HomeMy WebLinkAboutC-3031 - Utilities Agreement No. 35322
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SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR
UTILITY AGREEMENT NO. 3532
DATED: AUGUST 22, 1994
The San Joaquin Hills Transportation Corridor Agency, a joint powers agency
("AGENCY") proposes to construct that certain major thoroughfare and associated bridges
known as the San Joaquin Hills Transportation Corridor (the "CORRIDOR"), and has delegated
to California Corridor Constructors, ajoint venture ofKiewit Pacific Co. and Granite
Construction Company ( "CCC ") the authority and responsibility to cause the relocation or
modification of utilities which, in their present location, interfere with the CORRIDOR. The
City of Newport Beach (hereinafter called "OWNER "), owns and maintains a 12 -inch water
line at the intersection of Ford Road and MacArthur Boulevard, near Station 0 +00 (New Ford
Road) in the County of Orange within the limits of the CORRIDOR project which require
modification or relocation to accommodate the CORRIDOR project. Said water line is
indicated as the "Old Line" on Exhibit "A ", attached hereto and incorporated herein by this
reference.
It is hereby mutually agreed that:
SECTION I. WORK TO BE DONE,
A. In accordance with Notice to Owner No. 3532, dated May 6, 1993, CCC shall
relocate (including design and installation) OWNER's 12 -inch water line indicated as "Old
Line" on Exhibit "A ". The proposed relocation is indicated as the "New Line" on Exhibit 'W.
The Old Line shall be filled with concrete or removed. CCC shall cause plans for the design
and installation of the New Line to be prepared by IWA. All plans shall comply with
OWNER's standard requirements. All plans shall be subject to the written approval of OWNER
and AGENCY, which shall not be unreasonably withheld or delayed, and OWNER and
AGENCY shall have the right to review, inspect, and comment on the plans during the design
process.
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B. All work shall be performed by CCC substantially in accordance with the
approved plans. Minor deviations from said plans may be made and incidental work may be
performed by CCC when mutually acceptable by CCC and OWNER and on approval by
AGENCY. OWNER and AGENCY shall have the right to inspect the work during
construction. Upon completion of the work by CCC, OWNER agrees to accept ownership and
maintenance of the New Line.
C. The parties hereto acknowledge that the work to be performed by CCC
hereunder is not included in the "Work ", as said term is defined in Contract No. S90 -19 by and
between AGENCY and CCC pursuant to which CCC is constructing the CORRIDOR.
SECTION II. LIABILITY FOR WORK.
Existing facilities are located in their present position pursuant to rights prior and
superior to those of AGENCY and will be relocated at CCC or AGENCY's expense. OWNER
represents and warrants to AGENCY and CCC that the easement deed upon which OWNER
bases its claim of prior rights is valid and enforceable in accordance with its terms and has not
been modified, terminated, quitclaimed, subordinated or transferred in any way.
SECTION III. PERFORMANCE OF WORK.
A. OWNER shall have access to all phases of the relocation work to be performed
by CCC for the purpose of inspection to ensure that the work is in accordance with the approved
plans and specifications therefor, however, all questions regarding the work being performed
will be directed to CCC's project manager for his evaluation and final disposition. IWA shall
perform the inspection work on behalf of OWNER and shall upon completion make its
recommendation of acceptance to OWNER.
SECTION IV. PAYMENT FOR WORK.
CCC shall perform the work under Section I and shall provide for IWA's inspection
thereof at no expense to OWNER.
SECTION V. GENERAL CONDITIONS.
A. All actual and reasonable costs incurred by OWNER or OWNER's
representative as a result of CCC's request of May 6, 1993 to review, study and /or prepare
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relocation plans and estimates for the project associated with this Agreement may be billed to
CCC by an invoice and shall be paid by CCC or AGENCY within 30 days of receipt thereof.
