21-0525_MISSION VIEJO, CITY OF_Cost Sharing and Cooperative Agreement Cooperative Agreement
Via Escolar Pavement Rehabilitation
55136.00500\8667629.3
COST SHARING AND COOPERATIVE AGREEMENT
FOR VIA ESCOLAR
PAVEMENT REHABILITATION PROJECT
THIS AGREEMENT ("Agreement") is made and entered into this day of
2021, by and between the CITY OF MISSION VIEJO, a municipal corporation
of the State of California, hereinafter referred to as "MISSION VIEJO," and the CITY OF SAN
JUAN CAPISTRANO, a municipal corporation of the State of California, hereinafter referred to
as "SAN JUAN CAPISTRANO."
WHEREAS, MISSION VIEJO and SAN JUAN CAPISTRANO desire to rehabilitate
Via Escolar, from Marguerite Parkway to its terminus, which street is located partially in
MISSION VIEJO and partially in SAN JUAN CAPISTRANO, hereinafter referred to as the "Via
Escolar Pavement Rehabilitation Project" or "PROJECT." A true and accurate depiction of the
PROJECT area and each city's boundaries with respect to the PROJECT, is attached hereto as
Exhibit "A" and incorporated herein by reference; and
WHEREAS, MISSION VIEJO and SAN JUAN CAPISTRANO desire to acknowledge
that costs for the design and construction of the PROJECT will be shared by MISSION VIEJO
and SAN JUAN CAPISTRANO; and
WHEREAS, SAN JUAN CAPISTRANO agrees that MISSION VIEJO should act as
lead agency for environmental clearance, design, engineering and administration of the
construction contract for project efficiency; and
WHEREAS, SAN JUAN CAPISTRANO and MISSION VIEJO wish to define areas of
responsibility for design, engineering and construction of the PROJECT;
NOW THEREFORE, IT IS AGREED by the parties as follows:
A.MISSION VIEJO shall be designated as Lead Agency for environmental clearance,
design, engineering, procurement and PROJECT construction.
B.MISSION VIEJO will design the PROJECT and prepare construction documents,
including, but not limited to, plans, specifications and procurement documents and shall
obtain the SAN JUAN CAPISTRANO City Engineer's approval of the plans and
specifications for all improvements and facilities to be constructed in SAN JUAN
CAPISTRANO (hereinafter, the "SAN JUAN CAPISTRANO portion"). SAN JUAN
CAPISTRANO shall provide, at no cost to MISSION VIEJO, any SAN JUAN
CAPISTRANO permits required for the PROJECT.
C.MISSION VIEJO is designated as Project Engineer, Contracting and Construction
Agent, hereinafter referred to as "ENGINEER," for the parties to do and perform all
things necessary in order to construct the PROJECT in accordance with the approved
plans and specifications and to execute and deliver all documents required in
connection with construction and completion of the PROJECT, including a Notice
of Completion and final accounting report.
A21-22
25
May
Cooperative Agreement
Via Escolar Pavement Rehabilitation
55136.00500\8667629.3
D.MISSION VIEJO and SAN JUAN CAPISTRANO shall share in the total cost of the
PROJECT by providing funds as necessary to complete the PROJECT. The
estimated cost for the PROJECT is Two Hundred Thousand Dollars ($200,000).
MISSION VIEJO and SAN JUAN CAPISTRANO shall pay a pro rata share of total
design and contracted construction costs based upon the percentage of the cost of
improvements incurred for work done within each city's respective city limits. The
estimated cost for the SAN JUAN CAPISTRANO portion of the PROJECT is One
Hundred Thousand Dollars ($100,000).
E.MISSION VIEJO shall require all PROJECT contractors to name SAN JUAN
CAPISTRANO, its elected officials, officers, and employees as additional insureds
and to indemnify SAN JUAN CAPISTRANO, its elected officials, officers, and
employees to the same extent that the PROJECT contractors are required to
indemnify MISSION VIEJO, its elected officials, officers, and employees.
F.MISSION VIEJO shall obtain the written concurrence of the SAN JUAN
CAPISTRANO Public Works Director or his designee, hereinafter referred to as
SAN JUAN CAPISTRANO ENGINEER, for any contract change order (CCO) of
the PROJECT which would affect the PROJECT design or increase the estimated
cost for the SAN JUAN CAPISTRANO portion of the PROJECT.
G.Prior to accepting improvements under the contract for the PROJECT, MISSION
VIEJO shall obtain SAN JUAN CAPISTRANO ENGINEER's written approval of
the construction as it affects the operation and maintenance of the PROJECT within
the SAN JUAN CAPISTRANO portion. Approval shall be withheld only for work
not completed per the approved plans and specifications for the PROJECT.
H.MISSION VIEJO shall furnish SAN JUAN CAPISTRANO ENGINEER with one
set of reproducible mylar "Record" construction drawings for the PROJECT and a
copy of the Notice of Completion.
I.SAN JUAN CAPISTRANO shall at all times during the progress of construction of
the PROJECT within the SAN JUAN CAPISTRANO portion, have access to the
work thereon for the purpose of inspection and, should SAN JUAN CAPISTRANO
ENGINEER deem any remedial measures to be necessary, SAN JUAN
CAPISTRANO ENGINEER shall notify MISSION VIEJO thereof for
communication to the contractor.
