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Project 168 - Contract - Newport - 2004-05-11 • REIMBURSEMENT AGREEMENT BETWEEN COSTA MESA SANITARY DISTRICT AND THE CITY OF NEWPORT BEACH FOR THE CONSTRUCTION OF CMSD SEWER MAINS ON IRVINE AVENUE AT MESA DRIVE This Agreement is made and entered into this day of )27 2004, by and between COSTA MESA SANITARY DISTRICT a California Sanitary District formed and existing pursuant to the Sanitary District Act of 1923 hereinafter referred to as 'CMSD' and CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as 'CITY' WITNESSETH. WHEREAS, the CITY currently proposes to construct the Irvine Avenue 24-inch Water Transmission Main Replacement between South Bristol Street and University Drive, hereinafter referred to as 'CITY PROJECT' the general location of which is depicted on Exhibit A to this • Agreement, which document is by this reference incorporated herein; and WHEREAS, CMSD plans to replace approximately 800 linear feet of parallel 12-inch sewer mains with 400 linear feet of new 18-inch sewer main along Irvine Avenue between University Drive at Mesa Drive as depicted on Exhibit A hereinafter referred to as 'CMSD FACILITIES' and WHEREAS, CITY proposes to construct the CITY PROJECT and the CMSD FACILITIES as a joint project to minimize impacts to the public and to provide cost savings and efficiency to both agencies, in lieu of construction of the CMSD FACILITIES by CMSD with an independent contract; and WHEREAS, CMSD is amenable to the construction of CMSD FACILITIES by CITY at the cost of CITY which cost is to be reimbursed by CMSD after the work is completed and accepted; and WHEREAS, CMSD FACILITIES shall be the property of CMSD in accordance with the • terms and conditions hereinafter set forth. (SSR 4-26-04) 1 NOW THEREFORE, the parties hereto, in consideration of the mutual promises and covenants hereinafter set forth, do agree as follows: • SECTION 1 CITY agrees to initiate and pursue to completion along with its construction of the CITY PROJECT the construction of CMSD FACILITIES as shown on Exhibit A to this Agreement, and CMSD agrees to cooperate with CITY with respect to the construction and schedules for completion of CMSD FACILITIES. CITY will be project administrator for the completion of the CITY PROJECT and CMSD FACILTI I I-S. SECTION 2. CITY agrees that CMSD FACILITIES shall be completed pursuant to CMSD approved plans and specifications ("Plans and Specifications") which shall be supplied by CITY consultant preparing the plans and specifications for the CITY's 24-inch Water Transmission Main. SECTION 3 The parties agree that the construction of CMSD FACILITIES shall be included in CITY PROJECT Contract No. C 3411 and CMSD FACILITIES shall be bid as separate items. Upon opening of bids by CITY CITY will submit the bid results to CMSD for review and approval. CITY agrees that bids received for the construction of CMSD FACILITIES shall be subject to the approval of CMSD prior to award of the construction contract for CMSD FACILITIES, and further agrees that in the event CMSD does not approve such bids, this • Agreement may be terminated by either party CMSD shall have a period of fifteen (15) calendar days for review of the bid results and approval of the successful bidder. The total estimated construction cost for CMSD FACILITIES is $250,000; however, the amount to be reimbursed by the CMSD shall be based on the actual costs of construction of the CMSD FACILITIES. Upon award of the construction contract, CITY shall provide CMSD with one (1) original copy of the fully executed contract documents and one (1) copy of each of the bid forms. CITY shall promptly inform CMSD during the course of construction of any change orders to such contract. All change orders shall be subject to CMSD approval if and to the extent any of CMSD FACILITIES are affected thereby Copies of proposed change orders affecting the CMSD FACILITIES will be provided to CMSD within five (5) working days of submission to CITY CMSD agrees not to unreasonably withhold its approval to such change orders, and agrees to reimburse CITY for the cost of all change orders that CMSD approves relating to the CMSD FACILITIES. SECTION 4 CITY agrees that if any revision during design or construction is requested by • CITY to the Plans and Specifications, and such revision would increase the cost of the CMSD FACILITIES, such increased costs shall be borne by CITY and shall not be reimbursed by CMSD (SSR 4-26-04) 2 The cost of any revisions requested by CMSD shall be reimbursed by CMSD as provided herein. • CMSD agrees that if any revision during design or construction is requested by CMSD to the Plans and Specifications, and such revision would increase the cost of the CMSD FACILITIES, such increased costs shall be borne by CMSD, and shall be reimbursed by CMSD SECTION 5 CMSD agrees to accept CMSD FACILITIES when CMSD FACILITIES have been completed by CITY in accordance