B. CCC shall and hereby does guarantee the work for a period of one year after the
date of acceptance by the OWNER as set forth in Section IB, which acceptance shall not be
unreasonably withheld or delayed. CCC shall repair or remove and replace any and all such
work, together with any other work which may be displaced in so doing, that is found to be
defective in workmanship and /or materials within said one year period, without expense
whatsoever to OWNER or AGENCY, ordinary wear and tear and unusual abuse or neglect
excepted.
C. Prior to the commencement of construction under this Agreement, CCC shall
furnish to OWNER a 100% Performance and Payment Bond and certificates of insurance. The
bond shall include OWNER as beneficiary, and shall be issued by an admitted surety who is
licensed to do business in the State of California. CCC, at its own expense, shall obtain for the
full work period of the Agreement, Worker's Compensation Insurance, Comprehensive
Liability, Public Liability and Property Damage Insurance and Automobile Public Liability
Insurance, and shall furnish to the OWNER certificates from insurance carriers showing that all
of the insurance requirements have been fully met and complied with. The amount of the
Comprehensive Liability Insurance and Public Liability Insurance and Automobile Public
Liability Insurance shalt be One Million Dollars ($1,000,000) for each person, Three Million
Dollars ($3,000,000) for each occurrence for Personal Injury, and Fifty Thousand Dollars
($50,000) for Property Damage. Each policy and the certificates thereon shall include the
OWNER, and its officers, directors, agents, employees, and consultants as additional insureds.
D. If OWNER claims that CCC has breached any of its obligations hereunder,
OWNER will notify CCC and AGENCY in writing of such breach and CCC and AGENCY
shall have 5 days following receipt of such notice in which to cure such breach, before OWNER
may invoke any remedies at law or in equity which OWNER may have by reason of CCC's
breach; provided, however, that if such breach may not reasonably be cured within such 5 -day
period, then so long as the cure is being prosecuted diligently, the cure period shall be extended
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as reasonably necessary but in no event longer than 30 days from AGENCY's receipt of such
notice; provided, further, that AGENCY shall have no obligation hereunder to cure any breach
by CCC, but shall at all times be permitted to do so. Without limiting the generality of the
foregoing, AGENCY shall have no liability to OWNER for any act or omission committed by
CCC in performing this Agreement, including without limitation any claimed defect in any
design or construction work supplied by CCC or its contractors or subcontractors.
Notwithstanding the above, in the event of such a breach by CCC and such event is deemed to
be an emergency, OWNER may immediately invoke any remedies at law or in equity which
OWNER may have by reason of CCC's breach, if CCC fails or refuses to reasonably respond to
said emergency.
E. As a matter with which OWNER shall not be concerned, CCC shall reimburse
AGENCY, within 30 days after AGENCY's demand, for any costs incurred or sums expended
by AGENCY in curing any breach by CCC or responding to any emergency created thereby as
hereinabove provided, which AGENCY would not have incurred absent such breach; provided,
however, that CCC reserves the right to dispute with AGENCY the existence of any such
claimed breach in accordance with the dispute resolution procedures of Contract No. 590 -19 by
and between AGENCY and CCC, and if it is established through such procedures that no such
breach occurred, then the AGENCY shall promptly refund to CCC the amount paid by CCC to
AGENCY on account of such claimed breach.
F. CCC's rights and obligations hereunder shall be deemed assigned to and
assumed by AGENCY upon AGENCY's written notification to CCC and OWNER of such
assignment and assumption, following either a material breach by CCC of this Agreement of the
termination, partial termination or expiration of said Contract No. S90 -19. Such assignment
and assumption shall not (a) relieve CCC from any liability to either OWNER or AGENCY for
any breach of this Agreement occurring prior to the effective date of such assignment and
assumption, or (b) cause AGENCY to be liable for any breach by CCC of this Agreement
occurring prior to such effective date, or (c) relieve CCC from any liability to AGENCY for any
breach of its obligations to AGENCY under said Contract No. S90 -19.
