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AGREEMENT FOR FISCAL AGENT SERVICES
BY AND BETWEEN
THE RIALTO UNIFIED SCHOOL DISTRICT
AND
THE CITY OF RIALTO
This Agreement For Fiscal Agent Services (“Agreement”) is made effective as of April 12, 2022, by and between the City of Rialto, hereinafter referred to as the “City," and the Rialto Unified School District, hereinafter referred to as the " District." The City and the District may be referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, the District has undertaken activities to plan, design, obtain approvals, fund, and construct the public project known as the “International Healing Outdoor Facility at Rialto Unified School District,” herein referred to as the “Project”; and
WHEREAS, the Project will be an outdoor garden intended to provide opportunities for District students and members of the local community to learn about environmental injustices that have disproportionately affected the community and the solutions to mitigate those impacts, which solutions will include environmental literacy coupled with activities focused on promoting and improving community health and wellness; and
WHEREAS, the Parties acknowledge that the presently anticipated total cost of the Project is approximately $5,455,000.00; and
WHEREAS, the State of California (“State”), through approval of the Budget Act of 2021 (Stats. 2021, Ch. 69), appropriated $1,000,000 to the City for purposes of the Project (“State Funding”), and the District anticipates that it will pay the balance of the total Project costs using local funding provided by the District and through donations from local businesses and others; and
WHEREAS, because the State appropriated the State Funding to the City, the Parties intend and agree that the City shall act as the fiscal agent with respect to the State Funding (“Fiscal Agent”), which the Parties acknowledge will include responsibility for transferring the State Funding to the District for use in directly paying and/or reimbursing the District for Project costs; and
WHEREAS, the Parties acknowledge and agree that the Project will benefit not only District students, but also residents of the City and the District generally; and
WHEREAS, the Parties have entered into this Agreement in order to set forth the terms and conditions for the City to act as the fiscal agent with respect to the State Funding, in connection with the use of the State Funding by the District to pay a portion of the total costs of the Project;
NOW THEREFORE, in consideration of the foregoing and of their respective rights and obligations pursuant to this Agreement, consideration that each Party hereby acknowledges is adequate, the Parties agree as follows:
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AGREEMENT
PART 1. CONSTRUCTION OF PROJECT
Section 1.1 District Responsibility. The Project is for all purposes a public work and public project of the District and, as between the Parties, the District shall be solely responsible for completion of the Project in accordance with statutory and other requirements applicable to the District. The City shall have no responsibility or jurisdiction in connection with the Project other than: (i) the responsibilities and services that the City, acting as the Fiscal Agent, is to provide pursuant to this Agreement (“Fiscal Agent Services”); and (ii) any responsibilities and jurisdiction that, in accordance with applicable law and other governmental requirements, the City would have in the absence of the State Funding and this Agreement.
Section 1.2 Anticipated Project Timeline. The District presently intends to complete all activities needed to finalize the plans and specifications for the Project and obtain all required approvals for the Project in or around December of 2022. The District further intends that construction of the Project shall be fully completed not later than June 30, 2023.
For avoidance of doubt: (i) the foregoing timeline is subject to change based on circumstances beyond the control of the District; and (ii) the agreement(s) providing for construction of the Project (“Construction Contract”) will be subject to approval by the Board of Education of the Rialto Unified School District (“District Board”).
Section 1.3 Payment of Project Costs. The District shall pay Project costs in accordance with applicable law and as required by the Construction Contract or other Project- related agreements, which may include, without limitation, agreements with design professionals, construction management professionals, inspectors, and others. Other than as is expressly required in the performance of the Fiscal Agent Services in Part 2 of this Agreement, the City shall have no obligation to pay, fund, finance, reimburse or otherwise be liable for cost or expense arising from the project.
Section 1.4 Indemnification. The District shall indemnify, hold-harmless, and defend the City, its City Council and each member thereof, and the City’s other officers, employees, and authorized agents (collectively, not including the City, the “City Indemnitees”) with respect to any and each claim, demand, action, loss, damage, judgment, cost or expense (including, without limitation, attorneys’ fees), and other liabilities of whatever nature (each a “Liability”) as may arise in connection with the construction of the Project; provided that, in the event any particular Liability is to any extent attributable to the negligence or willful misconduct of the City and/or any of the City Indemnitees, the Parties shall be responsible and liable on a comparative basis and each Party shall be responsible for defending itself in connection with that Liability.
