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HomeMy WebLinkAboutAGMT - Golden Rain Foundation (Cooperative Agmt 2022 Environmental Cleanup Program Project SD2201)COOPERATIVE AGREEMENT 2022 ENVIRONMENTAL CLEANUP PROGRAM PROJECT AT LEISURE WORLD This Cooperative Agreement ("AGREEMENT") for the 2022 Environmental Cleanup Program Project is made and entered into this 7.7 day of bYU 2023 by and between the Golden Rain Foundation, a California non-profit mutual b6hfit corporation, hereinafter referred to as "GRF", and the City of Seal Beach, a charter city, hereinafter referred to as "SEAL BEACH". GRF and SEAL BEACH are referred to individually as "PARTY" and collectively as "PARTIES" herein. RECITALS WHEREAS, in August 2017, SEAL BEACH submitted a letter to the Santa Ana Regional Water Quality Control Board committing to Track 1 for the Water Quality Control Plan, which dictates that SEAL BEACH install, operate, and maintain Full Capture Systems in the Priority Land Use catch basins within 10 years from the start date of the program. Furthermore, SEAL BEACH is required to demonstrate achievement of average load reductions of ten percent (10%) per year or other progress to full implementation. WHEREAS, SEAL BEACH desires to mitigate pollution entering into the waterways as well as strategically install stormwater protection devices to prevent trash and debris from entering the storm drain system which can cause clogging and slow drainage during rainstorms (collectively the "WORK"); and, 9 WHEREAS, the Environmental Cleanup Program Tier 1 of the Orange County Transportation Authority ("OCTA") (collectively "ECP Tier 1 Grant Program") provides grant funds to local agencies; used to reduce transportation -related water quality pollution by meeting Clean Water Act standards for local waterways and beaches. The ECP Tier 1 Grant Program is designed to mitigate the more visible forms of pollutants, such as litter and debris, which collect on the roadways, catch basins and storm drains before being deposited in waterways and the ocean; and, WHEREAS, the next viable set of Priority Land Use Area catch basins are private catch basins located within Leisure World Seal Beach ("Leisure World"), a residential development owned in a trust administered by GRF; and, WHEREAS, the OCTA's Comprehensive Transportation Funding Programs (CTFP) guidelines provide that eligible applicants shall be one of the 34 Orange County cities, and GRF entered into a joint application to the ECP Tier 1 Grant Program with SEAL BEACH as the lead agency to qualify for ECP funding. Third parties must enter into a preliminary agreement with an eligible agency and be provided as part of the application. As such, GRF's commitment letter dated May 3, 2022 constitutes as this preliminary agreement; and, f WHEREAS, OCTA has awarded to SEAL BEACH OC Go Environmental Cleanup Program ("ECP") Tier 1 Grant in the amount of $396,000 (the "FUNDING") to strategically install 174 Full -Capture Systems throughout Leisure World to prevent trash and debris from entering the storm drain system; and, Page 1 of 9 WHEREAS, SEAL BEACH agrees to provide grant and project administration for the 2022 Environmental Cleanup Project; and WHEREAS, this AGREEMENT is intended to fulfill the OCTA requirement for a memorandum of understanding between SEAL BEACH and GRF for the WORK to complete the project on the catch basins located in Leisure World; NOW, THEREFORE, in consideration of the promises and agreements herein contained, GRF and SEAL BEACH do hereby agree as follows: SECTION 1. COMPLETE AGREEMENT A. This AGREEMENT constitutes the complete and entire agreement between SEAL BEACH and GRF with respect to the subject matter hereof, and it supersedes all prior representations, understandings and communications. B. The invalidity in whole or in part of any term or condition of this AGREEMENT shall not affect the validity of any other terms or conditions of this AGREEMENT. The above - referenced Recitals are true and correct and incorporated herein by this reference. SECTION 2. RESPONSIBILITIES OF GRF GRF agrees to undertake the following responsibilities: A. GRF will designate and does hereby so designate SEAL BEACH as the lead agency for the purpose of carrying out the WORK as described in Section 3. B. GRF will allow SEAL BEACH and its contractor(s) access into Leisure World to complete the WORK, and GRF will cooperate in good faith with SEAL BEACH to allow SEAL BEACH to complete the WORK. C. GRF shall make every effort tor coordinate with SEAL BEACH to minimize delay to Project efforts and avoid any unnecessary delay in the performance of the WORK. D. GRF will designate staff and resources to review, coordinate, and accept the WORK within five (5) working days following completion. As used in this AGREEMENT, "completion" means date of approval of the Notice of Completion by SEAL BEACH. E. GRF will maintain the full capture systems (i) following completion as determined by SEAL BEACH and accepted