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HomeMy WebLinkAboutC-2637fide) -zeD 6-24p3--�-. INDEMNIFICATION AGREEMENT BETWEEN THE CITY OF ARCADIA AND ARCADIA UNIFIED SCHOOL DISTRICT 1. PARTIES AND DATE. This Indemnification Agreement ( "Agreement ") is made this day of L/me. , 2011, by and between the the City of Arcadia (the "City "), a California municipal corporation and Arcadia Unified School District (the "District "), a California public school district duly organized and existing under Chapter 1 of Division 3 of Title 2 of the Education Code of the State of California. The City and the District are sometimes hereinafter referred to collectively as the "Parties." 2. RECITALS. WHEREAS, on August 18, 1953, City has reserved and accepted unto itself an easement (the "Easement ") at any time, or from time to time, to construct, operate, maintain, repair, replace, remove, or renew, sanitary sewers and storm drains and necessary structures pertinent thereto, in, on, upon, over and across real property formerly known as El Monte Avenue and lying Northerly of a line 50 feet North measured at right angles and parallel to the center line of Duarte Road and lying Southerly of a line 50 feet South measured at right angles and parallel to the center line of Campus Drive (formerly known as Huntington Place) and lying 80 feet across which is currently part of the campus of Arcadia High School (the "Property ") as depicted in Exhibit A attached hereto and incorporated herein; and WHEREAS, the City previously constructed a sewer line on the Property ( "Sewer Line "); and WHEREAS, effective August 18, 1953, the District has held and maintained fee simple ownership of the Property, with the City retaining its easement rights on the Property; and WHEREAS, several decades ago, the District constructed buildings ( "District Buildings ") on the Property and over a portion of the Sewer Line; and WHEREAS, both Parties recognize the potentially negative effects from building structures over a sewer line such as this Sewer Line, such as potential damage to the buildings resulting from the location of the Sewer Line underneath structures and the use of the Sewer Line easement by the City, and potential damage to any accompanying infrastructure and the Sewer Line itself; and WHEREAS, the District now wishes to construct another building ( "Student Services Building ") on the Property and overthe Sewer Line. In orderto accommodate the construction of the Student Services Building, and to increase the integrity of the Sewer Line, District has, with the City's approval, removed a portion of the existing Sewer Line and replaced it with approximately one hundred (100) feet of Class 2 Ductile Iron Pipe with Mechanical Joints ( "District Installed Pipe ") under what will be the new Student Services Building ( "Project "); and WHEREAS, the City is willing to allow the construction of the Student Services Building on, the Property in consideration for the District providing certain assurances and indemnities to the City concerning the Sewer Line and the City's Easement. NOW, THEREFORE, in consideration of the promises and covenants set forth below, the Parties agree as follows: 3. TERMS. 3.1 Scope of Indemnification. The District shall, at it own expense, and with legal counsel mutually selected by the City and the District, fully defend, indemnify and hold harmless the City, its officials, officers, employees, volunteers and agents, from and against any and all claims, suits, causes of action, fines, penalties, proceedings, damages, injuries or losses of any name, kind or description, and specifically including, without limitation, attorneys' fees, ( "Liabilities "), arising in any way out of the location of the Student Services Building over the District Installed Pipe and over the City's Easement, to the extent such rights are impaired by the location of the Student Services Building. over the Sewer Line. The District's indemnification obligation shall include, but not be limited to, actions to attack, set aside, void, or annul the City's sewer right and easement, arising as a result of the location of the Student Services Building and associated infrastructure over the District Installed Pipe and over the City's Easement. The City shall promptly notify the District of any such claim, action or proceeding, and shall cooperate fully in the defense of such claim, action, or proceeding. The District hereby waives any potential claim it might otherwise assert against the City for any damage or injuries caused to the District's Buildings, property, real property, employees, students, volunteers, contractors, agents, and invitees resulting from the location of the Student Service Buildings