PART 2. FISCAL AGENT SERVICES
Section 2.1 Transfer of State Funding. The District, from time to time, shall submit invoices to the City for Project-related costs that then payable and/or that have already been paid by the District. Each such invoice shall describe or identify the Project costs sufficient for audit purposes, and shall be submitted with any documentation that reasonably evidences such costs. The City shall in each case pay the invoiced amount(s) to the District within 30 days after receipt by the City of the applicable invoice; provided that the total amount of funds transferred by the City pursuant to this Section shall not exceed the $1,000,000 total amount of the State Funding.
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Section 2.2 City Audit Rights. The City, acting as the Fiscal Agent, or its designated auditor(s) for such purposes, shall have the right at any and all times during the three-year period following the final payment of State Funding to the District pursuant to this Agreement, to review and copy District records and supporting documentation relating to expenditure of the State Funding by the District. The District shall maintain such records, for possible audit, during such three-year period or until any audit commenced during that period has been completed and any audit exceptions resolved. The District shall allow the City and/or its designated auditor(s) to have access to such records during normal business hours and shall permit them to interview District employees who reasonably might have information specifically related to expenditure of the State Funding. To the extent any such record or information is confidential, proprietary, or otherwise subject to restrictions on disclosure in accordance with applicable law, the City and its designated auditor(s) shall maintain the confidentiality of such record and information. Nothing in this Section shall be deemed or construed to limit any review, audit, or other rights that the State may have pursuant to Government Code Section 8546.7 or otherwise.
Section 2.3 Reporting Requirements. The City, acting as the Fiscal Agent, shall be responsible for preparing and submitting to applicable agencies of the State, which may include, but is not limited to, the California Natural Resources Agency, any and all forms and reports to be submitted in connection with the appropriation and/or expenditure of the State Funding. As applicable, the City shall cause such forms and reports to be submitted in the name of the District with such forms and reports previously prepared and reviewed by the District for submittal to the State through and by the City as the Fiscal Agent.
Section 2.4 Indemnification. The City shall indemnify, hold-harmless, and defend the District, the District Board and each member thereof, and the District’s other officers, employees, and authorized agents (collectively, not including the District, the “District Indemnitees”) with respect to any and each Liability as may arise in connection with the Fiscal Agent Services; provided that, in the event any particular Liability is to any extent attributable to the negligence or willful misconduct of the District and/or any of the District Indemnitees, the Parties shall be responsible and liable on a comparative basis and each Party shall be responsible for defending itself in connection with that Liability.
PART 3. MISCELLANEOUS PROVISIONS
Section 3.1 Adequate Consideration. Each Party acknowledges that, in light of its purposes as a governmental entity, the benefits to the residents of both the City and the District, and the benefits to the community generally, constitute adequate consideration to that Party for performance of its obligations pursuant to this Agreement and, therefore, neither Party shall receive monetary compensation for performance of its obligations pursuant to this Agreement from the other Party.
Section 3.2 Statutory Liability. Notwithstanding anything to the contrary, in the event a final judgment issued by a court of competent jurisdiction, or an arbitrator if the Parties have agreed to arbitration, determines that this Agreement is an agreement within the scope of Government Code Section 895 and, in connection therewith, imposes liability on a Party solely by virtue of Government Code Section 895.2, that Party shall be entitled to contribution as provided by Government Code section 895.6. In the event Government Code Sections 895, 895.2 and/or 895.6 are amended or repealed, the requirements of this Subsection shall apply with respect to any similar, successor or superseding law that imposes liability on a Party consistent with provisions of Government Code Sections 895.2 and 895.6 in effect as of the Effective Date.
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Section 3.3 Amendments. This Agreement may be amended or modified, in each case, only by means of a written agreement that has been duly approved and signed by both Parties.
Section 3.4 Waiver. No waiver by a Party of any provision of this Agreement shall be valid or binding unless set forth in writing and signed by the waiving Party. The forbearance or failure by a Party to enforce any provision of this Agreement shall not be construed as a waiver of the Party’s right in the future to compel enforcement of such provision. Except as set forth in an applicable written waiver, no waiver shall be deemed to be a continuing waiver of the same or any similar provision of this Agreement.
