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1993-0512_SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR_Utility Agr No. 3078 SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR UTILITYAGREEMENT NO. 3078 DATED: DECEMBER 2, 1994 The San Joaquin Hills Transportation Corridor Agency, a joint powers agency ("AGENCY") proposes to construct that certain major thoroughfare and associated bridges known as the San Joaquin Hills Transportation Corridor (the"CORRIDOR"), and has delegated to California Corridor Constructions, a joint venture of Kiewit Pacific Co. and Granite Construction Company "CCC") the authority and responsibility to cause the relocation or modification of utilities which, in their present location, interfere with the CORRIDOR. Capistrano Valley Water District (hereinafter called"OWNER"), owns and maintains an 8-inch water line in Rancho Viejo Road, 140 feet right of I-5 northbound at Station 637+00 SJHTC in the City of Laguna Niguel within the limits of the CORRIDOR, as shown on EXhibif'X% which requires modification or relocation to accommodate the CORRIDOR project. It is hereby mutually agreed that: SECTION I. WORK TO BE DONE. A. In accordance with Notice to Owner No. 3078, dated May 12, 1993, CCC shall relocate OWNEWs 8-inch water line in Rancho Viejo Road adjacent to SJHTC Station 637+00 near the intersection of I-5 and the CORRIDOR in the City of Laguna Niguel, to the location as shown on Exhibit"A" (hereinafter referred to as the"Relocation Work"). CCC has, on behalf of OWNER, caused plans for the Relocation Work to be prepared by a qualified engineering firm acceptable to the OWNER (the"Plans") The Plans shall provide for the Relocation Work to be performed in accordance with the alignments, as generally set forth in Exhibit"A" attached Capistrano Valley Water District(3078) 1 12/02/94 hereto and incorporated herein by this reference. The Plans shall comply with OWNER's standard requirements, Caltrans Standard Specifications and other applicable Caltrans and AGENCY rules, regulations, policies and procedures, and with all other applicable laws, rules and regulations. The Plans shall not be unreasonably withheld or delayed, and CCC and AGENCY shall have the right to review, inspect, and comment on the Plans during the design process. B. The Relocation Work by CCC shall be performed substantially in accordance with the approved Plans. Minor deviations from the Plans may be made, and incidental work may be performed by CCC when mutually acceptable to CCC and OWNER and upon approval by AGENCY, which approval shall not be unreasonably withheld. Upon completion of the Relocation Work by CCC, OWNER agrees to accept ownership and maintenance of the newly constructed facilities and to relinquish to AGENCY ownership of the abandoned facilities. CCC will provide OWNER and AGENCY with as-built drawings of the newly constructed facilities. C. The parties hereto acknowledge that the Relocation Work to be performed by CCC hereunder is not included in the"Work", as said term is defined in Contract No. S90-19 by and between AGENCY and CCC pursuant to which CCC is constructing the CORRIDOR. SECTION II. LIABILITY FOR WORK At the present time, a dispute exists between AGENCY and OWNER in that OWNER contends that OWNER has a prior right to maintain and operate its facilities in their present location and that relocation must be done at AGENCY's expense. AGENCY disputes OWNER's contention and contends that OWNER is responsible for the cost of relocation. OWNER and AGENCY agree to reserve the issue of liability for the relocation costs as set forth in Section IV hereof and proceed as specified herein. Capistrano Valley Water District(3078) 2 12/02/94 SECTION M. PERFORMANCE OF WORK. A. OWNER shall perform the design for the Relocation Work as described in Section I. B. CCC shall perform the Relocation Work as described in Section I. OWNER shall have access to all phases of the Relocation Work for the purpose of inspection to ensure that the work is in accordance with the approved Plans and specifications therefor. All questions regarding the work being performed will be directed to CCC's project manager for evaluation and final disposition. C. OWNER, AGENCY and CCC acknowledge that the timely completion of the CORRIDOR will be influenced by the ability of OWNER, AGENCY and CCC to coordinate their activities, communicate with each other, and respond promptly to reasonable requests. OWNER shall have access to all