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HomeMy WebLinkAboutC-4397 - Reimbursement Agreement for Construction of the Bayside Drive Improvement ProjectREIMBURSEMENT AGREEMENT BETWEEN THE ORANGE COUNTY SANITATION DISTRICT AND THE CITY OF NEWPORT BEACH FOR CONSTRUCTION OF THE BAYSIDE DRIVE IMPROVEMENT PROJECT THIS REIMBURSEMENT AGREEMENT ("Agreement"), is made and entered into on this ff,�"' day of %�7��`— , 2009, by and between the: AND ORANGE COUNTY SANITATION DISTRICT, a County Sanitation District, lhereinatter reterred to as "District"; CITY OF NEWPORT BEACH, California, a Municipal Corporation, hereinafter referred to as "City". District and City are sometimes hereinafter individually referred to as "Party" and hereinafter collectively referred to as "Parties". R FC1T A T .R WHEREAS, District is a duly organized County Sanitation District existing pursuant to the County Sanitation District Act, California Health and Safety Code section 4700, et seq., providing for the ownership, operation, and maintenance of wastewater collection, treatment, and disposal facilities within Orange County, California; WHEREAS, City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City; WHEREAS, District owns, operates and maintains a 24 -inch trunk sewer line within the City located on Bayside Drive between El Paseo Drive and Dahlia Avenue, and hereinafter, District's existing sewer line shall be referred to as the "Bayside Drive Trunk Sewer." The location is depicted on Exhibit A, attached hereto and incorporated in full by this reference; WHEREAS, District desires to repair the Bayside Drive Trunk Sewer hereinafter, and District's proposed improvements shall be referred to as the "District's Trunk Sewer Improvements". The proposed location of which is depicted on Exhibit A; Page 1 of 9 WHEREAS, City owns, operates, and maintains sewer lines on Bayside Drive that connect to the Bayside Drive Trunk Sewer, and hereinafter, the City's existing sewer lines shall be referred to as the "City Sewers." The location of which are depicted on Exhibit A; WHEREAS, City is planning a sewer improvement project in the vicinity of 2137 Bayside Drive and desires to repair and replace a portion of the City Sewers that connect to the Bayside Drive Trunk Sewer, hereinafter referred to as the "City's Sewer Improvements." The location is depicted on Exhibit A; WHEREAS, City and District desire to perform the repair and replacement of both the Bayside Drive Trunk Sewer and the City Sewers simultaneously so as to minimize the impacts to the public, hereinafter, the proposed concurrent construction of the District's Trunk Sewer improvements and the (-:ity.s Sewer improvements shall be referred to as the -Joint Project-. The approximate locations of the Bayside Drive Trunk Sewer and the City Sewers as they currently exist, and will exist, after the Joint Project is completed are depicted on Exhibit A; WHEREAS, District has agreed to administer and enter into the design and construction contracts for the Joint Project; WHEREAS, City and District agree that all sewer maintenance responsibilities and ownership rights will be clearly set forth on the design plans and permanently memorialized at the end of the Joint Project when the plans are certified by both parties as "Record Drawings"; and, WHEREAS, City has agreed to reimburse the District for the City's share of Joint Project costs in the manner and subject to the conditions set forth below. AGREEMENT NOW THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows: Section 1: Recitals. The Recitals above are deemed true and correct, are hereby incorporated in this Section as though fully set forth herein, and each Party to this Agreement acknowledges and agrees that they are bound by the same. Section 2: Elements of Agreement. City and District shall work cooperatively together so that the Joint Project can be constructed in a manner that minimizes the costs and impacts to the public. The specific terms and conditions governing the elements of this Agreement are set forth hereinafter. Section 3: District's Specific Obligations. A. District has entered into and administered contracts for the design services necessary for the Joint Project, including contracting with the necessary engineering consulting services to accomplish the design efforts. Page 2 of 9 B. District has submitted prepared plans and specifications for the design and construction of the Joint Project to the City for review. The plans and specifications meet both District's and City's standards and technical requirements C. District shall prepare and issue a bid package and administer the construction contract for the Joint Project. D. District or its construction contractor shall obtain all necessary permits for construction of the Joint Project from federal, state and local authorities. E. District shall require a one-year warranty on the Joint Project from its construction contractor. Such warranty shall read as follows: "The CONTRACTOR shall and hereby does guarantee the entire Work, and its perfonnance through maintenance of sufficient warranties, that the entire Work shall perform at all times as part of a fully integrated system consisting of all Work elements specified in the Contract Documents for a period of one (1) year after the Final Acceptance of the