Project 129 - Amendment - City of Newport Beach - 2000-10-24 Amendment No 1 to Agreement No D96- E.
1
2 A M E N D M E N T
3 THIS AMENDMENT for purposes of identification hereby numbered Amendment
4 No 1 to Agreement No D96-162 and dated theci day of klek, 2000 is
5 BY AND BETWEEN
6 The Orange County Development Agency
hereinafter referred to as OCDA'
7
AND
8
The Costa Mesa Sanitary District
9 hereinafter referred to as CMSD'
10 AND
11 The City of Newport Beach
hereinafter referred to as CNB'
12
13 W I T N E S S E T H
14 WHEREAS OCDA, CMSD and CNB entered into Agreement No D96-162 on January
15 14 1997 hereinafter referred to as AGREEMENT for the purposes of designing and
16 constructing specific sewer infrastructure improvements for the Santa Ana Heights
17 area consisting of the South Bristol Street Flow Reversal a Sanitary Sewer Pump
18 Station an 8-inch Diameter Force Main from the pump station across the Birch Street
19 Bridge and a 15-inch Diameter Gravity Sewer Main along Birch Street (within the City
20 of Newport Beach) from the Birch Street Bridge to MacArthur Boulevard (also known as
21 the Area 2 Outfall facility) The above infrastructure improvements hereinafter
22 referred to as PROJECT are required to mitigate OCDA s proposed redevelopment of
23 the Santa Ana Heights Area and have been identified in a report prepared by BSI Inc
24 entitled, Santa Ana Heights Redevelopment Project Area Comprehensive Infrastructure
25 Improvement Plan Dated April 23 1990 hereinafter referred to as PLAN' and
26 WHEREAS OCDA, CMSD and CNB require an amendment to the AGREEMENT for the
following reasons
1
Amendment No 1 to Agreement No D96- --
1 1 Per the AGREEMENT the CMSD was required to design the South Bristol
2 Street Flow Reversal and the Area 2 Outfall facilities within nine
3 (9) months from the execution of the AGREEMENT and due to no faul
4 of CMSD in acquiring PROJECT permits and reviews the design of the
5 PROJECT has been delayed well beyond the required nine months
6 2 Due to current sewer infrastructure design criteria the size of t`e
7 15-inch diameter gravity sewer main must be increased to an 18-inch
8 diameter main
9 3 In order to construct the new 18-inch diameter sewer main within
10 Birch Street an existing CNB sewer main must be abandoned and its
11 existing laterals connected to the new mainline
12 4 Per the AGREEMENT the PROJECT contractor was to submit monthly
13 progress payment invoices to CMSD inspector for review who in turn
14 was to submit invoices to CMSD management for review and processing
15 who in turn was to submit invoices to OCDA staff for review and
16 approval Upon OCDA approval of each monthly invoice from CMSD
17 OCDA was to pay each monthly invoice to CMSD for disbursement to the
18 PROJECT contractor within thirty (30) calendar days However
19 California Public Contract Code Section 20104 50 (a) stipulates the
20 following Any local agency which fails to make any progress
21 payment within 30 days after receipt of an undisputed and properly
22 submitted payment request from a contractor on a construction
23 contract shall pa interest to the contractor equivalent to the
24 legal rate set forth in subdivision (a) of Section 685 010 of the
25 Code of Civil Procedure Per the process as set forth in the
26 AGREEMENT it is highly unlikely that CMSD and OCDA would be able to
process review and approve monthly invoices within thirty (30)
2
Amendment No 1 to Agreement No D96- 62
1 calendar days In order to comply with the Code and avoid penalty
2 interest payments to the PROJECT contractor the AGREEMENT must be
3 amended
4
5 NOW THEREFORE IT IS AGREED by and between the parties hereto that
6 Agreement No D96-162 is amended as follows
7 A All references made to EMA Director of Public Works Director of
8 Public Works or DIRECTOR shall be amended to read, Chief Engineer
g of the Orange County Public Facilities and Resources Department or
10 his duly appointed designee hereinafter referred to as 'CHIEF
11 ENGINEER
12 B Page 1 Second Paragraph shall be deleted and replaced as follows
13 'WHEREAS PLAN indicates the need to design and construct the South
14 Bristol Street Flow Reversal a new sanitary sewer pump station 8-
15 inch diameter force main (pressure flow) across Birch Street Bridge
