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
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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.
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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 ".
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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
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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.
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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.
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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.
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*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,