with all requirements of Plans and Specifications, including any change orders approved by CMSD as provided in Section 3 hereof. CITY shall submit an invoice to CMSD for the CMSD FACILITIES upon completion, accompanied by a copy of any documentation processed with the payment or other documentation to substantiate the calculation of the CMSD portion. Within thirty (30) days following receipt from CITY of the invoice for the CMSD portion of a construction, CMSD shall deposit with CITY the amount of such invoice. SECTION 6. CMSD shall pay the invoiced amounts without offset or reduction within the time frame set forth in Section 5 SECTION 7 CMSD shall have sole and absolute discretion as to all aspects of design and construction of CMSD FACILITIES, and CMSD shall inspect the construction of CMSD • FACILITIES as it deems necessary to assure compliance with the Plans and Specifications, including shop drawing review and/or material inspection thereof. CMSD will promptly notify CITY of any portion of the work on CMSD FACILITIES which appears not to conform to the Plans and Specifications, and shall work through the CITY's inspector in all items associated with the construction contract. The determination of CMSD as to conformity of CMSD FACILITIES with Plans and Specifications shall be made in CMSD's sole and absolute discretion; however, CMSD agrees not to unreasonably withhold its approval as to such conformity CITY shall require its contractor to construct CMSD FACILITIES so that CMSD FACILITIES conform to Plans and Specifications. CITY agrees to assume full responsibility for certifying or obtaining certification of the compaction of backfill material over CMSD FACILITIES. SECTION 8. At the time of completion and acceptance of CMSD FACILITIES, CITY agrees to furnish CMSD with 'as-built' mylars of CMSD FACILITIES and one (1) copy each of the compaction reports and certificate, and cut sheets. SECTION 9 CITY will guarantee or cause its contractor for CMSD FACILITIES to • guarantee such CMSD FACILITIES against defects in workmanship and materials for a period of one (1) year from the date of acceptance by CMSD It is further agreed that CITY shall assume the responsibility that CMSD FACILITIES shall be brought or restored to full compliance with the (SSR 4-26-04) 3- requirements of Plans and Specifications, including any test requirements, for any portion of CMSD FACILITIES which during said one (1) year period are found not to be in conformance with the • provisions of Plans and Specifications. This guarantee is in addition to any and all other warranties, expressed or implied, from CITY contractors or material manufacturers with respect to CMSD FACILITIES. The guarantee and obligations under this section shall in no way be relieved by CMSD inspection and/or approval of CMSD FACILITIES. This section sets forth the entire guarantee and warranty of CITY with respect to CMSD FACILITIES, but this section shall in no way limit any expressed or implied warranties of other persons, with respect to CMSD FACILITIES. SECTION 10. CITY shall indemnify defend and hold CMSD its officers, agents, employees, and engineers 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 during construction of CMSD FACILITIES and prior to acceptance by CMSD as a result of any work or action performed by or on behalf of CITY its officers, agents, employees or engineers, save and except in those instances where such expense, liability or claim is proximately caused in whole or in part by any act, omission, or negligence of CMSD its officers, agents, employees or engineers or by any act or omission for which CMSD its officers, agents, employees or engineers are liable without fault. • CMSD shall indemnify defend and hold CITY its officers, agents, employees and engineers, harmless from any expense, liability or claim for death, injury loss or damage to persons or property which may arise or is claimed to have arisen either(i) as a result of any act performed by CMSD, its officers, agents, employees or engineers, with respect to CMSD FACILITIES construction; or (ii) following CMSD acceptance of CMSD FACILITIES with respect to maintenance and operation, save and except in those instances where such expense, liability or claim is proximately caused in whole or in part by any act, omission or 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 11 CITY shall cause its contractors for the construction of CMSD FACILITIES to obtain insurance coverage sufficiently broad to insure the matters set forth in this Agreement and to include CMSD as an additional insured on all insurance policies that CITY requires its contractors to provide. As evidence of such insurance coverage, CITY shall, prior to commencement of construction of CMSD FACILITIES, provide CMSD with certificates of insurance and insurance endorsements in forms that are acceptable to CMSD • (SSR 4-26-04) -4- SECTION 12. CMSD shall have the right to terminate this