Project 129 - Contract - City of Newport Beach 2007-10-09 w
AGREEMENT BETWEEN THE COSTA MESA SANITARY DISTRICT, ORANGE
COUNTY DEVELOPMENT AGENCY AND CITY OF NEWPORT BEACH
REGARDING SEWER IMPROVEMENTS IN THE
EAST SANTA ANA HEIGHTS REDEVELOPMENT AREA
(Bristol Street Sewer /M__ain) /
This Agreement, is made and entered into this YI day of c9c4 ,2007
by and among the COSTA MESA SANITARY DISTRICT (CMSD), a California sanitary
district established pursuant to Health and Safety Code sections 6400 et seq. the ORANGE
COUNTY DEVELOPMENT AGENCY (OCDA), a California redevelopment agency
established pursuant to Health and Safety Code sections 33000 et seq. and the CITY OF
NEWPORT BEACH (CNB or City), a municipal corporation and charter city The CMSD,
OCDA and CNB shall be hereinafter collectively referred to as the 'Parties. The Parties enter
into this Agreement with reference to the following facts:
RECITALS
WHEREAS, the East Santa Ana Heights area is an area formerly within the
unincorporated area of the County of Orange that is currently in need of additional sewer service;
and
WHEREAS, the East Santa Ana Heights area is now located within the CNB, having
been annexed to said city in July of 2003 and
WHEREAS, the CMSD is a sanitary district that provides sewer service to the City of
Costa Mesa but also provides services to portions of the unincorporated county area and the
CNB with existing sewer facilities in place to serve said East Santa Ana Heights area; and
WHEREAS, CMSD CNB and OCDA, entered into Agreement No. D96-162 on January
14 1997 and an amendment thereto on October 24 2000, specifying the need for CMSD to have
expanded sewer facilities to serve the rezoned East Santa Ana Heights area, which area also is
located in OCDA's Santa Ana Heights Redevelopment Project area. Under Agreement No. D96-
162, the Parties agreed to cooperate in the design and construction of specific sewer
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infrastructure improvements in the Santa Ana Heights area, including a new sewer pumping
station known as the `South Bristol Street Pump Station' and
WHEREAS, prior to the construction of the proposed South Bristol Street Pump Station
envisioned in Agreement No D96-162, the Manager District/Engineer for the CMSD prepared an
Updated Sewer Flow Study & Cost Analysis in February 2003 attached hereto as Attachment 1
(hereinafter referred to as '2003 Updated Sewer Flow Study"). This study determined that the
proposed sewer pumping station that was to be constructed under Agreement No. D96-162 was
no longer necessary due to the following: 1) CMSD's installation of improvements throughout
the downstream portions of the existing sewer system; and 2) the planned replacement of the
existing 8-inch sewer line with a new 15-inch gravity sewer main in South Bristol Street from
Birch Street northwesterly approximately 2,140 feet. Said improvements and the reasons
therefor are more thoroughly set forth in the 2003 Updated Sewer Flow Study and
WHEREAS, the CMSD Board of Directors approved the 2003 Updated Sewer Flow
Study at its regular meeting on May 14 2003 and again on December 10, 2003 and
WHEREAS, the newly identified scope of work for the South Bristol Street sewer
improvements outlined in the 2003 Updated Sewer Flow Study represents a significant cost-
saving alternative to the OCDA, and
WHEREAS, the newly identified scope of work in the 2003 Updated Sewer Flow Study
will no longer require construction of more than 4,000 feet of sewer main in Birch Street from
Bristol Street northbound to MacArthur Boulevard, thus eliminating the need for the CMSD to
conduct the cleaning, operation and maintenance activities on the proposed Birch Street sewer
main that had been previously contemplated in Agreement No. D96-162, as amended; and
WHEREAS, pursuant to the 2003 Updated Sewer Flow Study the CMSD will not be
required to construct and maintain an additional sewer pumping facility as contemplated in the
previous Agreement No. D96-162, and
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WHEREAS, the CMSD Manager/District Engineer prepared an updated cost analysis of
the improvements recommended in the 2003 Updated Sewer Flow Study which was dated
August 2006 and is attached hereto as Attachment 2; and
WHEREAS the CMSD Board of Directors and the Orange County Board of Supervisors
have each made the findings required by California Health & Safety Code section 33445 that the
Agency payments for the Project (as defined below) are of benefit to the Santa Ana Heights
Redevelopment project area, that there are no other means of funding the Project, that the Project
will assist in eliminating one or more conditions of blight in the Santa Ana Heights
Redevelopment Project Area and that the Project is contemplated by OCDA's implementation
plan; and
WHEREAS, all Parties will realize substantial savings from this Agreement and the
public interest will be served thereby and
WHEREAS, CMSD will conduct such environmental analysis and make such findings as
are required by law and shall obtain an encroachment permit from the City to build the sewer
improvements along the portions of the Project Area owned by the City or over which the City
has a public right-of-way easement;
NOW THEREFORE, IT IS AGREED by and between the Parties hereto that:
1 Incorporation of Recitals. The above written Recitals provide the factual basis
underlying and supporting the Parties' desire to enter into this Agreement.
