HomeMy WebLinkAbout25E - AGMT - JOINT USE AND REIMBURSEMENT FOR WILLARD INTERMEDIATEREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
OCTOBER 3, 2011
CLERK OF COUNCIL USE ONLY:
TITLE: APPROVED
AGREEMENTS WITH SANTA ANA UNIFIED ? As Recommended
SCHOOL DISTRICT FOR JOINT USE AND 171 Amended
? Or dinance on 15t Reading
REIMBURSEMENT OF CONSTRUCTION ? Ordinance on 2°d Reading
COST FOR WILLARD INTERMEDIATE ? Implementing Resolution
? Set Public Hearing For
I
CITY MANAGER
CONTINUED TO
FILE NUMBER
RECOMMENDED ACTION
1. Authorize the City Manager and Clerk of the Council to terminate the existing Joint Use
agreement and execute a new Joint Use agreement with the Santa Ana Unified School
District for Willard Intermediate School for a 30-year term, with the option for two 10-year
renewals, subject to non-substantive changes approved by the City Manager and City
Attorney.
2. Authorize the City Manager and Clerk of the Council to execute a Reimbursement of
Construction Cost agreement with the Santa Ana Unified School District for park
improvements at Willard Intermediate School in the amount of $4.4 million.
DISCUSSION
On February 16, 2010 City Council adopted a resolution authorizing staff to apply for Proposition 84
"Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Bond
Act funding. The City was successful in being awarded the grant in the amount of $4.4 million to
develop park improvements at Willard Intermediate School. Improvements will include a synthetic
turf sports field, sports lighting, running track, restroom, play equipment, basketball courts and
fencing. The joint use agreement allows the City to manage reservations of the site for youth
programs, after school and on weekends. The playground area and the restroom will be accessible
to the public during and after school hours.
The grant requires the City to enter into a 30 year Joint Use Agreement with the District. The
existing 20 year Joint Use Agreement with the Santa Ana Unified School District will require
numerous term changes. Therefore, to simplify the agreement, staff requests the existing
agreement be terminated and a new 30 year agreement be approved.
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SAUSD Willard Agreements
October 3, 2011
Page 2
The District is currently under construction with a school modernization project at Willard
Intermediate School and adding additional classroom space. They anticipate completing the
modernization project in a year. The Prop 84 improvements will begin after the modernization
project is complete and after the temporary classrooms are removed from the construction site.
The District will complete the design, construction and inspection of the Joint Use improvements,
not to exceed $4.4 million of available grant funding. The Reimbursement of Construction
Agreement requires the District to obtain all necessary permits/insurance and to perform all
improvements under the State Grant terms for reimbursement. Together District and City staff will
review plans and monitor improvements to ensure project is implemented per City approval.
Both agreements are scheduled for approval on the October 11 th SAUSD Board Agenda. Once the
agreements are approved they will be forwarded to the State, along with the CEQA documents to
complete the terms of the grant.
FISCAL IMPACT
Funding is available in the Prop. 84 Willard Project account (no. 16113266 66220).
APPROVED AS TO FUNDS AND ACCOUNT:
Gerardo Mouet,
Executive Director
Parks, Recreation and
Community Services Agency
Francisco Gutierrez, rA?
Executive Director 4
Finance and Management Services Agency
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JOINT USE AGREEMENT BY AND BETWEEN
SANTA ANA UNIFIED SCHOOL DISTRICT AND THE CITY OF SANTA ANA
(WILLARD INTERMEDIATE SCHOOL)
THIS JOINT USE AGREEMENT ("Agreement") is dated as of , 2011, by and
between the Santa Ana Unified School District ('District"), a public school district duly organized
and existing under the laws of the state of California, and the City of Santa Ana ("City"), a charter
city and municipal corporation duly organized and existing under the constitution and laws of the
state of California.
RECITALS:
A. The District owns and operates the Willard Intermediate School which is located at
1342 N. Ross Street, Santa Ana, California.
B. California Education Code § 10900 et seq., authorizes District to organize, promote,
and conduct programs for community recreation and to cooperate in providing
community recreation programs and facilities.
C. The City has received a grant through the Statewide Park Development and
Community Revitalization Program of 2008, providing funding to install
improvements to the facilities, including a running track, synthetic turf field, sports
lighting for the field, basketball courts, tot lot and restroom and fencing.