Agreement at any time, subject • to the provisions of this section. If at the request or direction of a party other than CITY including CMSD, CMSD FACILITIES construction is not accomplished or completed; CMSD shall remain obligated for the actual amount of any costs incurred by CITY for the CMSD FACILITIES. The CITY shall have the right to terminate this agreement at any time, subject to the provisions of this section. If at the request or direction of a party other than CMSD including CITY CMSD FACILITIES construction is not accomplished or completed; CMSD shall remain obligated for the actual amount of any costs incurred by CITY for construction of the CMSD FACILITIES. The provisions of Sections 9 and 10 shall survive the expiration or termination of this Agreement. SECTION 13 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: CMSD: Costa Mesa Sanitary District P O Box 1200 • Costa Mesa, CA 92628 Attn: Manager/District Engineer CITY City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Attn: Public Works Director SECTION 14 This Agreement shall be binding upon and inure to the benefit of the successor and assigns of CITY and CMSD This Agreement constitutes the entire Agreement between CITY and CMSD and supercedes 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 15 In the event of any declaratory or other legal or equitable action instituted between CITY and CMSD 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 attomeys' fees. • SECTION 16. 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 request for such approval. (SSR 4-26-04) 5- IN WITNESS WHEREOF the parties to the Agreement have executed this Agreement on • the date hereinabove written. COSTA MESA SANITARY DISTRICT By Dated President ATTEST By Dated Secretary APPROVE AS TO FORM. By Dated ,e3 79 v V Attorney for the Costa Mesa Sanitary District CITY OF NEWPORT BEACH • By / — i Dated S \3 0 of Mayor / NEW ATTEST )trek ;e+' �of ORW��1P ,J: <,F Dated ,--31(3/0,--31(3/0 K B q �-� City Clerk APPROVED AS TO FORM. City Attorney for .City of Newport Beach // B� l %7 f/ j Dated IA 0/ F\USERS\PBW\Shared\AGREEMENTS Outside\CMSD Reimbursement Agreement 4-26-04.DOC • (SSR 4-26-04) -6- / / \ / N —J- b., �__ 'j 11111:1 00,\IP 111‘44. ,ss. , i m,,..� ,is.. . . . . , .,.. �,4 �,':"\\ / / r Ns: , , .....„...._ ,.... .....„ ----__ - - - .2, ...‘ _ ,...... . / _7 : A, .\- .r \- -- - /:®K:," 8, 7, ., PROPOSED 24' ". /7,_:„._:::,,,,"..... .,„,, '� \J \ ,��/ ./.; ,, ,, . . , A / 7- -�Lir %\\ � 7, .,\\ " N. CITY OF NEWPORT,BEAD I, �✓ \ / ›K�i y� ' .( WATER LINE /\N\ / \�, /, 'j l, Al' mil . ' ' it '� \` ,\ . • ` \N.„, .'- `. t 1 ✓` \ PROPOSED? - ",,,WD, fi :\,. . J\ /,cC,:•/7) ` tip '.:)- WATER MAIN- :-•.;...\..„/ _ - ” \• CN- ifr,_,/, i , , HI N ���� ` \may / �� S \\, \ �! NTS ,' Exhibit '.A;,_ IRVINE AVENUE WATER MAIN REPLACEMEN'1j\ • REIMBURSEMENT AGREEMENT BETWEEN COSTA MESA SANITARY DISTRICT AND THE CITY OF NEWPORT BEACH FOR THE CONSTRUCTION OF CMSD SEWER MAINS ON IRVINE AVENUE AT MESA DRIVE This Agreement is made and entered into this itd. day of 7 i/, , 2004, by and between COSTA MESA SANITARY DISTRICT a California Salutary District formed and existing pursuant to the Sanitary District Act of 1923, hereinafter referred to as 'CMSD' and CITY OF NEWPORT BEACH, a municipal corporation, hereinafter referred to as 'CITY' WITNESSETH. WHEREAS, the CITY currently proposes to construct the Irvine Avenue 24-inch Water Transmission Main Replacement between South Bristol Street and University Drive, hereinafter referred to as 'CITY PROJECT' the general location of which is depicted on Exhibit A to this • Agreement, which document is by this reference incorporated herein; and WHEREAS, CMSD plans to replace approximately 800 linear feet of parallel 12-inch sewer mains with 400 linear feet of new 18-inch sewer main along Irvine Avenue between University Drive at Mesa Drive as depicted on Exhibit A" hereinafter referred to as "CMSD FACILITIES" and WHEREAS, CITY proposes to construct the CITY PROJECT and the CMSD FACILITIES as a joint project to minimize impacts to the public and to provide cost savings and efficiency to both agencies, in lieu of construction of the CMSD FACILITIES by CMSD with an independent contract; and WHEREAS, CMSD is amenable to the construction of CMSD FACILITIES by CITY at the cost of CITY which cost is to be reimbursed by CMSD after the work is completed and accepted; and WHEREAS, CMSD FACILITIES shall be the property of CMSD in accordance with the • terms and conditions hereinafter set forth. (SSR 4-26-04) 1 NOW THEREFORE, the parties hereto, in consideration of the mutual promises and covenants hereinafter set forth, do agree as follows: • SECTION 1 CITY agrees to initiate and pursue to completion along with its construction of the CITY PROJECT the construction of CMSD FACILITIES as shown on Exhibit A to this Agreement, and CMSD agrees to cooperate with CITY with respect to the construction and schedules for