HomeMy WebLinkAboutC-8515-3 - Cooperative Agreement for Irvine Avenue Pavement RehabilitationCOOPERATIVE AGREEMENT
BETWEEN
THE CITY OF NEWPORT BEACH
AND
THE CITY OF COSTA MESA
FOR
IRVINE AVENUE PAVEMENT REHABILITATION
This Cooperative Agreement ("Agreement") is made and entered into as of this 8th
day of June, 2018, by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("NEWPORT BEACH") and the CITY OF COSTA
MESA, a municipal corporation ("COSTA MESA"). NEWPORT BEACH and COSTA
MESA are referred to collectively herein as "CITIES".
RECITALS
A. CITIES desire to rehabilitate Irvine Avenue from 16th Street to Santiago
Drive within NEWPORT BEACH and COSTA MESA (the "Project").
B. CITIES desire to set forth their respective obligations with respect to
implementation of the Project.
NOW, THEREFORE, it is mutually understood and agreed to by the CITIES as
follows:
1. TERM
The term of this Agreement shall commence on the Effective Date and end upon
COSTA MESA's final payment to NEWPORT BEACH following Project completion, as
set forth herein, unless previously terminated as provided herein.
2. SCOPE OF PROJECT
The Project includes the rehabilitation of Irvine Avenue from 16th Street to
Santiago Drive within NEWPORT BEACH and COSTA MESA, which includes but is not
limited to pavement rehabilitation, drainage and utility improvements, parkway and
landscaping improvements, traffic signage and signal improvements, and striping and
painted curb improvements.
3. RESPONSIBILITIES OF NEWPORT BEACH
NEWPORT BEACH agrees to the following.-
a.
ollowing:a. NEWPORT BEACH shall be the lead agency.
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b. NEWPORT BEACH will manage the design and construction of the
PROJECT to the best of its ability within the established, agreed
upon budget and time frame.
C. NEWPORT BEACH will cause the construction to be completed in
accordance with the construction contract documents.
d. NEWPORT BEACH shall require the contractor to provide the
necessary insurance coverage for construction work, as specified in
the construction contract documents for the Project. NEWPORT
BEACH and COSTA MESA shall be named as additionally insured
parties for the Project.
e. NEWPORT BEACH shall provide COSTA MESA a complete
breakdown of the engineer's estimate of probable construction costs
for the segment of the PROJECT within COSTA MESA prior to
advertising the Project.
f. NEWPORT BEACH shall provide COSTA MESA with construction
change orders affecting COSTA MESA and shall obtain COSTA
MESA's written approval prior to granting approval with the
contractor.
g. NEWPORT BEACH shall provide COSTA MESA documentation
reflecting any additional consulting services affecting COSTA MESA
and shall obtain COSTA MESA's written approval prior to permitting
commencement of additional services by the consultant.
4. RESPONSIBILITIES OF COSTA MESA
COSTA MESA agrees to the following:
a. Prior to the start of construction, COSTA MESA shall issue to the
contractor a no -fee permit for PROJECT.
b. COSTA MESA will advance NEWPORT BEACH one-half of COSTA
MESA's estimated share of construction costs as set forth in Exhibit
A, attached hereto and incorporated herein by this reference, within
thirty (30) days after execution of this Agreement. COSTA MESA
shall pay NEWPORT BEACH the remainder of COSTA MESA's
share of construction costs, plus any costs associated with change
orders approved by COSTA MESA as set forth herein, within thirty
(30) days of NEWPORT BEACH providing COSTA MESA written
notice of its filing of the Notice of Completion.
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C. Construction change orders affecting COSTA MESA shall be
reviewed and shall be subject to written approval by COSTA
MESA prior to granting approval with the contractor. Costs related to
such change orders and administration will be reimbursed by
COSTA MESA concurrently with COSTA MESA's payment of the
remainder of its share of construction costs.
d. Upon completion of the design and COSTA MESA's approval of the
construction contract documents for the segment of the Project
within its city limits, COSTA MESA shall reimburse NEWPORT
BEACH for its share of costs for the design services and design
administrative fee as set forth in Exhibit A.
e. Additional consulting services affecting COSTA MESA shall be
reviewed and shall be subject to written approval by COSTA MESA
prior to commencement of additional services by the consultant.
COSTA MESA shall reimburse costs related to its share of the
additional consulting services and administration no later than thirty
(30) days of NEWPORT BEACH providing COSTA MESA written
notice of its filing of the Notice of Completion.
5. SHARED RESPONSIBILITIE
a. CITIES agree to coordinate all work involving traffic signals.
b. Inspectors and/or engineers from NEWPORT BEACH and COSTA
MESA will coordinate construction inspections, verification of work,
and site walk final inspection at completion of the PROJECT.