by GRF in accordance with Subsection (D), or (ii) upon termination of the AGREEMENT as provided in Section 4(G), whichever occurs first. GRF shall carry out all maintenance of the WORK and full capture systems in accordance with the requirements of the OCTA Tier 1 Grant Program and any other federal, state and/or local regulatory requirements. Page 2 of 9 F. GRF will reimburse SEAL BEACH for all costs or expenses incurred by SEAL BEACH for the WORK performed up to a total of $99,000 (ninety-nine thousand dollars and no/100) ("MATCHING FUND"). G. GRF will reimburse SEAL BEACH for expenses of the WORK, up to the MATCHING FUND as defined in Subsection (F), upon 30 days service of each invoice by SEAL BEACH upon GRF. As used in this section, service will be deemed effective as provided in Subsection N, Notice, of Section 4 of this AGREEMENT. r H. In accordance with OCTA's CTFP guidelines for the ECP Tier 1 Grant Program, GRF will maintain a complete set of records in accordance with generally accepted accounting principles. Upon reasonable notice, GRF shall permit the authorized representatives of SEAL BEACH and/or OCTA to inspect and audit all work, materials, payroll, contracts, books, accounts, and other data and records of GRF for a period of five (5) years after final payment by OCTA to SEAL BEACH for the WORK. SEAL BEACH and OCTA shall each have the right to reproduce any such books, records, and accounts. SECTION 3. RESPONSIBILITIES OF SEAL BEACH SEAL BEACH agrees to undertake the following responsibilities: A. SEAL BEACH will act a lead agency to meet OCTA grant guidelines. B. SEAL BEACH will coordinate construction and inspection of the WORK with GRF. C. SEAL BEACH will retain a contractor ("CONTRACTOR") in accordance with the procurement procedures of the Seal Beach Charter and Municipal Code, and any other applicable law; and administer the contract to accomplish completion of the WORK to the satisfaction of the City Engineer of SEAL BEACH. D. SEAL BEACH will cause CONTRACTOR to provide and obtain adequate insurance coverage for GRF and SEAL BEACH, including with such coverage terms and minimum liability limits that are reasonably acceptable to the PARTIES, and naming of GRF, SEAL BEACH and their respective officials, officers, employees, attorneys, agents, designated volunteers, and those SEAL BEACH agents serving as independent contractors in the role of SEAL BEACH or GRF officials, as additional insureds in the required insurance policies. E. SEAL BEACH will require CONTRACTOR to indemnify SEAL BEACH and GRF in accordance with SEAL BEACH's standard indemnity provisions in the contract. F. SEAL BEACH will consult and coordinate with GRF with regard to the construction, installation, completion and acceptance of the WORK, and any requested change orders. SECTION 4. MISCELLANEOUS PROVISIONS: SEAL BEACH and GRF agree to the following responsibilities and other terms and conditions: Page 3 of 9 A. Proiect Management. SEAL BEACH will provide project management and inspection services for the WORK. GRF may, but is not obligated to, furnish its own respective project management and inspection services. The PARTIES shall cooperate and consult with each other, but the decisions of SEAL BEACH shall be final. B. Independent Contractor. 1) In the performance of this AGREEMENT, SEAL BEACH is an independent contractor, and SEAL BEACH and its officers, employees, agents, contractors, and consultants shall not be considered employees of GRF. The manner and means of SEAL BEACH carrying out the WORK shall be and are under the control of SEAL BEACH, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. 2) In the performance of this AGREEMENT, GRF is an independent contractor, and GRF and its directors, officers, employees, agents, contractors and consultants shall not be employees of SEAL BEACH. The manner and means of GRF carrying out its performance under this AGREEMENT are under the control of GRF,, except to the extent they are limited by statute, rule or regulation and the express terms of this AGREEMENT. No civil service statutes or other rights of benefits of SEAL BEACH employment shall accrue to GRF or its directors, officers, employees, agents, or independent contractors under this AGREEMENT. C. Party Representatives. 1) The City Manager is SEAL BEACH's representative for purposes of this AGREEMENT. 2) Marsha Gerber is GRF's primary representative for purposes of this AGREEMENT, and shall be responsible during the term of this AGREEMENT for directing all activities of GRF and devoting sufficient time to personally supervise all of GRF's acts and omissions hereunder. GRF may not change its representative without the prior written approval of SEAL BEACH, which approval shall not be unreasonably withheld. D. Cooperation. The PARTIES shall cooperate to the fullest extent possible in seeing the WORK to completion and acceptance by the PARTIES. E. Effective Date. This AGREEMENT shall be effective on the date executed by the last PARTY signatory hereto. F. Term; Extension. This AGREEMENT shall continue in full force and effect through until completion and acceptance of WORK by the PARTIES, unless sooner terminated as provided in Subsection G of this Section. Page 4 of 9 G. Termination. 