Section 3.5 Attorneys’ Fees. In connection with litigation brought to enforce the terms and conditions of this Agreement, the prevailing Party, as determined by a court of competent jurisdiction, shall be entitled to recover its reasonable attorney's fees and other costs of litigation.
Section 3.6 Entire Agreement. This Agreement sets for the entire understanding and agreement of the Parties with respect to the matters addressed herein, and this Agreement supersedes and replaces any and all prior and contemporaneous discussions, understandings, and agreements (regardless of whether written or oral) relating to such matters.
Section 3.7 Governing Law and Venue. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Any and each action or other proceeding arising from this Agreement shall be initiated and conducted exclusively in an appropriate venue located within the County of San Bernardino, State of California, unless a court of competent jurisdiction holds that a change of venue is necessary to ensure fundamental fairness of the proceeding.
Section 3.8 Notices. Any and each notice to a Party given or served in connection with this Agreement (each a “Notice”) shall be in writing and, as applicable, addressed to the Party as described below in this Section. Notices must be delivered, at no cost to the recipient and signature on delivery receipt required, via: (i) in person delivery; (ii) UPS, FedEx or other reliable, private delivery service; or (iii) certified or registered mail. This Section shall not be deemed or construed to apply to day-to-day communications between the Parties for purposes of performing or administering this Agreement; or (ii) service of process pursuant to any applicable law or rule of court. A Party may change its contact information as set forth in this Section by giving Notice in accordance with this Section. Subject to the foregoing, Notices shall, as applicable, be addressed as follows:
IF TO DISTRICT IF TO CITY
Rialto Unified School District City of Rialto
Attn: Diane Romo Attn: Marcus Fuller
182 East Walnut Ave 150 S. Palm Ave.
Rialto, CA 92376 Rialto, CA 92376
(909) 820-7700 x 2212 (909) 820-2528
Section 3.10 Severability. If a court of competent jurisdiction determines for any reason that any term, condition, or other provision of this Agreement is invalid, unenforceable, void, or against public policy, then, notwithstanding such determination, each and all of the other provisions of this Agreement shall be unaffected and shall remain in force and effect. In such event, however, the Parties shall to the extent allowed by applicable law interpret the remaining
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provisions of this Agreement in a manner that most closely effects the intent of the Parties in originally entering into this Agreement.
Section 3.11 Assignment. Neither Party may assign this Agreement or any of its rights pursuant to this Agreement, or may delegate any of its responsibilities or obligations pursuant to this Agreement, without the prior written consent of the other Party.
PART 4. EXECUTION OF AGREEMENT
Section 4.1 Counterparts and Signatures. This Agreement may be executed in counterparts, each of which shall be an original, but all of which shall constitute one and the same original instrument. Signature pages may be detached from counterpart originals and combined to physically form one or more original copies of this Agreement containing the signatures of both Parties. A Party’s signature prepared and/or transmitted electronically shall be valid and binding for all purposes of this Agreement.
Section 4.2 Due Authority and Binding Effect. Each Party hereby represents and warrants that it has all power and authority necessary to execute, deliver, and perform this Agreement. Each person that signs this Agreement on behalf of a Party shall be deemed and construed to thereby represent and warrant that he, she, or they has been duly authorized by appropriate action of such Party to execute, and thereby bind such Party to, this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement, as evidenced by the signatures of their respective, duly authorized representatives below.
RIALTO UNIFIED SCHOOL DISTRICT
By:
Diane Romo, Lead Business Services
Agent
Date Signed:
APPROVED AS TO FORM:
By: Atkinson, Andelson, Loya, Ruud &
Romo, Attorneys for the Rialto Unified
School District
By:
Brian W. Smith, Legal Counsel
DISTRICT BOARD APPROVAL DATE:
February 23, 2022
CITY OF RIALTO
By:
Marcus Fuller, City Manager
Date Signed:
ATTEST:
By:
Barbara McGee, City Clerk
Date Signed:
APPROVED AS TO FORM:
By: Eric Vail, City Attorney
By:
Eric Vail, City Attorney
CITY COUNCIL APPROVAL DATE:
April 12, 2022