2. Prior Agreements. The previous Agreement No. D96-162, and the October 24
2000 Amendment thereto, are hereby terminated and superseded by this Agreement.
3 Project. The Project consists of expanding the existing Bristol Street Sewer
System, as outlined in the '2003 Updated Sewer Flow Study and Cost Analysis, attached hereto
as Attachment 1 (hereinafter referred to as the `Sewer Improvements or the 'Project"). The
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Sewer Improvements will be constructed along South Bristol Street and portions of Irvine
Avenue on land that is within either the City's or the County of Orange s public right-of-way
4 Duties of the CMSD
A. The CMSD agrees to provide design phase services, supervision of contract
bidding and award, contract administration and building inspection services for the Project.
CMSD agrees to provide said services in accordance with the following schedule:
1 CMSD shall complete the Project design within 270 days of the date that
this Agreement is fully signed and delivered to the CMSD.
2. CMSD shall award the construction contract within 90 days of receiving
the completed project design;
3 Construction of the Project shall be completed within 180 days of signing
the construction contract and the posting of all required insurance and bonds.
B. CMSD further agrees to prepare the plans, specifications and estimates for the
proposed sewer improvements for an amount not greater than the balance remaining for design
phase allocation in Agreement No. D96-162. As of the time of execution of this Agreement, said
balance is approximately $59 123. CMSD agrees to provide three sets of project plans and
specifications to OCDA for review and approval prior to advertisement for bid.
C. CMSD shall be the lead agency for purposes of the California Environmental
Quality Act (CEQA) and, in such capacity shall conduct such environmental review as CEQA
may require. CMSD shall be responsible for all CEQA costs and expenses. CMSD
acknowledges and understands that OCDA has obligations as a responsible agency under CEQA.
Consequently OCDA's funding for the construction of the Project shall be conditioned upon
OCDA being able to make the findings required under CEQA for a responsible agency
D CMSD shall obtain all necessary permits for construction of the Project from
federal, state and local authorities. CMSD shall be liable for the cost and expense of obtaining
all necessary permits.
E. CMSD agrees to obtain an Encroachment Permit from the City for work within
the CNB right-of way
F CMSD agrees to require that the contractor selected to construct the Project shall
post a Faithful Performance Bond and a Labor and Materials Bond in an amount sufficient to
cover the cost of completing the Project.
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G. Upon completion of the Project, CMSD shall assume the ownership, operation,
and maintenance responsibility for the Sewer Improvements.
5 Duties of the CNB. The CNB agrees to be removed from the approval process for
the contemplated sewer improvements upon signing of this Agreement. However CMSD still
must obtain an Encroachment Permit from the City as outlined above.
6. Duties of the OCDA. Subject to the provisions of this Agreement, the OCDA
agrees to provide funding for the services described in Paragraphs 3 and 4 above and the Project
construction costs upon being provided with an invoice therefor.