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I G. As between AGENCY and CCC, this Agreement is subject to said Contract NO.
2 590 -19, does not modify it in any way, and in the event of any inconsistency between the
3 provisions hereof and the provisions of Contract No. S90 -19, the provisions of Contract No.
4 S90 -19 shall prevail between AGENCY and CCC.
5 H. If the CORRIDOR project which precipitated this Agreement is cancelled or
6 modified so as to eliminate the necessity of work by OWNER, CCC or AGENCY will notify
7 OWNER in writing and CCC and AGENCY each reserves the right, with the other's written
8 approval, to terminate this Agreement. Upon such termination, the parties shall negotiate in
9 good faith an amendment which shall provide mutually acceptable terms and conditions for
to terminating the Agreement at no cost to OWNER.
11 I. Nondiscrimination Clause [Required by California Code Regs., Title 2,
12 Section 81071
13 During the performance of this Agreement:
14 1. The party or parties responsible for performing the work hereunder (the
15 "Responsible Party(ies)") and their respective contractors and subcontractors shall not
16 deny the Agreement's benefits to any person on the basis of religion, color, ethnic group
17 identification, sex, age, physical or mental disability, nor shall they discriminate
18 unlawfully against any employee or applicant for employment because of race, religion,
19 color, national origin, ancestry, physical handicap, mental disability, medical condition,
20 marital status, age (over 40) or sex. The Responsible Party(ies) shall insure that the
21 evaluation and treatment of their respective employees and applicants for employment
22 are free of such discrimination.
23 2. The Responsible Party(ies) shall comply with the provisions of the Fair
24 Employment and Housing Act (Gov. Code Section 12900 et seg.), the regulations
25 promulgated thereunder (California Code Regs., Title 2, Section 7285.0 et SeMc .), the
26 provisions or Article 9.5, Chapter 1, Part 1, Division, Title 2 of the Government Code
27 (Gov. Code Section 11135-11139.5), and the regulations or standards adopted by
28 AGENCY to implement such article.
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3. The Responsible Party(ies) shall permit access by representatives of the
Department of Fair Employment and Housing ( "DFEH") and AGENCY upon
reasonable notice at any time during normal business hours, but in no case less than 24
hours notice, to such of its books, records, accounts, other sources of information and its
facilities as DFEH or AGENCY shall require to ascertain compliance with this clause.
4. The Responsible Party(ies) and their respective contractors and
subcontractors shall give written notice of their obligations under this clause to labor
organizations with which they have a collective bargaining or other agreement.
5. The Responsible Party(ies) shall include the nondiscrimination and
compliance provisions of this clause in all contracts and subcontracts to perform work
under this Agreement.
I CCC shall indemnify, defend and save free and harmless OWNER, AGENCY,
its current and future members, the State of California acting by and through its Department of
Transportation ( "Caltrans "), and their successors and assigns and their respective officers,
authorized agents, employees, engineers, contractors, and subcontractors, from and against any
and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys'
fees and costs, and expert witness fees and costs) which may arise as a result of any act or
omission of CCC or its officers, agents, employees, engineers, contractors or subcontractors
arising in any way from the work to be performed under this Agreement prior to acceptance of
such work by OWNER except to the extent that such expense, liability or claim is proximately
caused by the active negligence or willful misconduct of the indemnified party or its agents,
servants, or independent contractors (other than CCC) who are directly responsible to such
indemnified party.
K. OWNER shall indemnify, defend, and hold AGENCY, its current and future
members, CCC, its joint venturers, Caltrans, and their successors and assigns and their
respective shareholders, officers, directors, employees, authorized agents, engineers,
contractors, and subcontractors from and against any and all claims, damages, losses, liabilities,
costs and expenses (including reasonable attorneys' fees and costs, and expert witness fees and
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costs) which may arise as a result of any negligent act or willful misconduct by OWNER or its
officers, agents, employees, engineers, contractors or subcontractors with respect to OWNER's
responsibility under this Agreement or with respect to the design, maintenance and /or operation
of the New Line, except to the extent that such expense, liability or claim is proximately caused
by the active negligence or willful misconduct of the party indemnified or its agents, servants,
or independent contractors (other than CCC) who are directly responsible to such indemnified
ply.