Work by OCSD. Any portion of the Work that is Beneficially Occupied shall be additionally warranted as described, in these General Conditions, Use Prior to Final Completion (Beneficial Occupancy). During the warranty period, the CONTRACTOR shall repair or remove and replace any Work, together with any other work which may be displaced in so doing that is found to be defective in workmanship and/or materials without any expense to OCSD, ordinary wear and tear and unusual abuse or neglect excepted. In the event of failure to comply with the above-mentioned conditions within one (1) week after being notified in writing, OCSD is hereby authorized to proceed to have the defects remedied at the expense of the CONTRACTOR who hereby agrees to pay the cost and charges thereof immediately on demand. The CONTRACTOR's warranty shall continue as to any corrected deficiency until the later of: 1. The remainder of the original one-year warranty period; or 2. One year after acceptance by OCSD of the corrected Work. "Such action by OCSD will not relieve the CONTRACTOR of the warranties required by this section or elsewhere in the Contract Documents. "All guarantees and warranties, expressed or implied shall inure to the benefit of both OCSD and the CONTRACTOR during the performance of the Work. Upon Final Completion of the Work, such guarantees and warranties shall inure to the benefit of OCSD. Page 3 of 9 "The Faithful Performance Bond and the Labor and Material Bond shall continue in full force and effect for the warranty period, including all extensions thereof as provided by the Contract Documents. "If, in the opinion of OCSD, defective Work is detected during the warranty period which creates a dangerous condition or requires immediate correction or modification to prevent further loss to OCSD or to prevent interruption of OCSD operations, OCSD will attempt to give the notice required by this section. If the CONTRACTOR cannot be contacted or does not comply with OCSD's request for correction within a reasonable time as determined by OCSD, OCSD may, TIN wit hctanrlino the hrovi¢innc of this certinn_ in nl.").ke ci_rrh enrreetioll or provide such modification. The costs of such correction or modification shall be charged against the CONTRACTOR. Such action by OCSD will not relieve the CONTRACTOR of the warranties required by this section or elsewhere in the Contract Documents. "This section does not in any way limit the warranty on any items for which a longer warranty is specified or on any items for which a manufacturer or Supplier gives a warranty for a longer period. The CONTRACTOR agrees to act as a co -guarantor with such manufacturer or Supplier and shall furnish OCSD all appropriate guarantee or warranty certificates upon completion of the Project and acceptance by OCSD. No warranty period, whether provided for in this section or elsewhere, shall in any way limit the liability of the CONTRACTOR, Sureties or insurers." F. Subject to the more specific provisions in Section 4.13. below, District shall promptly inform the City during the course of construction of the District's Trunk Sewer Improvements of any proposed change orders to the construction contract. Copies of proposed change orders affecting the City will be provided to the City within two (2) working days of submission to District. All change orders shall be subject to City's approval if, and to the extent, the City's Sewer Improvements are affected thereby, and provided that, if the City has comments or objections to the proposed changed order, the City provides such comments or objections within two (2) working days of transmittal of the proposed change order by the District if such transmittal is made electronically. G. District shall furnish and deliver to City all Record Drawings of the Joint Project and any additional project -related documents requested by City at no cost to City. Page 4 of 9 Section 4: City's Specific Obligations. A. City shall reimburse District in the amount of $10,000.00 for expenses associated with the design of the City's Sewer Improvements. In addition, City shall also reimburse District in the amount of $40,700.00 and any construction change orders for costs associated with the construction of the City's Sewer Improvements excluding the new 72 -inch diameter pressure manhole on Bayside Drive, the new 12 -inch HDPE sewer line from the pressure manhole to the first upstream vertical fitting approximately 35 feet from the pressure manhole, and the temporary sewer bypass system. City will be responsible for coordinating with the Gas Company and all expenses, including change orders, pertaining to the relocation of the existing 2 -inch gas service adjacent to City s Sewer Improvements. B. District's resident engineer shall serve as the sole point of contact for District's construction contractor, including for the City Sewer Improvements, but shall coordinate all construction change orders for the City Sewer Improvements with the City Engineer or his or her designee. City shall have the sole and absolute discretion to approve all aspects of the design and construction of the City Sewer Improvements, as well as construction change orders related thereto. C. City shall provide construction management and inspection services for their portion of the Joint Project at no