16 and an 18-inch diameter gravity sewer main and abandonment of an
17 existing sewer main along Birch Street (within the City of Newport
18 Beach) to MacArthur Boulevard to interconnect with the Orange County
19 Sanitation District (OCSD) Von Karman Truck Sewer Main (see Exhibit
20 A) to mitigate OCDA s proposed redevelopment of the Santa Ana
21 Heights area and its impact to CMSD existing facilities
22 C Page 2 I Part 1 - Area 2 Outfall and Bristol Street Flow Reversal
23 Section A Plans Specifications and Engineer s Estimate
24 Paragraph 3 shall be deleted and replaced as follows 'CMSD agrees
25 to complete PROJECT design (s) within three (3) months after
26 acquiring all necessary PROJECT permits and reviews which shall be
3
Amendment No 1 to Agreement No D96-
1 sought with all due diligence and CMSD shall begin advertisement o
2 the PROJECT for public bid within two (2) months thereafter
3 D Page 3 I Part 1 - Area 2 Outfall and Bristol Street Flow Reversal
4 Section A Plans Specifications and Engineer s Estimate
5 Paragraph 8 shall be deleted and replaced as follows 'CNB agrees
6 to assist CMSD in obtaining CalTrans and CNB Permits for PROJECT
7 In addition CNB agrees to conduct and complete PS&E review
8 subsequent to the date of execution of Amendment No 1 of this
9 AGREEMENT and return written comments to CMSD within six (6) weeks
10 of PS&E submittal by CMSD to CNB An extension of time beyond the
11 six (6) week comment period will require a written notice by CNB to
12 CMSD with a revised completion date or submittal will be considered
13 as approved
14 E Page 4 and 5 Part 1 - Area 2 Outfall and Bristol Street Flow
15 Reversal Section B Advertisement for Bids and Construction
16 Delete Paragraphs Nos 2 and 3 and shall be deleted and replaced as
17 follows Subsequent to award of CONSTRUCTION CONTRACT (S) CMSD
18 shall submit an invoice subject to Section H of this Amendment to
19 OCDA for review approval and payment Upon receipt and approval
20 of invoice OCDA shall make payment to CMSD for the CONSTRUCTION
21 CONTRACT (S) award sum, subject to the provisions of paragraph no 1
22 of this section of the AGREEMENT within sixty (60) calendar days
23 F Page 5 Part 1 - Area 2 Outfall and Bristol Street Flow Reversal
24 Section B Advertisement for Bids and Construction Delete
25 Paragraph No 4 shall be deleted and replaced as follows All
26 parties agree that CONSTRUCTION CONTRACT (S) change orders for
payment by OCDA shall be reviewed and approved by the CHIEF ENGINEER
4
Amendment No 1 to Agreement No 09t
1 prior to implementation by the contractor(s) OCDA reserves the
2 right to deny payment of any CONSTRUCTION CONTRACT(S) change order
3 performed or installed without OCDA approval OCDA agrees to
4 reimburse CMSD for the cost of all CONSTRUCTION CONTRACT(S) change
5 orders to a total maximum not to exceed amount of Sixty Seven
6 Thousand Five Hundred Dollars ($67 500) Change orders that exceed
7 the total maximum amount above shall be the responsibility of CMSD
8 G Page 5 and 6 Part 1 - Area 2 Outfall and Bristol Street Flow
9 Reversal Sec`ion C Construction Administration and Inspection
10 Delete Paragraph Nos 3 and 4 and replace with the following 'Uuc-
11 completion of construction and recordation of a Notice of Complet_on
12 in the County Recorder s office for the CONSTRUCTION CONTRACT(S)
13 CMSD shall submit an invoice subject to the provisions of Sect_on
14 of this Amendment for construction administration and inspection
15 costs to OCDA for review approval and payment Upon receipt and
16 approval of invoice and copy of recorded Notice of Completion for
17 CONSTRUCTION CONTRACT (S) OCDA agrees to make payment to CMSD within
18 sixty (60) calendar days subject to the provisions of Paragraph No
19 2 of this section of the AGREEMENT
20 H Page 6 Part 1 - Area 2 Outfall and Bristol Street Flow Reversal
21 Add the following
22 D Processing of Invoices There will be two types of invoices
23 submitted to OCDA for processing one will be Invoice for Award of
24 CONSTRUCTION CONTRACT (S) and the other will be Invoice for
25 Construction Administration and Inspection or Contract Change
26 Orders All invoices submitted to OCDA for payment shall include an
accounting report containing the following information
5
Amendment No 1 to Agreement No D96-16.
