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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. [SIGNATURES ON NEXT PAGE] 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 Mr � rc Z _ W ee]\3]YNitltlO Y 5133tl15-OOZ\1N3tltl11] C2-22A3\s�so� N op 0 U e'3 'h fin• ��v .��'-; +.