C. Any hazardous material or contamination found within the existing
COSTA MESA rights-of-way during construction requiring remedy or
remedial action shall be the responsibility of COSTA MESA. Any
hazardous material or contamination found within NEWPORT
BEACH rights-of-way during construction requiring the same defined
remedy or remedial action shall be the responsibility of NEWPORT
BEACH. COSTA MESA shall sign the manifest and pay all costs for
remedy or remedial action within the existing COSTA MESA rights-
of-way. NEWPORT BEACH shall sign the manifest and pay all costs
to remedy or for remedial action within the existing NEWPORT
BEACH rights-of-way.
d. The party responsible for funding any hazardous material cleanup
shall be responsible for developing, processing and obtaining an
appraisal of the necessary remedy and/or remedial action plans and
designs in accordance with standards and practices mandated by
Federal and State regulatory agencies having jurisdiction.
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e. Existing maintenance agreements for signals, median landscaping
and roadway shall remain in full effect and are not modified by this
agreement.
Each of the parties agrees to do all things in a timely manner reasonably necessary
or convenient to carry out the spirit, intentions and objectives described in this Agreement,
whether or not expressly prescribed herein, and no consent, agreement, approval,
concurrence, decision, determination, or action shall be unreasonably withheld by either
party.
6. INDEMNIFICATION
NEWPORT BEACH shall indemnify, defend, save and hold harmless COSTA
MESA, its elected officials, officers, agents, employees, and volunteers, at NEWPORT
BEACH's sole expense, from and against any and all loss, damages, liability, claims,
suits, actions, or other legal proceedings, including attorneys' fees and reasonable costs
incurred in defending any such action, brought against COSTA MESA, its elected officials,
officers, agents, employees, and/or volunteers arising out of or relating to the acts or
omissions or willful misconduct of NEWPORT BEACH, its elected officials, officers,
employees, agents, or volunteers in the performance of its obligations pursuant to this
Agreement.
COSTA MESA shall indemnify, defend, save and hold harmless NEWPORT
BEACH, its elected officials, officers, agents, employees, and volunteers, at COSTA
MESA's sole expense, from and against any and all loss, damages, liability, claims, suits,
actions, or other legal proceedings, including attorneys' fees and reasonable costs
incurred in defending any such action, brought against NEWPORT BEACH, its elected
officials, officers, agents, employees, and/or volunteers arising out of or relating to the
acts or omissions or willful misconduct of COSTA MESA, its elected officials, officers,
employees, agents, or volunteers in the performance of its obligations pursuant to this
Agreement.
7. INSURANCE
a. NEWPORT BEACH and COSTA MESA shall maintain and keep in full force
and effect during the term of this Agreement insurance or a program of self-
insurance against claims for injuries to persons or damages to property
which may arise in connection with NEWPORT BEACH's or COSTA
MESA's performance of its obligations hereunder.
b. NEWPORT BEACH shall require consultants and contractors performing
work in connection with this Agreement to obtain and maintain insurance as
described below:
General Liability Insurance. Consultants and contractors shall
10
maintain commercial general liability insurance which shall include,
but not be limited to protection against claims arising from bodily and
personal injury, including death resulting therefrom and damage to
property, resulting from any act or occurrence arising out of
consultants' and contractors' operations related to the performance
of this Agreement, including, without limitation, acts involving
vehicles. The amounts of insurance shall be not less than the
following: single limit coverage applying to bodily and personal injury,
including death resulting therefrom, and property damage, in the total
amount of $1,000,000 per occurrence and $2,000,000 in the
aggregate.
ii. Business automobile liability for owned vehicles, hired, and non -
owned vehicles, with a policy limit of not less than $1,000,000.00,
combined single limits, per occurrence for bodily injury and property
damage.
Workers' Compensation Insurance. In accordance with California
law, consultants and contractors, if they have any employees, are
required to be insured against liability for workers' compensation or
to undertake self-insurance. Prior to commencing the performance
of any work related to this Agreement, consultants and contractors
shall be required to obtain and maintain any required employer's
liability insurance with limits not less than $1,000,000 per accident.
iv. Professional Liability (errors and omissions) insurance, with a
combined single limit of not less than $1,000,000 per claim and
$2,000,000 aggregate.
V. The general liability and business automobile liability insurance shall.-
(a)
hall:(a) name NEWPORT BEACH and COSTA MESA, and their elected
officials, officers, employees, agents, volunteers and representatives
as additional insured(s); and (b) be primary and not contributory with
respect to insurance or self-insurance programs maintained by each
respective city.
C. NEWPORT BEACH shall require that consultants and contractors:
State on their insurance policies and certificates that the policies
shall not be canceled or reduced in coverage or changed in any
material aspect without thirty (30) days prior written notice to the city.
ii. Maintain the insurance coverages set forth in this section.
iii. Furnish certificates of insurance to the city evidencing the required
coverages and endorsements set forth herein.
d. If a consultant or contractor maintains broader coverage and/or higher limits
than the minimums described above, the CITIES shall require and shall be
entitled to the broader coverage and/or higher limits maintained by the
consultant or contractor.
8. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in default
in the performance of this Agreement. If such default is not cured within a period of seven
(7) calendar days after receipt of written notice of default, specifying the nature of such
default and the steps necessary to cure such default, or if more than seven (7) calendar
days are reasonably required to cure the default and the defaulting party fails to give
adequate assurance of due performance within seven (7) calendar days, the non -
defaulting party may terminate the Agreement immediately by giving to the defaulting
party written notice thereof.
