: --L//;1JJA~ s~. General Counsel Dennis B. Underwood CEO/General Manager By: ~W\-~ Stephen N. Arakawa, Manager Water Resource Management Date: 'I? / Iv J'?"OOC;- I I Date: '8\\~\D'S'" APPROVED AS TO FORM: CITY OF SANTA ANA By: >-j /\ ,f, ~/ ,. ','i, /~.{ , ( ( By: ~~1v.~ @ DA VID N. REAM Title: r: ,..J}, (, IX /fI 1e',I'/ .I Title: ci ty M3.nager Date: '7 - / / Date: ~O\ AT,T,EST: /f (~~~~~-()- Clerk of the Council In Duplicate o:\a\s\ContractIAGREE\STP\69877 STP 4 City Santa Ana - Santa Ana Stadium. doc City of Santa Ana - Santa Ana Stadium - 7 - STP Agreement No. 69877 . I EXHIBIT NO.1 Project Description The Santa Ana Stadium synthetic turf project is located at 602 N. Flower Street, Santa Ana, CA 92701. The project will replace approximately 80,000 square feet of existing natural grass with synthetic turf. The stadium serves as a home field for all four Santa Ana Unified School District high schools, a number of local private schools and Santa Ana Community College. City of Santa Ana - Santa Ana Stadium - 8 - STP Agreement No. 69877 - '.1 ...." EXHIBIT NO.2 Final Report 1. The Final Report shall include specific items including, but not limited to the following: a. Description of installation location including before and after photographs; b. Description of area preparation prior to installation of synthetic turf, including sub-surface preparation and drainage requirements; c. Projected water savings developed from historical water use data and a minimum of 90 days of water savings / operation and maintenance data following installation of the synthetic turf; d. Actual cost of completed installation, quantified savings of avoided operations and maintenance costs, including but not limited to reduced maintenance of adjacent hardscape (e.g., street repairs), fertilizers, insecticides, fungicides, and mowing; e. Identification of municipal requirements and restrictions; f. Environmental benefits, impacts and lessons learned from project, changes and benefits in irrigation run-off, surface heating considerations of synthetic turf; and g. Summary of public education efforts and level of community support. City of Santa Ana - Santa Ana Stadium -9- STP Agreement No. 69877