pertinent construction records, reports and plans. OWNER, AGENCY and CCC agree to take all steps reasonably required to coordinate the respective duties hereunder in a manner consistent with CCC's current and future construction schedules for the CORRIDOR Provided, however, that OWNER shall be provided a reasonable amount of time, following any modification of CCC's plans for the CORRIDOR, in which to complete redesign of the Relocation Work. SECTION IV. PAYMENT FOR WORK A. At the present time, there is a dispute between OWNER and AGENCY as to whether OWNER or AGENCY is legally responsible for paying the costs of relocating the facilities. It is mutually agreed that AGENCY will advance to CCC on behalf of and for the benefit of OWNER the cost of Relocation Work all in accordance with this Section IV. At such time as the Plans for the work hereunderhave been prepared, CCC shall submit to AGENCY and Capistrano Valley Water District(3078) 3 12/02/94 OWNER an estimate reflecting the total estimated amount for performing the Relocation Work. The estimate submitted by CCC shall be subject to the written approval of AGENCY and OWNER. The foregoing approvals shall not be unreasonably withheld or delayed. B. Upon completion of the work, CCC shall submit a final billing to AGENCY, together with a duplicate to OWNER, in the form of an itemized statement of the totalamount for the work hereunder, less the credits provided for in this Agreement. Payment (or advance of payment, as applicable) of all bills properly submitted hereunder shall be due within ninety (90) days after receipt thereof by AGENCY. All billing by CCC shall be itemized, submitted in quintuplicate, and signed by a responsible CCC official or prepared on CCC's letterhead. C. AGENCY shall have no obligation or liability to reimburse or advance payment for any increased cost directly attributable to losses which would be covered by standard builder's risk insurance. D. It is understood and agreed that AGENCY will not advance payment to CCC on behalf of or for the benefit of OWNER for any betterment or increase in capacity of OWNER's facilities in the new location. AGENCY shall be credited for the salvage value of any material or parts salvaged and retained or sold by CCC or OWNER E. After execution of this Agreement, AGENCY and OWNER agree to negotiate in good faith with the goal of reaching an agreement as to the allocation costs for the Relocation Work. If OWNER fails to negotiate in good faith, or if no such agreement has been executed and delivered on or before 180 days after the date of this Agreement, then AGENCY reserves the right to pursue a determination of the cost responsibility through litigation. It is further agreed by OWNER, CCC and AGENCY that (a) neither the advance or return of funds pursuant to this Agreement nor the performance by CCC or OWNER of the work hereunder shall be deemed a Capistrano Valley Water District(3078) 4 12/02/94 waiver, compromise or admission of liability, (b) the fact that such advance and/or return of funds and performance of work have occurred is not pertinent to and shall not be considered or offered as evidence regarding the issue of liability, and (c) the issue of liability shall be reserved for resolution by subsequent agreement or by a court of competent jurisdiction. F. In the event that OWNER is ultimately determined to be responsible for relocations costs, then OWNER shall forthwith reimburse to AGENCY the full amount of all sums advanced hereunder by AGENCY, together with interest from the date advanced or disbursed by AGENCY calculated at the rate provided in Section 1268.350 of the Code of Civil Procedure. G. In the event that AGENCY is ultimately determined to be responsible for relocation costs, then AGENCY shall forthwith reimburse to OWNER the full amount of all sums actually and reasonably expended by OWNER in connection with the Relocation Work, including, but not limited to, the preparation of plans for the Relocation Work and other costs directly resulting therefrom, together with interest from the date advanced or disbursed by OWNER calculated at the rate provided in Section 1268.350 of the Code of Civil Procedure. H. Detailed records in connection with the Relocation Work from which the billing is compiled shall be retained by CCC for a period of four (4) years from the date of the final bill and will be available for verification by AGENCY, OWNER and Caltrans auditors. SECTION V. GENERAL CONDITIONS. A. In the