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14-0204_ORANGE, COUNTY OF_Agreement No. D13-039Agreement No. D13-039 AGREEMENT BETWEEN THE COUNTY OF ORANGE AND THE CITY OF SAN JUAN CAPISTRANO For Water Line Facilities Relocation for Construction of La Pana Avenue from Ortega Highway to the Intersection of Calle Saluda and Avenida La Pata in San Clemente THIS AGREEMENT ("Agreement') for the purpose of identification hereby numbered D13- 039 and entered into this�'� day ofFE6�- 29111- :4011t BY AND BETWEEN County of Orange, a political subdivision of the State of California("County') 6447 City of San Juan Capistrano, a municipal corporation ("City') RECITALS WHEREAS, County proposes to widen La Pats Avenue from three lanes to five lanes from approximately 750 feet south of Ortega Highway (SR -74) in the County of Orange to the existing road terminus at the County`s Prima Deshecha Landfill; implement a gap closure by constructing four new lanes from the existing terminus to the intersection of Calle Saluda and Avenida La Pate in the City of San Clemente; and extending Camino Del Rio as a four -lane roadway from its existing terminus in the Forster Ranch community to the City to the proposed La Pats Avenue roadway ("Project"); and WHEREAS, City and County desire to cooperate with each other to remove and relocate a portion of City's water line facilities ("Facilities Relocation") which is in conflict with the Project. WHEREAS, County has prior rights over the City's water line which is in conflict with the PROJECT. WHEREAS, the cost of the first relocation is the responsibility of the City. WHEREAS, City desires the County to include Facilities Relocation into the Project plans and specifications in accordance with the terms of this agreement. AGREEMENT NOW, THEREFORE, IT IS AGREED by and between the Parties hereto as follows: COUNTY SHALL: A. Prepare the necessary plans and specifications for the Facilities Relocation work per City standards and include within the Project plans and Agreement No. D13-039 specifications. Advertise for bids and award a construction contract for PROJECT to the lowest responsive bidder ("Contractor") The City shall be given the opportunity to review and comment on the bid form and specifications prior to advertisement of the bid. C. Be solely responsible for Project contract award and for the administration and performance of the contract awarded to Contractor for the Facilities Relocation. D. Incorporate within the contract documents for the Project a requirement for the Contractor to obtain and keep in full force and effect throughout the life of the Project, for the mutual benefit of City and County, a policy or policies of comprehensive, broad form, general liability and automotive insurance against claims and liabilities for activities of Contractor in the amount of $5,000,000 (combined single limit per occurrence). Said policies shall name City and its respective elected and appointed officials, officers, agents and employees as additional insured's and shall, additionally, contains language providing for a waiver of subrogation, that the policies are primary and noncontributing with any insurance that may be carried by the parties hereto and that said insurance may not be cancelled or materially changed except upon thirty (30) days written notice to County. County shall also require that workers' compensation benefits be secured by the Contractor as required by law. E. Appoint a representative to administer the construction contract and perform the usual functions of a Resident Engineer ("Resident Engineer"). Decisions made by the Resident Engineer shall be final. The duties of the Resident Engineer shall include coordination of submittal review with the County's Design Engineer, pipeline installation inspection, welding inspection, enforcement of Contractor's compliance with Mitigation Measures of the Project, and other duties normally associated with construction management. F. Provide access to Project site for the City's purposes of inspection and to ensure that the Facilities Relocation work is being performed in accordance with the approved plans and specifications. G. Issues contract change orders to the Facilities Relocation work but only after approval by the City's Representative. _ H. Not accept the Facilities Relocation work from Contractor until City concurs with City's facilities have been constructed in accordance with City's approved plans and specifications and any authorized Contract Change Agreement Na D13439 Orders. Require that any and all labor and materials bonds and performance bonds required to be supplied by the Contractor for the Project shall Include City as a named assured on said bonds. Require that the Contractor provide a one year warranty and bond in the amount of the constructed facilities for material and labor of the Facilities Relocation to the City. Incorporate within the construction contract documents for the Project, a provision to allow the City to remove and cancel the Facilities Relocation work from the Project, if the City determines that the Contractor did not competitively bid on the work of the Facilities Relocation. 