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HomeMy WebLinkAboutItem No. 5CITY OF LADE LSII`IORE DREAM EXTREME. CITY OF LAKE ELSINORE REPORT TO CITY COUNCIL TO: MAYOR AND CITY COUNCIL FROM: GRANT M. YATES CITY MANAGER DATE: MAY 28, 2013 SUBJECT: COOPERATIVE AGREEMENT WITH EVMWD FOR GIS DATA CONVERSION FOR THE STORM DRAIN SYSTEM RECOMMENDATION The City Council approves the Cooperative Agreement with EVMWD (Elsinore Valley Municipal Water District) to collaborate in the conversion of Storm Drain plans into a GIS system layer. BACKGROUND The City of Lake Elsinore has an excellent GIS Base Map system in place. The missing element is the inclusion of the City's Storm Drain system. EVMWD also needs to add this layer to their system, and a joint venture was well received by staff of both entities. DISCUSSION The NPDES MS4 permit requirements mandates the City map its Storm Drain facilities via a GIS database layer. EVMWD also faces the same requirements; in addition, having this information allows them to check for any storm drain facilities nearby in the event of a spill, to eliminate any sewage entering the City's Storm Drain system. A collaborative effort between the two entities will minimize the financial impact on both. EVMWD has taken the lead on the project, acquired quotes and chosen a contractor. City staff has provided digital copies of all existing storm drain facilities, and will assist in the quality control process as the project progresses. The City and EVMWD will share the cost equally. AGENDA ITEM NO. 5 Page I of 9 REPORT TO CITY COUNCIL MAY 28, 2013 PAGE 2 FISCAL IMPACT The City's share of the project will total $34,320.00, and the funds are available in the NPDES CSA 152. Prepared by: Dina Purvis Engineering Tech Ken A. Seumalo Director of Public Works Approved by: Grant M. Yates City Manager Attachment: Cooperative Agreement Page 2 of 9 COOPERATIVE AGREEMENT BETWEEN ELSINORE VALLEY MUNICIPAL WATER DISTRICT AND CITY OF LAKE ELSINORE REGARDING THE GIS DATA CONVERSION FOR STORM DRAIN SYSTEM BY NOVEL SYSTEMS This COOPERATIVE AGREEMENT ( "Agreement ") by and between ELSINORE VALLEY MUNICIPAL WATER DISTRICT, a municipal water district created pursuant to the provisions of the California Water Code sections 71000 et seq. ( "EVMWD ") and CITY OF LAKE ELSINORE, a California municipal corporation ( "City ") is made and entered into as of this _ day of , 2013 ( "Effective Date "). EVMWD and City are sometimes individually referred to herein as "Party" and collectively as "Parties." 1. Recitals 1.1 WHEREAS, both EVMWD and City wish to convert their storm drain system plans to geographic information system (GIS) data format; and 1.2 WHEREAS, EVMWD and City desire to collaborate in this conversion of their storm drain system plans into GIS data format, which will offer a more efficient and cost effective data conversion option for the Parties; and 1.3 WHEREAS, on behalf of the Parties, EVMWD has received a proposal from Nobel Systems ( "Vendor "), attached hereto and incorporated herein as Exhibit "A," to convert the current storm drain system plans of the City and EVMWD into GIS data format, involving the conversion of approximately six hundred thirty (630) drawings and the creation of an atlas book (collectively, the "Conversion Services "); and 1.4 WHEREAS, the purpose of this Agreement is to set forth the terms, conditions, and financial arrangements whereby the Parties will engage and pay Vendor to perform the Conversion Services as identified in Vendor's proposal for such Conversion Services. NOW, THEREFORE, in consideration of the above recitals and the mutual covenants hereinafter contained and for good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows: 2. Terms of Agreement 2.1 Incorporation of Recitals. The Parties hereby affirm the facts set forth in the Recitals above. Said Recitals are incorporated into this Agreement by this reference. 2.2 Agreement. EVMWD, as lead agency, hereby agrees to contract in its standard form with Vendor, as identified in Exhibit "A," to perform the Conversion Services as identified therein. City hereby acknowledges and agrees that it has reviewed and accepts the Vendor's proposal, scope of work, schedule, and estimated costs for completion of the Conversion Services and certifies that they are satisfactory for City's individual use and intended purpose. City further acknowledges and agrees that Vendor shall perform the Conversion Services as proposed under the control of EVMWD, as an independent contractor and not as an employee of any Party hereto. The Parties agree to share equally in all costs and expenses for the Conversion Services as more specifically described in Section 2.3 of this Agreement, below. 