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HomeMy WebLinkAboutC-2917 - Sale & Delivery of Water Outside City of Newport BeachCITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92658$915 (714) 6443005 0 �� I TO: VINANCE DIRECTOR _ 2-9 - 93 FRAM: CITY CLERK DATE, January 26, 1993 SUBJECT: -Contract No. C -2917 Description of Contract Sale and Delivery of Water outside the City of Newport Beach Effective date of Contract February 1, 1993 Authorized by Minute Action, approved on .Tune 22, 1992 Contract with The Ralph D. Mitzel Company, Inc. Address 1520 North Fairview Santa Ana, CA 92706 Amount of Contract (See Agreement) "94a6'4�'e Wanda E. Raggio City Clerk WER:pm Attachment 3300 Newport Boulevard, Newport Beach C - ?9/7 AGREEMENT FOR THE SALE AND DELIVERY OF WATER OUTSIDE THE CITY OF NEWPORT BEACH TO THE RALPH D. MITZEL COMPANY. INC. THIS AGREEMENT, made and entered into this 5T4'% day of J�+NVARy 1993 by and between the City of Newport Beach, a municipal corpoon, hereinafter referred to as "City" and The Ralph D. Mitzel Company, Inc., a California corporation, hereinafter referred to as "Customer ". W 1 T N E S S E T H WHEREAS, "City" owns and operates a municipal water supply and appurtenant facilities and delivery pipelines in Newport Beach and on Spyglass Hill, and; WHEREAS, "City" has the ability and capacity to make water available through the City's existing system, and; WHEREAS, "City" and "Customer" desire to enter into an Agreement to sell /purchase water, and; WHEREAS, "Customer" is a contractor performing work outside the limits of "City ", and is proximately located to "City" water facilities. "Customer ", desires to purchase "City's" water on a temporary basis until other water supply and delivery facilities are available, and; WHEREAS, "City" and "Customer" wish to formalize a contract of sale as set forth herein below. NOW THEREFORE, in consideration of the foregoing, "City" and "Customer" mutually agree and understand that: I. TERM A. The term of this purchase /sale contract shall be from FEeiLu^x-f 1, 1993 , through FEeKuAFY 1, 1994 , both dates inclusive. B. The term of this contract may be extended in term by thirty (30) days if both parties agree to do so. I of 6 II. MAINTENANCE & REPAIRS A. The "City" and "Customer" shall each be responsible for repairing and maintaining their respective water pipelines, valves and associated facilities and shall make any such necessary repairs in a timely manner. III. CITY'S RESPONSIBILITIES "City" shall be responsible for: A. Providing potable water through the City -owned water delivery system and to the "Customer- provided" meter. B. Providing water at a relatively constant pressure and flow. C. Maintaining and operating the City -owned portion of the water delivery system. IV. CUSTOMER RESPONSIBILITIES "Customer" shall be responsible for: A. Purchasing water delivered by "City" at the agreed price. B. Maintaining and operating the customer -owned portion of the water connection and pipeline and the water meter. C. Operating the "Customer" water system so as to draw water through the "City" pipeline and meter at a more or less continuous demand rate. D. Notify "City" of any changes in water delivery rates or any intentions of terminating water deliveries in accord with this Agreement. E. Using reclaimed water as a primary source should it become available during the term of this agreement. F. Limit the hours of construction use of the metered connection to non -peak demand hours of the day or night and then only after notifying the City 24 hours in advance. 1. Peak hours are determined to be from 6:30 a.m. until 9:30 a.m. in the morning and from 4:00 p.m. until 7:30 p.m. in the evening. G. Providing all pipe, valves, fittings and meters to construct the temporary connection. Upon termination of use, all valves and fittings shall become the property of "City ". 2of6 H. Providing all labor and equipment to connect to the City's existing water main and to construct the temporary connection in accord with a City approved plan. I. Obtaining all necessary permits to install the metered connection and perform all work appurtenant thereto. 1. "Customer" must obtain an "encroachment permit" from the City of Newport Beach, Public Works Department prior to commencing any work related to this metered connection. V. WATER PURCHASE AND PAYMENT A. Water Purchase Price "Customer" shall pay for all water received through "City" meter at the rate of three dollars and no cents per one hundred cubic feet of water. ($3.00 /CCF). In the unforeseen event of an increase in costs for the "City" to deliver water to the contractor, "City" shall have the right to adjust the price upward to recover those increased costs. B. Payment "City" shall invoice "Customer" on a bi- monthly basis. "Customer" shall pay "City" the amount invoiced within thirty -five (35) days after the invoice is mailed as specified in Section V, herein. Funds shall be payable in U.S. Dollars; remittance by check is acceptable. Checks shall be made payable on demand of "City of Newport Beach" to the attention of the City Finance Department. C. Late Charge "Customer" shall be charged a late penalty of one percent (1 %) of the outstanding balance for each thirty (30) days or part thereof for which payment is