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HomeMy WebLinkAboutSANTA ANA UNIFIED SCHOOL DISTRICT (7) -2010'V A-2010-093 INSURANCE NOT REQIJIRED WORK MAY PROCEED CLERK OF COUNCIL ??r AUG 17 2010 AGREEMENT BETWEEN CITY OF SANTA ANA AND SANTA ANA UNIFIED SCHOOL DISTRICT REGARDING FINANCING OF INITIAL DESIGN OF COMMUNITY CENTER INCORPORATING BLOCK GRANT REQUIREMENTS v a This Agreement Between City of Santa Ana and Santa Ana Unified School District Regarding Financing of Initial Design of Community Center ("Agreement") is made this 74+% day of J u +ne. 2010, by and between the City of Santa Ana, a charter city and municipal corporation ("City"), and the Santa Ana Unified School District ("District"), a public school district (collectively, "Parties"; individually "Party"). RECITALS A. The District is designing and constructing multiple improvements at its Garfield Elementary School site ("Project"). B. The Project includes a two-story building that the Parties intend to use as a multiple-purpose building and community center ("MPR/CC"). C. The City wishes to pay for an initial design of the MPR/CC so that the MPR/CC will be adequate for each Party's use. D. The City, as an entitlement recipient and grantee of the United States Department of Housing and Urban Development ("HUD") Community Development Block Grant ("CDBG") Program, desires to enter this Agreement with the District for the expenditure of CDBG funds in accordance with Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. ("CDBG Reg's"), to pay for initial design of the MPR/CC. E. The District, pursuant to, without limitation, section 17077.40, et seq. and/or section 17527, et seq., of the Education Code, is authorized to enter into joint use agreements with other public entities. F. The Parties intend to later negotiate an agreement to fund the remaining design and construction of the MPR/CC between the City and the District, that the Parties will approve separate from this Agreement ("Construction Agreement"). G. The Parties also intend to later negotiate a joint use agreement for the MPR/CC between the City and the District, that the Parties will approve separate from this Agreement ("Joint Use Agreement"). Upon completion of the MPR/CC, the District shall permit the City to access the MPR/CC for public recreation purposes pursuant to applicable law and to the Joint Use Agreement. NOW, THEREFORE, the Parties agree as follows: AGREEMENT 1. Initial Design of MPR/CC. A. The District shall cause the NPR/CC to be designed, subject to the City's approval, which shall not be unreasonably withheld. The District or its agents or representatives shall meet and confer with the City prior to finalizing the schematic design work on the MPR/CC, and at reasonable intervals during the design process. B. The Parties have agreed that NTD Architects, Inc. ("Architect") will be the architect of record for the Project, including the NPR/CC. Architect was chosen through a request-for-qualification process that the Parties believe was a fair, competitive selection process consistent with Government Code section 4529.12 and consistent with the federal rules of procurement. Initial Financing Agreement - City of Santa Ana/SAUSD - MPR/CC Page 1 C. The City acknowledges that the District is undertaking design and construction of the Project. The NPR/CC shall be designed substantially to conform with the scope of development attached hereto as Exhibit A, and incorporated by reference. 2. Payment for Design of the MPR/CC. A. The City shall pay for the cost to design the MPR/CC through the schematic design phase for a not to exceed figure of Twenty-Five Thousand Dollars ($25,000). The City shall make payment within thirty (30) days following receipt of a proper invoice evidencing the work performed. B. The Architect has agreed to separately invoice for its design efforts for the MPR/CC so that the Parties can determine the cost of those efforts as part of the design of the Project. C. The Parties agree to take all reasonable actions to cooperate to enforce the provisions in this Agreement, including this provision, if other third party agencies, including the State of California or the County of Orange, attempt to interpret this Agreement, including these provisions, contrary to the language herein. 3. Record Drawings for MPR/CC. Upon completion of the schematic phase of design, District will provide to City a set of record drawings of the MPR/CC and copies of all contractor-supplied use manuals and warranty information, as applicable. 