HomeMy WebLinkAboutC-8921-2 - Reimbursement Agreement for Sidewalk Improvements1
REIMBURSEMENT AGREEMENT BETWEEN
6JJ NEWPORT-MESA UNIFIED SCHOOL DISTRICT AND THE CITY OF NEWPORT
<� BEACH FOR SIDEWALK IMPROVEMENTS
THIS REIMBURSEMENT AGREEMENT ("Agreement") is made and entered into
as of this 14th day of February, 2023 ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
NEWPORT-MESA UNIFIED SCHOOL DISTRICT, a political subdivision of the State of
California ("District"), and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the City.
B. As part of the City's Capital Improvement Program ("CIP"), the City is administering
the annual Concrete Replacement Program for Fiscal Year 2022-23. City intends
to construct improvements on sidewalks, driveways, curbs and gutters at various
locations in the Irvine Terrace and Corona del Mar Village communities ("Project").
C. The District is responsible for maintaining the parkways in front of the Corona Del
Mar High School and Ensign Intermediate School ("Schools"), both of which are
within the District, and desires the City, as part of the Project, remove the parkways
and widen the existing sidewalks in front of the Schools as depicted on Exhibit "A"
attached hereto and incorporated by reference herein ("Improvements").
D. The parties have determined that it would be more expedient and cost effective for
City to construct the Improvements as part of the Project than it would be for District
to do so independently.
E. District is amenable to the City constructing the Improvements with the City
agreeing to advance the costs.
F. District agrees to fully reimburse the City for the actual costs of the Improvements
through a lump sum billed by the City and approved by District for the entire cost
of the Improvements.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
SIDEWALK IMPROVEMENTS
In conjunction with the Project, City agrees to initiate and pursue to completion the
design and construction of the Improvements.
2. PLANS
City agrees that the Improvements shall be completed pursuant to approved
project plans and specifications (the "Plans and Specifications") which shall be approved
by District and used in awarding the construction contract.
3. BIDDING AND AWARD
The parties agree that the construction of the Improvements shall be included in
City's contract awarded for the Project and that the Improvements shall be bid as a
separate item or items that can be deleted. The total estimated construction cost of the
Improvements is One Hundred Two Thousand Eight Hundred Fifty Dollars and 00/100
($102,850.00), provided however, the amount to be reimbursed by District shall be based
on the actual costs, not to exceed such amount without the prior written approval of the
District which shall not be unreasonably withheld, conditioned, or delayed. Upon award
of the construction contract, City shall provide District with one (1) original copy of the
fully executed contract documents and one (1) copy of the bid package relating to the
Improvements received from the successful bidder.
4. CHANGE ORDERS
District shall promptly review proposed change order(s) and provide City with a
response within five (5) working days or sooner of receiving proposed change order(s)
information from City. District agrees not to unreasonably cause delay(s) to the
construction schedule of the Project in reviewing proposed change order(s) for the
Improvements.
5. REIMBURSEMENT
District agrees to reimburse City for the following costs (collectively, the "Cost") -
(a) the actual costs of design, construction, permits, bonds, and legal fees (excluding the
costs of preparation for this Agreement) reasonably incurred by City in connection with
the design and construction of the Improvements with reasonable prior notice to District,
plus (b) an administration fee which shall be equal to four percent (4%) of the actual cost
of construction (costs paid directly to City's contractor for construction, only, excluding
any cost for design, surveying, geotechnical or other work) of the Improvements and
which shall be deemed to cover all costs of project administration, including, but not
limited to, accounting, inspection, surveying, compaction testing, geotechnical services
and engineering. City shall keep a separate accounting of all costs incurred by City in
relation to the Improvements.
Within sixty (60) days of District's acceptance of the Improvements as provided in
Section 8, a final accounting of the Costs shall be made by City and submitted to District
along with an invoice for the costs and any supporting documentation necessary to show
the amounts which represent costs of Improvements. If progress payments are made,
amounts paid pursuant to progress payment invoices shall be subject to adjustment in
NEWPORT-MESA UNIFIED SCHOOL DISTRICT Page 2
the final accounting. Within thirty (30) days of said final accounting, District agrees to pay
the City the total amount of the costs not reasonably subject to dispute.