cost to District. City shall inspect construction of the Joint Project as it deems necessary to assure compliance with the approved Plans and Specifications, including shop drawing review and/or material inspection thereof. City shall notify District within five (5) calendar days of completion of the portion of the work at issue if any portion of the work appears not to conform to the Plans and Specifications, and shall work with the District on all items associated with the Joint Project's construction. D. City agrees to accept the City Sewer Improvements within five (5) calendar days of completion by the District's construction contractor. Upon acceptance, City shall own, operate and maintain the City's Sewer Improvements. Section 5: Timing of Reimbursement. For each payment made by District to its consultants or contractors in connection with the Joint Project, including all progress and final payments, District shall submit an invoice to City setting forth City's share of the payment, accompanied by a copy of any supporting documentation that substantiates the calculation of the City's portion. Within forty-five (45) days following receipt of each invoice, City shall pay the District the full amount of such invoice. Page 5 of 9 Section 6: Indemnification. A. District shall indemnify, defend and hold City, its officers, agents, employees, and consultants harmless from any and all actions, suits, claims, liability or expense for death, injury, loss, or damage to persons or property which may arise or is claimed to have arisen during or out of construction of the Joint Project and prior to the acceptance by the City of the City's portion of the Joint Project, as a result of any work or action performed by or on behalf of District, its officers, agents, employees or consultants, save and except in those instances where such expense, liability or claim is solely caused by any act, omission, or negligence of City, its officers, agents, employees or consultants. B. City shall indemnify, defend and hold District, its elected and appointed officials, officers, agents, employees, and consultants, harmless from any and all actions, suits, claims, liability or expense for death, injury, loss or damage to persons or property which may arise or is claimed to have arisen as a result of any act performed by City, its officers, agents, employees or consultants, with respect to the construction of the Joint Project or following City's acceptance of the City's portion of the Joint Project, as a result of or in connection with the maintenance and operation of the improvements, save and except in those instances where such expense, liability or claim is solely caused by any act, omission or negligence of District, its officers, agents, employees or consultants. City shall also indemnify, defend and hold District, its elected and appointed officials, officers, agents, employees, and consultants, harmless from any and all actions, suits, claims, liability, cost or expense which may arise or is claimed to have arisen as a result of the City's denial of any change order or part thereof. Section 7: Insurance. District has arranged for its projects to be insured under an Owner Controlled Insurance Program ("OCIP") for workers' compensation and employer's liability insurance, commercial general liability insurance, and excess liability insurance (the "OCIP Coverages") in an amount not less than ($1,000,000) per occurrence for bodily injury, personal injury and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. District shall require that all OCIP policies be endorsed to name the City, its officers, employees, agents, and consultants as additional insureds. For risks not within the OCIP, District shall require the construction contractor to maintain insurance policies in the amounts stated herein during all times of the construction project. District shall not allow contractor or subcontractor(s) to commence work on the project until such insurance is obtained in accordance with the requirements of this section. District shall require that insurers be admitted carriers and authorized to transact business in the State of California and that insurers have an "A-", or better, Policyholder's Rating, and a Page 6 of 9 Financial Rating of at least Class VII, or better, in accordance with the most current A.M. Best Rating Guide. District shall include a provision in its contract with contractor that City may require contractor to substitute any insurer whose rating drops below the levels herein specified and that the substitution shall occur within twenty (20) days of written notice to contractor by City or its agent. District shall require contractor to furnish City with original certificates and amendatory endorsements effecting coverage. Said policies and endorsements shall conform to the requirements herein stated. All certificates and endorsements are to be received and approved by the City and the District before work cornmences. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, affecting the coverage required by these specifications, at any time. District shall require that all automobile liability policies be endorsed to name the District and City, their officers, employees, agents, and consultants as additional insureds. District shall require that each insurance policy required herein be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days' written notice. District shall require coverage in at least the following amounts: A. Automobile Liability. $1,000,000.00 combined single limit per accident for bodily injury and property damage, including non -owned and hired vehicles. Section 8: Term. The term of this Agreement shall commence on the above written date, and be in full force and effect until the 31" day of December, 2011, unless terminated earlier as set forth herein. Section 9: Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, delivered or sent by electronic transmission, and shall be deemed received upon the earlier of. (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) three (3) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by electronic transmission. Any notice, request, demand, direction, or other communication sent by electronic transmission must be confirmed within forty-eight (48) hours by letter mailed or delivered. Notices or other communications shall be addressed as follows: To District: Orange County Sanitation District Post Office Box 8127 Fountain Valley, CA 92728-8127 Attention: Penny Kyle, Board Secretary Facsimile: (714) 962-0356 Page 7 of 9 To City: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Attention: Steve Badum, Public Works Director Facsimile: (949) 644-3020 Section 10: Jurisdiction. In the event of a dispute regarding perfonnance or interpretation of this Agreement, the venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of California for Orange County. Section 11: No Third Party Beneficiaries. This Agreement is entered into by and for the District and the City, and nothing herein is intended to establish rights or interests in inuiviuuais ur CIII. ies r►oi a pally hereto. Section 12: Force Majeure. Except for the payment .of money, neither Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualty, Act of God, strike or labor dispute, war or other violence, acts of third parties, or any law, order, or requirement of any governmental agency or authority. Section 13: Governing Law. This Agreement shall be governed by the laws of the State of California. Section 14: Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations and agreements between the Parties pertaining to the subject matter hereof. Section 15: Waiver. A waiver of a breach of the covenants, conditions, or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions, or obligations of this Agreement. Section 16: Modification. Alteration, change, or modification of this Agreement shall be in the form of a written amendment, which shall be signed by each Party. Section 17. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. Section 18. Agreement Execution and Authorization. Each of the undersigned represents and warrants that they are duly authorized to execute and deliver this Agreement and that such execution is binding upon the entity on whose behalf they are executing this Agreement. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the day and year first above written. [Signatures on the following page.] Page 8 of 9 ORANGE COUNTY SANITATION DISTRICT By James D. Ruth, beneral Manager By .,,(i , , Clerk of tie BoaUd APPROVED AS TO FORM: GENERAL COUNSEL - A C L ATTEST: ayor ot� 2 owf-- City Clerk APPROVED AS TO FORM By amp tt=ttorney Attachment: Exhibit A FAUsers\PBWShared\AGREENMNTS - Outside\OCSD Bayside Dr Trunk Sewer\Bayside Drive -Reimbursement OCSD.doc Page 9 of 9 v \ LEGEND — s — CITY SEWERS --- BAYSIDE DRIVE TRUNK SEWER \ / i f DISTRICTS TRUNK SEWER IMPROVMENTS / ii//! ,' CITY'S SEWER IMPROVEMENTS A A� Z ilJj$� EXHIBIT A BAYSIDE DRIVE SEWER IMPROVEMENTS 14. CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT ""07/23/09 SCALE N.T.S SHT 1 OF 1 DRAWN JJ 5-61 0 0 i CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT (i 1 1 �i 2009 Agenda Item No. 7 October 13, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Andy Tran, P.E. 949 -644 -3315 or atran @newportbeachca.gov SUBJECT: REIMBURSEMENT AGREEMENT WITH ORANGE COUNTY SANITATION DISTRICT FOR THE BAYSIDE DRIVE SEWER IMPROVEMENTS RECOMMENDATIONS: 1. Approve the Reimbursement Agreement in the amount of $50,700 with Orange County Sanitation District (OCSD) for the Bayside Drive Sewer Improvements. 2. Establish an additional amount of $10,000 to cover the cost of unforeseen work. . Discussion: OCSD has prepared construction documents to rehabilitate and slip -line their trunk sewer mains on Bayside Drive between El Paseo Drive and Dahlia Avenue. As part of this work, an extensive temporary sewer bypass system will need to be installed in order to re -line the existing OCSD trunk sewer mains and manholes. There is also an existing 10 -inch cast iron City sewer line in the area which is in need of rehabilitation. To minimize construction impacts to the community and to reduce mobilization costs, staff requested OCSD to include the City sewer line in their contract documents. Staff recommends adding this work to the OCSD contract in order to take advantage of the temporary sewer bypass system that will already be installed as part of OCSD's Bayside Drive Sewer Improvements, thus reducing the cost to rehabilitate this older segment of the City system. Environmental Review: The City's 10 -inch sewer main rehabilitation project was