2.3 Financial Participation. The Parties each agree to pay fifty percent (50 %) of the estimated total cost of fifty seven thousand two hundred dollars and no cents ($57,200.00) for work Page I ol'7 02335.00105 \7936733.2 Page 3 of 9 performed by Vendor in completing the Conversion Services. Such financial participation shall be based on Vendor's proposed time and expense billings, as reflected in Exhibit "A." In addition, each Party agrees that it will budget for an additional twenty percent (20 %) contingency in addition to the estimated cost. The Parties agree that each Party's participation, including the twenty percent contingency, shall not exceed thirty four thousand three hundred and twenty dollars and no cents ($34,320.00) without prior written notice and approval by all Parties to this Agreement. 2.4 Deliverables. The Parties shall share equally any and all technical memoranda, reports, figures, tables, and other documents and calculations developed as part of the tasks performed by Vendor for the Conversion Services. EVMWD, as contract lead, shall furnish and provide City copies of all such deliverables. 2.5 Quality Assurance. City shall be responsible for the quality assurance of Vendor's work on the Conversion Services. City, shall review all work performed by Vendor prior to payment to Vendor in sufficient time to prevent any and all Vendor invoices from becoming past due. Once City is satisfied that the work performed by Vendor meets the contract requirements for the Conversion Services, City shall inform EVMWD that Vendor may be paid pursuant to Section 2.6 of this Agreement. If the City finds the work of Vendor to not meet the contract requirements, the Parties shall dispute payment to Vendor together. 2.6 Payment and Billing. Once City has approved payment to Vendor for Vendor's work on the Conversion Services, EVMWD shall, itself, pay Vendor for Conversion Services performed in accordance with the terms and conditions of EVMWD's contract(s) with Vendor for performing the scope(s) of work contemplated herein. EVMWD shall, thereafter, invoice City for payment of fifty percent (50 %) of each and every invoice received from Vendor and paid by EVMWD. City shall remit payment to EVMWD within thirty (30) days of receipt of such invoice. 2.7 Term and Termination. This Cooperative Agreement shall remain in effect until the scope of Conversion Services identified in Exhibit "A" is complete, unless sooner terminated in writing, by mutual agreement of the Parties. In the event of any such termination, or in the event EVMWD, at its discretion, terminates its contract(s) with Vendor, the Parties agree to share equally in the costs of any such termination, including costs for work performed up to the effective date of such termination. 2.8 Insurance Requirements. EVMWD shall require Vendor in performing the Conversion Services to provide and maintain insurance coverage in the amount and type required by EVMWD, naming City as "additionally insured." 2.9 Indemnification. City and EVMWD shall defend, indemnify and hold the other Party, its officials, officers, employees, authorized volunteers and agents fiee and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, to property or persons, including wrongful death, to the extent arising out of or incident to any intentional or negligent acts, errors or omissions of the indemnifying Party, its officials, officers, employees, authorized volunteers or agents in the performance of any activity pursuant to this Agreement, including and without limitation the payment of all consequential damages and reasonable attorneys' fees, expert witness fees and other related costs and expenses of defense. The sole exception to the indemnifying Party's obligation to indemnify shall be for acts of negligence or willful misconduct of the indemnified Party, its officials, officers, employees, authorized volunteers or agents. This is a comparative negligence provision and each Party shall bear its own costs to the extent to which they are each negligent. The indemnifying Party shall defend, at its own cost, expense and risk, with counsel acceptable to the indemnifying Party, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the indemnified Party, its officials, officers, employees, authorized Page 2 of 7 02335.00105 \7936733.2 Page 4 of 9 volunteers and agents. The indemnifying Party shall pay and satisfy anyjudgment, award or decree that may be rendered against the indemnified Party, its officials, officers, employees, authorized volunteers and agents in any such suits, actions or other legal proceedings. Each Party's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by EVMWD or City, their officials, officers, employees, authorized volunteers and agents. 