4. Termination. A. Either Party may terminate this Agreement for its own convenience. In the event of a termination for convenience by City or of a termination for convenience in accordance with 24 CFR 85.44, District may invoice City and City shall pay its portion for all work and/or services performed until the City's notice of termination for convenience. B. If the City breaches this Agreement in any material way, the District may elect to provide written notice to the City of the breach(es). If the City does not cure the breach(es) within ten (10) days of receipt of the notice by paying all overdue funds, the District may terminate this Agreement by providing written notice of termination to the City. City shall be liable to District for all costs, fees, expenses, and other damages the District incurs because of the City's breach(es). C. If the District breaches this Agreement in any material way, the City may elect to provide written notice to the District of the breach(es). If the District does not cure the breach(es) within ten (10) days of receipt of the notice, the City may terminate this Agreement by providing written notice of termination to the District. District shall be liable to City for all costs, fees, expenses, and other damages the City incurs because of the District's breach(es). D. The remedies in this paragraph are in addition to any additional remedies available at law or under this Agreement. A decision by a Party not to terminate this Agreement pursuant to this paragraph does not constitute a waiver of any other claims or remedies that Party may have against the other. 5. Indemnification and Cooperation in Claim Defense. A. District shall indemnify, save, protect, defend and hold harmless the City, its officers, agents and employees from any and all claims, costs, and liability, including reasonable attorneys' fees, for any damage, injury or death, to persons or property arising from the negligent or wrongful acts or omissions of the District or its agents under this Agreement, except to the extent that such claims, costs, or liability arise directly or indirectly from the negligent or wrongful acts or omissions of City, its officers, agents and employees. B. City shall indemnify, save, protect, defend and hold harmless the District, its officers, agents and employees from any and all claims, costs and liability, including reasonable attorneys' fees, for any Initial Financing Agreement - City of Santa Ana/SAUSD - MPR/CC Page 2 damage, injury or death, to persons or property arising from the negligent or wrongful acts or omissions of the City or its agents under this Agreement, except to the extent that such claims, costs, or liability arise directly or indirectly from the negligent or wrongful acts or omissions of District, its officers, agents and employees. 6. Environmental Review. The District shall be responsible for ensuring compliance with the California Environmental Quality Act and any other applicable environmental laws with regard to the entire Project, inclusive of the MPR/CC. 7. Confidentiality: If either Party receives from the other Party information which due to the nature of that information is reasonably understood to be confidential and/or proprietary, the Parties agree that they shall not use or disclose that information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either Party by any subsidiary and/or agent of the other Party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Parties disclosed in a publicly available source; (c) is in rightful possession of the Parties without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by one of the Parties without reference to information disclosed by the other Party. 8. Conflict of Interest. The Parties shall ensure compliance with all applicable conflict of interest laws including, without limitation, the Fair Political Practices Act and Government Code section 1090, et seq. In addition, each Parties agrees that it will not hire or permit the hiring of any person to fill a position funded through this Agreement if a member of that person's immediate family is employed in an administrative capacity by that Party. For the purposes of this section, the term "immediate family" means spouse, child, aunt, uncle, niece, nephew, stepparent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. 9. Drug Free Workplace. The Parties confirm that both comply with Government Code Sections 8350 et seg., the Drug-Free Workplace Act of 1990 and shall take diligent actions to ensure that there is no unlawful manufacture, distribution, dispensing, possession or use of a controlled substance on the Project. 