over the Sewer Line unless caused by the City's active negligence. The District's obligations under this Section 3.1 shall not be limited to the amount of insurance coverage that may be available to the District, and shall not otherwise be restricted or confined by the presence or absence of any policy of insurance held by the City or the District. The District shall also, at its own expense, fully reimburse the City for any damages or losses of any name, kind or description to the Sewer Line or injuries incurred in the process of repairing the Sewer Line caused by any action taken by the District, or by any employee, student, contractor, volunteer, invitee or agent of the District or any damage to the Sewer Line caused by the 2 location of the Student Services Building and associated infrastructure over the Sewer Line. 3.2 Sewer Line Repairs and Maintenance. Nothing in this Agreement limits in any way, and the District acknowledges, the City's rights with respect to the Easement and access to the Sewer Line under the Property in order to, among other things, provide service to and repair the Sewer Line at any time. The City shall maintain the Sewer Line by providing, at a minimum, annual cleaning to the pipe. The City shall also provide a video inspection of the Sewer Line, commonly referred to as a Closed Circuit Television (CCTV) Inspection, at a minimum of every two years. The annual cleaning and CCTV inspection shall be at no cost to the District except to the extent damages are caused directly or indirectly by the District's buildings or accompanying structures. The District shall reimburse the City, at the District's own expense and in full, for all costs, both direct and indirect, incurred by the City in making necessary repairs to the Sewer Line caused by any action taken by the District or by any employee, student, contractor, volunteer, invitee or agent of the District or any damage either directly or indirectly caused by the District's buildings and accompanying infrastructure, either those presently located on the Sewer Line or those that will be located on the Sewer Line in the future. The District shall not be responsible for direct or indirect costs that arise from other uses unrelated to District's use or caused by the District's other buildings and accompanying infrastructure. Repairs shall be deemed necessary in the City's sole and absolute discretion and costs shall be borne based on joint determination by the City and District of responsibility as shown by investigation and CCTV pictures. The City will promptly inform the District about the need for repairs and their required date of completion. The District shall then, at its own expense, provide the necessary access for the City to reach the Sewer Line, if access is impaired due to the location of District Buildings. The District shall provide reasonable access to the Easement and Sewer Line for reasonable Sewer Line maintenance, repair and replacement with sufficient notice from the City. The City shall determine, in its sole and absolute reasonable discretion, if the District has provided sufficient access to the Sewer Line. Nothing in this Agreement limits in any way, and the City acknowledges the District's rights with respect to the Property, 3.3. District Installed Pipe. The District Installed Pipe is cut into a one - hundred (100) foot section of existing clay pipe sewer line. This District Installed Pipe, which has been installed by the District, with the approval and inspection of the City, and located underneath the Project as described or depicted in Exhibit B and Exhibit C attached hereto and incorporated herein, consists of one - hundred (100) feet of Class 2 Ductile Iron Pipe with Mechanical Joints. The District shall be responsible for the repair of only the District Installed Pipe due to breakage caused by the location of the Student Services Building, and for no other portion of the Sewer Line. Repairs shall be deemed necessary in the District's sole and absolute reasonable discretion. In no event shall the District have the responsibility to remove clogs from, or maintain any portion of, the Sewer Line, including the District Installed Pipe. 3 3.4. Future Sewer Line Tie -ins Prohibited. The City is prohibited from allowing any increased use of the existing Sewer Line in any manner, and, especially, the City is prohibited from allowing tie -in to any existing sewers which connect to the Sewer Line. This includes, but is not limited to, any future development north of Campus Drive. This development will not be allowed to tie -in to the Sewer Line, but, instead, will be required to construct a new sewer line. 3.5 Survival. The District's obligations, as set forth above, shall survive the completion or abandonment of construction of the new building and other improvements by the District or the issuance of a certificate of occupancy with respect thereto. Such obligations shall be perpetual in duration and shall continue until such time as the Indemnified Parties are no longer at risk for any one or more of the liabilities. 