PISMO BEACH CITY COUNCIL STAFF REPORT
Agenda Item #12.B
Meeting Date: February 6, 2024
TITLE:
Outside Users Agreement with Coastal Christian School for Fire Suppression Water
RECOMMENDATION:
Adopt a Resolution authorizing the City Manager to execute an Outside Users Agreement with Coastal Christian School for Fire Suppression Water.
DISCUSSION:
On November 16, 2021, the City Council considered and approved a request from Coastal Christian School (CCS) for the City of Pismo Beach to provide emergency fire suppression water to the school’s campus at 1005 North Oak Park Boulevard, which is outside the City’s limits. The City executed an Extra-Territorial Service and Offsite Infrastructure Agreement with CCS subject to approval of the proposal by the San Luis Obispo Local Agency Formation Commission (LAFCO), as the campus is located outside city limits but within its sphere of influence. Further background information is provided in staff’s November 16, 2021 report to Council, which is available in the Access Pismo public records portal at www.pismobeach.org/accesspismo.1
Current Water System and City Agreement
The current water system for the campus consists of five 5,000-gallon tanks which supply 25,000 gallons for fire suppression and a separate tank for domestic water use. To meet fire suppression requirements for Phase II of the campus development (shown in Figure 1), the fire system must be able to provide 1,500 gallons per minute (gpm) for two hours.
The onsite well can only provide a maximum of 70 gpm, which means the school’s current water system would require a 180,000-gallon reservoir for fire suppression storage.
However, on November 16, 2021, the City Council approved an Extra-Territorial Service and Offsite Infrastructure Agreement between CCS and the City of Pismo Beach (included in Attachment 2) to allow the school to utilize the City’s water system to fill the fire suppression reservoir should the reservoir’s water level fall below a set limit. With this configuration it was estimated that fire suppression needs could be achieved with two additional 5,000-gallon tanks, which would have considerable cost savings to the school.
The City’s water supply would be controlled by a float valve as shown in Figure 2, on the next page.
1 Full URL:
https://accesspismo.pismobeach.org/WebLink/DocView.aspx?id=362772&dbid=0&repo=Laserfiche Council Agenda 2-6-2024 12.B-1
Figure 1: Coastal Christian School Campus
Figure 2: Typical Float Valve
Further Analysis and Revised Proposal
After a further in-depth analysis of the proposed emergency water supply connection as well as coordination with CalFire and City staff, Coastal Christian School is now requesting a direct connection to City’s water system only for the Multipurpose Building fire sprinkler system. All domestic water and onsite fire hydrants would still be supplied by CCS’s onsite water system. This connection would provide CCS with the following benefits:
Reduced complexity of the fire water system
Council Agenda 2-6-2024 12.B-2
Reduced maintenance costs
Reduces the potential City supplied water from 903 gpm for four hours to 450 gpm for one hour
Provides CCS’s fire water system with enhanced reliability Eliminates the need for pumps in CCS’s fire suppression sprinkler system Staff brought the revised request to the City Council on July 18, 2023, for consideration.
The City Council directed staff to work with CCS to develop a revised Outside User Agreement to allow for a direct connection to the City’s water system that meets the following conditions:
CCS revise their plans to rely on the City’s water supply for only the fire sprinkler system
CCS to agree to pay water service fees in excess of the typical costs to cover the City’s additional administrative expenses for billing and infrastructure planning CCS to install a double detector check valve to prevent backflow and contamination of the City’s water supply/infrastructure CCS to hire a consultant to ensure that the emergency connection would not negatively impact:
o The City’s ability to provide domestic water to its residents and businesses o The City’s own fire suppression needs
The full staff report for the July 18, 2023 meeting can be found the Access Pismo public records portal at www.pismobeach.org/accesspismo2 .
Since that time staff has worked with CCS and their consultant team to revise the Outside Users Agreement (Attachment 1.A) which has been approved at a staff level by both parties.