10. Anti-Discrimination: It is the policy of the Parties that there be no discrimination against any employee engaged in the work, including work under contract, because of race, color, ancestry, national origin, or religious creed, and therefore each Party agrees to comply with applicable Federal and California laws including, but not limited to the California Fair Employment Practice Act beginning with Government Code Section 12900 and Labor Code Section 1735. In addition, the District agrees to require like compliance by all its contractor(s) and subcontractor(s) on the Project. 11. Attorneys' Fees. During any dispute(s) between the Parties related to this Agreement, if any, each Party shall pay their own attorneys fees and related expenses incurred and shall not have a right to recover any of those fees from the other Party. 12. Force Maieure. Neither Party shall be held responsible or liable for an inability to fulfill any obligation under this Agreement by reason of an act of God, natural disaster, rationing or restrictions on the use of utilities or public transportation whether due to energy shortages or other causes, war, civil disturbance, riot, or terrorism ("Force Majeure"). Any Party relying on a Force Majeure shall give the other Party reasonable notice thereof, and the Parties shall use their best efforts to minimize potential adverse effects from such Force Majeure, including, without limitation, subcontracting the obligations of the Party claiming such Force Majeure to a third party and extending the time periods for performance. 13. Asshmment. Neither Party may, without the other Party's prior written consent, assign its rights or delegate its duties pursuant to this Agreement. This provision does not apply to the District's contracting with contractor(s), consultant(s), or others to perform services or provide other items related to the planning, approval, design, or Initial Financing Agreement - City of Santa Ana/SAUSD - MPR/CC Page 3 construction of Project, including the MPR/CC. The District's contracting with others shall not alter the District obligations pursuant to this Agreement. 14. Successors and Assigns. This Agreement shall bind the successors and assigns of the Parties hereto. 15. Further Assurances. Each Party to this Agreement shall at its own expense perform all acts and execute all documents and instruments that may be necessary or convenient to carry out its obligations under this Agreement. 16. Modifications. The terms and conditions of this Agreement may be modified or changed only by written mutual consent of the Parties. 17. Notices. Any notices that either Party desires to or is required to give to the other Party or to any other person shall be in writing and either served personally or sent by prepaid first class mail. Such notices shall be addressed to the other Party at the address set forth below. Either Party may change its address by notifying the other Party of the change of address. Notice shall be deemed communicated within seventy-two hours from the date of mailing, if mailed as provided in this paragraph. Santa Ana Unified School District City of Santa Ana 1601 East Chestnut Avenue 20 Civic Center Plaza, M-25 Santa Ana, California 92701 P.O. Box 1988 Attn: Assistant Superintendent, Santa Ana, CA 92702 Facilities & Governmental Relations Attn: Deputy City Manager 18. Execution in Counterparts. This Agreement may be executed in counterparts such that the signatures may appear on separate signature pages. A copy, or an original, with all signatures appended together, shall be deemed a fully executed Agreement. 19. Interpretation. The language of all parts of this Agreement shall, in all cases, be construed as a whole, according to its fair meaning, and not strictly for or against either Party. 20. Severability. Should all or any portion of any provision of this Agreement be held unenforceable or invalid for any reason, but the remainder of the Agreement can be enforced without failure of material consideration to any Party, then the remaining portions or provisions shall be unaffected. 21. Governing Law. This Agreement shall be governed by the laws of the State of California and venue shall be in the appropriate Superior Court in Orange County, California. 22. Incorporation of Recitals and Exhibits. The Recitals and all Exhibits attached hereto, are hereby incorporated herein and made a part of this Agreement by this reference. 23. Captions. The headings used in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. 24. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties and supersedes all prior negotiations, representations, or agreements, either written or oral. 25. Time of the Essence. Time is of the essence in the performance of each Party's respective obligations under this Agreement. 26. Parties to Bear Their Own Costs. Except as specifically set forth in this Agreement, the Parties shall each bear their own costs, including, without limitation, attorneys' and consultants' fees, incurred in connection with any negotiations, strategic planning, analysis and due diligence relating to this Agreement. 