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HomeMy WebLinkAboutC-3279(A) - Cooperative Agreement for the construction of median landscaping and hardscape improvements on Irvine Avenue between Westcliff Drive and Dover Drive•i C" 31 91 .x r COOPERATIVE AGREEMENT For Irvine Avenue Median Improvements from Westeliff Drive to Dover Drive This Agreement is made and entered into this Ik day of 2002, by and between the CITY OF NEWPORT BEACH ( "Newport Beach' and the CITY OF COSTA MESA ( "Costa. Mesa'): RECITALS WHEREAS, the median improvements as more particularly described in Exhibit "A ", attached hereto and incorporated herein by this reference, on Irvine Avenue between WestcIiff Drive and Dover Drive (the "Project "), is a project that involves both the cities of Newport Beach and Costa Mesa because the city boundary line between the two cities exists along the centerline of said medians on Irvine Avenue. WHEREAS, the parties acknowledge that the medians currently contain numerous eucalyptus trees (the "Trees "} that are currently existing and heretofore maintained by Newport Beach and shall remain the sole responsibility of Newport Beach. CONTRACT TERMS AND CONDITIONS 1. Newport Beach will supervise the construction of the Project to the best of its ability within the established budget and time frame, and shall implement and complete the Project under guidelines established jointly by Newport Beach and Costa Mesa, and will follow all public bid and contract procedures. 2. The terms of this Agreement cover the administrative responsibilities and cost allocation for said responsibilities of the parties with regard to the Project, but not the actual construction of the Project itself, although Newport Beach will be responsible for and cause the actual construction of the Project to be completed. 3. Costa Mesa has reviewed and signed the final design drawings and reviewed the engineer's construction cost estimate (Attachment "B "). Costa Mesa shall receive a complete breakdown of the construction costs of the apparent low bidder prior to award by the City of Newport Beach. If the low bid is more than six percent (6 1/o) above the engineer's estimated cost for Costa Mesa, Costa Mesa reserves the right to terminate this Agreement. If the bid is awarded, Newport Beach shall provide Costa Mesa with a complete breakdown of the actual costs prior to invoicing Costa Mesa, and Costa Mesa shall be invoiced for its proportional share of the costs incurred by Newport Beach upon completion of the construction work. 4. Subject to prior approval by Costa Mesa of the construction contract award, Costa Mesa will reimburse Newport Beach for Costa Mesa's share of forty -five percent of the construction costs (estimated at $85,000) and half of the costs for construction administration, survey, testing, and •. a inspections (estimated at $10,000). Newport Beach will be responsible for the remaining fifty - five percent of the construction costs (estimated at $100,000) and half of the costs for construction administration, survey, testing, and inspections. The total cost of this project for Costa Mesa is estimated at $95,000. Newport Beach will invoice Costa Mesa when the Project is complete and Costa Mesa shall make payment to Newport Beach within thirty days of the invoice. 5. Change orders affecting Costa Mesa shall be reviewed and approved by Costa Mesa prior to Newport Beach granting approval to the contractor. 6. After construction of the Project has been completed, Newport Beach will arrange for and supervise the irrigation and maintenance of the improved medians (initially estimated at $6,000 per year). Costa Mesa will reimburse 50% of the total annual maintenance cost (Costa Mesa's share estimated at $3,000 per year) to Newport Beach annually and within thirty days of receipt of an invoice from Newport Beach. Within 30 days of request from Costa Mesa, Newport Beach shall provide Costa Mesa with an accounting of said maintenance costs with supporting documentations for the annual invoice. Notwithstanding the above, Costa Mesa shall not be responsible for any extraordinary costs associated with the existing Trees. Extraordinary costs include, but are not limited to, any costs for removal, trimming, disease control, replacement, or other costs directly attributable to the maintenance of said Trees. 