Should the Council adopt the resolution, the next step would be to take the revised plan and agreement to LAFCO for their approval.
This item is being considered solely for institutional educational use and for emergency fire connection only. This item shall not set a precedent for any future use of the City’s potable water system at this site or any other service requests.
Conclusion and Recommendation
Staff recommends that the City Council adopt a Resolution (Attachment 1) approving the Outside User Agreement between the Coast Christian School and the City of Pismo Beach to provide fire suppression water with a direct connection to the city’s water system.
2 Ful URL: https://ch-laserfiche/laserfiche/DocView.aspx?db=Laserfiche&docid=482378 Council Agenda 2-6-2024 12.B-3
FISCAL IMPACT:
There is no direct fiscal impact associated with Council adopting the resolution. There will be a fiscal impact to provide the water service connection and water supply to Coastal Christian School, which the City will recover from CCS through additional service charges.
These charges will include maintenance of the water system and facilities, customer service, administration, and staffing, plus an additional cost to provide services outside of the City’s limits.
ATTACHMENTS:
1. Resolution
1.A. Exhibit A to Resolution: Outside Users Agreement
Submitted by: Benjamin A. Fine, P.E., Director of Public Works/City Engineer City Manager Approval:
Council Agenda 2-6-2024 12.B-4
RESOLUTION NO. R-2024-XXX
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH,
CALIFORNIA AUTHORIZING THE CITY MANAGER TO EXECUTE AN OUTSIDE
USERS AGREEMENT WITH COASTAL CHRISTIAN SCHOOL FOR FIRE
SUPPRESSION WATER
WHEREAS, Coastal Christian School (CCS) is located at 1005 North Oak Park Boulevard outside Pismo Beach city limits, but within its sphere of influence; and WHEREAS, on November 16, 2021, the City Council considered and approved a request from CCS for the City of Pismo Beach to provide emergency fire suppression water to the school’s campus; and
WHEREAS, after a further in-depth analysis of the proposed emergency water supply connection, Coastal Christian School is now requesting a direct connection to City’s water system only for the Multipurpose Building fire sprinkler system; and WHEREAS, on July 18, 2023 City Council directed staff to work with CCS to develop a revised Outside User Agreement to allow for a direct connection to the City’s water system that meets the following conditions:
CCS revise their plans to rely on the City’s water supply for only the fire sprinkler system
CCS to agree to pay water service fees in excess of the typical costs to cover the City’s additional administrative expenses for billing and infrastructure planning CCS to install a double detector check valve to prevent backflow and contamination of the City’s water supply/infrastructure CCS to hire a consultant to ensure that the emergency connection would not negatively impact:
o The City’s ability to provide domestic water to its residents and businesses o The City’s own fire suppression needs; and
WHEREAS, staff has worked with CCS and their consultant team to revise the Outside Users Agreement, which has been approved at a staff level by both parties.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby authorizes the City Manager to execute an Outside Users Agreement with Coastal Christian School for Fire Suppression Water (Exhibit A).
UPON MOTION OF Council Member , seconded by Council Member , the foregoing resolution was adopted by the City Council of the City of Pismo Beach this 6th day of February 2024, by the following vote:
AYES:
NOES:
Council Agenda 2-6-2024 12.B-5
Attachment 1
ABSENT:
ABSTAIN:
RECUSED:
Approved: Attest:
________________________ ________________________
Ed Waage, Mayor Erica Inderlied, City Clerk
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Pismo Beach, California, on _______________________. ________________________
Erica Inderlied, City Clerk
Council Agenda 2-6-2024 12.B-6
Attachment 1
Recording Requested by and:
When recorded return to:
City of Pismo Beach
760 Mattie Road
Pismo Beach, California 93449
For Recorder’s use only
EXTRA-TERRITORIAL SERVICE AND OFFSITE INFRASTRUCTURE
AGREEMENT BETWEEN COASTAL CHRISTIAN SCHOOL AND CITY OF
PISMO BEACH
THIS AGREEMENT is made and entered into effective the ______ day of , 2024, ("Effective Date") by and between the CITY OF PISMO BEACH, a California municipal corporation (hereinafter referred to as "CITY"), and COASTAL CHRISTIAN SCHOOL, (hereinafter referred to as "CCS").