D. The City and District desire to undertake a coordinated use of the improved Willard
Athletic Field on the Willard Intermediate School site in order to allow maximum use
by community residents and sports organizations.
E. The coordinated use of the Athletic Field is intended to benefit the families that live in
the immediate vicinity of Willard Intermediate School.
F. The partnership between the City and District created by this Joint Use Agreement is
intended to improve general health and wellness for the residents of the Willard
community.
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 athletic field and track, three basketball courts,
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multi-purpose basketball/tennis court, and parking lot.
C. "Public Facilities" shall mean the tot lot and restroom installed at the southeast corner
of Parton Street and W. 15th Street. Said Public Facilities shall be open during the
hours that City parks are open to the public.
D. "Technical Advisory Committee" shall mean that certain 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 at Willard Intermediate
School.
E. "Regular School Hours" shall mean 6:00 am through 6:00 pm, Monday through Friday
(excluding state and national holidays observed by the District) unless changed by
agreement of the parties.
F. "District Time" shall mean the time during Regular School Hours, when the District
shall have the right to schedule use of the Joint Use Facilities.
G. "City Time" shall mean those days and hours, outside of Regular School Hours and
weekends, when the City shall have the right to schedule use of the Joint Use
Facilities.
2. TERM AND COMMENCEMENT. This Agreement shall commence on
, 2011, and shall run for a term of 30 years. Upon the written agreement of the parties,
the term may be extended for up to two additional ten year terms.
3. PERMITTED USE OF FACILITIES. The rights of the City to schedule use of the
Joint Use Facilities shall be determined based on the following.
A. District Use. District shall have the right, without prior consent of the City, to
schedule use of the Joint Use Facilities during Regular School Hours for both the
regular school year and any summer school.
B. Ci Use. City shall have the right at its discretion to schedule activities in the
Joint Use Facilities, provided that the times are not in conflict with District Time
or activities previously recommended by the Technical Advisory Committee.
C. Priority for Youth Sports. The City will directly program the athletic field after
school and on weekends exclusively for youth sport organizations with priority
given to youth sport organizations that have the greatest number of youth that
live within a'/2 mile radius of the Joint Use Property.
D. District Priority. Priority will be given to any school or District need for the use
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of the athletic field. Youth Soccer organizations will be informed that the
District Use of the Athletic field will have priority and that they are subject to
being bumped as long as notification is given beforehand. If a user is bumped
during City Time, the District will ensure that a relocation site is available.
E. Ci Programming. The City may conduct programs itself or do so through a
third party, so long as done in the same manner and under the same conditions
for programming in other City facilities and meets any applicable State or
Federal anti-discrimination requirements or school-site safety standards such as
prohibition of alcoholic beverages and tobacco. Reservation fees collected by
City for City Use of the Joint Use Facilities shall be retained by City.
F. Scheduling Conflicts. To the extent scheduling conflicts cannot be resolved
informally by the parties, the Technical Advisory Committee shall be responsible
for resolving conflicts in scheduling of the Joint Use Facilities at Willard
Intermediate School.
G. Insurance. The City will be responsible for ensuring that the athletic field permit
holder has proper insurance.
H. Supervision of Joint Use Facilities. The City will be responsible for managing
the athletic field usage when using the Joint Use Facilities during City Time
through use of City Field Attendants and City Park Rangers. The City shall
provide a level of supervision and security commensurate with that provided at
City-owned facilities at all times while using the Joint Use Facilities (and for
reasonable periods of time immediately prior to and following such use).
1. Maintenance. Normal maintenance of the Joint Use Facilities will continue to be
the responsibility of the District, including the synthetic turf field. The City shall
maintain the Public Facilities and sports lighting at the Joint Use Facilities.
Repairs. The Parties agree that the cost of significant repairs to the Joint Use
Facilities will be shared by the Parties at an agreed upon prorated amount. The
Parties agree to negotiate in good faith to determine what are significant repairs,
the process for performing those significant repairs, and the cost sharing of those
significant repairs. As used in this section, "significant repairs" will include, at a
minimum, any repair or replacement of a component of the Joint Use Facilities
that will cost in excess of 25% of the reasonable estimated value of the
component needing repair or replacement For example, if the value of a tennis
court is $24,000 and the estimated repair cost is over $6,000, that will be a
significant repair subject to this subsection.