J.SAN JUAN CAPISTRANO shall fund any special features or changes or additions
to the PROJECT outside the scope of the approved plans and specifications,
including but not limited to special features or changes or additions to the design,
right-of-way, construction and contract administration for the SAN JUAN
CAPISTRANO portion.
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K.SAN JUAN CAPISTRANO shall deposit with MISSION VIEJO the estimated costs
of any special features or changes or additions as described in Section J prior to the
start of the appropriate phase (design or construction) of the PROJECT.
L.Within 30 days after filing of the Notice of Completion by MISSION VIEJO,
MISSION VIEJO shall submit to SAN JUAN CAPISTRANO an invoice which
indicates work completed by the applicable contractor. The invoice shall describe
the services provided since the initial commencement date through the date of the
invoice. SAN JUAN CAPISTRANO shall, within 30 days of receiving such invoice,
review the invoice and pay all non-disputed and approved charges thereon. In
addition, within 30 days after filing the Notice of Completion by MISSION VIEJO,
MISSION VIEJO shall prepare for review and approval by SAN JUAN
CAPISTRANO, a final cost accounting for any additional work performed outside
the scope of the approved plans and specifications that is the responsibility of SAN
JUAN CAPISTRANO. Within 60 days after receipt of this final accounting, it shall
be reviewed for approval by the SAN JUAN CAPISTRANO ENGINEER. Upon
approval, SAN JUAN CAPISTRANO shall transfer to MISSION VIEJO any
necessary funds, if any, or MISSION VIEJO shall transfer to SAN JUAN
CAPISTRANO any necessary funds, if any, to balance the PROJECT's expenditures.
M.Upon approval and acceptance of the improvements by SAN JUAN CAPISTRANO
ENGINEER, SAN JUAN CAPISTRANO shall resume maintenance responsibility
for PROJECT improvements within the SAN JUAN CAPISTRANO portion.
N.This Agreement shall become effective upon full execution by both parties and shall
remain in full force and effect until completion of the PROJECT and acceptance of
the improvements by both parties or terminated as provided for herein.
O.This Agreement may be terminated at any time upon mutual consent of the parties.
P.Neither party to this Agreement nor any office, agent or employee thereof shall be
responsible for any damage or liability occurring by reason of anything done or
omitted to be done by any other party under or in connection to any work, authority
or jurisdiction delegated to such other party under this Agreement. It is also
understood and agreed that pursuant to Government Code Section 895.4, with regard
to any work authority or jurisdiction delegated to a party under this Agreement, such
party shall fully indemnify, defend and hold the other party harmless from any
liability imposed for injury (as defined by Government Code Section 810.8),
occurring by reason of anything done or omitted to be done under or in connection
with such delegated work, authority or jurisdiction. Notwithstanding and in addition
to the foregoing, MISSION VIEJO shall defend, indemnify and hold SAN JUAN
CAPISTRANO harmless for liability imposed by reason of a release of Hazardous
Materials (as defined in the construction contract) caused by MISSION VIEJO's sole
negligence or willful misconduct in administering the construction contract. This
indemnity is intended to operate as an agreement pursuant to Section 107(e) of the
Cooperative Agreement
Via Escolar Pavement Rehabilitation
55136.00500\8667629.3
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Section 9607(e) and California Health and Safety Code Section 25364.
Q.The terms of this Agreement may be amended at any time by either party by supplemental
agreement based upon mutual written consent of both parties.
R.MISSION VIEJO and SAN JUAN CAPISTRANO shall comply with all applicable
federal, state, and local laws, statutes, ordinances and regulations of any governmental
authority having jurisdiction over the PROJECT.
S.If any term, provisions, covenant or condition of this Agreement is held to be invalid,
void or otherwise unenforceable, to any extent, by any court of competent jurisdiction,
the remainder of this Agreement shall not be affected thereby, and each remaining term,
provision, covenant or condition of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
T.All notices hereunder and communications regarding the interpretation of the terms of
this Agreement, or changes thereto, shall be affected by delivery of said notices in person
or by depositing said notices in the U.S. mail, registered, or certified mail and addressed
as follows:
To: MISSION VIEJO To: SAN JUAN CAPISTRANO
City of Mission Viejo
Attn: Dennis Wilberg
City Manager
200 Civic Center
Mission Viejo, CA 92691
City of San Juan Capistrano
Attn: Benjamin Siegel
City Manager
32400 Paseo Adelanto
San Juan Capistrano, CA 92675
U.This Agreement may be executed and delivered in any number of counter parts, each of
which, when executed and delivered shall be deemed an original and all of which
together shall constitute the same agreement. Facsimile or electronic signatures will be
permitted.
V.Neither this Agreement, nor any of the parties rights, obligations, duties, or authority
hereunder may be assigned in whole or in part by either party without the prior written
consent of the other party in its sole and absolute discretion. Any such attempt of
assignment shall be deemed void and of no force and effect. Consent to one assignment
shall not be deemed consent to any subsequent assignment, nor the waiver of any right to
consent to such subsequent assignment.
W.The laws of the State of California and applicable local and federal laws, regulations, and
guidelines shall govern this Agreement. Venue shall be in Orange County.
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X.If either party commences an action against the other party, either legal, administrative or
otherwise, arising out of or in connection with this Agreement, the prevailing party in
such litigation shall be entitled to have and recover from the losing party reasonable
attorney's fees and all other costs of such action.
[Signatures on following page]
6/2/2021