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HomeMy WebLinkAboutC-3724(B) - Reimbursement Agreement for Installation and Adjustment of Utilities to Grade for the Jamboree Road Bridge Widening over State Route 73 Projectr (1 File No. 11392 REIMBURSEMENT AGREEMENT BETWEEN IRVINE RANCH WATER DISTRICT AND THE CITY OF NEWPORT BEACH FOR INSTALLATION AND ADJUSTMENT OF UTILITIES TO GRADE FOR THE JAMBOREE ROAD BRIDGE WIDENING OVER STATE ROUTE 73 PROJECT This Agreement is made and entered into as of this LV�day of � 2010r, by and between IRVINE RANCH WATER DISTRICT, a California water district formed and existing pursuant to the California Water District Law, hereinafter referred to as "DISTRICT," and the CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as "CITY." WITNESSETH: WHEREAS, CITY proposes to construct street and utility improvements for the Jamboree Road Bridge Widening Over State Route 73 Project, Contract No. 3724 (the "Project'), within the jurisdictional boundaries of DISTRICT and the City of Newport Beach; and WHEREAS, such construction will necessitate the installation or adjustment to grade of approximately two (2) Domestic Water Valves and one (1) Air Vacuum Valve, as depicted on Exhibit "A" attached hereto incorporated by reference herein (hereinafter referred to as the "IRWD FACILITIES "); and WHEREAS, the parties have determined that it would be more expedient for CITY to construct the IRWD FACILITIES rather than for DISTRICT to do so; and WHEREAS, DISTRICT is amenable to the CITY constructing the IRWD FACILITIES with the CITY agreeing to advance the costs; and WHEREAS, DISTRICT agrees to fully reimburse the CITY through payments billed by the CITY and approved by DISTRICT for the entire cost of the IRWD FACILITIES; and - 1- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 WHEREAS, except as otherwise provided herein, upon the completion of the IRWD FACILITIES, the IRWD FACILITIES shall become the property of DISTRICT in accordance with the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows: SECTION 1. IRWD FACILITIES. In conjunction with the Project, CITY agrees to initiate and pursue to completion the design and construction of the IRWD FACILITIES. SECTION 2. PLANS. CITY agrees that the IRWD FACILITIES 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. Prior to commencement of preparation of the Plans and Specifications, CITY shall submit its design engineer's proposal for the design of the IRWD FACILITIES to DISTRICT. DISTRICT will have a period of five (5) calendar days from its receipt of such design proposal to review and either indicate its approval or request changes. CITY shall cause its design engineer to review and respond to any requested changes. The Plans and Specifications shall be deemed to incorporate the applicable portions of DISTRICT's latest edition of "Construction Manual for the Construction of Water, Sewer, and Reclaimed Water Facilities" (the "Construction Manual "). The IRWD FACILITIES shall be contracted by CITY together with non - reimbursable work to be completed by CITY within the Project pursuant to plans prepared by CITY's design engineer. SECTION 3. BIDDING AND AWARD. The parties agree that the construction of the IRWD FACILITIES shall be included in CITY's contract awarded for the Project and that the IRWD FACILITIES shall be bid as a separate item or items that can be deleted. During the bidding process, CITY shall deliver to IRWD one (1) complete set of the bid documents that include the IRWD FACILITIES, including all related addenda concurrently with the distribution thereof to prospective bidders. Upon opening of bids by CITY, CITY will submit the bids or a spread sheet summary of the bids to DISTRICT. DISTRICT will have a period of ten(10) calendar days from its receipt of the bid results for review and approval of the IRWD FACILITIES bid item(s) submitted by the bidder identified to DISTRICT by CITY as CITY's proposed successful bidder. CITY agrees that bids received for the construction of the IRWD FACILITIES bid item(s) shall be subject to the approval of DISTRICT prior to award of the Project construction contract(s) that include the IRWD FACILITIES; and further agrees that in the event DISTRICT does not approve such bids, either party may terminate this Agreement - 2- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 upon twenty -four (24) hours' prior written notice, in which event CITY shall have no further obligation to construct the IRWD FACILITIES, and DISTRICT may elect to install the IRWD FACILITIES with its own contractor. If DISTRICT approves of the IRWD FACILITIES bid item(s) of CITY's successful bidder, CITY agrees to cause the IRWD FACILITIES to be constructed as part of the contract awarded to such bidder. The total estimated construction cost for the IRWD FACILITIES is $6,700.00, provided, however, the amount to be reimbursed by DISTRICT shall be based on the actual costs of construction. 