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K. Utilities. District shall pay for all utility services furnished to the Joint Use
Facilities for the use, operation and maintenance of the Joint Use Facilities
during the Term of this Agreement, or any extension thereof, except for electrical
service on the Sports Field which will be paid for by City. District shall pay for
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its use of the sports lighting based on an hourly fee agreed between City and
District when the sports lighting is used by the district.
L. Further Funding Sources. The parties to this Joint Use Agreement will cooperate
in good faith to seek further funding for improvements to the athletic fields,
basketball courts, tennis courts and other common areas at the Willard
Intermediate School and agree that if such funding and improvements are made,
that this Joint Use Agreement will be amended to encompass the renovated areas.
4. LIABILITY AND INDEMNIFICATION.
A. The City shall be financially responsible for damages caused by City use under
this Agreement.
B. The City shall indemnify, defend, and hold harmless District, its officers, agents,
employees, representatives, and volunteers from damage to property and for
injury to or death of any person and from all claims, demands, actions, liability,
or damages of any kind or nature arising out of or in connection with activities or
programs sponsored by City under this Agreement, third party activities
programmed or sponsored by the City, and City programming outside of City
Time, except those which arise out of a dangerous/defective condition of District
property or due to the sole negligence of the District.
C. The District shall indemnify, defend, and hold harmless the City, its officers,
agents, employees, representatives, and volunteers from damage to property and
for injury to or death of any person and from all claims, demands, actions,
liability, or damages of any kind or nature arising out of its operation of the
School, including use, operation, maintenance and repair of the Joint Use
Facilities, except as provided in "B" above.
5. INSURANCE. Both the City and the District shall maintain, for the period covered by
this Agreement, at their own respective costs, their own respective policy or policies of general
liability insurance and property insurance. Each party waives subrogation of its insurance coverage
for the other entity. Self-insurance authorized by state law and/or maintained by the City or the
District in the regular course of business for its other activities shall satisfy this requirement.
6. NOTICES. All notices, statements, demands, requests, consents, approvals,
authorizations, appointments, or designations hereunder by either party to the other shall be in
writing and shall be deemed given and served upon the other party, if delivered personally or three
(3) days after depositing in the United States mail, postage prepaid, addressed as follows:
If to CITY:
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
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Santa Ana, CA 92702
Attn: Clerk of the Council
And
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: City Attorney
If to DISTRICT:
Santa Ana Unified School District
1601 E. Chestnut
Santa Ana, CA 92701
Attn: Deputy Superintendent
7. SEVERABILITY AND APPLICABLE LAW. Whenever possible, each provision of
this Agreement shall be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be invalid under the applicable law, such provision
will be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder
of such provision, or the remaining provisions of this Agreement. This Agreement has been made
and entered into in the State of California and the laws of said State shall govern the validity and
interpretation hereof and the parties' performance hereunder.
8. AMENDMENTS. This Agreement sets forth the entire understanding between the
parties with respect to Willard Intermediate School. Any modifications must be in the form of a
written amendment agreed to by both parties.
9. REMEDIES FOR BREACH. Any material breach of this Agreement alleged by
either party shall be subject of notification in writing to the alleged breaching party, as provided
herein. Each party shall be accorded a 60-day period from actual receipt of written notification to
cure each and every breach identified in the notification. Failure to provide notification in writing
and the opportunity to cure any alleged breach shall constitute a waiver of that breach of the
Agreement. Any dispute as to the existence of a material breach, the acceptability of a cure for each
alleged breach, or the appropriate remedy for each and every material breach of this Agreement
shall be resolved by mediation and/or arbitration by a mediator/arbitrator agreeable to both parties.
Arbitration of disputes as to material breach of this Agreement shall be final and binding as the
exclusive remedy for enforcement of the rights and responsibilities of all parties subject to this
Agreement.
10. BINDING EFFECT AND NONASSIGNABILITY. This Agreement and all the
terms, covenants, conditions, and agreements herein contained shall be binding upon and inure to
the benefit of the parties hereto and their respective successors. This Agreement shall not be
assignable by either Party.