completion of CMSD FACILITIES. CITY will be project administrator for the completion of the CITY PROJECT and CMSD FACILTIIES. SECTION 2. CITY agrees that CMSD FACILITIES shall be completed pursuant to CMSD approved plans and specifications ("Plans and Specifications") which shall be supplied by CITY consultant preparing the plans and specifications for the CITY's 24-inch Water Transmission Main. SECTION 3. The parties agree that the construction of CMSD FACILITIES shall be included in CITY PROJECT Contract No. C 3411, and CMSD FACILITIES shall be bid as separate items. Upon opening of bids by CITY CITY will submit the bid results to CMSD for review and approval. CITY agrees that bids received for the construction of CMSD FACILITIES shall be subject to the approval of CMSD prior to award of the construction contract for CMSD FACILITIES, and further agrees that in the event CMSD does not approve such bids, this • Agreement may be terminated by either party CMSD shall have a period of fifteen (15) calendar days for review of the bid results and approval of the successful bidder. The total estimated construction cost for CMSD FACILITIES is $250,000; however, the amount to be reimbursed by the CMSD shall be based on the actual costs of construction of the CMSD FACILITIES. Upon award of the construction contract, CITY shall provide CMSD with one (1) original copy of the fully executed contract documents and one(1) copy of each of the bid forms. CITY shall promptly inform CMSD during the course of construction of any change orders to such contract. All change orders shall be subject to CMSD approval if and to the extent any of CMSD FACILITIES are affected thereby Copies of proposed change orders affecting the CMSD FACILITIES will be provided to CMSD within five (5) working days of submission to CITY CMSD agrees not to unreasonably withhold its approval to such change orders, and agrees to reimburse CITY for the cost of all change orders that CMSD approves relating to the CMSD FACILITIES. SECTION 4. CITY agrees that if any revision during design or construction is requested by CITY to the Plans and Specifications, and such revision would increase the cost of the CMSD • FACILITIES, such increased costs shall be borne by CITY and shall not be reimbursed by CMSD. (SSR 4-26-04) 2- The cost of any revisions requested by CMSD shall be reimbursed by CMSD as provided herein. • CMSD agrees that if any revision during design or construction is requested by CMSD to the Plans and Specifications, and such revision would increase the cost of the CMSD FACILITIES, such increased costs shall be borne by CMSD, and shall be reimbursed by CMSD SECTION 5 CMSD agrees to accept CMSD FACILITIES when CMSD FACILITIES have been completed by CITY in accordance with all requirements of Plans and Specifications, including any change orders approved by CMSD as provided in Section 3 hereof. CITY shall submit an invoice to CMSD for the CMSD FACILITIES upon completion, accompanied by a copy of any documentation processed with the payment or other documentation to substantiate the calculation of the CMSD portion. Within thirty (30) days following receipt from CITY of the invoice for the CMSD portion of a construction, CMSD shall deposit with CITY the amount of such invoice. SECTION 6. CMSD shall pay the invoiced amounts without offset or reduction within the time frame set forth in Section 5. SECTION 7 CMSD shall have sole and absolute discretion as to all aspects of design and construction of CMSD FACILITIES, and CMSD shall inspect the construction of CMSD • FACILITIES as it deems necessary to assure compliance with the Plans and Specifications, including shop drawing review and/or material inspection thereof. CMSD will promptly notify CITY of any portion of the work on CMSD FACILITIES which appears not to conform to the Plans and Specifications, and shall work through the CITY's inspector in all items associated with the construction contract. The determination of CMSD as to conformity of CMSD FACILITIES with Plans and Specifications shall be made in CMSD's sole and absolute discretion; however, CMSD agrees not to unreasonably withhold its approval as to such conformity CITY shall require its contractor to construct CMSD FACILITIES so that CMSD FACILITIES conform to Plans and Specifications. CITY agrees to assume full responsibility for certifying or obtaining certification of the compaction of backfill material over CMSD FACILITIES. SECTION 8. At the time of completion and acceptance of CMSD FACILITIES, CITY agrees to furnish CMSD with 'as-built' mylars of CMSD FACILITIES and one (1) copy each of the compaction reports and certificate, and cut sheets. SECTION 9 CITY will guarantee or cause its contractor for CMSD FACILITIES to guarantee.such CMSD,FACILITIES against defects in workmanship and materials for a period of • one (1) year from the date of acceptance by CMSD. It is further agreed that CITY shall assume the responsibility