State of California )
County of San Bernardino ) ss
City of Chino )
I, Natalie Gonzaga, City Clerk of the City of Chino, do hereby certify the foregoing Resolution was duly adopted by the Chino City Council at a regular meeting held on the 18th day of April 2023, by the following votes:
AYES: COUNCIL MEMBERS:
NOES: COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
NATALIE GONZAGA, CITY CLERK
11.17.a
Rescission of Drought Response Action Resolution
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Revenue: Expenditure:
Transfer In: Transfer Out:
M E M O R A N D U M
CITY OF CHINO
DEVELOPMENT SERVICES DEPARTMENT
COUNCIL MEETING DATE: APRIL 18, 2023
TO: LINDA REICH, CITY MANAGER
FROM: NICHOLAS S. LIGUORI, AICP, DEVELOPMENT SERVICES DIRECTOR
SUBJECT: MEMORANDUM OF UNDERSTANDING WITH CITY OF ONTARIO FOR STORM DRAIN LINE I.
RECOMMENDATION
1) Approve a Memorandum of Understanding with the City of Ontario for the financing and construction of Storm Drain Line I; and 2) authorize the City Manager to execute the necessary documents on behalf of the City.
FISCAL IMPACT
The City's financial contribution for the construction of Storm Drain Line I is 58% of the estimated costs, $51.0 million. The City's portion ($29.58 million) will be offset through The Preserve Storm Drainage Collection System Facilities Development Impact Fee program paid by developers, grants, bonds, and contributions from outside agencies
CITY OF CHINO MISSION / VISION / VALUES / STRATEGIC ISSUES:
The recommendation detailed above further the City’s values and strategic issues that serve as key pillars on which identified priorities, goals, and action plans are built, by fostering:
• Financial Stability
• Responsible Long-Range Planning
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COUNCIL MEETING DATE: APRIL 18, 2023
SUBJECT: MEMORANDUM OF UNDERSTANDING WITH CITY OF ONTARIO FOR STORM
DRAIN LINE I
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BACKGROUND
Storm Drain Lin e I (“Line I”) is a proposed storm drain facility identified in the Master Plan of Drainage for both the Cities of Chino ("Chino") and Ontario ("Ontario"). Line I consists of a double 10-foot by 8-foot reinforced concrete box drainage structure located along Euclid Avenue from Merrill Avenue to Prado Lake south of Pine Avenue. The construction of Line I provides a regional benefit because it will be designed to handle 100 -year storm events from drainage areas located in both Chino and Ontario. The total dra inage area for Line I is approximately 1,898 acres, which consists of 140 acres located in the westernmost portion of The Preserve and 1,758 acres located in Ontario north of Merrill Avenue and east of Euclid Avenue (Exhibit A).
Based on an analysis perfor med by the consultant who prepared Chino's Master Plan of Drainage Update - The Preserve ("MPD"), the total estimated cost to construct Line I is approximately $51 million. This estimated cost includes the construction of the storm drain facility and other project additives such as engineering design, construction management, and contingencies.
Currently, Line I is identified in Chino's Development Impact Fee ("DIF") Nexus and Calculation Report and Master Facilities Plan as Project No. SD -108. According to the project’s description in the current Preserve Storm Drainage Collection System Facilities DIF program, Line I consists of an aboveground trapezoidal channel along Euclid Avenue with reinforced concrete box crossings located at Kimball Avenue, Bickmor e Avenue, and Pine Avenue. In addition, the DIF Program includes Project SD -120 for an interim open earthen channel along the current alignment on Euclid Avenue Storm Drain from Kimball Avenue to Pine Avenues. The interim project was included as part of th e DIF program to address drainage deficiencies pending the construction of the ultimate Storm Drain Line I. The current estimated costs are as follows:
Total Cost $22.0 Million
Line I $18.0 Million
Interim Storm Drain $4.0 Million
The City’s goal is to continually set realistic expectations for cost recovery for development - generated capital costs/projects in The Preserve. Consequently, staff took the opportunity to thoroughly examine and propose additions and deletions to the existing Preserve Storm Drainage Collection System Facilities DIF program to guarantee that the critical backbone infrastructure was included and properly estimated to cover costs according to Chino's MPD.
In April 2022, Chino staff brought to the City Council for consideration a c omprehensive update to the DIF Nexus and Calculation Report and Master Facilities Plan. Part of this update included an analysis of the existing Preserve Storm Drainage Collection System Facilities projects and costs, which were updated to be consistent wi th the MPD. The MPD has determined that for Line I, an aboveground trapezoidal channel with drainage crossings at major streets was not feasible due to limited available space and existing utility conflicts. In its place, the MPD concluded that an 8 -foot by 8-foot reinforced concrete box drainage structure was necessary, estimated to cost $43.2 million. However, Line I is now being proposed as a 10 -foot by 8 -foot reinforced concrete box drainage structure estimated to cost $51.0 million. This will allow the storm drain facility to be designed to handle 100 -year storm events in accordance with San Bernardino County Flood Control District standards.