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11. TERMINATION. Either party may terminate this Agreement, at will, with 60 days
prior written notice to the other party.
IN WITNESS WHEREOF, this Agreement has been duly approved by both District and City.
The "District" The "City"
Santa Ana Unified School District, City of Santa Ana
a political subdivision of the State of California A Charter City
By:
Superintendent
By:
Paul M. Walters
Interim City Manager
By:
President of the Board Attest:
Attest: By:
Maria D. Huizar
By: Clerk of the Council
Clerk of the Board
Approved as to Form:
Joseph Straka, Interim City Attorney
By:
Laura Sheedy
Assistant City Attorney
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Exhibit "A"
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AGREEMENT BETWEEN
THE CITY OF SANTA ANA AND
SANTA ANA UNIFIED SCHOOL DISTRICT REGARDING
REIMBURSEMENT OF CONSTRUCTION COSTS
FOR WILLARD INTERMEDIATE SCHOOL
INCORPORATING PROP 84 GRANT REQUIREMENTS
This Agreement Between the City of Santa Ana and Santa Ana Unified School District Regarding Reimbursement
of Construction Costs for Willard Intermediate School Incorporating Prop 84 Grant Requirements ("Agreement") is
made this day of , 2011, 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 improvements at its Willard Intermediate School site (the "Project").
B. The Project includes development of approximately five (5) acres, including a new all weather running track,
synthetic turf sports field, sports field lighting, restroom, exercise / play area, fencing and landscaping, and
renovation of the existing basketball courts, all of which the Parties intend to use for community sports and
recreation ("Facilities").
C. The City wishes to reimburse SAUSD for certain costs associated with the construction of the Facilities,
pursuant to the Construction Bid issued by the District, dated 2011, attached hereto and
incorporated herein as Exhibit A.
D. The City, as a recipient of Proposition 84- Statewide Park Development and Community Revitalization
Program Grant Funds under the Safe Drinking Water Quality and Supply, Flood Control, River and Coastal
Protection Bond Act of 2006 ("Prop 84") funds, desires to enter this Agreement with the District for the
expenditure of Prop 84 funds in accordance with State Department of Parks and Recreation rules and
regulations, to pay for certain construction costs for the Facilities.
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 also enter into a separate agreement for joint use of the Facilities between the City and the
District, that the Parties will approve separate from this Agreement ("Joint Use Agreement"). Upon completion
of the Facilities, the District shall permit the City to access the Facilities for public use and recreation purposes
pursuant to applicable law and to the Joint Use Agreement.
NOW, THEREFORE, the Parties agree as follows:
AGREEMENT
1. Construction of Facilities.
A. The District shall cause the Facilities to be designed and built, 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 construction work on the Facilities, and at reasonable intervals during the
development process.
B. The City acknowledges that the District is undertaking design and construction of the Project. The
Facilities shall be constructed substantially to conform with the Scope of Development attached hereto as
Exhibit A, and incorporated herein by reference.
Construction Reimbursement Agreement - City of Santa Ana/SAUSD - Willard Facilities Page 1
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2. Payment for Construction of the Facilities.
A. The City shall pay for the cost to construct the Facilities for a not to exceed amount of Four Million, Four
Hundred Thousand Dollars ($4,400,000.00). The City shall make payment within thirty (30) days
following receipt of a proper invoice evidencing the work performed, subject to receipt of grant funds from
the State.
B. The Contractor has agreed to separately invoice for its construction of the Facilities so that the City can
reimburse only the construction of the Facilities part 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/Plans for Facilities. District will provide to City a set of record drawings of the Facilities
and copies of all contractor-supplied use manuals and warranty information, as applicable.
4. Term/Termination.
A. This Agreement shall begin on the date first stated above and terminate on 20
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 entire Project,
inclusive of the Facilities.
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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
Party 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, on the basis of sex, race, creed, color, ancestry, national
origin, religion, sexual orientation, disability, medical condition or marital status, 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. 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 Project, including the Facilities. 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.
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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-75
Santa Ana, California 92701 P.O. Box 1988
Attn: Assistant Superintendent, Santa Ana, CA 92702
Facilities & Governmental Relations Attn: Executive Director - PRCS
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.
