HomeMy WebLinkAboutC-7833-5 - Agreement Related to the Replacement of Overhead with Underground Distribution Facilities (Substructure Installation by Applicant) (Phase 2 & 3)l�
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p� AGREEMENT RELATED TO THE REPLACEMENT
r.. OF OVERHEAD WITH UNDERGROUND DISTRIBUTION FACILITIES
(Substructure Installation by Applicant)
V
THIS AGREEMENT RELATED TO THE REPLACEMENT OF OVERHEAD WITH
UNDERGROUND FACILITIES, made this _2D day of7(2.,2020,
between SOUTHERN CALIFORNIA EDISON COMPANY, a California corporation,
hereinafter referred to as "Utility", andthe CITY OF NEWPORT BEACH, a California
municipal corporation and charter city, hereinafter referred to as the "Applicant." Utility
and Applicant may individually be referred to herein as "Party" and collectively referred
to herein as the "Parties."
RECITALS
WHEREAS, on or about March 22, 2016, the City Council of the City of Newport
Beach created Underground Utility District No. 22a by and through Resolution No. 2016-
41;
WHEREAS, Applicant has requested Utility, pursuant to Section A of Utility's
Rule No. 20, Replacement of Overhead with Underground Distribution Facilities, to
replace Utility's existing overhead with underground distribution facilities at the location or
locations in the County of Orange, State of California, substantially described as follows:
Underground Utility District No. 22a — Phases 2 and 3: Balboa
Boulevard between 36th and 23rd Streets and Court Street and
McFadden Alleys between 23rd and 22nd Streets as shown on
the map attached hereto and incorporated herein by reference
as Exhibit A and incorporated herein by reference
("Underground Utility District No. 22a — Phases 2 & 3"); and
WHEREAS, on or about August 25, 2020, the City Council of the City of Newport
Beach awarded City of Newport Beach Contract No. C-7833-1 to Asplundh Construction
Corp. ("Applicant's Contractor"), for the work required under Underground Utility District
No. 22a which includes the Project.
NOW, THEREFORE, it is mutually agreed by and between the Parties hereto as
follows:
1. Scope of Work. Applicant will manage and oversee the work completed by
Applicant's Contractor for Underground Utility District No. 22a — Phases 2 & 3, as further
described in Utility's Design No. 1200890, Job No. TD1509510 (UG) and Utility's Design
No. 1173386, Job No. TD1574917 (UG), attached hereto and incorporated herein by
reference as Exhibit B and hereinafter referred to as "Project".
Applicant's Contractor will complete the Project, provided, however, Utility has been
granted rights of way therefor satisfactory to and without cost to Utility.
Parties hereto do hereby declare it is their mutual intention that title to and ownership
of said underground structures and substructures, consisting of pads, vaults, conduits,
ducts, boxes, and electrolier bases shall vest in Utility. Applicant agrees, that upon
completion of the Project, to take all reasonably necessary steps to ensure title
to each and every component part thereof shall pass to Utility without further action upon
the part of Applicant.
2. Project Duration. The Parties acknowledge and agree that completion of the
Project is contingent upon mutually acceptable schedules including Applicant's Contractor
schedule, obtaining of permits, licenses, real property rights, and other available
documents, outages or other key items and not being delayed by those forces described
in Section 7 (Project Delays), below. Utility shall provide an inspector through the duration
of the Project, for the purpose of providing input and working with Applicant and Applicant's
Contractor to ensure satisfactory completion the Project. However, Utility expressly
acknowledges and agrees the Applicant offers no guarantees or warranties regarding the
completion date for the Project.
3. Completion of Project. As indicated above, Utility shall provide an inspector
through the duration of the Project, for the purpose of ensuring timely inspection of work
and facilities installed by the Applicant's Contractor along with ensuring the Project is
satisfactorily performed to Utility's specifications and standards. To that end, the Parties
shall work cooperatively, in good faith and timely communicate with one another regarding
the Project. The Utility will timely respond to requests for information and/or provide input
to Applicant and Applicant's Contractor. Upon the Utility's final acceptance of the written
notice to Utility by Applicant of completion of the Project ("Completion of Project"), the
Project shall be deemed complete and Utility shall provide payment set forth in Section 4.
Applicant expressly represents and warrants that all work performed and all material used
in meeting Applicant's obligations herein are free from defects in workmanship and are in
conformity with Utility's requirements. This warranty shall commence upon receipt by
Applicant of Utility's final acceptance and shall expire one (1) year from that date. Applicant
agrees to promptly correct to the Utility's satisfaction and that of any governmental agency
having jurisdiction and at Applicant's expense any breach of this warranty which may
become apparent through inspection or operation of underground electric system by Utility
during this warranty period.