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COUNCIL MEETING DATE: APRIL 18, 2023
SUBJECT: MEMORANDUM OF UNDERSTANDING WITH CITY OF ONTARIO FOR STORM
DRAIN LINE I
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Prior to the April 2022, City Council meeting, City staff received correspondence from the Lewis Companies expre ssing their opposition to the proposed storm drain DIF fee update for The Preserve. In addition, a representative with the Lewis Companies spoke in opposition to the proposed storm drain fee update during the City Council meeting. The main concern expresse d by the Lewis Companies was associated with the proposed increase in cost to The Preserve Storm Drainage DIF program for the construction of Line I.
Currently, there is $18.0 million programmed for Line I in the Preserve Storm Drain DIF program. This prog rammed amount takes into consideration the offsetting revenue in the amount of $11,979,999 for Ontario's fair share for Line I. Therefore, the remaining $6,020,009 would be allocated and paid for by the developers in The Preserve, which is significantly le ss than what was being proposed in the Preserve Storm Drain DIF update in April 2022.
In Lewis's opinion, the allocated cost to construct Line I should be proportional to the amount of ultimate stormwater flow contributed by each respective public agency. This would result in a reduced allocation of cost to the Preserve DIF program and a corresponding increase in cost allocated to Ontario’s fair share. Based on this testimony, the City Council unanimously approved Resolution 2022 -026 updating the DIF Nexus and Calculation Report and Master Facilities Plan with the following amendments/provisions:
1. Storm Drain DIF fees were solely adjusted by 5.7% to consider the most current construction price index; and
2. Staff was directed to work in collaboration with the City of Ontario, the Lewis Companies, and other interested stakeholders to reach a mutually agreeable cost share for the construction of Line I.
ISSUES/ANALYSIS
Over the past year, City staff has participated in various discussions with Ontario and the Lewis Companies to negotiate a cost share for Line I. As a result of those discussions, City staff from both agencies recommend each respective City Council approve a Memorandum of Understanding specifying a cost share split as outlined below:
Agency Cost Share Total Costs $51.0 Million
Chino 58% $29.58 Million
Ontario 42% $21.42 Million
The above cost share split is proportional to the amount of historical and future stormwater flows that each City is responsible to convey through its respective ju risdiction. The ultimate stormwater flows contributed by The Preserve are relatively minor, but Chino is also legally responsible for accepting existing pre -development stormwater flows from Ontario that flow through Chino to the Prado Dam area south of Pi ne Avenue. For this reason, Chino is responsible for contributing a majority of the costs.
Based on analysis performed by the City Attorney, the Preserve DIF program’s contribution towards the construction of Line I cannot violate the Mitigation Fee Act. I n the context of stormwater flows, local government cannot require developers to fund infrastructure intended to accept historic runoff that predates the new development. Therefore, the financial contribution from The Preserve DIF program towards the const ruction of Line I will be $6.5 million. This in turn leaves the City of Chino with a budget shortfall of $23.08 million for its fair share costs. City
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COUNCIL MEETING DATE: APRIL 18, 2023
SUBJECT: MEMORANDUM OF UNDERSTANDING WITH CITY OF ONTARIO FOR STORM
DRAIN LINE I
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staff intends to offset this shortfall through other funding sources, which include grants, bonds, and co ntributions from outside agencies such as the San Bernardino County Flood Control District ("SBCFCD"). Furthermore, the revised Preserve DIF contribution of $6.5 million will be reflected in a proposed Storm Drain DIF update, which will be brought back to City Council for consideration at a future to-be-determined date.
On March 13, 2023, the City of Chino and Ontario formally requested SBCFCD to cost share 50% for the construction of Line I. If approved, SBCFCD would recognize Line I as a regional storm dr ain project and commit to financing 50% of the project with Chino and Ontario contributing the other 50%. The cost share would therefore be updated as follows:
Agency Cost Share Total Costs $51.0 Million
SBFCD 50% $25.5 Million
Chino 29% $14.79 Million
Ontario 21% $10.71 Million
Based on the above cost share and $6.5 Million proposed in the Preserve DIF Program, the City of Chino would need other funding sources, such as grants and bonds, to cover the remaining $8.3 Million for the construction of Line I.
Attachment: Exhibit A - Drainage Map
Exhibit B - Memorandum of Understanding
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EXHIBIT A
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MOU Storm Drain Line I (City of Ontario)
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MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING (“MOU”) is entered into this ____day of __________________, 2023, by and between the CITY OF CHINO (Chino), and CITY OF ONTARIO (Ontario) for construction of Storm drain in Euclid Avenue known as Storm Drain I (Project).