determined to be exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301 of the CEQA Implementing Guidelines. This exemption covers the repair and maintenance of existing facilities with negligible or no expansion of use. In addition, OCSD also received CEQA clearance for the overall project. Public Notice: is Not required. • OCSD Reimlwrsement Aent for Bayside Drive Sewer Imp. October 13, 2009 Page 2 1 1` F66dilib A466fAllity: The engineering design fee for the City sewer improvements was $10,000. OCSD recently opened bids for the Bayside Drive Sewer Improvement contract. The construction cost for the City's sewer improvements is $40,700. In addition, City staff recommends establishing $10,000 to cover the cost of unforeseen work during construction. There are sufficient funds available in the following account for this work. Account Description Wastewater Enterprise Proposed uses are as follows: Vendor OCSD OCSD OCSD Prepared by: Account Number Amount 7531- C7001002 $ $60,700.00 Total: $ 60,700.00 Purpose Amount Engineering Services $ 10,000.00 Construction Cost $ 40,700.00 Construction Contingency $ 10,000.00 Total: $ 60,700.00 Submitted by: A�ndy Tran, P.E. tephen G. B d um Senior Civil Engineer O(Public Works Director Attachments: Reimbursement Agreement between OCSD and the City for the construction of the Bayside Drive Sewer Improvements n U • 0 0 • REIMBURSEMENT AGREEMENT BETWEEN THE ORANGE COUNTY SANITATION DISTRICT AND THE CITY OF NEWPORT BEACH FOR CONSTRUCTION OF THE BAYSIDE DRIVE IMPROVEMENT PROJECT THIS REIMBURSEMENT AGREEMENT ( "Agreement "), is made and entered into on this day of 2009, by and between the: ORANGE COUNTY SANITATION DISTRICT, a County Sanitation District, hereinafter referred to as "District "; CITY OF NEWPORT BEACH, California, a Municipal Corporation, hereinafter referred to as "City„ District and City are sometimes hereinafter individually referred to as "Party" and • hereinafter collectively referred to as "Parties ". RECITALS • WHEREAS, District is a duly organized County Sanitation District existing pursuant to the County Sanitation District Act, California Health and Safety Code section 4700, et seq., providing for the ownership, operation, and maintenance of wastewater collection, treatment, and disposal facilities within Orange County, California; WHEREAS, City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of the City; WHEREAS, District owns, operates and maintains a 24 -inch trunk sewer line within the City located on Bayside Drive between El Paseo Drive and Dahlia Avenue, and hereinafter, District's existing sewer line shall be referred to as the "Bayside Drive Trunk Sewer." The location is depicted on Exhibit A, attached hereto and incorporated in full by this reference; WHEREAS, District desires to repair the Bayside Drive Trunk Sewer hereinafter, and District's proposed improvements shall be referred to as the "District's Trunk Sewer Improvements ". The proposed location of which is depicted on Exhibit A; Page 1 of 9 0 0 WHEREAS, City owns, operates, and maintains sewer lines on Bayside Drive that • connect to the Bayside Drive Trunk Sewer, and hereinafter, the City's existing sewer lines shall be referred to as the "City Sewers." The location of which are depicted on Exhibit A; WHEREAS, City is planning a sewer improvement project in the vicinity of 2137 Bayside Drive and desires to repair and replace a portion of the City Sewers that connect to the Bayside Drive Trunk Sewer, hereinafter referred to as the "City's Sewer Improvements" The location is depicted on Exhibit A; WHEREAS, City and District desire to perform the repair and replacement of both the Bayside Drive Trunk Sewer and the City Sewers simultaneously so as to minimize the impacts to the public, hereinafter, the proposed concurrent construction of the District's Trunk Sewer Improvements and the City's Sewer Improvements shall be referred to as the "Joint Project ". The approximate locations of the Bayside Drive Trunk Sewer and the City Sewers -as they currently exist, and will exist, after the Joint Project is completed are depicted on Exhibit A; WHEREAS, District has agreed to administer and enter into the design and construction contracts for the Joint Project; WHEREAS, City and District agree that all sewer maintenance responsibilities and ownership rights will be clearly set forth on the design plans and permanently memorialized at the end of the Joint Project when the plans are certified by both parties as "Record Drawings "; and, • WHEREAS, City has agreed to reimburse the District for the City's share of Joint Project costs in the manner and subject to the conditions set forth below. AGREEMENT NOW THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows: Section 1: Recitals. The Recitals above are deemed true and correct, are hereby incorporated in this Section as though fully set forth herein, and each Party to this Agreement acknowledges and agrees that they are bound by the same. Section 2: Elements of Agreement. City and District shall work cooperatively together so that the Joint Project can be constructed in a manner that minimizes the costs and impacts to the public. The specific terms and conditions governing the elements of this Agreement are set forth hereinafter. Section 3: District's Specific Obligations. A. District