1) This AGREEMENT shall be null and void if the WORK is not funded by OCTA or the City Council of SEAL BEACH, and shall be terminated effective upon the date of termination of funding by OCTA or SEAL BEACH, whichever occurs first. 2) Without limiting Subsection (G)(1) of this Section 4, this AGREEMENT may be terminated by SEAL BEACH, without cause, and by GRF based on reasonable cause, upon giving the other PARTY written notice thereof not less than 30 (thirty) days prior to the date of termination. 3) Upon expiration of the Term, or termination of this AGREEMENT, whichever occurs first, GRF shall reimburse CITY for all WORK completed as of the date of termination, in accordance with Section 2(F) and (G). H. Defense and Indemnification. 1) Except as otherwise provided below pursuant to Paragraph (a), below, of this Subsection (1-1)(1), SEAL BEACH shall indemnify, defend (with legal counsel reasonably approved by GRF) and hold harmless GRF, its officers, agents, employees, independent contractors and designated volunteers (collectively "GRF INDEMNITEES") from and against any and all claims, suits, actions, judgments, liabilities, losses, damages, expenses, costs (including without limitation reasonable attorneys' fees, expert fees and all other reasonable costs and fees of litigation), of every name, kind, nature or description whatsoever (collectively "GRF CLAIMS"), to the extent arising out of, or alleged to arise out, of the negligence, recklessness or willful misconduct of SEAL BEACH, its officers, agents, employees, contractors, or designated volunteers in connection with SEAL BEACH's performance of the WORK, or SEAL BEACH's- breach of this AGREEMENT, except to the extent any such GRF CLAIMS arise out of, or are alleged to arise out of, the sole negligence or willful misconduct of GRF and/or any of the other GRF INDEMNITEES; and under no circumstances shall SEAL BEACH be responsible or liable for any award of punitive or exemplary damages claimed or awarded against GRF and/or any of the other GRF INDEMNITEES. The indemnification obligations of this AGREEMENT shall survive its expiration or termination. Page 5 of 9 a. Indemnity for Design Professional Services. SEAL BEACH shall, at its sole cost and expense, protect, indemnify and hold harmless GRF and the other GRF INDEMNITEES (as defined in Section 4(H)(1), above), from and against any and all claims, suits, actions, judgments, liabilities, losses, damages, expenses, costs (including without limitation reasonable attorneys' fees, expert fees and all other reasonable costs and fees of litigation), of every name, kind, nature or description whatsoever, to the extent arising out of, or alleged to arise out, of the negligence, recklessness or willful misconduct of SEAL BEACH, its officers, agents, employees, independent contractors, or designated volunteers, in the performance of design professional services under this AGREEMENT by a "design professional" as the term is defined under California Civil Code § 2782.8(c). Notwithstanding the foregoing and as required by Civil Code § 2782.8(a), in no event shall the cost to defend the GRF INDEMNITEES that is charged to SEAL BEACH exceed SEAL BEACH's proportionate percentage of fault. 2) Except as otherwise provided pursuant to Paragraph (a), below, of this Subsection (H)(2),_ GRF shall indemnify and hold harmless SEAL BEACH (collectively "SEAL BEACH INDEMNITEES") from all claims, suits, actions, judgments, liabilities, losses, damages, expenses, costs (including without limitation reasonable attorneys' fees, expert fees and all other reasonable costs and fees of litigation), of every name, kind, nature or description whatsoever (collectively "SEAL BEACH CLAIMS"), to the extent arising out of, or alleged to arise out, of the negligence, recklessness or willful misconduct of GRF, its officers, agents, employees, independent contractors -and/or designated volunteers (and/or any other entity or individual that GRF shall bear the legal liability thereof) in connection with GRF's performance of this AGREEMENT, or breach of this AGREEMENT, except to the extent such SEAL BEACH CLAIMS arise out of, or are alleged to arise out of, the sole negligence or willful misconduct of SEAL BEACH. The indemnification obligations of this AGREEMENT shall survive its expiration or termination. Page 6 of 9 a. Indemnity for Desiqn Professional Services. GRF shall, at its sole cost and expense, protect, indemnify and hold harmless SEAL BEACH and the other SEAL BEACH INDEMNITEES (as defined above in Section 4(H)(2), above), from and against all claims, suits, actions, judgments, liabilities, losses, damages, expenses, costs (including without limitation reasonable attorneys' fees, expert fees and all other reasonable costs and fees of litigation), of every name, kind, nature or description whatsoever, to the extent arising out, or alleged to arise out of, the performance of design professional services under this AGREEMENT by a "design professional," as the term is defined under California Civil Code § 2782.8(c). Notwithstanding the foregoing and as required by Civil Code § 2782.8(a), in no event shall the cost to defend SEAL BEACH or the other SEAL BEACH INDEMNITEES that is charged to GRF exceed GRF's proportionate percentage of fault. 