7. Inspectors and/or engineers from both Cities will coordinate for construction inspections and a site walk prior to Project completion. 8. As referenced in the Drawings, Special Provisions, Proposal and Contract for the Project, "City" shall refer to Newport Beach and the contract responsibilities held by Newport Beach. 9. Newport Beach shall require that the independent contractor provide all necessary insurance coverage for construction work, as specified in Section 6-1 of the Special Provisions and Section G of the Contract for the Project. Newport Beach and Costa Mesa shall be named as additionally insured parties in the Special Provisions and Contract for the Project, and shall be insured for the amounts specified in Section 6 -1 of the Special Provisions and Section G of the Contract. 10. The following staff members, or as otherwise designated in writing by the City Manager of Costa Mesa or the City Manager of Newport Beach, shall be the selected representatives of each City to act in each respective City's behalf with respect to this Agreement. Any notices, requests, approvals, or communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or first class U.S. Mail and shall be addressed to each representative as noted below: To Newport Beach: To Costa Mesa: William Patapoff Bruce Hartley Public Works Department Public Services Department P.O. Box 1768 P,O. Box 1200 Newport Beach, CA 92658 -8915 Costa Mesa, CA 92628 -1200 (949) 644 -3311 (714) 754 -5164 0 0 1 : The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, the time of transmission if such communication is sent by facsimile; or 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. 11. Each of the parties agrees to do all things in a timely manner reasonably necessary or convenient to carry out the spirit, intentions and objectives described in this Agreement whether or not expressly prescribed herein and no consent, agreement, approval, concurrence, decision, determination or action shall be unreasonably withheld by either party. 12. Prior to filing any legal action because of controversy or claim arising out of this Agreement or alleged breach thereof the parties agree that they shall first attempt resolution of said controversy or claim through voluntary mediation or as otherwise designated in writing by the City Manager of Newport Beach and the City Manager of Costa Mesa. Said City Managers shall be the selected representatives of each City to act in each respective City's behalf with respect to any controversy or claim arising out of this Agreement. 13. Except as specified in paragraph 14 herein below, each party shall defend, indemnify, hold free and harmless the other party, its elected officials, its officers and employees, from and against any and all liability, claims, losses and demands, including attorney's fees and other reasonable costs incurred in defending any such claim, whether resulting from court action or otherwise, arising out of the acts, errors or omissions of die indemnifying party, its employees and/or authorized subcontractors, whether intentional or negligent, in the performance of this Agreement. 14. The City of Newport Beach shall defend, indemnify, hold free and harmless Costa Mesa, its elected officials, its officers and employees, from and against any and all losses, damages, liability, claims, allegations of liability, suits, costs and expenses, including attorney's fees and other reasonable costs incurred in defending any such claim, for. damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims directly attributable to or caused solely by the existing Trees. 15. This Agreement represents the entire understanding of the parties as to those matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered in this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and construed as if drafted jointly by Newport Beach and Costa Mesa. This Agreement may he amended at any time by the mutual consent of the parties by an instrument in writing. 16. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. This Agreement shall be made effective upon execution by both parties and shall remain in effect until both parties agree to amend or terminate it. IN WITNESS WHEREOF, Newport Beach and Costa Mesa execut d by its duly authorized officers and representatives, 2002. CITY OF NEWPORT BEACH By: Tod W. Ride ay, Mayor have caused this Agreetpent to be respectfUy, on this ffitk day of CITY OF OSTA MESA By: Linda Dixon, ayor 1 By: C APPROVED AS TO FORM: City Attorney TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: C -3�rN June 11, 20D2 CITY COUNCIL AGENDA IRVINE AVENUE MEDIAN IMPROVEMENTS FROM TO DOVER DRIVE - AWARD OF CONTRACT NO. 3279 RECOMMENDATIONS: 1. Approve the plans and specifications. 2. Award Contract No. 3279 to Southland Construction for the Total Bld Price of $189,100, and authorize the Mayor and the City Clerk to execute the contract. 3. Establish an amount of $18,900 to cover the cost of testing and unforeseen work. 4. Approve a Budget Amendment appropriating an additional $23,000 to Contributions Account No. 7251- C5100488 and Increasing revenue estimates by $23,000 in Account No. 250 -5901. DISCUSSION: At 11:00 AM on May 15, 2002, the City Clerk opened and read the following bids for this project: TOTAL BID AMOUNT $179,100.00 $188,986.gg Bid Nullified $204,700.00 $237,800.00 $256,294.50 $277,750.00 * Corrected bid amount $189,100.00 Mega Way Enterprises, Inc., does not have a Contractor's license under the name of Mega Way Enterprises, Inc. The bidder has an "A" license under Mega Way Lighting, but did not bid the project under this company's name, thus nullifying the bid. The apparent low bid from Southland Construction was corrected in accordance with the City's bidding requirements resulting in a revised bid amount of $189,100.00. BIDDER Low Southland Construction 2 Mega Way Enterprises, Inc. 3 Green Giant Landscaping 4 Ranco Corporation 5 E.B.S., Inc. 6 G.C.I., Inc. TOTAL BID AMOUNT $179,100.00 $188,986.gg Bid Nullified $204,700.00 $237,800.00 $256,294.50 $277,750.00 * Corrected bid amount $189,100.00 Mega Way Enterprises, Inc., does not have a Contractor's license under the name of Mega Way Enterprises, Inc. The bidder has an "A" license under Mega Way Lighting, but did not bid the project under this company's name, thus nullifying the bid. The apparent low bid from Southland Construction was corrected in accordance with the City's bidding requirements resulting in a revised bid amount of $189,100.00. Subject. Irvine Avenue Median- Improvements from Westc W Drive to Dover Di Award of contract No. 3279 June 11, 2062 Page: 2 The low total bid amount is 1.5 percent below Engineer's Estimate of $192,000.00. The low bidder, Southland Construction, possesses a General Engineering "A° contractor's license as required by the project specifications. A check of Southland Construction references indicates that Southland Construction has satisfactorily completed various similar improvement projects for other Southern California agencies. This contract provides for the construction of stamped median concrete and 2 -foot high masonry slough walls along the length of the medians to retain irrigation runoffs and the installation of moisture barrier, mulch, 5 -gallon shrubs, and an irrigation system. In addition, PCC sidewalk, curb and gutter will be reconstructed and offending tree roots will be pruned at select locations within two blocks of Francisco Drive. Southland Construction is required to start construction on June 24, 2002, and complete all of the construction work within thirty (30) consecutive work days or August 5, 2002, prior to the start of the fall session at Mariners Elementary School. The plant establishment and maintenance period for this project is ninety (90) days. There are funds available in the following accounts for the work: Description Circulation and Transportation Contributions (from City of Costa Mesa) Account Amu t 7261 - 05100488 $113,000.00 7251 - 05100488 $ 95,000.00 Total $208,O00.00 Since the improvements are within both the City of Newport Beach and the City of Costa Mesa, the City of Costa Mesa has agreed, through a cooperative agreement, to reimburse the City of Newport Beach