3.6 Interpretation. The provisions of this Agreement are intended by the Parties to be interpreted and construed to provide the fullest protection possible under the law to the each of the parties hereto. Further, all obligations and liabilities under this Agreement are to be paid by the District as they are incurred. 3.7 Attorneys' Fees and Costs. In the event any action or suit is brought by a party against another party by reason of the breach of any of the covenants or agreements set forth in this Agreement, or any other dispute between the parties concerning the Easement, each party shall be responsible for its own attorney's fees and costs. 3.8 Entire Agreement. Except for the easement dated August 18, 1953, this written document contains the entire agreement of the Parties and supersedes any prior oral or written statements or agreements between the Parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by the Parties. 3.9 Notices. All notices required or necessary underthis Agreement shall be given in writing to the following addresses or such other addresses as the parties may designate by written notice: To City. City of Arcadia 240 W. Huntington Drive Arcadia, CA 91007 Attention: City Manager To District: Arcadia Unified School District 234 Campus Drive Arcadia, CA 91007 Attention: Superintendent All notices shall be considered effective 72 hours after placement in the U.S. Mail, first class, postage pre -paid. 4 3.10 Waiver. No waiver of any default shall constitute a waiver of any other breach or default, whether of the same or of any other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by either party shall give the other Party any contractual right by custom, estoppel or otherwise. 3.11 No Assignment. This Agreement shall not be voluntarily assigned by either Party hereto. 3.12 Counterparts. This Agreement may be signed in counterparts, each of which shall constitute an original and which collectively shall constitute one instrument. 3.13 Captions. The captions of the various articles and paragraphs of this Agreement are for convenience and ease of reference only, and do not define, limit, augment, or describe the scope, content, or intent of this Agreement or any part or parts of this Agreement. 3.14 Incorporation of Recitals. The Recitals constitute a material part of this Agreement and are incorporated by this reference as though fully set forth herein. 3.15 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one and the same instrument. 3.16 Authority. Each of the undersigned represents and warrants that he or she is duly authorized to execute and deliver this Agreement and that such execution is binding upon the entity of which he or she is executing this document. [SIGNATURES ON FOLLOWING PAGE] M M IN WITNESS WHEREOF, this Agreement has been executed by the Parties as of the date first written above. CITY OF ARCADIA 0 Donald Penman City Manager Attest: By: k 1j City CI rk I Approved as to Form: By: Steph n P. Deitsch City Attorney 0 ARCADIA UNIFIED SCHOOL DISTRICT By' Christina Aragon / Assistant Superintendent, Business Services Board Approval: 06/14/11 Date signed: 06/22/11 EXHIBIT A (Description or Depiction of District Installed Pipe) 005378.00007/1219486v1 EXHIBIT "All NORTH CAMPUS DR. (PREVIOUSLY HUNTINGTON BLVD) io cl, a f- 14 41 10) 400) J40 J& ",-vv h. T ARCADIA HIGH SCHOOL L cl ui > < ui Z 0 cl Lu ......... . .. .... 0) Flo ou op- rm— �j I w �j z 2 -J lc�- L 71 QL � oil 0) z 0 C uu N, '4 47 c 71R j l , r� L (Sewer Construction Plan) 005378.00007/1219486v1 EXHIBIT C (Sewer Line Survey) 005378.00007/1219486v1 EXHIBIT `tC" "AS-- BUILT" OF EXISTING SEWER LINE IN RELATION TO RECENTLY CONSTRUCTED CLASSROOM BUILDING AT ARCADIA HIGH SCHOOL, AS OF MARCH 2011. a EWER MANHOL 433.98 CAMPUS DRIVE STA. 7 +92 C/L SMH SOUTH RIM 434.00 OUT. (418.40J STA. 7 +90 OUTLET t I t �_ A ' �a NO SCALE t }J 9U t ul SEWER INVERT = 417.99 CALCULATED t r INVERT 14.73' +/— BELOW FINISH FLOOR W 28.63' I EXISTING 8" VCP SEWER LINE _J C- 9. FLOOR ' i EXISTING RECENTLY ? r_. ,j o _ $ (432.72) °o iv in CONSTRUCTED CLASSROOM BUILDING �n h (� q ¢ a. p N eF 3Z to Io 28.56' I z 7SEWCER (' INVERT = 417.73 CALCULATED No S C. ;r, i INVERT 14.99' +/- BELOW FINISH FLOOR U y i STA. 6 +37.6 INLET NORTH RIM 432.04 J �'� INVERT INLET 417.56 t NO. 7745 sT��c STA. 6 +35.65 C/L SMH OF CALtW� I C L SEWER MANHOLE { (432.03 F.S.) +