28. Terms Required Based on Proposition 84 Funding The following terms are made a part of this Agreement,
as required by the Parties participation in and use of funds from the Propositions 84 grant program.
A. Project Administration.
1. District shall comply with all applicable current laws and regulations affecting acquisition and
development projects, including but not limited to, legal requirements for construction contracts,
building codes, health and safety codes, and laws and codes pertaining to individuals with disabilities,
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including by not limited to the Americans With Disabilities Act of 1990(42 U.S.C.§12101 et. seq.)
and the California Unruh Act (California Civil Code §51 et.seq.)
The California Department of Parks and Recreation (hereinafter "DPR") and/or City shall have the
right to inspect all property or facilities developed or constructed with Prop 84 grant funding. District
shall make said property available for inspection upon 24-hour notice from DPR or City.
District agrees that final payment may not be made until the work required to complete the Facilities,
as described in City's Grant Application, is complete.
B. Project Termination. Because the benefit to be derived by the City from the full compliance by the
District with the terms of this contract, is the preservation, protection and net increase in the quantity and
quality of parks, public recreation facilities, opportunities and/or historical resources available to the people
of the State of California and because such benefit exceeds to an immeasurable and unascertainable extent,
the amount of money furnished through Proposition 84 grant monies under the provisions of this contract,
the District agrees that payment by the District to the State and/or City of an amount equal to the amount of
the Grant Monies disbursed under this Agreement by the City would be inadequate compensation for any
breach by the District of this Agreement. The District further agrees therefore, that in addition to
compensatory damages, the appropriate remedy in the event of a breach of this Agreement by the District
shall be the specific performance of this contract, unless otherwise agreed to by the City.
C. Budget Contingency Clause. For purposes of this Project, if funding for the Facilities is reduced or
deleted by the State of California, the City shall have the option to either cancel this contract with no
liability occurring to the City, or offer a contract amendment to District to reflect a reduced grant amount
provided by the DPR. This reduction shall not require mutual agreement of the parties.
D. Financial Records.
1. The District shall maintain satisfactory financial accounts, documents and records for the project and
make them available to the DPR and/or City for auditing at reasonable times. The District also agrees
to retain such financial accounts, documents and records for five years following project termination or
final payment, whichever is later.
2. The District shall keep such records as the DPR and/or City shall prescribe, including records which
fully disclose (a) the disposition of the proceeds of Prop 84 funding assistance, (b) the total cost of the
project in connection with such assistance that is given or used, (c) the amount and nature of that
portion of the project cost supplied by other sources, and (d) any other such records that will facilitate
an effective audit.
3. The District agrees that the DPR and/or Ctiy shall have the right to inspect and make copies of any
books, records or reports pertaining to this contract or matters related thereto during regular office
hours. The District shall maintain and make available for inspection by the DPR and/or City accurate
records of all of its costs, disbursements and receipts with respect to its activities under this contract.
Such accounts, documents, and records shall be retained by the District for five (5) years following
final payment.
4. The District shall use a generally accepted accounting system that clearly records costs incurred on the
Facilities and accurately reflects fiscal transactions with necessary controls and safeguards. District
shall submit written project status reports within 30 calendar days after the DPR, or City has made
such a request. District shall provide the City a report showing total final Project expenditures within
sixty (60) days of Project completion.
E. Audit. To the extent the District uses California Proposition 84 funds for the Project, the District is subject
to audit by the DPR and/or City. Upon request of DPR or City, District shall provide all Project records,
including the source documents and cancelled warrants, books, papers, accounts, time sheets, or other
records requested by DPR. Additionally, District shall provide an employee having knowledge of the
Project and its records to assist DPR's auditor.
Construction Reimbursement Agreement - City of Santa Ana/SAUSD - Willard Facilities Page 5
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F. Prevailing Wage. District shall require that its contractor(s) for construction of the Facilities pay
prevailing wage. Additionally, the District shall implement a Labor Compliance Program as described in
California Labor Code § 1771.5.
