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12.E Report Coastal Christian School Fire Suppression Water 2021-11-16 PISMO BEACH COUNCIL AGENDA REPORT Agenda Item #12.E SUBJECT/TITLE: EMERGENCY FIRE SUPPRESSION WATER SERVICE TO COASTAL CHRISTIAN SCHOOL AT 1005 NORTH OAK PARK BOULEVARD RECOMMENDATION: Adopt a Resolution: 1. Approving a request by Coastal Christian School for the City of Pismo Beach to provide emergency fire suppression water to the school’s campus at 1005 North Oak Park Boulevard; and 2. Authorizing the City Manager to execute an agreement with Coastal Christian School for off-site emergency fire suppression water service if approved by the San Luis Obispo Local Agency Formation Commission (LAFCO). BACKGROUND: Coastal Christian School is located at 1005 North Oak Park Boulevard outside Pismo Beach city limits, but within its sphere of influence. The school has a student population of approximately 350, ranging from transitional kindergarten (TK) through the twelfth grade, and has been serving the community for the past 50 years educating families mostly between San Luis Obispo and Nipomo. The current campus located 1005 North Oak Park Boulevard opened in 2014. The master plan envisioned the school’s campus being developed in two phases. Phase I has been constructed and includes the current classrooms, offices, sports courts, and supporting infrastructure. An outside service agreement for the City to provide sewer services was approved by the City Council on July 2, 2013 and then by LAFCO on July 18, 2013. Phase II will include a multipurpose building which will house a gymnasium, twelve classrooms, an administrative office, and a kitchen, as well as sports fields. Phase I is shown as “existing campus” and Phase II is shown as “Proposed Campus” in Figure 1 on the next page. 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, 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 will require a 180,000-gallon reservoir for fire suppression storage. However, if the school is able to utilize the City’s water system, it would only need to construct two additional 5,000-gallon tanks for fire suppression storage. Council Agenda 11-16-2021 12.E-1 Figure 1: Coastal Christian Campus If approved by the City Council, the school’s fire suppression system would be connected to City’s water system via a 6-inch water meter and any water used would be billed at an outside user’s rate, which is higher than water delivered within the City’s boundaries to account for the additional costs associated with serving an outside user. Once the two new fire suppression tanks were constructed, they would be filled from the school’s existing well. A float valve would be installed in the fire suppression tanks that would turn on the City’s water supply only if the level in the tanks drop below a predetermined level, which would only occur if there was a fire that required the use of the onsite fire hydrants. A typical float valve application is shown in Figure 2, below. Figure 2: Typical float valve. Council Agenda 11-16-2021 12.E-2 The point of connection is proposed to be in an existing utility easement on the campus of New Life Church, as shown in Figure 3, below. Figure 3. Proposed point of connection between the City’s water system and the Coastal Christian fire suppression system. If the attached agreement is approved by the City Council, the City will submit an extension of services application to LAFCO for approval. Coastal Christian School will be required to pay for all costs associated with permitting and construction of the proposed improvements, including any LAFCO fees. Because this connection is to a non-profit organization that provides education and serves local children and the community, and because this connection is for emergency use only, staff does not believe such a connection sets a precedent for others to attempt to connect to the City’s water system in the future. Benefit to Community and City The City has been considering moving its water system to an advanced metering infrastructure (AMI) system that may require the use of antennas. The attached agreement (Attachment 1.A) not only governs Coastal Christian School’s use of City water, but also allows the City to install an antenna on the school’s property should the City need to do so to support a future AMI system. Additionally, if the project is built, the gymnasium and classrooms will be available for community recreation use including for classes and youth sports. Council Agenda 11-16-2021 12.E-3 Conclusion and Recommendation Staff recommends the City Council adopt a Resolution (Attachment 1) approving the request by Coastal Christian School for the City of Pismo Beach to provide emergency fire suppression water to the school’s campus located at 1005 North Oak Park Boulevard and authorizing the City Manager to execute an agreement with Coastal Christian School for off-site emergency fire suppression water service if approved by LAFCO. FISCAL IMPACT: There is no direct fiscal impact of approving this agreement. ALTERNATIVES: 1. Do not adopt the attached resolution; provide staff with direction on how to proceed. ATTACHMENTS: 1. Resolution 1.A. Exhibit A to Resolution: Extra-territorial service and offsite infrastructure agreement between Coastal Christian School and the City of Pismo Beach Submitted by: Meeting Date: November 16, 2021 Benjamin A. Fine, P.E., Director of Public Works/City Engineer City Manager Approval: Council Agenda 11-16-2021 