11. CITY SHALL: A. Review and approve in writing the Facilities Relocation plans and - specifications prepared by the County to be Included in the Project plans and specifications. B. Secure the necessary permits for construction and operation of the Facilities Relocation to include into County's plans and specifications for Project. Said permits shall be delivered to County prior to submittal of plans and specifications to the Orange County Board of Supervisors for approval and advertising. C. Pay for all Initial costs of the Facilities Relocation in three (3) equal installments based upon actual sum of the item bid prices for the Facilities Relocation from the Contractor to whom County has awarded the contract for the Project, plus any related Change Orders, plus 15% for construction management services. D. Pay forthe first installment two (2) years after the award of the construction contract or by December 31, 2015, whichever comes last. E. Pay for the second installment one year after the first installment and the third installment one year after the second installment. F. Appoint a representative ("City Representative"), who shall inspect all construction activities relation to the Facilities Relocation. City's REPRESENTATIVE shall at all times coordinate activities with and cooperate with the Resident Engineer to ensure timely review of Facilities Relocation activities to facilitate the construction activity, but the decision of County's Agreement No. D13-039 Resident Engineer shall be final. G. Review and expeditiously approve contract change order submittals from County. City shall not unreasonably withhold consent to Change Order submittals. H. upon completion and acceptance of the construction work own, operate, and maintain the installed facilities, and release County from any and all liability arising from the Facilities Relocation. Upon acceptance of the construction work for the Facilities Relocation and receipt of an invoice and final accounting report from County, provide to County final payment for said Facilities Relocation determined as the sum of Section II. La, Lb, and I.c a) The actual sum of the item bid prices for the Facilities Relocation, from the Contractor to whom County has awarded the contract for Project. b) Contract change order expenses approved by the City's Representative related to work involved with Facilities Relocation if any, will be added to. the above. C) Fifteen percent (15%) of the actual amount determined in Section II. La and Lb above as an agreed amount to reimburse County for costs incurred for construction management services. Ill. IT IS MUTALLY UNDERSTOOD AND AGREED THAT: A. Neither County nor City, or any officer or employee thereof, shall be responsible for any loss, damage, or injury of any kind or character to any person or property, arising out of anything done or omitted to be done by the other under or in connection with any work or obligation performed under this Agreement. B. 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. C. This Agreement may be executed in two counterparts and each such counterpart shall be deemed to be an original. D. Any notice or other written Instrument required or permitted by this Agreement to be given to either party shall be deemed received when either party personally served or forty-eight (48) hours after being deposited in Agreement No. D13-039 the U.S. Mall, postage paid, registered or certified, and addressed as follows: County: Mr. Harry Persaud, AICP, PMP Manager, OC Planned Communities OC Public Works P.O. Box 4048 Santa Ana, California 927024048 City: Mr. Keith Van Der Maaten, Public Works and Utilities Director City of San Juan Capistrano 32450 Pasea Adelanto San Juan Capistrano, California 92675 E. No alteration or variation 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 or any of the parties hereto. F. Any approval required to be given to either party pursuant to the terms of this Agreement except for approval by County's Board of Supervisor's and/or City's Mayor, shall be requested in writing and be deemed given if no written response to the party's request for such approval is received by the requesting party within thirty (30) days following a request for such approval. G. Pursuant to Government Code Section 895.4, County and City shall defend, with counsel approved in writing, indemnify and save each other, their respective elected officials, officers, agents, and employees harmless from all liability from loss, damage, or injury (as defined in Government Code Section 810.10.8) to persons or property, including any and all legal costs and attomey's fees, arising in any manner out to the performance occurring for any reason of anything done or obligation performed under this Agreement. H. This Agreement contains the entire agreement between the parties with respect to the matters provided for herein. 