that CMSD FACILITIES shall be brought or restored to full compliance with the (SSR 4-2644) 3— requirements of Plans and Specifications, including any test requirements, for any portion of CMSD FACILITIES which during said one (1) year period are found not to be in conformance with the • provisions of Plans and Specifications. This guarantee is in addition to any and all other warranties, expressed or implied, from CITY contractors or material manufacturers with respect to CMSD FACILITIES. The guarantee and obligations under this section shall in no way be relieved by CMSD inspection and/or approval of CMSD FACILITIES. This section sets forth the entire guarantee and warranty of CITY with respect to CMSD FACILITIES, but this section shall in no way limit any expressed or implied warranties of other persons, with respect to CMSD FACILITIES. SECTION 10. CITY shall indemnify, defend and hold CMSD, its officers, agents, employees, and engineers 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 during construction of CMSD FACILITIES and prior to acceptance by CMSD, as a result of any work or action performed by or on behalf of CITY its officers, agents, employees or engineers, save and except in those instances where such expense, liability or claim is proximately caused in whole or in part by any act, omission, or negligence of CMSD, its officers, agents, employees or engineers or by any act or omission for which CMSD, its officers, agents, employees or engineers are liable without fault. • CMSD shall indemnify defend and hold CITY its officers, agents, employees and engineers, harmless from any expense, liability or claim for death, injury, loss or damage to persons or property which may arise or is claimed to have arisen either(i) as a result of any act performed by CMSD, its officers, agents, employees or engineers, with respect to CMSD FACILITIES construction; or (ii) following CMSD acceptance of CMSD FACILITIES with respect to maintenance and operation, save and except in those instances where such expense, liability or claim is proximately caused in whole or in part by any act, omission or 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 11 CITY shall cause its contractors for the construction of CMSD FACILITIES to obtain insurance coverage sufficiently broad to insure the matters set forth in this Agreement and to include CMSD as an additional insured on all insurance policies that CITY requires its contractors to provide. As evidence of such insurance coverage, CITY shall, prior to commencement of construction of CMSD FACILITIES, provide CMSD with certificates of insurance and insurance endorsements in forms that are acceptable to CMSD. • (SSR 4-26.04) -4- SECTION 12. CMSD shall have the right to terminate this Agreement at any time, subject • to the provisions of this section. If at the request or direction of a party other than CITY including CMSD, CMSD FACILITIES construction is not accomplished or completed; CMSD shall remain obligated for the actual amount of any costs incurred by CITY for the CMSD FACILITIES. The CITY shall have the right to terminate this agreement at any time, subject to the provisions of this section. If at the request or direction of a party other than CMSD, including CITY CMSD FACILITIES construction is not accomplished or completed; CMSD shall remain obligated for the actual amount of any costs incurred by CITY for construction of the CMSD FACILITIES. The provisions of Sections 9 and 10 shall survive the expiration or termination of this Agreement. SECTION 13. 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: CMSD. Costa Mesa Sanitary District P O. Box 1200 • Costa Mesa, CA 92628 Attn: Manager/District Engineer CITY City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Attn: Public Works Director SECTION 14. This Agreement shall be binding upon and inure to the benefit of the successor and assigns of CITY and CMSD This Agreement constitutes the entire Agreement between CITY and CMSD and supercedes 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 15 In the event of any declaratory or other legal or equitable action instituted between CITY and CMSD 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 16. 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 request for such approval. (SSR 4-26-04) 5- IN WITNESS WHEREOF the parties to the Agreement have executed this Agreement on • the date hereinabove written. COSTA MESA SANITARY DISTRICT By Dated President ATTEST By Dated Secretary APPROVED AS TO FORM. By G �,e s‘`..„7 Dated h..e a- 3 )40 Attorney for the Costa Mesa Sanitary District CITY OF NEWPORT BEACH • .i By a( Dated S ( 3 04 Mayor , Oy .NE$��'Qj ATTEST `4*' a my at*t `` 0fit ByC/la1(Jv Ala- �.�i'zZyfC.l(Q j�i°°R�� Dated 5/13 0 City Clerk APPROVED AS TO FORM. City Attorney for City of Newport Beach 1047kS, ��11 Dated %�SAY F:\USERS\PBW\Shared\AGREEMENTS Outside\CMSD Reimbursement Agreement 4-26-04.DOC • (SSR 4-26-04) -6-