RECITALS
WHEREAS, CCS intends to construct a new multi-purpose building including a gym, classrooms, and administrative functions, sports fields, and related parking. The proposed school site is located near the intersection of James Way and Oak Park Boulevard at 1005 North Oak Park Boulevard and is more specifically referred to as San Luis Obispo County Assessor's Parcel Number _079-261-012 (“Property”).
WHEREAS, Phase 0 of the proposed school serves predominately grades K – 6, the new multi-purpose building will include expanded classrooms for grades 7 – 12. The facilities are designed for up to six hundred (600) students and fifty (50) faculty/staff members; WHEREAS, CCS anticipates the multi-purpose building will be constructed and operational on the Property by the 2024/25 school year. The actual timing for construction will be subject to funding availability and other factors; WHEREAS, under an existing Extra-Territorial Service and Offsite Infrastructure Agreement between CCS and the City, sewer service is currently provided to the Property;
Council Agenda 2-6-2024 12.B-7
Attachment 1.A
WHEREAS, there is no municipal water service currently available to the Property, which relies on well water for domestic water supply;
WHEREAS, the Property is within CITY's sphere of influence, but is currently outside of CITY's limit boundary;
WHEREAS, CCS does not desire to annex the Property to CITY, and City does not desire to annex the Property to CITY at this time. CCS has filed an extension of water services application, for fire suppression only, with the San Luis Obispo Local Agency Formation Commission ("LAFCo") and obtained the necessary approvals; WHEREAS, LAFCo has reviewed CCS's request for an extension of CITY water services for fire suppression only to Property and has found that it would be appropriate to permit such an extension of services under Government Code Section 56133; WHEREAS, CITY has available water service for fire suppression which may be extended to the Property and is willing to provide water service to the Property so long as CCS installs all infrastructure needed to provide CITY fire suppression service to the Property, and CCS agrees to install said infrastructure in accordance with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto, agree as follows:
1. Location for Connection to CITY Municipal Water Main. CCS and CITY acknowledge the nearest CITY municipal water main to serve the Property is located at 921 Oak Park Boulevard #204 on APN 002-404-001. Connection to CITY's municipal water system by CCS shall be made at this location, or other location approved in writing by the City Engineer.
2. Location of Water Improvements for Fire Suppression to be Constructed at CCS's Expense. CCS shall design and construct, at its sole responsibility and expense, the following water improvements for fire suppression: double check assembly, UL-Listed fire service water meter with bypass meter, and approximately 1,050 linear feet of AWWA C900 PVC water main connected directly and exclusively to the fire sprinkler riser at the proposed Multipurpose Building on the Property (“Water Improvements”). All connections to the City’s water system shall be completed to the satisfaction of the City Engineer. The appropriate sizes of the Water Improvements will be determined by hydraulic calculations. It is anticipated that the water meter and double check assembly will not exceed 8-inch, while the water main will not exceed 12-inch in nominal diameter. The Water Improvements shall ensure that water from the CITY’s municipal water system shall only be taken for use on the Property for the initial fill of the fire sprinkler system, replenishing the system for code-required draining, flushing, or testing, or for discharging from one or more activated sprinklers in the event of a fire. The CITY’s municipal water system shall not be connected to any other CCS infrastructure at Council Agenda 2-6-2024 12.B-8
Attachment 1.A
any other location than what is approved in this agreement, including but not limited to domestic-use water supply lines, fire hydrants or hose bibbs on the Property. CCS acknowledges and agrees that any use of CITY water other than for the fire sprinkler system activities described above, or inadvertent discharge in the event of a below- or above-ground piping failure, will constitute a material breach of the Agreement, entitling CITY to immediately terminate the Agreement and terminate water service to the Property. CCS shall also permit CITY to install on the Property an antenna array and associated infrastructure to support CITY’s advanced metering infrastructure (AMI) system. The installation of such antenna array and associated equipment shall be at CITY’s sole expense. Notwithstanding the foregoing sentence, at such time as CITY adopts a requirement for AMI water meters to be installed within the CITY, CCS shall install, at CCS’s sole cost and expense, such AMI water meters as are directed by CITY to measure the water service provided under this Agreement.