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. The parties hereto agree that this Agreement has been negotiated and executed in the State of California and shall be governed by and construed Agreement No. 013-039 under the laws 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 hereto specifically agree to waive any and all rights to request that an action be transferred for trial to another County. K. The parties to this Agreement represent and warrant that this Agreement has been duty authorized and executed, and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with the terms. This Agreement is subject to the availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating the Parties to expend or as involving the Parties in any contract or other obligation for future payment of money in excess of appropriations authorized by law. M. The Project may be constructed in phases depending in the availability of Project funding and other issues. In the event the County delays the Project or decides to construct the Project in a way that Facilities Relocation is not needed, the County reserves the right to terminate this Agreement, and neither County nor City shall have any obligations hereunder. Agreement No. D13-039 IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the dates opposite their respective signatures: CIN : OIANUAI]IPISTRA Date: <AAo \ Dc-, ByTtleYN,O ATTEST: I APPROVED By: By: City Attorney Gty Clerk COUNTY off1 Date: By: / Chair oft oard of Supervisors Orange County, Califomia APPROVED AS TO FORM Office of the County Counsel Orange Coun r ' ornia By: Dep ty FACSIMILE SIGNATURE AUTHORIUD PER G.C. SEC. 25103, RESO 741535 Signed and certified that a copy of this document SIGNED AND CERTIFIED THAT A COPY OFTHIS DOCUMENT HAS BEEN DELIVERED dwv TO THECHAIR OFTHE BOARD has been delivered Co the Chair of the Board per G.C. Sec 25103, Resolution 79-1535ATTEST. SUSAN NOVAK CLERK OF THE BOARD OF SUPERVIS ORANGE COUNTY. CALIFORNIA Agreement No. D13-039 Attest: Clerk of the Board of Supervisors County of Orange, California ORANGE COUNTY BOARD OF SUPERVISORS MINUTE ORDER February 04, 2014 SubmittingAzency/Department OC PUBLIC WORKS Approve agreement D13-085 with Hill International, Inc. for construction management services, 2/4/14 - 2/3/21 ($7,706,372); approve agreements D13-039 with City of San Juan Capistrano for relocation of city waterline facilities, D13-116 with San Diego Gas and Electric for relocation of electrical transmission facilities ($2,300,000) and D13-117 with Rancho San Juan Development for conveyance of real property to County in exchange for County's agreement to waive certain fees payable by Ranch San Juan Development and County's agreement to build certain improvements; and approve agreement Continued on attached page... The following is action taken by the Board of Supervisors: APPROVED AS RECOMMENDED ® OTHER ❑ Unanimous ® (1) NGUYEN: Y (2) MOORLACH: Y (3) SPITZER: Y (4) NELSON: Y (5) BATES: Y Vote Key: Y=Yes; N=No; A=Abstain; X=Excused,• B. 0. =Board Order Documents accompanying this matter: ® Resolution(s) 14-020 ❑ Ordinances(s) Q Contract(s) 2 DT -CFA0 15�xc,f,FT v 13-111 : 3 olzl b Item No. S25C Special Notes: Copies sent to: OCPW: Isela Martinez Eric Swint Z--7 - 14 I certify that the foregoing is a true and correct copy of the Minute Order adopted by the Board of Supervisors , Orange County, State of California. Susan Novak, Clerk of the Board M Deputy ORANGE COUNTY BOARD OF SUPERVISORS MINUTE ORDER February 04, 2014 The following is action taken by the Board of Supervisors: APPROVED AS RECOMMENDED ® OTHER O Unanimous ® (1) NGUYEN: Y (2) MOORLACH: Y (3) SPITZER: Y (4) NELSON: Y (5) BATES: Y Vote Key: Y=Yes; N=No; A Abstain; X=Excused,• B.O. =Board Order D12-078 with City of San Clemente establishing responsibility of County and City for funding, design, construction, and inspection of road improvements to La Pata and adopt resolution declaring portion of La Pata Avenue within City to be a County Highway during construction of certain improvements declaring portions of La Pata Avenue and Camino Del Rio to be County Highways; and approve agreement D13-119 with Southern California Edison (SCE) for allowing construction within SCE right of way - District 5 (R.A. 7 requires 4/5 vote of the members) Item No. S25C I certify that the foregoing is a true and correct copy of the Minute Order adopted by the Board of Supervisors, Orange County, State of California Susan Novak, Clerk of the Board By, Deputy 2