L. AGENCY shall indemnify, defend and hold harmless OWNER, its successors
and assignees, and its shareholders, officers, directors, employees, authorized agents, engineers,
contractors, and subcontractors from and against any and all claims, damages, losses, liabilities,
costs and expenses (including reasonable attorneys' fees and costs and expert witness fees and
costs), which are caused by the act or omission, in connection with the performance of any
duties of AGENCY respecting the relocation of OWNER'S facilities pursuant to this
Agreement, of AGENCY or its agents, servants, or independent contractors (other than CCC)
who are directly responsible to AGENCY, except to the extent that such claims, damages,
losses, liabilities, costs and expenses are proximately caused by the active negligence or willful
misconduct of the party indemnified or its agents, servants or independent contractors who are
directly responsible to such indemnified party.
M. In the event of any inconsistency between the foregoing indemnities and any
other indemnity which may be applicable to an occurrence for which a claim of indemnity
hereunder is made, the indemnity which provides the greatest protection to the indemnitee shall
prevail.
N. In any litigation arising out of this Agreement, the prevailing party shall be
entitled to recover from the losing party reasonable costs and attorneys' fees. Any
representations, warranties, indemnities, reservations of rights, and waivers set forth in this
Agreement shall survive the termination of this Agreement for any reason. This Agreement
shall inure to the benefit of and be binding upon the successors, assigns and transferees of the
parties hereto. This Agreement may be modified or amended only by the written agreement of
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the parties hereto. This Agreement contains the entire Agreement among OWNER, on the one
hand, and CCC and /or AGENCY on the other hand, with respect to the subject matter hereof,
and supersedes all prior negotiations, representations and agreements, if any, whether written or
oral. If any section, paragraph, sentence or clause of this Agreement is declared by a court of
competent jurisdiction to be unenforceable or void by reason of public policy or otherwise, then
the remaining provisions of this Agreement shall nonetheless remain enforced to the fullest
extent permitted by law. Any approval required or permitted to be given by any party hereto
must be in writing to be effective for purposes of this Agreement.
IN WITNESS WHEREOF, the above parties have executed this Agreement the day and
year first above written.
AGENCY
SAN JOAQUIN HILLS TRANSPORTATION
CORRIDOR AGENCY
By: i
William Woollett, Jr_
Chief Executive Officer
APPROVED AS TO FORM
NOSSAMAN, GUTHNER, KNOX & ELLIOTT
By: 1j;�lL�/� ILGGr1�1
Printed Nam
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OWNER
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CITY OF NEWPORT BEACH
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CALIFORNIA CORRIDOR CONSTRUCTORS
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CALIFORC CORRIDOR CON*i TRUCTO�,�,
Kiewit Pacific Co. / Granite Construction Company, A Joint Venture _
January 12, 1995
V
Robin Clausen, Esq.
CITY OF NEWPORT BEACH
Post Office Box 1768
Newport Beach, California 92659 -1768
RE: San Joaquin Hills Transportation Corridor
Utility Crossing No. 3532
Dear Robin:
Enclosed is one executed Relocation Agreement for Crossing No. 3532, 12" water line in
Ford Road. Thanks for your help.
Sincerely yours,
John P. Carpen r
Counsel
JPC:Ip
Enclosure
cc: Rob Anderson, MacArthur Section (w /enclosure)
Scott Steingraber (w /o enclosure)
District Office: P.O. Box 1769. Vancouver, WA. 98668 -1769. (206) 693 -1478, Fax (206) 693 -5582
Project Office: P.O. Box 57018. Irvine, CA. 92619 -7018. (714) 753 -1022, Fax (714) 753 -1026