G. Insurance/Bonding.
1. With respect to performance of work under this Agreement, District shall require that Contractor shall
maintain and shall require its subcontractors, if any, to maintain insurance as described below:
a. Workers' compensation insurance with statutory limits, and employer's liability insurance with limits of
not less than $1,000,000 per accident.
b. Commercial general liability insurance, which shall include, but not be limited to protection against
claims arising from bodily and personal injury, including death resulting therefrom and damage to property,
resulting from any act or occurrence arising out of Consultant's operations in the performance of the
contract, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less
than the following: single limit coverage applying to bodily and personal injury, including death resulting
therefrom, and property damage, in the total amount of $1,000,000 per occurrence, $2,000,000 in the
aggregate. Such insurance shall (a) name the District and the City, their officers, employees, agents,
volunteers and representatives as additional insured(s); (b) be primary and not contributory with respect to
insurance or self-insurance programs maintained by the District and/or the City; and (c) contain standard
separation of insureds provisions.
Contractor shall (a) furnish properly executed certificates of insurance to District and the City prior to
commencement of work under this Agreement, which certificates shall clearly evidence all coverage required
above and provide that such insurance shall not be materially changed or terminated except on thirty (30) days'
prior written notice to District; and (b) maintain such insurance from the time work first commences until
completion of the work under this Agreement; and (c) replace such certificates for policies expiring prior to
completion of work under this Agreement.
2. District shall require Contractor to post performance and payment bonds to cover the entire construction
period.
H. Access to Records.
City and the DPR and/or their representatives shall have access for purposes of monitoring, auditing, and
examining District's activities and performance, to books, documents and papers, and the right to examine
records of District's subcontractors, bookkeepers and accountants, employees and participants in regard to said
program. City and the DPR and/or their representatives shall also schedule on-site monitoring at their
discretion. Monitoring activities may also include, but are not limited to, questioning employees and
participants in said program and entering any premises or any site in which any of the services or activities
funded hereunder is conducted or in which any of the records of District are kept. Nothing herein shall be
construed to require access to any privileged or confidential information as set forth in federal or state law.
I. Use of Facilities.
1. District acknowledges that the City has applied for and received grant funds through California
Proposition 84, and that the Facilities which will be developed with such Prop 84 funds shall have
operating hours consistent with the times proposed in the City Grant Application, and be open to
members of the public, unless otherwise granted permission by the DPR.
2. The District agrees that any Facilities developed with Prop 84 funds shall be used only for the purposes
of the grant and consistent with the Grant Scope referenced in the City's Grant Application unless prior
written approval is given by the State.
3. The District agrees to use the Facilities developed under this Agreement only for the purposes of the
grant and no other use, sale, or other disposition shall be permitted except as authorized by a specific
Uonstruction Reimbursement Agreement - City of Santa Ana/SAUSD - Willard Facilities Page 6
25E-16
act of the legislature in which event the property shall be replaced by the District with property of
equivalent value and usefulness as determined by DPR.
4. The Facilities may be transferred to another eligible entity only if the successor entity assumes the
obligations imposed under this Agreement and with written approval of the DPR.
5. Any real Property (including any portion of it or any interest in it) may not be used as security for any
debt or mitigation, without the written approval of the State of California, acting through the DPR, or
its successor, provided that such approval shall not be unreasonably withheld as long as the purposes
for which the Grant was awarded are maintained. Any such permission that is granted does not make
DPR a guarantor or a surety for any debt or mitigation, nor does it waive DPR's rights to enforce
performance under the Grant Contract.
ACCEPTED AND AGREED on the date indicated below:
City of Santa Ana
Dated:
By:
Print Name:
Print Title:
Attest:
By:
20
Paul M. Walters
Interim City Manager
Print Name: Maria D. Huizar
Print Title: Clerk of the Council
Approved as to Form
Dated: .20
By:
Print Name: Joseph Straka, Interim City Attorney
Print Title: By Laura Sheedy, Assistant City
Attorney
Santa Ana Unified School District
Dated: - 20
By:
Print Name: Joe Dixon
Print Title: Assistant Superintendent, Facilities
& Governmental Relations
Dated: .20
By:
Print Name: Michael P. Bishop, Sr.
Print Title: Associate Superintendent, Business
Services
Approved as to Form
Dated:
By:
Print Name
Print Title:
20
Philip J. Henderson
Attorney, Orbach Huff & Suarez
Construction Reimbursement Agreement - City of Santa Ana/SAUSD - Willard Facilities Page 7
25E-17
Exhibit A
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