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 IRWD FACILITIES received from the successful bidder. SECTION 4. DESIGN REVISIONS AND CHANGE ORDERS. DISTRICT agrees to reimburse CITY for any change order(s) for revision(s) requested by DISTRICT or otherwise required to construct the IRWD FACILITIES. CITY shall promptly famish DISTRICT with copies of any proposed change order(s) to such contract within five (5) working days of the initiation of the changed conditions to such contract, which shall be subject to DISTRICT approval if and to the extent the IRWD FACILITIES are affected therefrom. 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 IRWD FACILITIES. Notwithstanding any other provision herein, any approval required to be given by the DISTRICT under this Section shall be deemed given if no response to the CITY's request for such approval is received by the CITY within eight (8) working days following the written request for such approval unless the parties agree otherwise in a writing executed by both parties. SECTION 5. REIMBURSEMENT. DISTRICT agrees to reimburse CITY for the following costs (collectively, the "Costs "): (1) the actual costs of design, construction, permits, bonds, and legal fees (excluding the costs of preparation of this Agreement) incurred by CITY in connection with the design and construction of the IRWD FACILITIES, plus (2) 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 IRWD FACILITIES and which shall be deemed to cover all costs of project administration, including, but not limited to, accounting, inspection, - 3- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 surveying, compaction testing, geotechnical services and engineering. CITY shall keep a separate accounting of all Costs incurred by CITY in relation to the IRWD FACILITIES. Within sixty (60) days of DISTRICT's acceptance of the IRWD FACILITIES 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 IRWD FACILITIES. Amounts paid pursuant to progress payment invoices shall be subject to adjustment in the final accounting. Within thirty (30) days of said final accounting, DISTRICT agrees to pay to CITY the total amount of the Costs. SECTION 6. LAWS, ORDINANCES, RULES AND REGULATIONS. CITY shall require in its contract for the construction of the IRWD FACILITIES 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, the Construction Manual, and the Rules and Regulations of DISTRICT, in connection with the construction of the IRWD FACILITIES. SECTION 7. INSPECTION. DISTRICT shall have sole and absolute discretion as to all aspects of design and construction of the IRWD FACILITIES, and DISTRICT shall be entitled to inspect the construction of IRWD FACILITIES 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. DISTRICT will promptly notify CITY of any portion of the work on the IRWD FACILITIES which appears not to conform to the Plans and Specifications. The determination of DISTRICT as to conformity of the IRWD FACILITIES 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 IRWD FACILITIES with the Plans and Specifications. CITY shall require its contractor to construct the IRWD FACILITIES so that the IRWD FACILITIES conform to the Plans and Specifications. CITY agrees to assume full responsibility for certifying or obtaining certification of the compaction ofbackfill material over the IRWD FACILITIES. SECTION 8. ACCEPTANCE. DISTRICT agrees to accept the IRWD FACILITIES when the IRWD FACILITIES have been completed by CITY in accordance with all requirements of the Plans and Specifications, including any change orders approved by DISTRICT as provided - 4- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 in Section 3 hereof. At the time of completion and acceptance of the IRWD FACILITIES, 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. SECTION 9. OWNERSHIP. It is mutually agreed between the parties hereto that notwithstanding the fact that CITY shall accomplish the construction of the IRWD FACILITIES subject to reimbursement, the IRWD FACILITIES to be completed hereunder, together with the necessary franchises, licenses, easements, rights -of -way, and other privileges, shall at all times be subject to the applicable rates, rules and regulations of DISTRICT, as modified or amended from time to time. CITY hereby disclaims any interest in the IRWD FACILITIES and does hereby transfer and assign to DISTRICT any and all