1 Invoice for Award of CONSTRUCTION CONTRACT(S)
2 1 Title of Construction Contract or Project including location
3 areas and/or limits and type of construction
4 2 Copy of successful bidder s bid result and any relevant backup
5 information such as contractor s proposal breakdown of unit
6 costs for individual bid items or schedule of values if
7 applicable to invoice
8 3 All items shall be summed and totaled to equal the invoice
9 amount requested
10 Invoice for Construction Administration and Inspection or Contract
11 Change Orders
12 1 CMSD shall submit a Final Accounting Report and invoice to
13 OCDA for payment within sixty (60) calendar days of the filing
14 of the Notice of Completion for the CONSTRUCTION CONTRACT(S)
15 CMSD shall attach the following support and backup
16 information
17 a Title of Construction Contract or Project including
18 location areas and/or limits and type of construction
19 I D number of the Contract Change Order (if
20 applicable) and type and description of work performed
21 b List of CMSD staff and/or contracted staff involved,
22 their title total number of hours for each employee
23 worked, and cost per hour of each separating out
24 overhead and labor burden into different columns summed
25 and totaled to equal the invoice amount requested
26 c Copy of all construction progress payments made or
invoices paid to contractor where applicable (OCDA
6
Amendment No 1 to Agreement No D96-
1 agrees to pay for only those costs actually expended b•
2 CMSD and backed-up by appropriate paperwork )
3 d Copy of all construction change orders approved by ,.he
4 CHIEF ENGINEER and all supporting paperwork (including
5 all change orders for work or bid items deleted from or
6 credited to the PROJECT)
7 2 The Final Accounting Report submitted by CMSD to OCDA shall
8 detail and tally all debits and credits incurred by CMSD for
9 PROJECT and add all values for a total invoice sum to be paid
10 by or to OCDA depending on whether there is a balance due or
11 need for a refund
12 3 Any refund or overpayment shall be made to OCDA within sit y
13 (60) calendar days of the filing of the Notice of Completion
14 for the CONSTRUCTION CONTRACT (S)
15 I Page 10 IV Part 4 - Agreement To Hold Harmless Paragraph Nos 3
16 and 4 shall be deleted and replaced as follows
17 3 That neither CMSD nor any officer or employee thereof
18 shall be responsible for any damage or liability by
19 reason of anything done to omitted to be done by CNB
20 under or in connection with any work authority or
jurisdiction not delegated to CMSD under this agreement
21
It is also understood and agreed that pursuant to
22
Government Code Section 895 4 CNB shall fully indemnify
23
defend and hold harmless CMSD from any liability
24 imposed for injury (as defined by Government Code
25 Section 810 8) occurring by reason of anything done or
26 omitted to be done by CNB under this agreement
7
Amendment No 1 t0 Agreement No 096-16
1 4 That neither CNB nor any officer or employee thereof
2 shall be responsible for any damage or liability by
3 reason of anything done to omitted to be done by CMSD
4 under or in connection with any work, authority or
jurisdiction not delegated to CNB under this agreement
5
It is also understood and agreed that pursuant to
6
Government Code Section 895 4 CMSD shall fully
7