late. VII. NOTICE A. Notice to City All correspondence and payment shall be sent through United States mail, postage paid, to the following address and attention: City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Attention: Jeff Staneart Utilities Director 3 Of 6 B. Notice to Customer All correspondence and invoices shall be sent through United States mail, postage paid, to the following address and attention: The Ralph D. Mitzel Company, Inc. 1520 North Fairview Santa Ana, California 92706 Attention: Paul Cunningham Vice President VIII. TERMINATION A. Without Cause Both parties shall have the right to terminate this agreement without cause upon thirty (30) days written notice. B. With Cause "City" or "Customer" may terminate this agreement immediately, if the City's water source is depleted or incurs unacceptable pressure fluctuations or drops or the quality of the water deteriorates to a point to be of concern as determined by the City's Water Quality Supervisor. IX. ASSIGNMENT "Customer" may assign its rights and obligations under this Agreement at any time to The Irvine Company upon prior written notice and consent of "City ", and The Irvine Company shall be substituted in place of "Customer" for all purposes hereunder as of the effective date of such notice. X. INSURANCE "Customer" must provide proof of "Worker's Compensation Insurance" coverage for all workers and employees. "Customer" shall name the City of Newport Beach as an "additional insured" on all policies of insurance for liability coverage. Such coverage shall be in accord with the insurance requirements outlined below: A. With respect to such insurance as is afforded by the policy for General Liability, the City of Newport Beach, its officers and employees are additional insureds but only with respect to liability arising out of operations performed by or on behalf of the named insureds in connection with the contract designated below or acts and omissions of the additional insureds in connection with its general supervision of such operations. The insurance afforded said additional insured(s) shall apply as primary insurance and no other insurance maintained by the City of Newport Beach shall be called upon to contribute with insurance provided by this policy. 4 0f6 0 B. The policy shall include the following provision: "The insurance afforded by the policy applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the liability of the company affording coverage." C. Insurance Companies affording coverage shall be (1) currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, and (2) assigned Policyholders' Rating "A" (or higher) and Financial Size Category Class VIII (or larger) in accordance with the latest edition of Best's Key Rating Guide: Property- Casualty. XI. WAIVER A waiver by "City" of any breach of any term, covenant, or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant, or condition contained herein whether of the same or different character. XII. COST OF LITIGATION If any legal action is necessary to enforce any provision hereof or for damages by reason of an alleged breach of any provisions hereof, the prevailing party shall be entitled to receive from the losing party all costs and expenses, including attorney's fees, in such amount as the court may adjudge to be reasonable costs of litigation. XIII. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both "City" and "Customer ". XIV. HOLD HARMLESS "Customer" shall indemnify and hold harmless, "City ", its City Council, boards and commissions, officers, agents, servants, and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses, whatsoever, including reasonable costs of litigation, regardless of the merit or outcome of any such claim or suit, arising from or in any manner connected to "Customer's" errors, negligent acts, omissions, or work conducted pursuant to this Agreement. 5 Of 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the first date above written: APPROVED AS TO FORM: Robi;f Flory Assistant City ATTEST: Wanda Raggio City Clerk 715M City of Newport Beach, a municipal corporation Phil Sansone ayor "CITY" The Ralph D. Mitzel Company, Inc. a California corporation Paul Cunningham, Vice President- "Customer" ASSIGNMENT AGREEMENT This Assignment Agreement ( "Agreement ") is made as of this I2:'44 day of _ JAwUNRY , 1993, by and between The Irvine Company, a Michigan corporation ( "Irvine "), Ralph D. Mitzel Company, Inc., a California corporation ( "Mitzel "), and the City of Newport Beach, a Municipal corporation ( "City ") with reference to the following facts: A. City and Mitzel have previously entered into that certain "Agreement for the Sale and Delivery of Water Outside the City of Newport Beach to the Ralph D. Mitzel Company, Inc." (the "Water Agreement "), dated as of - ANuARY 5T', 3 1993 by and between the City and Mitzel providing for the provision of water by City to Mitzel according to the terms of the Water Agreement; and B. The Water Agreement permits Mitzel to assign its rights and obligations under the Water Agreement at any time to The Irvine Company upon notice to and consent of City; and C. Mitzel now desires to assign such rights and obligations to Irvine, and City desires to consent to such assignment, all in accordance with the terms of such Water Agreement; NOW THEREFORE, in consideration of the above and the mutual covenants hereinafter set forth, Irvine, Mitzel and City agree as follows: 1. Assignment. Effective upon the date of City's execution of this Agreement (the "Execution Date "), Mitzel hereby signs and transfers to Irvine all of Mitzel's rights and obligations in and under the Water Agreement, and City hereby consents to such assignment. Effective as of the Effective Date, Irvine shall be substituted in place of Mitzel for all purposes under the Water Agreement. 