for their portion of the project costs, up to $85,000 for construction and up to $10,000 for administrative and inspection services. Staff originally budgeted $72,000 for the contribution from Costa Mesa and now requests a Budget Amendment appropriating an additional $23,000 to Account No. 7251- C5100488 for the total costs approved in the Cooperative Agreement. .igyp. �� � t',aiva, V�� , . - - -" PUBLIC WORKS DEPARTMENT Stephen G, Badum, Director 0 ie, P.E. Manager Attachment: Project Location Map Bid Summary a IRVINE AVENUE MEDIAN IMPROVEMENTS (C -3279) nz z SHOPPING PLAZA CORONA00 AT NEWPORT APARTMENTS i , FIR£ STATION MARINERS SCHOOL LOCH PON MAP N T.s F4J ho LJ I i CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT TI U" neAvenueNedlanLnprovanenbiromWaatt011toDoyerDraw BID LOCATION: CiWCIe1PsOfllce-CllyHan CONTRACT NO. 3279 DATE: IS-May-02 11:00am ENGINEER'S ESTIMATE: $192,000.00 BY: Fang Tse CHECKED: SR DAIS: 05/15/2002 PROJECT MANAGER: FONG 73E a10 l9a {.7i�a ®� F.I:5i x/00112 ����.,��� 4Q00091,, I=, .- 411 ,1 : 1,1 II 1 1 11moLTO0, ill mwmlj� -11 1 =", I t1I 1I VMUIL 11 II �[ti!STFTI'S[[yn��� 111 1, 1111', 111 It : IH 11 1.1.111 ,fl 11 Ill ,1 y !Il t, _ ©� 1 ,Ir 11 1s1T1Sr`tt Ilt 11 111 lr ,'ll ,5 moto- Iffil;17N =— Ill It �[ ..��u��i�t�•�r.: `�� . I I �� i i l , 1 t r rl e r r t 1� I I I 1 t 1, �1 ITI'1 t'1 �7•�.r7 , Vl I t � 1,TV, 7. w5 rj 1"'- I wzt7, l- :i . 1 t r, � 11 It I1 11 11 �1 1 11 111 11 r, 11111 mi �!1e�=.7�iTi�ji%7?'� t]- Fri =''1? tsm,mLV-7,! 1 �R7 ri�i�T.l� -'�p O1=1 � tt lvl1�'�1i15xi.1] 111 11 ,tt „ t,t „ ,11 „ �,�:I=l�frl f� l�Iswook 7 AMM12 I, 1, l][151MEMEL , ,.�7 ® � Ili 11 � :: •: 11 � :' 11 it � 1' 11 11 a10 �fy of Newport Beach �! NO. BA- 045 BUDGET AMENDMENT 2001.02 AMOUNT: az3,000.00 EFFECT ON BUDGETARY FUND BALANCE: X Increase Revenue Estimates increase In Budgetary Fund Balance Increase E)qpenditure Appropriations AND Decrease in Budgetary Fund Balance IL- -J-I Transfer Budget Appropriations NX No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations X from additional estimated revenues from unappropriated fund balance . This budget amendment is requested to provide for the following: To increase revenue estimates and expenditure appropriations related to the Irvine Avenue Median Improvement project, C -3279. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Ferri Accoun Descri tian REVENUE ESTIMATES (3601) Amount Debit Credit $23,000.00 523,000.00 Signed: 4 //�J1.s�� e � _ Financial Approval: Administrative gervices Director Date Signed: Administrative Approve . City Manager ifate Signed: City Council Approval: City Clerk Date Fund/Division Account Description 250 5901 Private DonallonsfContributions EXPENDITURE APPROPRIATIONS {3603) Description Division Number 7251 Contributions Fund Account Number C5100488 Irvine Ave Median Land Improvements Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Amount Debit Credit $23,000.00 523,000.00 Signed: 4 //�J1.s�� e � _ Financial Approval: Administrative gervices Director Date Signed: Administrative Approve . City Manager ifate Signed: City Council Approval: City Clerk Date (j#y of Newport Beach BUDGET AMENDMENT 2001-02 EFFECT ON BUDGETARY FUND BALANCE: X Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations X from additional estimated revenues from unappropriated fund balance This budget amendment is requested to provide for the following: .}i 13 NO. BA- 045 AMOUNT: $23,000.oD P XIncrease in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance JUN , 1 1002 To increase revenue estimates and expenditure appropriations related to the Irvine Avenue Median Improvement project, ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund ant REVENUE ESTIMATES (3601) Fund /Division Account 250 5901 EXPENDITURE APPROPRIATIONS (3603) Description Description Private Donations/Contributions Signed: (" . Finaricial Approval: A /dminisVadve e�rvices DirJector Signed: Administretive Approvalf Approval. City Manager Signed: City Council Approval: City Clads Amount Debit Credit $23,00D.00 $23,000.00 Date ate Date Description _ Division Number 7251 Contributions Fund Account Number C5100488 Irvine Ave Median Land Improvements Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: (" . Finaricial Approval: A /dminisVadve e�rvices DirJector Signed: Administretive Approvalf Approval. City Manager Signed: City Council Approval: City Clads Amount Debit Credit $23,00D.00 $23,000.00 Date ate Date TO: Mayor and Members of the City Council FROM: Public Works Department so (3Y-) c� -3L;L ?