12.E-4 RESOLUTION NO. R-2021-XXX A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PISMO BEACH, CALIFORNIA APPROVING A REQUEST BY COASTAL CHRISTIAN SCHOOL FOR THE CITY OF PISMO BEACH TO PROVIDE EMERGENCY FIRE SUPPRESSION WATER TO THE SCHOOL’S CAMPUS AT 1005 NORTH OAK PARK BOULEVARD; AND AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT WITH COASTAL CHRISTIAN SCHOOL FOR OFF-SITE EMERGENCY FIRE SUPPRESSION WATER SERVICE IF APPROVED BY THE SAN LUIS OBISPO LOCAL AGENCY FORMATION COMMISSION (LAFCO) WHEREAS, Coastal Christian School is located at 1005 North Oak Park Boulevard outside Pismo Beach city limits, but within its sphere of influence; and WHEREAS, Phase I of the current campus was opened in 2014 and includes the current classrooms, offices, sports courts, and supporting infrastructure; and WHEREAS, to meet fire suppression requirements for the campus’s Phase II, the fire system must be able to provide 1,500 gallons per minute (gpm) for two hours, which means the school’s current water system would require a 180,000-gallon reservoir for fire suppression storage; however if the school is able to utilize the City’s water system, it would only need to construct two additional 5,000-gallon tanks for fire suppression storage; and WHEREAS, the school’s fire suppression system will be connected to City’s water system via a 6-inch water meter and any water used would be billed at an outside user’s rate pursuant to Pismo Beach Municipal Code Section 13.08.140(B); and WHEREAS, once the two new fire suppression tanks are constructed, they will be filled from the school’s existing well and a float valve will be installed that will turn on the City’s water supply only if the level in the tanks drop below a predetermined level established by the Director of Public Works/City Engineer that would only occur if there was a fire that required the use of the onsite fire hydrants; and WHEREAS, Coastal Christian School will be required to pay for all costs associated with permitting and construction of the proposed improvements, including any LAFCO fees. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Pismo Beach hereby approves the request by Coastal Christian School for the City of Pismo Beach to provide emergency fire suppression water to the school’s campus located at 1005 North Oak Park Boulevard and authorizes the City Manager to execute an agreement (Exhibit A) with Coastal Christian School for off-site emergency fire suppression water service if approved by LAFCO, incorporating among other matters, the requirements set forth in the recitals herein. Council Agenda 11-16-2021 12.E-5 Attachment 1 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 16th day of November 2021, by the following vote: AYES: NOES: ABSENT: ABSTAIN: RECUSED: Approved: Attest: ________________________ ________________________ Ed Waage, Mayor Erica Inderlied, City Clerk Council Agenda 11-16-2021 12.E-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 , 2021, ("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”); and WHEREAS, Phase 0 of the proposed school serves predominately grades K – 6, and the new multi-purpose building will include expanded classrooms for grades 7 – 12. The facilities are designed for approximately six hundred (600) students and fifty (50) faculty/staff members; and WHEREAS, CCS anticipates the multi-purpose building will be constructed and operational on the Property by the 2023 school year. The actual timing for construction will be subject to funding availability and other factors; and WHEREAS, under an existing Extra-Territorial Service and Offsite Infrastructure Agreement between CCS and the City, sewer service is currently provided to the Property; and Council Agenda 11-16-2021 12.E-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; and WHEREAS, the Property is within CITY's sphere of influence, but is currently outside of CITY's limit boundary; and 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; and WHEREAS, CITY has available water service for fire suppression which may be extended to the Property, and CITY is willing to provide water service to the Property for fire suppression only, 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’s director of public works. 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: water meter, double check detector assembly, approximately 1,760 linear feet of 12-inch diameter water main, and an air gap separation into one or more polyethylene water storage tanks (“Water Improvements”). The Water Improvements shall ensure that water from the CITY’s municipal water system shall only be taken for use on the Property during such time as the well on the Property is unable to provide adequate fire suppression storage and flow to the Property, or for annual testing of fire suppression systems. The CITY’s municipal water system shall not be used to fill or top off the water tank(s) except as previously described. CCS acknowledges and agrees that any use of CITY water other than for fire suppression purposes 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. Furthermore, in the event of any Council Agenda 11-16-2021 12.E-8 Attachment 1.A termination of this Agreement, City shall be entitled to maintain the antenna array and associated infrastructure after the date of termination, regardless of how the Agreement is terminated. CCS grants City a non-exclusive license to maintain the antenna array and associated infrastructure on the Property that shall only be subject to termination after CCS provides City 365 days’ advance written notice of termination. 