Notwithstanding the above provisions, NEWPORT BEACH and COSTA MESA
shall each have the right, at its sole and absolute discretion and without cause, of
terminating this Agreement at any time by giving no less than seven (7) calendar days'
prior written notice to the other city. In the event of termination under this Section, COSTA
MESA shall pay NEWPORT BEACH for services satisfactorily performed including costs
for work deemed necessary by NEWPORT BEACH to secure the PROJECT after
termination and costs incurred up to the effective date of termination for which the
consultant or contractor has not been previously paid. Within fourteen (14) calendar days
from the effective date of termination, NEWPORT BEACH shall deliver to COSTA MESA
all reports, documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
9. GENERAL PROVISIONS
a. Representatives; Notices. The following staff members shall be the selected
representatives of each city to act in each respective city's behalf with
respect to this Agreement. Any notices, requests, approvals, or
communications shall be given to each representative noted below:
To Newport Beach.-
David
each:
David Webb
Public Works Director
P.O. Box 1768
Newport Beach,
(949) 644-3311
CA 92623-9575
N
To Costa Mesa:
Raja Sethuraman
Public Services Director
77 Fair Drive
Costa Mesa, CA 92626
(714) 754-5343
Either party may change the designations set forth herein upon written
notice to the other party.
b. Disputes. In the event of any dispute arising out of this Agreement or an
alleged breach thereof, CITIES shall first attempt in good faith to resolve
such dispute informally.
C. Waiver. The delay or failure of either party at any time to require
performance or compliance by the other of any of its obligations or
agreements shall in no way be deemed a waiver of those rights to require
such performance or compliance. No waiver of any provision of this
Agreement shall be effective unless in writing and signed by a duly
authorized representative of the party against whom enforcement of a
waiver is sought. The waiver of any right or remedy in respect to any
occurrence or event shall not be deemed a waiver of any right or remedy in
respect to any other occurrence or event, nor shall any waiver constitute a
continuing waiver.
d. Severability. If any term, provision, covenant or condition of this Agreement
is held to be invalid, void or otherwise unenforceable, to any extent, by any
court of competent jurisdiction, the remainder of this Agreement shall not
be affected thereby, and each term, provision, covenant or condition of this
Agreement shall be valid and enforceable to the fullest extent permitted by
law.
e. Compliance with All Laws. COSTA MESA and NEWPORT BEACH shall
comply with all applicable federal, state and local laws, statutes, ordinances
and regulations of any governmental agency having jurisdiction over the
PROJECT.
f. Force Majeure. Neither party shall be responsible for delays or lack of
performance resulting from acts beyond the reasonable control of the party
or parties. Such acts include, but are not limited to, any incidence of fire,
flood, acts of God, commandeering of material, products, plants or facilities
by the federal, state or local government, national fuel shortage, and any
other conditions beyond the reasonable control of a party.
g. Assignment. Neither this Agreement, nor any of the parties' rights,
obligations, or duties hereunder may be assigned in whole or in part by
either party without the prior written consent of the other party in its sole and
absolute discretion. Any attempted assignment shall be deemed void and
of no force and effect. Consent to one assignment shall not be deemed
consent to any subsequent assignment, nor the waiver of any right to
consent to such subsequent assignment.
rA
h. Entire Agreement. This Agreement represents the entire understanding of
the parties as to those matters contained herein, and no prior oral or written
understanding shall be of any force or effect with respect to those matters
covered in this Agreement. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, and
construed as if drafted jointly by NEWPORT BEACH and COSTA MESA.
Corporate Authority. The persons executing this Agreement on behalf of
the parties hereto warrant that they are duly authorized to execute this
Agreement on behalf of said parties and that by so executing this
Agreement the parties hereto are formally bound to the provisions of this
Agreement.
Amendments. This Agreement may be modified or amended only by a
written document executed by both NEWPORT BEACH and COSTA MESA
and approved as to form by their respective City Attorneys.
k. Governing Law. The laws of the State of California shall govern this
Agreement and all matters relating to it. Any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the
County of Orange, State of California.
Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorney's fees.
M. Effective Date. This agreement shall take effect immediately upon the last
date on which this Agreement is executed by the parties.
[SIGNATURES ON NEXT PAGE.]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
CITY OF NEWPORT BEACH,
a California municipal corporation
and charter city
Date:
R
By:'`G. o
Marshall "Duffy" ffield, M yor
ATTEST: /_ Mg
Date: -
By:��
Leilani
L
BrownSiN Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: J-16 g,Zp�g
By.
Aaron C. p, City Attorney
CITY OF COSTA MESA, a California
municipal corporation
Date:
By:
Sandra L. Genis, Mayor
ATTEST:
Date: -7—
By: ..etc..
Brenda Green City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: JUG -7 I. Z o l�
By:-'
•
Thomas P. Duarte, City Attorney
Attachments:
Exhibit A — Design and Construction Costs
9
EXHIBIT A
DESIGN AND CONSTRUCTION COSTS
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