right, title, and interest it may have in the IRWD FACILITIES. DISTRICT shall own, operate and maintain the IRWD FACILITIES following acceptance thereof. SECTION 10. GUARANTEES. CITY will, pursuant to the requirement(s) of the Plans and Specifications, cause its contractor(s) for the IRWD FACILITIES to guarantee the IRWD FACILITIES 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 IRWD FACILITIES 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 IRWD FACILITIES 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 IRWD FACILITIES. The guarantee and obligations under this section shall in no way be relieved by DISTRICT's inspection and/or acceptance of the IRWD FACILITIES. This section sets forth the entire guarantee and warranty of CITY with respect to the IRWD FACILITIES. The express or implied warranties of other persons with respect to IRWD FACILITIES 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 IRWD FACILITIES. SECTION 11. INDEMNIFICATION. CITY shall indemnify, defend and hold DISTRICT, its officers, agents, employees, and engineers harmless from any expense, liability or - 5- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 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 IRWD FACILITIES 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. 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 IRWD FACILITIES construction; or (ii) following DISTRICT acceptance of the IRWD FACILITIES, with respect to maintenance and operation of the IRWD FACILITIES, 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. SECTION 12. INSURANCE AND BONDING. CITY shall cause its contractor(s) to provide performance and payment bonds for the construction of the Project including the IRWD FACILITIES 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 insurance coverage, CITY shall, prior to commencement of construction of the IRWD FACILITIES, provide DISTRICT with certificates of insurance and insurance endorsements from CITY's contractor(s) in a form acceptable to DISTRICT. SECTION 13. TERMINATION. DISTRICT shall have the right to terminate this Agreement at any time, subject to the provisions of this section, by providing five (5) business days' prior written notice to CITY, except as noted in Section 3. If at the request or direction of a party other than CITY, the construction of the IRWD FACILITIES is not accomplished or completed, DISTRICT shall remain obligated for the actual amount of the Costs incurred by CITY to the date of termination. If CITY's Project is canceled or modified so as to eliminate the necessity of the construction of the IRWD FACILITIES, CITY shall have the right to terminate this Agreement and thereby terminate its obligation to construct the IRWD FACILITIES, by providing five (5) - 6- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 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 IRWD elects to construct the IRWD FACILITIES, DISTRICT may, but shall not be obligated to, acquire the design or other work from CITY by separate agreement. SECTION 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: Irvine Ranch Water District 15600 Sand Canyon Avenue P.O. Box 57000 Irvine, CA 92619 -7000 Attn: General Manager CITY: City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658 Attn: Andy Tran, Senior Civil Engineer SECTION 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 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. SECTION 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. SECTION 17. DEEMED APPROVAL. Any approval required to be given by either party pursuant to this Agreement shall be deemed given if no response to the party's request for such approval is received by the requesting party within fifteen (15) days following the written request for such approval. - 7- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 SECTION 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. SECTION 19. APPLICABLE LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of California. SECTION 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. - 8- Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724 IN WITNESS WHEREOF, the parties to the Agreement have executed this Agreement on the date herein above written. IRVINE RANCH WATER DISTRICT By/I�T -' Dated �7 yo 11 �, Paul D. Jones II, General Manager ATTEST: By Dated 5✓ // Secretary/As a Secretary APPROVED AS TO FORM: By Dated Le, al Counsel, IRWD CITY OF NEWPORT BEACH A Municipal Corporation By t Dated /-7/ �D Da Kiff City Manager By Dated rirgof Public Works ATTEST: 13y Dated an' rown�� el ity Clerk y, APPROVED AS TO FORM: Y DatedWah 9 - Reimbursement Agreement for Jamboree Road/ SR -73 Project, CIP Contract No. 3724