WITNESSETH
WHEREAS, the City of Chino (CHINO) and the City of Ontario (ONTARIO) are signatories to this Memorandum of Understanding (MOU), and may hereinafter be individually referred to as a “PARTY” and, collectively referred to as the “PARTIES”; and
WHEREAS, the PARTIES desire to cooperate and jointly participate in the development, funding, and construction of a drainage facility, generally referred to as the Storm Drain I, located on Euclid Avenue from Merrill Avenue to south of Pine Avenue , (hereinafter referred to as the “PROJECT”); and
WHEREAS, the PROJECT has been recognized as a significant Secondary Flood Protection Facility with regional impacts; and
WHEREAS, the PARTIES agree that the PROJECT will be of mutual benefit to the PARTIES; and
WHEREAS, the estimated PROJECT cost is Fifty One million Dollars ($51,000,000) as shown on Exhibit A; and
WHEREAS, the PARTIES agree that the participation funding ratio ( RATIO) for the PROJECT shall be forty-two percent (42%) by ONTARIO, and fifty-eight percent (58%) by CHINO; and
WHEREAS any funding obtained for this project through grants or contributions from outside agencies shall lower the total cost of the project proportionally for both PARTIES; and
WHEREAS, contributions from development impact fees and development projects within the respective cities will be considered a contribution from that PARTY only:
WHEREAS, CHINO will act as the Lead Agency on the PROJECT; and
WHEREAS, upon completion of the PROJECT, the PARTIES agree that CHINO and ONTARIO shall own, operate, and maint ain the PROJECT within CHINO’s and ONTARIO’s jurisdictions accordingly; and
WHEREAS, the PARTIES desire to set forth their respective responsibilities and obligations regarding construction of the PROJECT.
12.18.b
MOU Storm Drain Line I (City of Ontario)
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NOW, THEREFORE, in consideration of the mutual understandings and agreements set forth herein, the parties hereby agree as follows:
SECTION I
1.0 CHINO SHALL:
1.1 Act as the Lead Agency to prepare all environmental documents, construction plans, specifications, engineer’s estimates, and administer construction, including advertisements for bids, bid reviews, contract awards, construction, and all other needed inspections of the PROJECT.
1.2 Process necessary environmental documents as required , including but not limited to, pursuant to the California Environmental Quality Act, and obtain all necessary environmental agencies’ clearances for the construction of the PROJECT.
1.3 Provide all services to acquire any right -of-way needed for the PROJECT, including, but not limited to, eminent domain procedures, contacting owners or occupants, entering properties, inspecting, negotiating right -of-way takes, negotiating easements or replacement property for impacted trees, fences, drive approaches, and other property structures.
1.4 Arrange for relocation of any utilities that may interfere with construction of the PROJECT within the PROJECT sites.
1.5 Obtain a no-cost encroachment permit from the ONTARIO for the portion of the PROJECT constructed within ONTARIO owned land and right-of-way.
1.6 Ensure PROJECT is constructed in accordance with the plans and specifications approved by ONTARIO.
1.7 Enter into construction contract(s) with contractor(s) for the PROJECT.
1.8 Advertise, award, administer, and fund construction of its respective share of the PROJECT based on the RATIO as shown in Exhibit A and, all in accordance with all applicable laws, including but not limited to, the Public Contract Code , the Civil Code, the Labor Code, and the Business and Professions Code.
1.9 Perform inspections of all items of work performed under the construction contract(s) with CHINO’s contractors or subcontractors for the PROJECT and maintain adequate records of inspection and materials testing made available for review by ONTARIO.
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MOU Storm Drain Line I (City of Ontario)
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1.10 Submit progress reports on a regular and consistent basis to meet ONTARIO’s requirement for reimbursement of funds. The progress reports shall provide a brief description of the work performed during the reporting period including activities, milestones a chieved, major accomplishments and any problems encountered in the performance of the PROJECT.
1.11 Provide ONTARIO invoices on a quarterly basis for cost incurred on the PROJECT.
1.12 Following completion of the PROJECT, own, operate, and maintain the PROJECT within CHINO’s jurisdiction.
SECTION III
2.0 ONTARIO SHALL:
2.1 Pay its share of PROJECT costs based on the RATIO as shown in Exhibit A , including ONTARIO’s pre-approved contingencies per the RATIO.
2.2 Promptly review and comment on contract plans, specifications and engineer’s estimates prepared and submitted by CHINO or by its representatives , and upon CHINO satisfactorily addressing all of ONTARIO's comments, issue all necessary encroachment permits.
2.3 Issue no fee encroachment permit(s), after review of construction plans when necessary, to CHINO for its work within ONTARIO’s right-of-way and for the part of the PROJECT to be maintained by ONTARIO.