3. Water Fire Suppression Facility Improvement Plans for Water Improvements.
Prior to installation of the Water Improvements, CCS shall submit engineered water improvement plans, prepared by a Registered Civil Engineer, to CITY, for review and approval by CITY. CITY approval, at CITY's sole discretion, shall be required before construction and operation of the Water Improvements by CCS.
4. Compliance with Alignments and Permits. CCS is solely responsible to ensure that construction of the Water Improvements shall follow an alignment acceptable to CITY. CCS shall obtain all necessary permits from CITY and any other applicable agencies to ensure the Water Improvements comply with CITY Public Works Standard Specifications and Drawings.
5. Easements Required for Water Improvements. CCS shall secure and, if necessary, pay for all easements required for the construction and installation of the Water Improvements. Any easements and deeds for the Water Improvements shall be recorded by CCS prior to approval of improvement plans for the Water Improvements.
6. Construction of Water Improvements. The Water Improvements shall be constructed in accordance with CITY’s Engineering Standard Specifications and Drawings, policies, conditions, and ordinances. All improvements and materials for the Water Improvements shall be done, performed, and installed in strict accordance with the approved construction plans for said work, on file with the Public Works Director/City Engineer for CITY. In the event there are not Engineering Standard Specifications and Drawings for any of the improvements or materials associated with the construction of the Water Improvements, it is agreed that the same shall be done, performed, and installed in accordance with the standards and specifications of the State of California, Department of Transportation (CalTrans). CCS agrees it will correct any and all deficiencies in the construction and installation of the Water Improvements identified by CITY's Public Works Director/City Engineer or Public Works Department.
7. Coordination of Work by CCS and Notice to CITY. It shall be the responsibility of CCS to coordinate all work done by its contractors and subcontractors, such as Council Agenda 2-6-2024 12.B-9
Attachment 1.A
scheduling the sequence of operations and the determination of liability if one operation delays another. In no case shall representatives of CITY be placed in the position of making decisions that are the responsibility of CCS. It shall further be the responsibility of CCS to give CITY's Public Works Director/City Engineer written notice not less than two (2) weeks in advance of the actual date on which work is to be started on the Water Improvements. All improvements associated with the Improvements must be inspected by CITY, and CCS shall request CITY inspections in accordance with CITY polices, conditions and ordinances. Failure on the part of CCS to notify CITY's Public Works Director/City Engineer of either the actual date on which work is to be started or to request CITY inspections may cause delay for which CCS shall be solely responsible.
8. Notice for CITY Inspections. Whenever CCS varies the period during which work is carried out each day, it shall give due notice to CITY's Public Works Department so that proper inspection by CITY may be provided. If CCS fails to duly notify CITY as herein required, any work done in the absence of CITY's inspector will be subject to rejection. The inspection of the improvements and materials associated with the Water Improvements shall not relieve CCS of any of its obligations to fulfill this Agreement as prescribed. Defective work shall be repaired or otherwise made good by CCS, and unsuitable materials may be rejected by CITY, notwithstanding the fact that such defective work and unsuitable materials may have been previously overlooked by CITY's inspector and accepted.