indemnify defend, and hold harmless CNB from any
8 liability imposed for incur defined y (as de_ined by Government
9 Code Section 810 8) occurring by reason of anything
10 done or omitted to be done by CMSD under this
11 agreement
12 J Page 10 Add V Part 5 - General Conditions
1 Amendments
13
No alterations or variations of the terms of this AGREEMENT
14
shall be valid unless made in writing and signed by the
15
parties hereto and no oral understanding or agreement not
16
incorporated herein shall be binding on any of the parties
17 hereto
18 2 Successors and Assigns
19 The terms and provisions of this AGREEMENT shall be binding
20 upon and inure to the benefit of the parties hereto and their
successors and assigns
21
3 Entirety
22
This AGREEMENT contains the entire agreement between the
23
parties with respect to the matters provided for herein
24
4 Severabili y
25 If any part of this AGREEMENT is held, determined, or
26 adjudicated to be illegal void or unenforceable by a court
of competent jurisdiction the remainder of this AGREEMENT
8
Amendment No 1 to Agreement No D96-
1 shall be given effect to the fullest extent reasonably
2 possible
3 5 Binding Obligation
4 The parties to this AGREEMENT represent and warrant that this
AGREEMENT has been duly authorized and executed and
5
constitutes the legally binding obligation of their respective
6
organization or entity enforceable in accordance with its
7
terms
8 6 Governing Law and Venue
9 This AGREEMENT has been negotiated and executed in the Stale
10 of California and shall be governed by and construed under the
11 laws of the State of California In the event of any legal
12 action to enforce or interpret this AGREEMENT the sole and
exclusive venue shall be a court of competent jurisdiction
13
located in Orange County California and the parties hereto
14
agree to and do hereb} submit to the jurisdiction of such
15
court notwithstanding Code of Civil Procedure Section 394
16
Furthermore the parties have specifically agreed, as part of
17
the consideration given and received for entering into this
18
AGREEMENT to waive any and all rights to request that an
19
action be transferred for trial to another County under Code
20
of Civil Procedure Section 394
21 All other terms and conditions of Agreement No D96-162 shall remain in
22 full force and effect
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24 ///
25 ///
26 ///
9
Ame zdment No 1 to Agreeme it No D90 162
1 IN WITNESS WHEREOF the parties hereto have caused this AMENDMENT to be
executed by their officers thereunto duly authorized on the date first written above
2
City of Newport Beach
3 A Municipal ntit,
4 Date 8 l 100 By /bl;L.teb
/ I ayor
5
Approved as to form
6 1 4,,� I/ Lr /
7 By lF"
Cif Attorney
8 Costa Mesa Sar.i -ary District
A Bod' Corper iera.- Politic
9
10 Date 7_ 13 -00 B' : ,r • _
Art Pe'rr= rresident
11
12
�Secr tary
13 Orange County Development Agency
A Body Corporate and Politic
15 Date /6 A- 6D _ By
Chairman
16 SIGNED AND CERTIFIED THAT A ' 'Pi OF
THIS AGREEMENT HAS BEEN DELIVERED TO
17 THE CHAIRMAN OF THE BOARD
18 A � .:. .
19 Date /6 ),(1=-0 By �✓ ' ,. //� 14.11210'
DA LENE J BLOOM
20 Clerk of the Biard of Supervisors of
Orange County California
21 APPROVED AS TO FORM
LAURENCE H WATSON
22 COUNTY COUNSEL
23
By 74 /J//!/ Dated C,
24 Deputy
25
26
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