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's Department of Public Works, 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 are in compliance 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 Public Works 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, and the CITY's Public Works Standard Specifications and Drawings, which construction plans and Public Works Standard Specifications and Drawings are incorporated herein by reference and made a part of this Agreement. In the event there are not Public Works 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 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 Council Agenda 11-16-2021 12.E-9 Attachment 1.A two (2) working days 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 on each day, it shall give due notice to CITY's Public Works Director/City Engineer 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 Public Works Director/City Engineer 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 Public Works Director/City Engineer 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 are in compliance with CITY's Public Works Standard Specifications and Drawings, conditions, policies and ordinances. The Water Improvements shall comply with CITY Public Works 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 Master 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 Prior to Acceptance by CITY. Until the Water Improvements are dedicated to and accepted by CITY, if ever, 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. 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 Council Agenda 11-16-2021 12.E-10 Attachment 1.A 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. Dedication of Water Improvements to City: Upon completion of the Water Improvements by CCS: a. CCS shall make an irrevocable offer of dedication, free of charge, of the Water Improvements to CITY. CITY shall have the right, but not the obligation, to accept the offer of dedication at such time as it determines in its sole discretion, if ever. b. All easements necessary for the Water Improvements shall be conveyed to CITY and shall be in a form acceptable to CITY. c. CCS shall remedy any defective work or labor or any defective materials relating to the construction and installation of the Water Improvements and pay for any damage to other work or improvements resulting therefrom which shall occur within a period of one (1) year from the date of CITY's acceptance of the Water Improvements. 13. 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. 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. 14. 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 Council Agenda 11-16-2021 12.E-11 Attachment 1.A listed in CITY's Master 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 Master 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 Master Fee Schedule. 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 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. 15. 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. 16. 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. Council Agenda 11-16-2021 12.E-12 Attachment 1.A 17. 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 facsimile 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 the time of the mailing thereof. 16. Binding. Once this Agreement is signed by all parties, 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. 17. 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. 18. 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. 19. 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 Council Agenda 11-16-2021 12.E-13 Attachment 1.A 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 in the Water Improvements. CCS's obligations under the preceding sentence shall apply regardless of 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. 20. 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. 21. 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. 22. 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 Council Agenda 11-16-2021 12.E-14 Attachment 1.A Agreement and any rights and duties hereunder shall be San Luis Obispo County, California. 23. 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. 24. Severability. The provisions of this Agreement are severable. The invalidity or unenforceability of anyone provision in this Agreement shall not affect the other provisions. 25. 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. 26. 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. 27. Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference, incorporated into and made a part of this Agreement. 28. 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. 29. 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. 30. 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. 31. 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. Council Agenda 11-16-2021 12.E-15 Attachment 1.A 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. 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 ___________________________ By: ___________________________ Its: 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: Council Agenda 11-16-2021 12.E-16 Attachment 1.A By:_______________________ City Attorney o:\coastal christian school 18-0062\city of pismo beach\2021-05-19.draft ccs water for fire suppression agreement track changed cmf-dmf clean.doc Council Agenda 11-16-2021 12.E-17 Attachment 1.A