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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 23 /// 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 10 I I. / / 1 4e °o�A ti F_ ° t RiQ e5 Ali/�Q WY. p c p. n Q� % z° P`z- ST v xi r • C °J� QN' rn OL < ;o / 4! DOLPHI -5TRIWY KER O CO'rOL SEWER PUMP 4�i y STATION , 6j 1ti• \ NEWPORT h°\ �qyO AREA II OUTFACE °o F� A\ SEWER FACILITIES PLACE OR \- ti p0 6,,0 ,�o (18" GRAVITY MAIN) Ai 2 5D �Uto re R? Qv°P 1- 1P SOUTH BRISTOL\2 2 iff Q,9 FLOW REVERSAL 2�22� /J �l•C R 8" FORCE MAIN 2`� �1'r - c BOWSPRIT P� ACROSS FWY BRIDGE 222 \ �Q� pR. L 9 0 c, >ti 1 2 ORANGE COUNTY iT e PUBLIC FACILITIES & RESOURCES DEPARTMENT ti r 60 2) EXHIBIT ti B2 \\Y 2 A oti 9. ti °y v SANTA ANA HEIGHTS SEWER INFRASTRUCTURE IMPROVEMENTS \ .ate 4 \AGREEMENT NO. 096-162 I AMENUmENT NO, i /