6. LAWS, ORDINANCES, RULES AND REGULATIONS
City shall require in its contract for the construction of the Improvements that its
contractor be fully informed of and comply with all laws, ordinances, rules and regulations,
including, but not limited to, all applicable requirements of the California Labor Code,
prevailing wage laws, and the Rules and Regulations of District, in connection with the
construction of the Improvements.
7. INSPECTION
District shall be entitled, but not required, to inspect the construction of
Improvements as it deems necessary to assure compliance with the Plans and
Specifications, including shop drawing review and material inspection thereof. District
shall have access to all phases of the Project work to be performed by City for the purpose
of such inspection; provided, however, all questions regarding the work being performed
will be directed to City's resident engineer or its qualified designee. District will promptly
notify City of any portion of the work on the Improvements which appears not to conform
to the Plans and Specifications. The determination of District as to conformity of the
Improvements with the Plans and Specifications shall be made in District's sole and
absolute discretion. District agrees not to unreasonably withhold its approval as to such
conformity of the Improvements with the Plans and Specifications. City shall require its
contractor to construct the Improvements so that the Improvements conform to the Plans
and Specifications. City agrees to assume full responsibility for certifying or obtaining
certification of the compaction of backfill material over the Improvements.
8. ACCEPTANCE
District agrees to accept Improvements when the Improvements have been
completed by City in accordance with all requirements of the Plans and Specifications,
including any change orders approved by District as provided in Section 4 hereof. At the
time of completion and acceptance of the Improvements, City agrees to furnish District
with one (1) copy of the contractor's redlined set of blueline "record" drawings (showing
all revisions, manufacturer and type of valves, pipe and fittings as required by District)
and one (1) copy of the compaction reports and certificate, survey notes and cut sheets.
9. OWNERSHIP
It is mutually agreed between the parties hereto that there shall be no change in
ownership or maintenance duties after the Project is complete.
10. GUARANTEES
City will guarantee, and pursuant to the requirement(s) of the Plans and
Specifications, cause its contractor(s) for the Improvements to guarantee the
NEWPORT-MESA UNIFIED SCHOOL DISTRICT Page 3
Improvements against defects in workmanship and materials for a period of one (1) year
from the date of acceptance by City, which acceptance shall be given only after
acceptance by District as provided in Section 8. It is further agreed that City shall cause
the Improvements to be brought or restored to full compliance with the requirements of
the Plans and Specifications, including any test requirements, for any portions of the
Improvements which during said one (1) year period are found not to be in conformance
with the provisions of the Plans and Specifications. This guarantee is in addition to any
and all other warranties, express or implied, from City's contractors or material
manufacturers, with respect to the Improvements. The guarantee and obligations under
this section shall in no way be relieved by District's inspection and/or acceptance of the
Improvements. This section sets forth the entire guarantee and warranty of City with
respect to the Improvements. The express or implied warranties of other persons with
respect to Improvements shall in no way be limited by the guarantee and warranty of City
contained in this section. If requested by District, City agrees to assign to District the
contractor's guarantee and/or any other guarantees or warranties relating to the
Improvements.
11. INDEMNIFICATION
To the furthest extent permitted by law, City shall indemnify, defend and hold
District, its officers, agents, employees, and engineers harmless from any expense,
liability or claim for death, injury, loss, damage or expense to persons or property which
may arise or is claimed to have arisen during construction of the Improvements as a result
of any work or action performed by City or on behalf of City, save and except to the extent
such expense, liability or claim is proximately caused in whole or in part by any act,
omission, or negligence of District, its officers, agents, employees or engineers or by any
act or omission for which District, its officers, agents, employees or engineers are liable
without fault.
To the furthest extent permitted by law, District shall indemnify, defend and hold
City, its officers, agents, and employees, harmless from any expense, liability or claim for
death, injury, loss, damage or expense to persons or property which may arise or is
claimed to have arisen either (i) as a result of any acts performed by District, its officers,
agents, or employees, with respect to the Improvements construction; or (ii) following
District acceptance of the Improvements, with respect to maintenance and operation of
the Improvements, save and except to the extent such expense, liability or claim is
proximately caused in whole or in part by any negligence of City, its officers, agents,
employees or engineers, or by any act or omission for which City, its officers, agents,
employees or engineers are liable without fault.