2. Notices. The address of Customer in Section 7 of the Water Agreement is hereby changed as follows: The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 Attention: Jim Lorman Vice President, Construction 3. Extent of Agreement. A copy of the Water Agreement is attached hereto as Exhibit "A ". This Assignment Agreement, together with the Water Agreement, represents the entire Agreement among Irvine, Mitzel and City with respect to the subject matter hereof, and supersedes all prior negotiations, representations or agreements, either written or oral. 1634.Lg1(1)01/19/93 Effective as of the Effective Date, the Water Agreement may be amended only by written instrument signed by Irvine and City. APPROVED AS TO FORM: i Robin Flory Assistant City Attorne ATTEST: 1 � wanaa xagglo City Clerk 1639.Lg1(2)01/19/93 "IRVINE" THE IRVINE COMPANY, a Michigan corporation dba Coastal Commpnity 1 Michael C. Ellis Sr. Vice Preside t J mes R. Cavanaugh pPp9 ssistant Secretary "MITZEL" THE RALPH D. MITZEL CONY, INC. a California corporation By: .- Paul Cunningham Vice President M Title: CITY OF NEWPORT BEACH, a California Municipal corporation Phil San e, Mayor "CITY" BY�THE C 0 l. rml nr n�PNP( -)r:T , -.�. June • 1992 JUN 2 2 1992 CITY COUNCIL AGENDA APPROVED ITEM NO. F-3(C) TO: Mayor & Members of the City Council FROM: Utilities Department C _ 2-%17 SUBJECT: AGREEMENT FOR SALE OF WATER OUTSIDE THE CITY WATER FOR GRADING & CONSTRUCTION DOWNCOAST BY THE RALPH D. MITZEL COMPANY, INC. RECOMMENDATIONS: 1. If desired, approve the sale of water outside the City for a limited duration to a private contractor. 2. Authorize the Mayor and the City Clerk to execute an Agreement for the sale of water on behalf of the City. DISCUSSION: A contract for grading, earthmoving and road construction on the easterly side of Spyglass Hill, outside the City limits, has been awarded by The Irvine Company. The contractor, Ralph D. Mitzel Company, Inc. of Santa Ana has asked to purchase water from the City for grading and soil compaction work. The contractor's principal source of water for this work will be provided by the Irvine Ranch Water District (IRWD) from their reclaimed water system. The contractor proposes to purchase water from the City of Newport Beach under this Agreement with the understanding that water from the City's connection will be used as a "secondary" water source to IRWD's reclaimed water system. The IRWD has consented to the proposed arrangement for the City to temporarily provide water to an area inside their service boundaries. Staff has reviewed the contractor's proposed water consumption demand proposal and believes that the intended operation will not adversely affect the City's water system or appreciably impact the supply. As such, staff recommends approval of the Agreement. A summary of the principal terms of the Agreement follows: 1. The City agrees to sell water to the contractor through a new 4 -inch metered connection, near the intersection of El Capitan Drive and Point Conception Way. 2. The Contractor will purchase water through the connection at a rate of $3.00 per hundred cubic feet of water. 04 2 • e 2 *greement for Sale of Water Outside the City June 22, 1992 3. The contractor will install all pipe, valves and fittings necessary to provide a 4 -inch metered connection and agrees that this material shall become the property of the City at the end of the term of the Agreement. 4. The contractor will use water through the connection only during non -peak demand hours of the day or night and then only after notifying the City 24 hours in advance. 5. The term of the Agreement is one year with a clause allowing extensions of 30 days upon mutual consent. At the request of the Council at the meeting of June 8th, 1992, the proposed Agreement was referred back to the Utilities Committee for reconsideration with additional clarifications to the terms of the Agreement. Provisions on the following points were added: 6. That in the event of an unforseen increase in costs for the City to deliver water to the contractor, the City shall have the right to adjust the price for water upward to recover those costs. 7. Clarifying language that the contractor use the City's water source as a secondary supply to the reclaimed water supply from the IRWD system. 8. Clarifying language that the City has the right to terminate water deliveries to the contractor under any circumstances where continued deliveries would jeopardize the City's ability to deliver water to its citizens at an optimum pressure and flow. The Utilities Committee Agreement at its meeting on June 4th and recommended its approval. Respectfully submitted, Jeff Staneart, P.E. (Acting) Utilities Director Js: sdi reviewed this request and the 1992 and again on June 1 lth,1992,