9. Inspection Fees and Permits. CCS shall pay all applicable inspection fees and obtain all necessary construction permits to ensure the Water Improvements comply with CITY's Public Works Standard Specifications and Drawings, conditions, policies and ordinances. The Water Improvements shall comply with CITY Engineering Standard Specifications, conditions, policies and ordinances related to providing water service, including but not limited to payment by CCS to CITY of all CITY water impact and water connection charges established in CITY's Fee Schedule. Said fees shall be paid by CCS to CITY at the time CITY approves engineered improvements plans for the Water Improvements submitted by CCS. CCS shall also reimburse CITY its reasonable costs of staff review of the Water Improvement plans, and legal review of associated documentation supporting this Agreement.
10. Maintenance of Water Improvements. CCS shall, at its sole cost and expense, maintain, repair and replace the Water Improvements. CCS's obligation to maintain, repair and replace the Water Improvements shall include, without limitation, any maintenance, repair, replacement, or modification of the Water Improvements that may be required by CITY. Should CCS fail to maintain, repair and replace the Water Improvements required by this paragraph, CITY shall have the right, but not the obligation, to maintain, repair and replace the Water Improvements. Should CITY elect to maintain, repair and replace the Water Improvements pursuant to this paragraph, CCS shall reimburse CITY and all fees, costs and expenses incurred by CITY to maintain, repair and replace the Water Improvements within ten (10) days after the date of invoice from CITY.
Council Agenda 2-6-2024 12.B-10
Attachment 1.A
11. Maintenance of Private Water Facilities. All Water facilities installed by CCS related to the Property not part of the Water Improvements, including the installation of Water facilities from the point of connection with the Water Improvements, including the connection itself, upstream to and including facilities in the Property site or within private streets, shall be private ("Private Water Facilities"). It is the sole responsibility of CCS to repair, maintain and replace all Private Water Facilities, and CITY shall have no responsibility or liability for these Private Water Facilities. CCS shall obtain all necessary permits or other approvals necessary for constructing and connecting CCS's Private Water Facilities to the Water Improvements.
12. CITY to Provide Water Services. Upon CCS's full and complete performance of all of CCS's obligations and responsibilities under this Agreement, CITY agrees to provide CCS's Property with water services from CITY's municipal water system for fire suppression purposes only, to the extent the CITY’s water system will allow under normal circumstances. As a result, the parties anticipate that in most months during the term of this Agreement, there shall be no water flow from the City’s water system to the Property. In the event CCS uses water from CITY’s municipal water system for purposes other than fire suppression or annual testing of fire suppression systems, CITY may, at its option, declare CCS to be in breach of this Agreement and terminate water service to the Property immediately without notice. CITY's obligation to provide CCS's Property with water services from CITY's municipal water system is conditioned upon CITY and CCS obtaining the consent of all applicable governmental agencies, including but not limited to LAFCo. As a condition to providing water service, to aid CITY in correctly billing CCS for water services, CITY shall have the right of access to all water meters, including any irrigation meter(s) located on the Property. CCS shall promptly repair or replace damaged water meters. In the event water meters are not present on the property, CCS agrees to install at CCS’s sole expense such meters as will enable CITY to accurately determine the amount of water being taken from the CITY’ water system for use on the Property.
13. Additional Provisions. The following provisions shall apply to this entire Agreement:
a. Continuing Obligations and Responsibilities of CCS. CCS agrees to promptly pay to City any and all fees for water service supplied by City to CCS's Property. All fees listed in CITY's Fee Schedule are regularly updated and amended from time to time by CITY's City Council. Notwithstanding any other section of this Agreement, the fees and rates set forth by the Fee Schedule, as currently in effect or as it may be amended, are incorporated herein and shall have precedence over any fees listed in this Agreement and attached exhibits, if any. CCS is responsible to pay the fees and rates as set forth by the Fee Schedule, which may include fees even if no water is used. CCS agrees to maintain its water service accounts with CITY in a current status.
b. CCS acknowledges that extraterritorial water service results in additional administrative expense to the CITY, both for billing and infrastructure planning purposes.