4. Payment. Utility will pay to Applicant Two Million Thirty Seven Thousand
Nine Hundred Eighty Four Dollars and 48/100 ($2,037,984.48) upon the Utility's final
acceptance of Applicant's notice to Utility of Completion of the Project, which includes a
five percent (5%) City administration cost. This payment consists of One Million Five
Hundred Eighty Thousand One Hundred Sixty Dollars and 19/100 ($1,580,160.19) for
Phase 2, and Four Hundred Fifty Seven Thousand Eight Hundred Twenty Four Dollars
2
and 29/100 ($457,824.29) for Phase 3. The agreed upon price includes all de -watering
costs necessary for all structure and trenching excavation and backfill. If additional work
beyond the Scope of Work described herein is reasonably required for Completion of
Project, Applicant will present Utility with the additional scope of work for Utility's review
and approval of scope and cost. No additional or extra cost will be paid by Utility unless
additional work is agreed upon prior to commencement of additional work. In addition,
Utility shall pay Applicant additional costs for extra work reasonably required for
Completion of Project, as directed by Applicant and approved by the Utility. Upon Utility's
final acceptance of the Project, complete payment shall be due sixty (60) calendar days
after receipt of the Applicant's invoice by the Utility.
5. Indemnity. The Applicant agrees, for itself, and for its agents, contractors,
and employees to save harmless, defend, and indemnify Utility, its officers, agents,
contractors, employees, and its successors and assigns, from and against all claims, loss,
damage, actions, causes of action, expense and/or liability arising from or growing out of
loss or damage to property, including Utility's own personal property, or injury to or death
of persons, including employees of Utility , resulting in any manner whatsoever, directly or
indirectly, by reason of the activities undertaken pursuant to this Agreement by Applicant
for replacement of overhead with underground electrical facilities or the use of or
occupancy of said Project Area by the Applicant, its agents, contractors, and employees,
invitees, successors and assigns during such activities, and regardless of whether such
claims, losses or damages are caused by Utility's ordinary negligence, but excluding any
claims, losses, or damages to the extent caused solely by SCE's gross negligence or willful
misconduct. Until such time that Utility acquires an acceptable easement from the
Applicant, Applicant further agrees to indemnify, defend and hold harmless Utility for any
claims, damages, or costs resulting from any challenge to Utility's real property rights to
locate its facilities partially on property owned by the Applicant, including but not limited
the cost to relocate Utility's facilities once installed in the event of such a challenge.
6. Rules. The work performed by the Applicant as specified herein shall comply
with all applicable statutes, codes, regulations, and ordinances.
7. Project Delays. Applicant shall not be responsible or liable to Utility for any
delay in its performance hereunder, or for any delays in the Project, due to any reason
including, but not limited to: shortage of labor or materials, delivery delays, major
equipment breakdown, load management, strikes, labor disturbances, war, riot,
insurrection, civil disturbance, weather conditions, epidemic, quarantine restriction,
sabotage, act of public enemy, earthquake, governmental rule, regulation or order,
including orders of judgments of any court or commission, requirement of additional or
separate Environmental Impacts Reports, delay in receiving a Certification of Public
Convenience and Necessity from California Public Utilities Commission ("CPUC"), delay
in obtaining necessary rights of way, act of God, or any cause or conditions beyond the
control of Utility or Applicant. The Utility expressly waives and releases any and all claims
for damages against Applicant arising out of any delays in the Project unless due to
Applicant's sole negligence or willful misconduct.
3
8. This Agreement may be subject to such changes or modifications by the
Public Utilities Commission of the State of California as said Commission may, from
time to time, direct in the exercise of its jurisdiction.
9. Amendments. The provisions of this Agreement shall not be altered or
amended by any representations or promises of any Party unless consented to in a
writing executed by all Parties.
10. Governing Law. The laws of the State of California shall govern this
Agreement and all matters relating to it and any action brought relating to this Agreement
shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of
California.
11. No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
12. Headings. The captions and headings used in this Agreement are strictly for
convenience and are not intended to and shall not affect the Parties' rights and obligations,
or the construction or interpretation of this Agreement.
13. Third Party Beneficiaries. Nothing herein is intended to create any third party
benefit.
14. No Agency, Partnership or Joint Venture. Nothing contained herein shall be
deemed or construed as creating the relationship of principal and agent or partnership of
or joint venture by and between the Parties hereto.
15. Waiver. No waiver of any default or breach hereunder shall be implied from
any omission to take action on account thereof, notwithstanding any custom and practice
or course of dealing. No waiver by any Party of any provision under this Agreement shall
be effective unless in writing and signed by such Party, and no waiver shall affect any
default other than the default specified in the waiver and then said waiver shall be operative
only for the time and to the extent therein stated. Waivers of any covenant shall not be
construed as a waiver of any subsequent breach of the same.
[THIS SPACE INTENTIONALLY LEFT BLANK; SIGNATURES TO FOLLOW)
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement above on
the day and year first written.
DATED:
APPROVED AS TO FORM:
City Attorney's Office
CITY OF NEWPORT BEACH,
a California municipal corporation
By: By:
Aaron C.rp C*M 0410317' G c K. Leung
City Atto ey Ci Manager
AT
By:
Leil
City UerK
SOUTHERN CALIFORNIA EDISON
COMPANY, a California corporation
By:
v
reg erree,
Vice resident, Distribution
Attachments: Exhibit A — Location Map of Project Area
Exhibit B — Scope of Work
5
EXHIBIT A
LOCATION MAP OF PROJECT AREA
A-1
PACIFIC
OCEAN
ASSESSMENT DISTRICT 111, UNDERGROUND
UTILITY DISTRICT 22 - PHASES 2 (BALBOA) & 3
LOCATION MAP
N
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
C-7833-1 1 8/25/20
EXHIBIT B
SCOPE OF WORK
FIN
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