2.4 Following completion of the PROJECT, own, operate, and maintain the PROJECT within ONTARIO’s jurisdiction.
Section IV.
4.1 This MOU may be amended or modified only by mutual written consent of ONTARIO and CHINO. Amendments and modifications of a non -material nature may be by the mutual written consent of CHINO’s Director of Public Works and ONTARIO’s City Engineer or their delegates provided that the individuals have the signing authority to bind the respective parties to the modification.
4.2 Any correspondence, communication, or contact concerning this MOU shall be directed to the following:
ONTARIO CHINO
City of ONTARIO City of CHINO
303 East B Street 13220 Central Avenue
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MOU Storm Drain Line I (City of Ontario)
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Ontario, California 91764 Chino, CA 91710
Attention: City Engineer Attention: Director of Public Works
Either party may, by notice to the other party, change the address specified above. Service of notice or communication shall be complete, if personally delivered, or five (5) days after deposit of said notice or communication in the U.S. mail.
4.3 Neither CHINO nor any officer or employee of CHINO shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of ONTARIO under or in connection with any work, authority or jurisdiction delegated to or determined to be the responsibility of ONTARIO under this MOU. It is also understood and agreed that, pursuant to Government Code, Section 895.4, ONTARIO shall fully indem nify, defend and hold CHINO harmless from any liability imposed for injury (as defined by Government Code section 810.8) occurring by reason of any acts or omissions on the part of ONTARIO under or in connection with any work, authority or jurisdiction delegated to or determined to be the responsibility of ONTARIO under this MOU and for all claims, suits or actions brought forth under any theory or assertions of liability occurring by reason of anything done or omitted to be done by ONTARIO under or in conn ection with any work, authority or jurisdiction conferred upon ONTARIO or arising under this MOU.
4.4 Neither ONTARIO nor any officer or employee of ONTARIO shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of CHINO under or in connection with any work, authority or jurisdiction delegated to or determined to be the responsibility of CHINO under this MOU. It is also understood and agreed that, pursuant to Government Code, Section 895.4, CHINO shall fully indemnify, defend and hold ONTARIO harmless from any liability imposed for injury (as defined by Government Code section 810.8) occurring by reason of any acts or omissions on the part of CHINO under or in connection with any work, authority or jurisdiction delegated to or determined to be the responsibility of CHINO under this MOU and for all claims, suits or actions brought forth under any theory or assertions of liability occurring by reason of anything done or omitted to be done by CHINO under or in connection with any work, authority or jurisdiction conferred upon CHINO or arising under this MOU.
4.5 If any legal action, or any arbitration or other procee ding is initiated for the enforcement of this MOU, or because of any alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this MOU, the successful or prevailing PARTY shall be entitled to recover reasonable attorneys' fees, witness fees and other costs incurred in that action or proceeding, in addition to any other relief to which it may be entitled.
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MOU Storm Drain Line I (City of Ontario)
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4.6 Venue shall be in San Bernardino County, California.
4.7 The PARTIES understand, acknowledge and agree that the Reci tals are true and correct, and are hereby incorporated into this MOU.
4.8 This MOU may be terminated by the written mutual consent of both PARTIES.
4.9 Nothing in the provisions of this MOU is intended to create duties or obligations to, or rights in, third -parties not parties to this MOU, or affect the legal liability of the PARTIES to this MOU by imposing any standard of care respecting the design, construction or maintenance of the PROJECT different from the standard of care imposed by law.
IN WITNESS WHEREOF, this MOU has been fully executed on behalf of CHINO and ONTARIO by their duly authorized officers, effective as of the last date hereunder written.
(Signatures on next page.)
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MOU Storm Drain Line I (City of Ontario)
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CITY OF ONTARIO
By:
(Authorized signature – sign in blue ink)
Name:
(Print or type name of person signing contract)
Title:
(Print or type)
Dated:
Address:
Approved at to Legal Form: Attested by the City Clerk:
The City Attorney The City Clerk
Date: Date:
CITY OF CHINO
By:
(Authorized signature – sign in blue ink)
Name:
(Print or type name of person signing contract)
Title:
(Print or type)
Dated:
Address:
Approved at to Legal Form: Attested by the City Clerk:
The City Attorney The City Clerk
Date: Date:
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MOU Storm Drain Line I (City of Ontario)
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EXHIBIT A
CONSTRUCTION
DESIGN /
CONSTRUCTION
MANAGEMENT
TOTAL COST
Total Cost $40.8 Million $10.2 Million $51.0 Million
City of Ontario
Share (42%) $17.1 Million $4.3 Million $21.4 Million
City of Chino
Share (58%) $23.7 Million $5.9 Million $29.6 Million
12.18.b
MOU Storm Drain Line I (City of Ontario)
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