7 Estimated Construction Cost. The estimated construction cost of the Project
described in Paragraph 3 is $1 147 125
8. CMSD Cost of Service. The costs for the construction administration and
inspection services, including construction staking, for the Project shall not exceed $114 712.50.
CMSD costs shall be billed at the following rates:
a. Engineer $ 85.00 per hour
b. Two-person survey crew $220.00 per hour
c. Three-person survey crew $295.00 per hour
9 Approval of Construction Contract Amount. As noted above, CMSD has
estimated that the construction costs for the Project will be $1 147 125 CSMD will solicit bids
for the construction of the Project. The award of the construction contract shall be subject to the
approval of OCDA as follows: After soliciting bids, CMSD shall notify OCDA of the amount of
the proposed construction contract. If the proposed contract is in excess of 5% above
$1 147 125, OCDA shall notify CMSD to determine if it will fund the excess. Nothing in this
Agreement obligates OCDA to agree to fund construction costs for the Project in excess of 5%
above $1 147 125 If OCDA decides not to fund the excess, CMSD may agree to fund the
excess. If not, then OCDA may terminate this Agreement.
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10. Award of Contract. Assuming OCDA has approved the construction contract
pursuant to Section 9 above and the funds to pay the construction costs have been committed by
OCDA and, if necessary CMSD upon award of the construction contract by the CMSD Board
of Directors, CMSD shall send a copy to the OCDA of the construction contract with a copy of
the agenda report showing competitive bidding. The information submitted to the OCDA shall
include a copy of the successful bidder's bid result and any relevant backup information. Should
additional sums be required for change orders above 5% above the base contract amount, CMSD
shall'be responsible for the additional sums necessary for the change orders. However, OCDA
may provide additional funds for change orders, if CMSD submits a prior written request for
approval of the change order to OCDA and OCDA determines, in its sole discretion, to fund the
change order costs. If not approved by OCDA, CMSD may nevertheless implement any change
order that does not materially change the Project so long as CMSD provides the funding for the
change order work.
I1 CMSD Contract Administration. Payment and Reimbursement. CMSD shall
administer the contract and make progress payments to the contractor for its work. Upon review
and approval of invoices by the OCDA, OCDA shall reimburse the CMSD for all invoices within
sixty (60) calendar days of receipt. The CMSD shall reimburse the OCDA for excess funds
collected from the OCDA within 60 calendar days of recording the Notice of Completion. In
addition, the CMSD agrees to submit to OCDA an accounting report containing the following:
a. Copies of all construction progress payments made or invoices paid to contractors
and/or consultants where applicable, with copies of construction administration and inspection
service billings.
b. Copies of all construction change orders approved and all backup documentation
(including all change orders for work or bid items deleted from or credited to the project).
c. All items shall be summed and totaled to equal the amount paid by OCDA, less
any refund amount.
12. Mutual Indemnification. To the fullest extent permitted by law CMSD and
OCDA agree to save, indemnify defend and hold harmless each other from any and all liability
claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses, or any injury or damage of any kind whatsoever, whether actual,
alleged or threatened, actual attorney fees, court costs, interest, defense costs and expenses
associated therewith including the use of experts and any other costs of any nature without
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restriction incurred in relation to, as a consequence of, or arising out of; the performance of this
Agreement, and attributable to the fault of the other or others. Following a determination of the
percentage of fault and or liability by Agreement between the parties or a court of competent
jurisdiction, the party or parties responsible for liability to the other or others will indemnify the
other party or parties to this Agreement for the percentage of liability determined as set forth
this section.
13 Indemnifications and Insurance Related to Construction. Notwithstanding said
mutual indemnity obligation set forth in Section 12 above, CMSD agrees to ensure that the
contractor selected for the Project obtains adequate insurance covering all risks associated with
construction of the Project and that the contractor agrees to indemnify and defend OCDA, the
County of Orange, the CNB and the CMSD (hereinafter collectively referred to as the
`Indemnified Parties") from any and all liability arising out of its work on the Project, save and
except that caused by the active negligence of the Indemnified Parties. CMSD agrees to require
that the contractor maintain Comprehensive General Liability insurance in an amount not less
than two million dollar ($2,000,000) 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. CMSD also agrees
to ensure that the Contractor maintain automobile insurance covering bodily injury and property
damage for all activities arising out of or in connection with work to be performed, including
coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each occurrence. In addition, the
following provisions shall be required.