3. Miscellaneous Terms 3.1 Amendment. This Agreement may be amended at any time by the mutual consent of the Parties by an instrument in writing signed by both Parties. 3.2 Dispute Resolution. In the event that any dispute between the Parties arises under this Agreement, the Parties shall first attempt to resolve such dispute at the management level. If the dispute is not resolved at this level within a mutually acceptable period of time (not to exceed 30 calendar days from the date written notice of such dispute is actually delivered by any Party), the Parties shall attempt to resolve the dispute at the senior management level. If this process and the involvement of senior management does not result in resolution of the dispute within 45 days from the date of referral to upper management, then the dispute shall be referred to and finally resolved through legal proceedings. 3.3 Construction; References; Captions. Since the Parties or their agents have participated fully in the preparation of this Agreement, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against any Party. Any term referencing time, days or period for performance shall be deemed calendar days and not work days. The captions of the various articles and paragraphs are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement. 3.4 Entire Agreement. This Agreement constitutes the entire and integrated agreement of EVMWD and City with respect to the subject matter hereof and supersedes any and all prior and contemporaneous oral or written negotiations, representations or agreements. 3.5 Notices Demands and Communications between the Parties. 3.5.1 Formal notices, demands and communications between EVMWD and City shall be deemed sufficiently given if: (i) by commercial overnight delivery; (ii) by messenger service for immediate personal delivery; or (iii) by electronic transmittal, including electronic mail and /or fax transmissions, subject to written verification of receipt by the receiving party. Such written notices, demands and communications may be sent in the same manner to such other addresses as either Party may from time to time designate by written notice to the other Party. 3.5.2 All notices, demands and communications shall be sent, as follows: TO EVMWD: TO CITY: Elsinore Valley Municipal District Aun: General Manager P.O. Box 3000 31315 Chaney St. Lake Elsinore, CA 92531 02335 00105\7936733 2 Water City of Lake Elsinore Attn: City Manager 130 South Main St. Lake Elsinore, CA 92531 Page 3 of 7 Page 5 of 9 Copy to: Copy to: Best Best & Krieger LLP Leibold, McClendon & Mann Attn: General Counsel Attn: City Attorney, City of Lake Elsinore 3500 Porsche Way, Suite 200 23422 Mill Creek Drive, Suite 105 Ontario, CA 91764 Laguna Hills, CA 92653 3.5.3 Notices shall be deemed effective upon receipt or, with respect to electronic transmission, upon receipt of written verification from the receiving party. 3.6 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original. Facsimile or PDF signatures shall be treated as originals. 3.7 Attorneys' Fees. Except as otherwise expressly provided herein, each Party who files any action or brings any action or proceeding against the other arising from this Agreement, seeks resolution of disputes pursuant to this Agreement or is made a party to any action or proceeding brought by any other person or governmental entity, shall bear its own costs and fees. 3.8 Laws and Regulations. Each Party shall keep itself fully informed of and in compliance with all local, state and federal laws, rules and regulations in any manner affecting the performance of this Agreement, and shall give all notices required by law. Each Party shall be liable for all violations of such laws and regulations in connection with this Agreement. If either Party performs any of its obligations hereunder knowing that its actions are contrary to such laws, rules and regulations and without giving written notice to the other, the violating Party shall be solely responsible for all costs arising therefrom. The violating Party shall defend, indemnify and hold the other, its officials, directors, officers, employees and agents free and harmless, pursuant to the indemnification provisions of this Agreement, from any claim or liability arising out of any failure or alleged failure to comply with such laws, rules or regulations. 3.9 Approvals. Approvals required of EVMWD or the City, or any officers, agents or employees of either Party in furtherance of the execution of this Agreement, shall not be unreasonably withheld and approval or disapproval shall be given within a reasonable time. 3.10 Further Actions and Instruments. The Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. 