Therefore, CCS acknowledges that the fees and rates charged to CCS for water service Council Agenda 2-6-2024 12.B-11
Attachment 1.A
will be higher than those charged to a comparable facility within the City limits. Should CCS’s Property be annexed into the City under subsection d. below, the additional administrative fees and charges charged to CCS will be eliminated.
c. CCS acknowledges and agrees that should its water service account with CITY become sixty (60) days delinquent, City shall have the right, at CITY's sole option, to discontinue water service to CCS's Property and to terminate this Agreement. Otherwise, this Agreement shall remain in effect unless and until either party gives the other party a minimum of one year’s advance written notice of termination.
d. Consent to Future Annexation. In further consideration of CITY's agreement to provide water services from CITY’s water system to CCS's Property in accordance with the provisions of this Agreement, CCS agrees not to oppose or protest, in any way, the future annexation of CCS's Property to CITY and to pay CCS's share of all applicable fees and charges CITY, or any other governmental agency may require at the time of annexation of CCS's Property to CITY. CCS will sign a petition to annex the Property when asked by CITY.
14. Covenants Running with the Land. CCS acknowledges and agrees that all of CCS's covenants, agreements, promises, representations and warranties as set forth in this Agreement are covenants running with CCS's Property as defined in the applicable provisions of Civil Code Sections 1457 et seq. CCS's covenants, agreements, promises, representations and warranties as contained in this Agreement, shall run with CCS's Property and shall be binding on CCS and CCS's successors and assigns and all parties and persons claiming under them. Within thirty (30) days of execution by the last party to sign this Agreement, CCS agrees to record a copy of this Agreement as a covenant running with the land.
15. Successors and Assigns. The covenants and agreements contained in this Agreement shall be binding upon and shall inure to the benefit of the heirs, successors and assigns of the parties hereto. CCS may not assign its rights and/or obligations under this Agreement without the prior written consent of City, which consent shall not be unreasonably withheld. Any such consent by CITY shall not, in any way, relieve CCS of its obligations and responsibilities under this Agreement.
16. Notices. Any notice required or intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to be duly given if delivered personally, transmitted by email followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice is to be given at the party's address set forth on the signature page of this Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above described shall be deemed sufficiently served or given at three business days after the mailing thereof.
Council Agenda 2-6-2024 12.B-12
Attachment 1.A
17. Binding. Subject to Section 19, below, once this Agreement is signed by all patties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agents, servants, employees and representatives.
18. Compliance With Law. In providing the services required under this Agreement, CCS shall at all times comply with all applicable laws of the United States, the State of California, County of San Luis Obispo and CITY, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. CCS, not CITY, is responsible for determining applicability of and compliance with all local, State and federal laws. CITY makes no representations regarding the applicability of any such laws to this Agreement, the project, or the parties’ respective rights or obligations under this Agreement including, without limitation, payment of prevailing wages, competitive bidding, subcontractor listing, or other matters.
CITY shall not be liable or responsible, in law or equity, to any person for CCS's failure to comply with any such laws, whether CITY knew or should have known of the need for CCS to comply, or whether CITY failed to notify CCS of the need to comply. CCS is referred to CITY's Department of Public Works, to obtain the current prevailing wage rates, to the extent said rates are applicable to the construction of any of the improvements regarding the Water Improvements.
19. Waiver. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in writing and signed by all parties to this Agreement.
Waiver of anyone provision herein shall not be deemed to be a waiver of any other provision herein.