12. INSURANCE AND BONDING
City shall cause its contractor(s) to provide performance and payment bonds for
the construction of the Project including the Improvements and to obtain insurance
coverage sufficiently broad to insure the matters set forth in this Agreement and to include
District, its officers, agents, employees and engineers, as additional insureds on all
insurance policies that City requires its contractor(s) to provide. As evidence of such
NEWPORT-MESA UNIFIED SCHOOL DISTRICT Page 4
insurance coverage, City shall, prior to commencement of construction of the
Improvements, provide District with certificates of insurance and insurance endorsements
from City's contractor(s) in a form acceptable to District.
13. TERMINATION
13.1 District may terminate this Agreement at any time, subject to the provisions
of this section, by providing five (5) business days' prior written notice to City. If, at the
request or direction of a party other than City, the performance of the Work is not
accomplished or completed, District shall remain obligated for the actual amount of the
Costs incurred by City to the date of termination.
13.2 If the Project is canceled or modified so as to eliminate the necessity of the
construction of the Improvements, City shall have the right to terminate this Agreement
and thereby terminate its obligation to perform the Work, by providing five (5) business
days' prior written notice to District. In such case, District will not be obligated for any
design or any other Costs incurred by City. If District elects to perform the Work, District
may, but shall not be obligated to, acquire the design or other work from City by separate
agreement.
13.3 Except for the payment of money, neither party will be liable for any delays
or other non-performance resulting from circumstances or causes beyond its reasonable
control, including without limitation, fire or other casualty, Act of God, strike or labor
dispute, war or other violence, acts of third parties, or any law, order, or requirement of
any governmental agency or authority other than the parties.
14. NOTICE
Any notice or other written instrument required or permitted by this Agreement to
be given to either party shall be deemed received when personally served or twenty-four
(24) hours after being deposited in the U.S. Mail, postage prepaid, registered or certified
and addressed as follows.-
DISTRICT- Newport -Mesa Unified School District
2985 Bear Street, Bldg. A
Costa Mesa, California 92626
Attn: Jeffery S. Trader, Assistant Superintendent, CBO
CITY: City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Attn: Andy Tran, Senior Civil Engineer
15. SUCCESSORS AND ASSIGNS; INTEGRATION; AMENDMENT
This Agreement shall be binding upon and inure to the benefit of the successor
and assigns of City and District. This Agreement constitutes the entire Agreement
NEWPORT-MESA UNIFIED SCHOOL DISTRICT Page 5
between City and District and supersedes all prior understandings and agreements
between the parties with respect to the subjects hereof. This Agreement may be modified
only in writing signed by both parties hereto.
16. LEGAL FEES
In the event of any declaratory or other legal or equitable action instituted between
City and District in connection with this Agreement, the prevailing party shall be entitled
to recover from the losing party all of its costs and expenses, including court costs and
reasonable attorneys' fees.
17. INTENTIONALLY DELETED
18. SEVERABILITY
If any term, provision, covenant or condition of this Agreement is held to be invalid,
void or other 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.
19. APPLICABLE LAW
This Agreement shall be construed and enforced in accordance with the laws of
the State of California.
20. WAIVER
The waiver of any provision of this Agreement by either party shall not be deemed
to be a waiver of any other provision or of any preceding or subsequent breach hereunder.
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NEWPORT-MESA UNIFIED SCHOOL DISTRICT Page 6
IN WITNESS WHEREOF, the parties are signing this Agreement as of the
Effective Date.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: �/ 3AS
in
>n C. Harp
Attorney
ATTEST:
Date: 2_I7. Ina
By: ,
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
23
a'ah Blom
ayor
NEWPORT-MESA UNIFIED SCHOOL
DISTRICT, a political subdivision of the
State of California
Date: J4A) Vj 7,023
By. S (--
Trader
Assistant Superintendent, CBO
NEWPORT-MESA UNIFIED SCHOOL DISTRICT Page 7
Exhibit A
NMUSD Sidewalk Improvement
NEWPORT-MESA UNIFIED SCHOOL DISTRICT Page A-1
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