has entered into and administered contracts for the design services necessary for the Joint Project, including contracting with the necessary • engineering consulting services to accomplish the design efforts. Page 2 of 9 0 0 • B. District has submitted prepared plans and specifications for the design and construction of the Joint Project to the City for review. The plans and specifications meet both District's and City's standards and technical requirements C. District shall prepare and issue a bid package and administer the construction contract for the Joint Project. D. District or its construction contractor shall obtain all necessary permits for construction of the Joint Project from federal, state and local authorities. E. District shall require a one -year warranty on the Joint Project from its construction contractor. Such warranty shall read as follows: "The CONTRACTOR shall and hereby does guarantee the entire Work, and its performance through maintenance of sufficient warranties, that the entire Work shall perform at all times as part of a fully integrated system consisting of all Work elements specified in the Contract Documents for a period of one (1) year after the Final Acceptance of the Work by OCSD. Any portion of the Work that is Beneficially Occupied shall be additionally warranted as described, in these • General Conditions, Use Prior to Final Completion (Beneficial Occupancy). During the warranty period, the CONTRACTOR shall repair or remove and replace any Work, together with any other work which may be displaced in so doing that is found to be defective in workmanship and/or materials without any expense to OCSD, ordinary wear and tear and unusual abuse or neglect excepted. In the event of failure to comply with the above - mentioned conditions within one (1) week after being notified in writing, OCSD is hereby authorized to proceed to have the defects remedied at the expense of the CONTRACTOR who hereby agrees to pay the cost and charges thereof immediately on demand. The CONTRACTOR's warranty shall continue as to any corrected deficiency until the later of: 1. The remainder of the original one -year warranty period; or 2. One year after acceptance by OCSD of the corrected Work. "Such action by OCSD will not relieve the CONTRACTOR of the warranties required by this section or elsewhere in the Contract Documents. "All guarantees and warranties, expressed or implied shall inure to the benefit of both OCSD and the CONTRACTOR during the performance of the Work. Upon • Final Completion of the Work, such guarantees and warranties shall inure to the benefit of OCSD. Page 3 of 9 0 0 "The Faithful Performance Bond and the Labor and Material Bond shall continue • in full force and effect for the warranty period, including all extensions thereof as provided by the Contract Documents. "If, in the opinion of OCSD, defective Work is detected during the warranty period which creates a dangerous condition or requires immediate correction or modification to prevent further Loss to OCSD or to prevent interruption of OCSD operations, OCSD will attempt to give the notice required by this section. If the CONTRACTOR cannot be contacted or does not comply with OCSD's request for correction within a reasonable time as determined by OCSD, OCSD may, notwithstanding the provisions of this section, proceed to make such correction or provide such modification. The costs of such correction or modification shall be charged against the CONTRACTOR. Such action by OCSD will not relieve the CONTRACTOR of the warranties required by this section or elsewhere in the Contract Documents. "This section does not in any way limit the warranty on any items for which a longer warranty is specified or on any items for which a manufacturer or Supplier gives a warranty for a longer period. The CONTRACTOR agrees to act as a co- guarantor with such manufacturer or Supplier and shall furnish OCSD all appropriate • guarantee or warranty certificates upon completion of the Project and acceptance by OCSD. No warranty period, whether provided for in this section or elsewhere, shall in any way limit the liability of the CONTRACTOR, Sureties or insurers." F. Subject to the more specific provisions in Section 4.13. below, District shall promptly inform the City during the course of construction of the District's Trunk Sewer Improvements of any proposed change orders to the construction contract. Copies of proposed change orders affecting the City will be provided to the City within two (2) working days of submission to District. All change orders shall be subject to City's approval if, and to the extent, the City's Sewer Improvements are affected thereby, and provided that, if the City has comments or objections to the proposed changed order, the City provides such comments or objections within two (2) working days of transmittal of the proposed change order by the District if such transmittal is made electronically. G. District shall famish and deliver to City all Record Drawings of the Joint Project and any additional project - related documents requested by City at no cost to City. r1 U Page 4 of 9 0 0 • Section 4: City's Specific Obligations. A. City shall reimburse District in the amount of $10,000.00 for expenses associated with the design of the City's Sewer Improvements. In