`l June 11, 2002 CITY COUNCIL AGENDA JUN 1 i No? SUBJECT: COOPERATIVE AGREEMENT BETWEEN THE CITY Or'GD51A VIESA AND THE CITY OF NEWPORT BEACH FOR THE CONSTRUCTION OF MEDIAN LANDSCAPING AND HARDSCAPE IMPROVEMENTS ON IRVINE AVENUE BETWEEN WESTCLIFF DRIVE AND DOVER DRIVE, CONTRACT NO. 3279 RECOMMENDATION: Approve the Cooperative Agreement (Agreement) between the City of Newport Beach (Newport Beach) and the City of Costa Mesa (Costa Mesa) for the construction of median landscaping and hardscape improvements on Irvine Avenue between Westciff Drive and Dover Drive, and authorize the Mayor and the City Clerk to execute the Agreement. DISCUSSION: Staff requests City Council approval of the Agreement for the construction of median landscaping and hardscape improvements along Irvine Avenue between Westcliff Drive and Dover Drive. The improvements include stamped colored concrete, concrete slough walls, trees, shrubs, ground cover, and irrigation systems. The City boundary between Newport Beach and Costa Mesa within the project limits generally exists along the centerline of Irvine Avenue, and therefore this project involves the cities of Newport Beach and Costa Mesa. Prior to constructing the proposed improvements, the Agreement must be executed by both the Newport Beach and Costa Mesa City Councils. The Costa Mesa City Council authorized its Mayor to sign the Agreement on June 3, 2002. The Agreement outlines the administrative, construction, and maintenance costs and responsibilities for Newport Beach and Costa Mesa. Newport Beach will supervise the construction of this project within the budgets and schedules established by both cities. The project plans, specifications, and cost estimates have been reviewed and approved by both cities. Construction will begin in late June 2002, and should be completed by mid - August 2002, prior to the start of fall session at Mariners Elementary School. The total cost for the project is estimated at $192,000, which includes a 10 percent contingency. Costa Mesa will reimburse Newport Beach for their share of the SUBJECT: COOPERATIEEMENT BETWEEN THE CITY OF COSTA AND THE CITY OF NEWPORT' BEACH FOR 777Tn'�ER� CONSTRUCTION OF MEDIAN LANDSCAPING A HARD6CAPE IMPROVEMENTS ON IRVINE AVENUE BETWEEN WESTCLIFF DRIVE AND DOVER DRIVE. CONTRACT NO. 3279 June 11. 2D02 Page 2 construction costs estimated at $85, 000. The total cost for construction admirristration, survey, testing, and inspection is estimated at $20,000 of which Costa Mesa would be responsible for $10,000. The total annual Irrigation and maintenance costs for the median improvements are estimated at $6,000. Costa Mesa wiN reimburse Newport Beach for 50 percent of the total annual cost at approximately $3,000. Costa Mesa is not currently contributing to the maintenance of the existing medians and trees. The contract for this work will be awarded this fiscal year. Funding is provided in the current Capital Improvement Program budget. Respectfully submitted •! PUBLIC WORKS DEPARTMENT Stephen G. Badum, Director By: Vw�' Fonga%e, P.E. Project Manager Attachments: Agreement Project Location Map IRVINE AVENUE MEDIAN IMPROVEMENTS (C -3279) LN , � s� •r t <- r'r •►r , _1 LOCATION MAP N. T.S. COOPERATIVE AGREEMENT For Irvine Avenue Median Improvements from Westeliff Drive to Dover Drive This Agreement is made and entered into this day of 2002, by and between the CITY OF NEWPORT BEACH ("Newport Beach ") and the CITY OF COSTA MESA ( "CostaMesa"): RECITALS WHEREAS, the median improvements as more particularly described in Exhibit "A", attached hereto and incorporated herein by this reference, on Irvine Avenue between Westciiff Drive and Dover Drive (the "Project"), is a project that involves both the cities of Newport Beach and Costa Mesa because the city boundary line between the two cities exists along the centerline of said medians on Irvine Avenue. WHEREAS, the parties acknowledge that the medians currently contain numerous eucalyptus trees (the "Trees') that are currently existing and heretofore maintained by Newport Beach and shall remain the sole responsibility of Newport Beach. CONTRACT TERMS AND CONDITIONS 1. Newport Beach will supervise the construction of the Project to the ]lest of its ability within the established budget and time frame, and shall implement and complete the Project under guidelines established jointly by Newport Beach and Costa Mesa, and will follow all public bid and contract procedures. 