20. Indemnification of City: To the greatest extent allowed by law, CCS shall indemnify, hold harmless and defend CITY and each of its elected and appointed officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by CITY, CCS or any other person, and from any and all claims, demands, liabilities, damages and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of the performance or non-performance of this Agreement or the performance or non-performance of any or all work to be done in and upon the street rights-of-way, the Property, and premises adjacent thereto, pursuant to this Agreement, or arising or alleged to have arisen directly or indirectly in any way related to the construction, installation and operation of the Water Improvements by anyone occupying any portion of CCS's property, including, without limitation, any such claims, causes of action, damages, liabilities, fees, costs, expenses and attorney fees arising from water quality compliance, or lack of flow capacity, pressure or functional operation in the Water Improvements or the CITY’s water system. CCS's obligations under the preceding sentence shall apply regardless of Council Agenda 2-6-2024 12.B-13
Attachment 1.A
whether CCS or any of its officers, officials, boards, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of CITY or any of its elected or appointed officers, officials, employees, agents or volunteers.
21. If CCS should subcontract all or any portion of the work to be performed under this Agreement, CCS shall require each subcontractor to indemnify, hold harmless and defend CITY and each of its elected and appointed officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. Notwithstanding the preceding sentence, any subcontractor who is a "design professional," as defined in Section 2782.8 of the California Civil Code, shall, in lieu of indemnity requirements set forth in the preceding paragraph, be required to indemnify, hold harmless and defend CITY and each of its elected and appointed officers, officials, employees, agency and volunteers, to the furthest extent allowed by law, from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage), and from any and all claims, demands and actions in law or equity (including reasonable attorney's fees and litigation expenses) that arise out of, pertain to, or relate to the negligence, recklessness or willful misconduct of the design professional, its principals, officers, employees, agents or volunteers in the performance of this Agreement.
CCS further agrees that the use for any purpose and by any person of any and all of the Water Improvements, and other water improvements specified in this Agreement, shall be at the sole and exclusive risk of CCS at all times prior to final acceptance by CITY of the completed improvements described herein. This section shall survive termination or expiration of this Agreement.
22. Public Health, Safety and Welfare. Nothing contained in this Agreement shall limit CITY's authority to exercise its police powers, governmental authority or take other appropriate actions to address threats to public health, safety and welfare, including temporarily suspending water services as deemed appropriate by CITY in its sole determination and discretion. Should the improvements described in this agreement contaminate or otherwise interfere with the CITY’s operation of the CITY’s water system, CCS at its sole expense shall remediate said contamination or operational deficiencies to the satisfaction of the City Engineer.
23. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, excluding, however, any conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be San Luis Obispo County, California.
24. Headings. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the interpretation or meaning of the provisions of this Agreement.
Council Agenda 2-6-2024 12.B-14
Attachment 1.A
25. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of anyone provision in this Agreement shall not affect the other provisions.
26. Interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of the parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning.
27. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses.
28. Exhibits. Each exhibit and attachment referenced in this Agreement is, by reference, incorporated into and made a part of this Agreement.
29. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment hereto, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terms or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, shall be null and void.
30. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
31. No Third-Party Beneficiaries. The rights, interests, duties, and obligations defined within this Agreement are intended for the specific parties hereto as identified in the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or flow to the interest of any third parties.
32. Extent of Agreement. Each party acknowledges that they have read and fully understand the contents of this Agreement. This Agreement represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations, or agreements, either written or oral.
This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CCS. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and CCS.
Council Agenda 2-6-2024 12.B-15
Attachment 1.A
IN WITNESS WHEREOF, CCS and CITY have entered into this Agreement as of the date(s) indicated above, notwithstanding a date of execution differing from that set forth above.
Coastal Christian School
___________________________
Dated:______________________
Notice address: 1005 N. Oak Park Boulevard
Pismo Beach, CA 93449
City of Pismo Beach
By:_______________________
City Manager
Dated:_____________________
Notice address: 760 Mattie Road
Pismo Beach, CA 93449
Attest:
By:_______________________
City Clerk
Dated:_____________________
Approved as to form:
By:_______________________
City Attorney
Council Agenda 2-6-2024 12.B-16
Attachment 1.A