3) The terms of any insurance policy under this AGREEMENT shall not limit the indemnification obligations of SEAL BEACH's or GRF's defense and indemnification obligations under this AGREEMENT. I. Insurance. 1) Without limiting each PARTY's indemnification of the other PARTY, and prior to commencement of WORK, each PARTY shall obtain, provide and maintain at its own expense, during the term of this AGREEMENT, policies of insurance of the types customary and appropriate for this AGREEMENT, including but not limited to, general liability, automobile liability, workers' compensation, and employer's liability, in the amount necessary to cover each PARTY's obligations and responsibilities under this AGREEMENT or required by law, whichever is greater, and in a form satisfactory to the other PARTY. 2) On a PARTY's request, the other PARTY will deliver to the requesting PARTY a certificate or other proof of its insurance, describing the amount and coverage of its insurance. If there is any material change to either PARTY's insurance, that PARTY will promptly notify the other PARTY in writing. J. Modifications. This AGREEMENT may only be modified by a writing signed by both PARTIES. K. Governing Law; Venue. This AGREEMENT shall be governed by and construed in accordance with the laws of the State of California, except that any rule of construction to the effect that ambiguities are to be resolved against the drafting PARTY shall not be applied in interpreting this AGREEMENT. Any dispute that arises under or relates to this AGREEMENT (whether contract, tort or any other basis) shall be resolved in a superior court with geographic jurisdiction over SEAL BEACH. L. Third Party Beneficiaries. This AGREEMENT is made solely for the benefit of the PARTIES to this AGREEMENT and their respective successors and assigns, and no other Page 7 of 9 person or entity shall be deemed to have any rights hereunder against either PARTY by virtue of this AGREEMENT. M. Waiver. No delay or omission to exercise any right, power or remedy accruing to either PARTY under this AGREEMENT shall impair any right, power or remedy of such PARTY, nor shall it be construed as a waiver of, or consent to, any breach or default. No waiver of any breach, any failure of a condition, or any right or remedy under this AGREEMENT shall be (1) effective unless it is in writing and signed by the PARTY making the waiver,,, (2) deemed to be a waiver of, or consent to, any other breach, failure of a condition, or right or remedy, or (3) deemed to constitute a continuing waiver unless the writing expressly so states. N. Notices. All notices permitted or required under this AGREEMENT shall be deemed made when personally delivered or when mailed 48 hours after deposit in the United States Mail, first class postage prepaid and addressed to the PARTY at the following addresses: To SEAL BEACH: City of Seal Beach 211 -8th Street Seal Beach, CA 90740 Attn: City Manager To GRF: Golden Rain Foundation PO Box 2069 Seal Beach, CA 90740 Attn: GRF President O. Corporate Authority. The persons executing this AGREEMENT on behalf of each PARTY warrant that he or she is duly authorized to execute this AGREEMENT on behalf of said PARTY and that by his or her execution, each PARTY is formally bound to the provisions of this AGREEMENT. P. Counterparts. This AGREEMENT may be executed and delivered in any number of counterparts, each of which when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile signatures will be permitted. [signatures continue on following page] Page 8 of 9 IN WITNESS THEREOF, the PARTIES hereto, through their respective authorized representatives have executed this AGREEMENT as of the date and year first above written. CITY OF SEAL BEACH GOLDEN RAIN FOUNDATION, a California non-profit mutual benefit ?J • corporation By: By: (�,u\_'34c1 _)D-� ql f�.f ill R. Ingram, City Man r MarshaGerbe esiderit % Attest: By: By:� ^ 1 vier- �•�� (title] (Please note, for a corporation, two signatures are required pursuant to California Corporations Code Section 313 from each of the following categories: (i) the chairperson of the board, the president or any vice president, and (ii) the secretary, any assistant secretary, the chief financial officer or any assistant treasurer of such corporation.) PROOF OF AUTHORITY TO BIND CORPORATION REQUIRED Hpprovea as to By: Approved as to Form: =� id A. Steele, City Attorney [insert name and title on behalf of GRF] Legal Counsel for GRF Page 9 of 9