2. The terms of this Agreement cover the administrative responsibilities and cost allocation for said responsibilities of the parties with regard to the Project, but not the actual construction of the Project itself, although Newport Beach will be responsible for and cause the actual construction of the Project to be completed. 3. Costa Mesa has reviewed and signed the final design drawings and reviewed the engineer's construction cost estimate (Attachment 'V . Costa Mesa shall receive a complete breakdown of the construction costs of the apparent low bidder prior to award by the City of Newport Beach. If the low bid is more than six percent (6 %) above the engineer's estimated cost for Costa Mesa, Costa Mesa reserves the right to terminate this Agreement. If the bid is awarded, Newport Beach shall provide Costa Mesa with a complete breakdown of the actual costs prior to invoicing Costa Mesa, and Costa Mesa shall be invoiced for its proportional sham of the costs incurred by Newport Beach upon completion of the construction work. 4. Subject to prior approval by Costa Mesa of the construction contract award, Costa Mesa will reimburse Newport Beach for Costa Mesa's share of forty -five percent of the construction costs (estimated at $85,000) and half of the costs for construction administration, survey, testing, and inspections (estimated at $10,000). Newport Beach will be responsible for the remaining fifty - five percent of the construction costs (estimated at $100,000) and half of the costs for construction administration, survey, testing, and inspections. The total cost of this project for Costa Mesa is estimated at $95,000. Newport Beach will invoice Costa Mesa when the Project is complete and Costa Mesa shall make payment to Newport Beach within thirty days of the invoice. 5. Change orders affecting Costa Mesa shall be reviewed and approved by Costa Mesa prior to Newport Beach granting approval to the contractor. 6. After construction of the Project has been completed, Newport Beach will arrange for and supervise the irrigation and maintenance of the improved medians (initially estimated at $6,000 per year). Costa Mesa will reimburse 50% of the total annual maintenance cost (Costa Mesa's share estimated at $3,000 per year) to Newport Beach annually and within thirty days of receipt of an invoice from Newport Beach. Within 30 days of request from Costa Mesa, Newport Beach shall provide Costa Mesa with an accounting of said maintenance costs with supporting documentations for the annual invoice. Notwithstanding the above, Costa Mesa shall not be responsible for any extraordinary costs associated with the existing Trees. Extraordinary costs include, but are not limited to, any costs for removal, trimming, disease control, replacement, or other costs directly attributable to the maintenance of said Trees. 7. Inspectors and/or engineers from both Cities will coordinate for construction inspections and a site walk prior to Project completion. R. As referenced in the Drawings, Special Provisions, Proposal and Contract for the Project, "City" shall refer to Newport Beach and the contract responsibilities held by Newport Beach. 