addition, City shall also reimburse District in the amount of $40,700.00 and any construction change orders for costs associated with the construction of the City's Sewer Improvements excluding the new 72 -inch diameter pressure manhole on Bayside Drive, the new 12 -inch HDPE sewer line from the pressure manhole to the first upstream vertical fitting approximately 35 feet from the pressure manhole, and the temporary sewer bypass system. City will be responsible for coordinating with the Gas Company and all expenses, including change orders, pertaining to the relocation of the existing 2 -inch gas service adjacent to City's Sewer Improvements. B. District's resident engineer shall serve as the sole point of contact for District's construction contractor, including for the City Sewer Improvements, but shall coordinate all construction change orders for the City Sewer Improvements with the City Engineer or his or her designee. City shall have the sole and absolute discretion to approve all aspects of the design and construction of the City Sewer Improvements, as well as construction change orders related thereto. • C. City shall provide construction management and inspection services for their portion of the Joint Project at no cost to District. City shall inspect construction of the Joint Project as it deems necessary to assure compliance with the approved Plans and Specifications, including shop drawing review and/or material inspection thereof. City shall notify District within five (5) calendar days. of completion of the portion of the work at issue if any portion of the work appears not to conform to the Plans and Specifications, and shall work with the District on all items associated with the Joint Project's construction. • D. City agrees to accept the City Sewer Improvements within five (5) calendar days of completion by the District's construction contractor. Upon acceptance, City shall own, operate and maintain the City's Sewer Improvements. Section 5: Timing of Reimbursement. For each payment made by District to its consultants or contractors in connection with the Joint Project, including all progress and final payments, District shall submit an invoice to City setting forth City's share of the payment, accompanied by a copy of any supporting documentation that substantiates the calculation of the City's portion. Within forty-five (45) days following receipt of each invoice, City shall pay the District the full amount of such invoice. Page 5 of 9 0 0 Section 6: Indemnification. • A. District shall indemnify, defend and hold City, its officers, agents, employees, and consultants harmless from any and all actions, suits, claims, liability or expense for death, injury, loss, or damage to persons or property which may arise or is claimed to have arisen during or out of construction of the Joint Project and prior to the acceptance by the City of the City's portion of the Joint Project, as a result of any work or action performed by or on behalf of District, its officers, agents, employees or consultants, save and except in those instances where such expense, liability or claim is solely caused by any act, omission, or negligence of City, its officers, agents, employees or consultants. B. City shall indemnify, defend and hold District, its elected and appointed officials, officers, agents, employees, and consultants, harmless from any and all actions, suits, claims, liability or expense for death, injury, loss or damage to persons or property which may arise or is claimed to have arisen as a result of any act performed by City, its officers, agents, employees or consultants, with respect to the construction of the Joint Project or following City's acceptance of the City's portion of the Joint Project, as a result of or in connection with the maintenance and operation of the improvements, save and except in those instances where such expense, liability or claim is solely caused by any act, omission or • negligence of District, its officers, agents, employees or consultants. City shall also indemnify, defend and hold District, its elected and appointed officials, officers, agents, employees, and consultants, harmless from any and all actions, suits, claims, liability, cost or expense which may arise or is claimed to have arisen as a result of the City's denial of any change order or part thereof. Section 7: Insurance. District has arranged for its projects to be insured under an Owner Controlled Insurance Program ( "OCIP ") for workers' compensation and employer's liability insurance, commercial general liability insurance, and excess liability insurance (the "OCIP Coverages) in an amount not less than ($1,000,000) per occurrence for bodily injury, personal injury and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. District shall require that all OCIP policies be endorsed to name the City, its officers, employees, agents, and consultants as additional insureds. For risks not within the OCIP, District shall require the construction contractor to maintain insurance policies in the amounts stated herein during all times of the construction project. District shall not allow contractor or subcontractor(s) to commence work on the project until such insurance is obtained in accordance with the requirements of this section. District shall require that