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Home My WebLink About25E - AGMT - REIMBURSEMENT MONTE VISTAREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: SEPTEMBER 16, 2013 CLERK OF COUNCIL USE ONLY: TITLE: APPROVED REIMBUSEMENT AGREEMENT WITH ? As Recommended SAUSD TO RENOVATE MONTE VISTA ? As Amended ELEMENTARY SCHOOL BASKETBALL E] Ordinance on Reading [I Ordinance on 2 g n od Reading COURTS ? Implementing Resolution ? Set Public Hearing For CIT ANAGER RECOMMENDED ACTION CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute a reimbursement agreement, not to exceed $70,000, with Santa Ana Unified School District (SAUSD) for the renovation of Monte Vista Elementary School Basketball Courts adjacent to Jerome Park, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION On July 2012, the City Council approved a Joint Use Agreement with the SAUSD for use of Monte Vista Elementary School ballfield and basketball courts. As part of the agreement the City installed wrought iron fencing to allow public use of the school facilities after hours and on weekends. The project is now completed; however, the basketball court needs to be renovated before the public is allowed access. The district estimates the court renovation will not exceed $140,000. Both City and District staff agreed to share 50%, or $70,000 each, of the renovation cost. The City will reimburse the District for the removal of the existing surface, re-pavement, color coating and striping of the courts. FISCAL IMPACT Funds are available in the Capital Outlay (cell tower) expenditure account (no. 05113263 66220). APPROVED AS TO FUNDS AND ACCOUNTS: Gerardo Mouet Francisco Executive Director Executive Director Parks, Recreation & Community Finance & Management Services Agency Services Agency i 25E-1 25E-2 REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF SANTA ANA AND SANTA ANA UNIFIED SCHOOL DISTRICT REGARDING REPAIR OF JOINT USE FACILITIES (MONTE VISTA ELEMENTARY SCHOOL) This Reimbursement Agreement Between the City of Santa Ana and Santa Ana Unified School District Regarding Repair of Joint Use Facilities ("Agreement') is made this 16" day of September 2013, by and between the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("City"), and the Santa Ana Unified School District ("District'), a public school district (collectively, "Parties"; individually "Party"). RECITALS A. The City and District entered into the Joint Use Agreement for the Monte Vista Elementary School site dated June 28, 2012 (Agreement #A-2012-155 - "said Agreement") to undertake a coordinated use of the Monte Vista ball field and basketball courts in order to allow maximum use by community residents and youth sports organizations. B. Pursuant to the terms of said Agreement there is a process for the Parties to follow in the event of the necessity of significant repairs to the Joint Use Facilities. C. The Parties desire to divide the cost for the repairs to the basketball courts. NOW, THEREFORE, for and in consideration of the mutual promises and agreements contained herein, the Parties hereto agree as follows: 1. DEFINITIONS. The following definitions shall apply to the terms as used in this Agreement: A. "Joint Use Property" shall mean that certain real property and improvements thereon described in Exhibit A attached hereto. B. "Joint Use Facilities" shall mean the (i) basketball courts and (ii) ball field as identified in Exhibit A attached hereto. C. "Technical Advisory Committee" shall mean the committee created and appointed by the City Manager of the City and the Superintendent of the District pursuant to the Joint Use Agreement between the Parties pertaining to Godinez High School at Centennial Park. The Technical Advisory Committee shall be responsible for resolving conflicts in scheduling of the Joint Use Facilities which are the subject of this Agreement. 2. REPAIRS NEEDED. Pursuant to the terms of said Agreement, the Parties determined that "Significant Repairs" of the Joint Use Facilities are required; the basketball courts need repair and resurfacing. Section 3.J. of said Agreement requires that the District shall be responsible for repair of the Joint Use Facilities. However, District shall submit any plans for "significant repairs" to the Technical Advisory Committee. The Technical Advisory Committee reviewed the plans and determined whether and to what extent the City would share in the cost of the significant repairs to the Joint Use Facilities. "Significant Repairs" include, at a minimum, any repair or replacement of a component of the Joint Use Facilities that will cost in excess of fifty percent (50%) of the reasonable estimated value of the component needing repair or replacement. The Parties have agreed to equally split the cost for the Significant Repairs to the basketball courts. Paim v5L-3 2 3. REPAIR FUNDING. District and City shall equally split the cost of the needed repairs. Each Party shall pay half of the estimated repair of the basketball courts. A proposed scope of work, including an estimate of all costs is attached hereto as Exhibit B. District will manage the bidding and construction of the court renovation project. The City will reimburse the District for the removal of the existing surface, re-pavement, color coating and striping of the basketball courts. The 50% reimbursement requirement of the City shall not exceed Seventy Thousand Dollars ($70,000). 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 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 Significant Repairs. 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; 2-4 (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 el 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. 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 Significant Repairs. 11. ATTORNEY'S 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 MAJEURE. 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. ASSIGNMENT. 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 construction of the Significant Repairs. 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. AL-5 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 of either the City Council or the Board of Trustees. P.aQg 255-6 ACCEPTED AND AGREED on the date indicated below: City of Santa Ana Dated: By: Print Name: Print Title: Dated: By: Print Name: Print Title: 20 Maria D. Huizar Clerk of the City Council 20 Kevin O'Rourke Interim City Manager Approved as to Form Dated: By: Print Name: Sonia R. Carvalho. City Attorney Print Title: By Lisa E. Storck, Assistant City Attorney Santa Ana Unified School DISTRICT Dated: By: Print Name: Print Title: Dated: By: Print Name: Print Title: 20 Joe Dixon Assistant Superintendent. Facilities & Governmental Relations 20 Michael P. Bishop, Sr. Associate Superintendent, Business Approved as to Form Dated: By: Print Name: Philip J. Henderson Print Title: Attorney, Orbach Huff & Suarez 20 20 AL-7 Exhibit A Rasm c Q MONTE VISTA ST, a N C. _ Oa M m X D s ?<s ?g LV Y. 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