3.11 Third Party Beneficiaries. This Agreement and the performance of the Parties obligations hereunder are for the sole and exclusive benefit of EVMWD and City. No person or entity who or which is not a signatory to this Agreement shall be deemed to be benefited or intended to be benefited by any provision hereof, and no such person or entity shall acquire any rights or causes of action against either EVMWD or City hereunder as a result of a Party's performance or non - performance of its obligations under this Agreement. 3.12 Relationship of Parties. The Parties agree and intend that EVMWD and City are independent contracting entities and do not intend by this Agreement to create any partnership, joint venture, or similar business arrangement, relationship or association between them. 3.13 Governing Law; Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of California without regard to conflicts of laws principles. This Agreement shall be deemed to Page 4 of 7 02335.00105 \7936733.2 Page 6 of 9 have been made in the County of Riverside, California, regardless of the order of the signatures of the Parties affixed hereto. Any litigation or other legal proceedings which arise under or in connection with this Agreement shall be conducted in a federal or state court located within or for Riverside County, California. The Parties consent to the personal jurisdiction and venue in federal or state court located within or for the County of Riverside, California and hereby waive any defenses or objections thereto including defenses based on the doctrine of forum non conveniens. 3.14 Waiver. No delay or omission in the exercise of any right or remedy of a non - defaulting Party on any default shall impair such right or remedy or be construed as a waiver. Either Parties' consent or approval of any act by the other Party requiring its consent or approval shall not be deemed to waive or render unnecessary its consent to or approval of any subsequent act of the other Party. Any waiver by either Party of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. 3.15 Rights and Remedies are Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. All warranties and promises to indemnify shall survive the termination, abandonment, or completion of this Agreement. 3.16 Legal Counsel. Each Party acknowledges that: (i) it has read this Agreement; (ii) it has had the opportunity to have this Agreement explained to it by legal counsel of its choice; (iii) it is aware of the content and legal effect of this Agreement; and (iv) it is not relying on any representations made by the other Party or any of the employees, agents, representatives, or attorneys of the other Party, except as expressly set forth in this Agreement. 3.17 Severability. In the event that any one or more of the phrases, sentences, clauses, paragraphs, or sections contained in this Agreement shall be declared invalid or unenforceable by a valid judgment or decree of a court of competent jurisdiction, such invalidity or unenforceability shall not affect any of the remaining phrases, sentences, clauses, paragraphs, or sections of this Agreement which are hereby declared as severable and shall be interpreted to carry out the intent of the parties hereunder. 3.18 Binding Effect. The terms of this Agreement shall inure to the benefit of and shall be binding upon, each of the Parties and their respective successors and assigns. 3.19 Authorized Representatives. The person or persons executing this Agreement on behalf EVMWD and the City warrants and represents that he /she has the authority to execute this Agreement on behalf of that Parry and that he /she has the authority to bind that Party to the performance of its obligations hereunder. [SIGNATURES ON THE FOLLOWING PAGE] Page 5 o1`7 0233 500105V7936733.2 Page 7 of 9 SIGNATURE PAGE TO COOPERATIVE AGREEMENT BETWEEN ELSINORE VALLEY MUNICIPAL WATER DISTRICT AND CITY OF LAKE ELSINORE REGARDING THE GIS DATA CONVERSION FOR STORM DRAIN SYSTEM BY NOVEL SYSTEMS CITY OF LAKE ELSINORE ELSINORE VALLEY MUNICIPAL WATER DISTRICT m Grant Yates, City Manager Dated: r:19 9 C z• ]v G D7: � .' l I 11143 01134Y.11 w i i •7 (7 &A i LEIBOLD, MCCLENDON & MANN By: City Attorney ATTEST: City Clerk 02335.00105 \7936733.2 m John Vega, General Manager Dated: APPROVED AS TO LEGAL FORM: BEST BEST & KRIEGER LLP By: General Counsel ATTEST: m Page 6 of 7 District Secretary Page 8 of 9 EXHIBIT "A" NOBEL SYSTEMS PROPOSAL [ATTACHED ON FOLLOWING PAGES] Page 7 of 7 02335.00105 \7936733.2 Page 9 of 9