insurers be admitted carriers and authorized to transact business • in the State of California and that insurers have an "A - ", or better, Policyholder's Rating, and a Page 6 of 9 • • • Financial Rating of at least Class VII, or better, in accordance with the most current A.M. Best Rating Guide. District shall include a provision in its contract with contractor that City may require contractor to substitute any insurer whose rating drops below the levels herein specified and that the substitution shall occur within twenty (20) days of written notice to contractor by City or its agent. District shall require contractor to furnish City with original certificates and amendatory endorsements effecting coverage. Said policies and endorsements shall conform to the requirements herein stated. All certificates and endorsements are to be received and approved by the City and the District before work commences. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, affecting the coverage required by these specifications, at any time. District shall require that all automobile liability policies be endorsed to name the District and City, their officers, employees, agents, and consultants as additional insureds. District shall require that each insurance policy required herein be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days' written notice. District shall require coverage in at least the following amounts: A. Automobile Liability. $1,000,000.00 combined single limit per accident for bodily injury and property damage, including non -owned and hired vehicles. Section 8: Term. The term of this Agreement shall commence on the above written date, and be in full force and effect until the 31" day of December, 2011, unless terminated earlier as set forth herein. Section 9: Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be personally delivered or sent by registered or certified mail, postage prepaid, return receipt requested, delivered or sent by electronic transmission, and shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) three (3) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by electronic transmission. Any notice, request, demand, direction, or other communication sent by electronic transmission must be confirmed within forty-eight (48) hours by letter mailed or delivered. Notices or other communications shall be addressed as follows: To District: Orange County Sanitation District Post Office Box 8127 Fountain Valley, CA 92728 -8127 Attention: Penny Kyle, Board Secretary • Facsimile: (714) 962 -0356 Page 7 of 9 0 To City: City of Newport Beach • 3300 Newport Boulevard Newport Beach, CA 92663 Attention: Steve Badum, Public Works Director Facsimile: (949) 644 -3020 Section 10: Jurisdiction. In the event of a dispute regarding performance or interpretation of this Agreement, the venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of California for Orange County. Section 11: No Third Party Beneficiaries. This Agreement is entered into by and for the District and the City, and nothing herein is intended to establish rights or interests in individuals or entitics not a party hereto. Section 12: Force Majeure. Except for the payment of money, neither Party shall be liable for any delays or other non - performance resulting from circumstances or causes beyond its reasonable control, including without limitation, fire or other casualty, Act of God, strike or labor dispute, war or other violence, acts of third parties, or any law, order, or requirement of any governmental agency or authority. Section 13: Governing Law. This Agreement shall be governed by the laws of the State of California. Section 14: Entire Agreement. This Agreement constitutes the entire understanding • and agreement between the Parties and supersedes all previous negotiations and agreements between the Parties pertaining to the subject matter hereof. Section 15: Waiver. A waiver of a breach of the covenants, conditions, or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions, or obligations of this Agreement. Section 16: Modification. Alteration, change, or modification of this Agreement shall be in the form of a written amendment, which shall be signed by each Party. Section 17. Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. Section 18. Agreement Execution and Authorization. Each of the undersigned represents and warrants that they are duly authorized to execute and deliver this Agreement and that such execution is binding upon the entity on whose behalf they are executing this Agreement. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the day and year first above written. [Signatures on the following page.) • Page 8 of 9 • 0 APPROVED AS TO FORM: GENERAL COUNSEL Lo APPROVED AS TO FORM Attachment: Exhibit A • ORANGE COUNTY SANITATION DISTRICT James D. Ruth, General Manager By Clerk of the Board CITY OF NEWPORT BEACH Edward D. Selich, Mayor ATTEST: City Clerk • F: k1bmW9PASh.%ACREEM1N" - OwAdekOM Be W. DrTnm! S..ABW,& Dri eR<im4aseman OCS0&t Page 9 of 9 1V ' •. I LEGEND —s — CITY SEWERS - -- BAYSIDE DRIVE TRUNK SEWER , _ DISTRICTS TRUNK SEWER IMPROVMENTS �•! / !!/ C17Y'S SEWER IMPROVEMENTS •y //; �J Y / ay i \ \ \ E s 0 EXHIBIT A CITY OF NEWPORT BEACH BAYSIDE DRIVE PUBLIC WORKS DEPARTMENT SEWER IMPROVEMENTS DA f%7 23 09 SCALE N.T.s SHT I OF DRAWN 11 1 5-61