9. Newport Beach shall require that the independent contractor provide all necessary insurance coverage for construction work, as specified in Section 6 -1 of the Special Provisions and Section G of the Contract for the Project. Newport Beach and Costa Mesa shall be named as additionally insured parties in the Special Provisions and Contract for the Project, and shall be insured for the amounts specified in Section 6-1 of the Special Provisions and Section G of the Contract 10. The following staff members, or as otherwise designated in writing by the City Manager of Costa Mesa or the City Manager of Newport Beach, shall be the selected representatives of each City to act in each respective City's behalf with respect to this Agreement. Any notices, requests, approvals, or communications concerning this Agreement or the work hereunder may be provided by personal delivery, facsimile or fast class U.S. Mail and shall be addressed to each representative as noted below: To NeW»orl Beach: William Patapoff Public Works Department P.O. Box 1768 Newport Beach, CA 92658 -8915 (949) 644 -3311 To Costa Mesa: Bruce Hartley Public Services Department P.O. Box 1200 Costa Mesa, CA 92628 -1200 (714) 754 -5164 The effective date of any notice or written communications sent by one party to the other shall be the date received if by personal service, the time of transmission if such communication is sent by facsimile; or 48 hours after deposit in the U.S. Mail as reflected by the official U.S. postmark. 11. Each of the parties agrees to do all things in a timely manner reasonably necessary or convenient to carry out the spirit, intentions and objectives described in this Agreement whether or not expressly prescribed herein and no consent, agreement, approval, concurrence, decision, determination or action shall be unreasonably withheld by either party. 12. Prior to filing any legal action because of controversy or claim arising out of this Agreement or alleged breach thereof the parties agree that they shall first attempt resolution of said controversy or claim through voluntary mediation or as otherwise designated in writing by the City Manager of Newport Beach and the City Manager of Costa Mesa. Said City Managers shall be the selected representatives of each City to act in each respective City's behalf with respect to any controversy or claim arising out of this Agreement. 13. Except as specified in paragraph 14 herein below, each party shall defend, indemnify, hold free and harmless the other parry, its elected officials, its officers and employees, from and against any and all liability, claims, losses and demands, including attorney's fees and other reasonable costs incurred in defending any such claim, whether resulting from court action or otherwise, arising out of the acts, errors or omissions of the indemnifying party, its employees and/or authorized subcontractors, whether intentional or negligent, in the performance of this Agreement. 14. The City of Newport Beach shall defend, indemnify, hold free and harmless Costa Mesa, its elected officials, its officers and employees, from and against any and all losses, damages, liability, claims, allegations of liability, suits, costs and expenses, including attorney's fees and other reasonable costs incurred in defending any such claim, for - damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damage, or any other claims directly attributable to or caused solely by the existing Trees. 15. This Agreement represents the entire understanding of the parties as to those matters contained herein, and no prior oral or written understanding shall be of any force or effect with respect to those matters covered in this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of California, and construed as if drafted jointly by Newport Beach and Costa Mesa. This Agreement may be amended at any time by the mutual consent of the parties by an instrument in writing. 16. The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by so executing this Agreement the parties hereto are formally bound to the provisions of this Agreement. This Agreement shall be made effective upon execution by both parties and shall remain in effect until both parties agree to amend or terminate it. IN WITNESS WHEREOF, Newport Beach and Costa Mesa have caused this Agreement to be executed by its duly authorized officers and representatives, respectfully, on this day of , 2002. CITY OF NEWPORT BEACH CITY Cr COSTA MESA e By: Tod W. Ridgeway, Mayor By: mda Dixon, Mayor By: City Clerk y: City Clerk 9 APPROVED AS TO FORM: APPROVED AS TO FORM: By: City Attorney By: City Attorney 4