27. Effective Date. This Agreement must be executed by both Parties and approved or ratified by the City's City Council and the District's Board of Trustees. This Agreement shall be effective upon the latter date of approval Initial Financing Agreement - City of Santa Ana/SAUSD - MPR/CC Page 4 of either the City Council or the Board of Trustees. 28. Terms Required Based on HUD Funding. The following terms are made a part of this Agreement, as required by the Parties participation in and use of funds from the HUD CBDG Program. A. Use of Debarred. Suspended, or Ineligible Participants. The Parties shall comply with the provisions of 24 CFR 24 relating to the employment, engagement of services, awarding of contracts, or funding of any contractor or subcontractor during any period of debarment, suspension, or placement in ineligibility status. B. No Pending Investigation. Each Party asserts that, to the best of its knowledge, it is not the subject of any current or threatened criminal or civil action investigation by any other public agency, including without limitation a police agency or prosecuting authority, that would relate to affect performance of the Agreement or provision of services hereunder. C. Audit. To the extent the District uses California state bonds funds for the Project, the District is subject o audit by the California Office of Public School Construction. In addition, to the extent the District uses any of its Measure G Bond funds for the Project, the District is required to conduct an annual, independent financial audit and annual, independent performance audit on the use of those funds. D. Record Keeping/Reporting. Both Parties shall keep and maintain complete and adequate records and reports to assist one another in meeting and maintaining its record keeping responsibilities under applicable law which includes, Title 24, Part 570 of Code of Federal Regulations 24 CFR 570.000, et seq. The Parties agree to share with each other the guidelines and parameters of required record keeping. The Parties agree to keep all Project records for at least five (5) years from the date of completion of the Project. E. Economic Opportunities for Low Income People. To the extent allowable under applicable state law, the Parties shall implement the goals of Section 3 of the Housing and Urban Development Act of 1968 that requires employment and other economic opportunities arising in connection with housing rehabilitation, housing construction and other public construction projects which shall, to the extent feasible and consistent with existing federal, state and local laws and regulations, be given to low and very low-income persons. To the extent applicable, the Parties shall comply and/or cause compliance with Section 3 Clause requirements for the Project. F. Prevailing Wage. In its contract(s) for construction of the Project, the District shall include a provision that states in pertinent part: If there is a difference between the general prevailing wage rates determined by the Director of the Department of Industrial Relations ("California Prevailing Wages") and the applicable minimum wage rates determined by the Secretary of Labor ("Federal Wages") for similar classifications of work, the Contractor and its Subcontractors of every tier shall pay their workers not less than the higher wage rate. G. Lobbying. The Parties shall ensure that they comply with federal law (31 U.S.C. 1352) and regulations found at 24 CFR Part 87, which provide that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. Initial Financing Agreement - City of Santa Ana/SAUSD - MPR/CC Page 5 ACCEPTED AND AGREED on the date indicated below: City of Santa Ana Dated: C ,r//G ,1120 By: %' , y t? v ill !ti?_ Print Name: Maria D. Huizar Print Title: Clerk of the City Council Dated: , 20 By: Print Name: David N. Ream Print Title: City Manager Approved as to Form Dated: , 20 By: t - - ? Print Name: Joseph W. Fletcher, City Attorney Print Title: By Lisa E. Storck. Assistant City Attorney Santa Ana Unified School District Dated: 7-- Z 7 , 20 l? By: Print Name: Joe Dixon Print T Dated: By: Print Name: Michael P. Bishop, Sr. Print Title: Associate Superintendent. Business Services Approved as to Form Dated: 7 Z g .2 0 /D By: Print Name: Philip J. Henderson Print Title: Attorney, Orbach Huff & Suarez Initial Financing Agreement - City of Santa Ana/SAUSD - MPR/CC Page 6 Exhibit A Description of the MPR/CC :.I ?J C,: l t Y\ i r I n [h ? Z7 e' R+ rn y 4TH STREET ?l 1. 0 A 11 (n M M Initial Financing Agreement - City of Santa Ana/SAUSD - MPR/CC Page 7