A. OCDA, County of Orange, and CNB shall each be named as an additional insured
on an endorsement to said policies. An additional insured endorsement evidencing that the City
is an additional insured shall accompany the Certificate of Insurance. CMSD shall not allow
contractor to commence work on the Project until such insurance and endorsements are obtained
in accordance with the requirements of this section.
B. All insurance policies required to be obtained by the contractor shall be primary
insurance, and any insurance maintained by the City of Newport Beach and County of Orange
shall be excess and non-contributing with insurance provided by these policies. An endorsement
evidencing that the contractor's insurance is primary and non-contributing shall specifically
accompany the Certificate of Insurance for the Commercial General Liability
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14. Amendments. No alterations or variations of the terms of this Agreement shall be
valid unless made in writing and signed by the Parties hereto and no oral understanding or
Agreement not incorporated herein shall be binding on any of the parties hereto.
15 Successors and Assigns. The terms and provisions of this Agreement shall be
binding upon and inure to the benefit of the Parties hereto and their successors and assigns.
16. Entirety This Agreement contains the entire agreement between the Parties with
respect to the matters provided for herein.
17 Severability If any part of this Agreement is held, determined or adjudicated to
be illegal, void or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible.
18. Binding Obligation. The Parties to this Agreement represent and warrant that this
Agreement has been duly authorized and executed, and constitutes the legally binding obligation
of their respective organization or entity enforceable in accordance with its terms.
19 Governing Law and Venue. This Agreement has been negotiated and executed in
the State of California and shall be governed by and construed under the laws of the State of
California. In the event of any legal action to enforce or interpret this Agreement, the sole and
exclusive venue shall be a court of competent jurisdiction located in Orange County California,
and the Parties hereto agree to and do hereby submit to the jurisdiction of such Court,
notwithstanding Code of Civil Procedure section 394 Furthermore, the Parties have specifically
agreed, as part of the consideration given and received for entering into this Agreement, to waive
any and all rights to request that an action be transferred for trial to another county under Code of
Civil Procedure section 394
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their officers thereunto duly authorized on the date first written above:
APPROV D AS TO FORM: CITY OF NEWPORT BEACH,
(f ,---- A Mu:'•.. C. ration and Ch. er City
By. —�\ By Oilim.
Aaron C. Harp, Asst. City Attorney Steven Rosansky Mayor 4
ATTEST c NeW,*.
By �i� ; . �� I *LAI /1 u `�. i
LaVonne Harkless, City Clerk c'\�
o
y �'
APPROVE• S TO FORM: COSTA MESA SANITARY DISTRICT (CMSD)
A Body Corporate and Polit'l
By .. .a al Lear By Ck' 11 _ .
Alan R. Burns, iistrict Counsel President
By '1 I
. !_ ._ I
Secretary
APPROVED AS TO FORM: ORANGE COUNTY DEVELOPMENT AGENCY
A Body Corporate and Politic
BENJAMIN P. DEMAYO
COUNTY COUNSEL
_ B dr/ SL / Jr
hairman
By.
Deputy SIGNED AND CERTIFIED THAT A COPY OF
Goldfarb and Lipman LLP THIS AGREEMENT HAS BEEN DELIVERED
Counsel for the Orange County TO THE CHAIRMAN OF THE BOARD
Development Agency
By. '--•'Y i l' Id it
• lene J Bloom
Clerk of the Board of Supervisors of Orange
County California
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
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OPTIONAL
Though the Information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
•• Title or Type of Document:
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Document Date: Number of Pages'
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Signer(s) Other Than Named Above:
Capacity(les) Claimed by Signer
Signer's Name: RIGHTTHUMBPRINT 6
Li Individual OF SIGNER ' I
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❑ Corporate Officer—Tille(s):
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Signer Is Representing:
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