event it is determined that OWNER has prior rights then OWNER agrees to execute and deliver to AGENCY an executed Consent to Common Use Agreement in recordable form. CapistrMo Valley Wafer District(3079) 5 12/02/94 B. AGENCY shall issue and OWNER shall accept an encroachment permit on AGENCY's standard form for work to be performed by or on behalf of OWNER within the CORRIDOR boundaries and for facilities to be relocated within the CORRIDOR boundaries. C. If OWNER claims that CCC has breached any of its obligations hereunder, OWNER will notify CCC and AGENCY in writing of such breach and CCC and AGENCY shall have thirty (30) days following receipt of such notice in which to cure such breach, before OWNER may invoke any remedies at law or in equity which OWNER may have by reason of CCC's breach; provided, however, that if such breach may not reasonably be cured within such thirty (30) day period, then so long as the cure is being prosecuted diligently, the cure period shall be extended as reasonably necessary but in no event longer than ninety (90) days from AGENCY's receipt of such notice; provided, further, that AGENCY shall have no obligation hereunder to cure any breach by CCC, but shall at all times be permitted to do so. Without limiting the generality of the foregoing, AGENCY shall have no liability to OWNER for any act or omission committed by CCC in performing this Agreement, including without limitation any claimed defect in any design or construction work supplied by CCC or its contractors or subcontractors. D, As a matter with which OWNER shall not be concerned, CCC shall reimburse AGENCY, within thirty (30) days after AGENCY's demand, for any costs incurred or sums expended by AGENCY in curing any breach by CCC as hereinabove provided, which AGENCY would not have incurred absent such breach; provided, however, that CCC reserves the right to dispute with AGENCY the existence of any such claimed breach in accordance with the dispute resolution procedures of Contract No. 590-19 by and between AGENCY and CCC, and if it is Capistrano Valley Water District(3078) 6 12/02/94 established through such procedures that no such breach occurred, then AGENCY shall promptly refund to CCC the amount paid by CCC to AGENCY on account of such claimed breach. E. CCC's rights and obligations hereunder shall be deemed assigned to and assumed by AGENCY upon AGENCY's written notification to CCC and OWNER or such assignment and assumption, following either a material breach by CCC of this Agreement or the termination, partial termination or expiration of said Contract No. S90-19. Such assignment and assumption shall not (a) relieve CCC from any liability to either OWNER or AGENCY for any breach of this Agreement occurring prior to the effective date of such assignment and assumption, or (b) cause AGENCY to be liable for any breach by CCC of this Agreement occurring prior to such effective date, or (c) relieve CCC from any liability to AGENCY for any breach of its obligations to AGENCY under said Contract No. S90-19. F. As between AGENCY and CCC, this Agreement is subject to said Contract No. 590-19, does not modify it in any way, and in the event of any inconsistency between the provisions hereof and the provisions of Contract No. 590-19, the provisions of Contract No. 590- 19 shall prevail between AGENCY and CCC. G. If the CORRIDOR project which precipitated this Agreement is cancelled or modified so as to eliminate the necessity of the Relocation Work, CCC or AGENCY will notify OWNER in writing and CCC and AGENCY each reserves the right, with the other's written approval, to terminate this Agreement. Upon such termination, the parties shall negotiate in good faith an amendment which shall provide mutually acceptable terms and conditions for terminating the Agreement. Upon OWNER's request the OWNER's facilities shall be promptly and without delay restored to their preexisting location, size and materials at no cost to OWNER Capistrano Valley Water District(3078) 7 12/02/94 H. Under no circumstance shall water service be interrupted during the Relocation Work of the OWNER'S facilities for more than forty-eight (48) hours after the line is drained by OWNER. I. NONDISCRIbIINATION CLAUSE. Required by California Code Regs., Title 2, § 8107 During the performance of this Agreement: 1. The party or parties responsible for performing the Relocation Work hereunder (the "Responsible Party(ies)") and their respective contractors and subcontractor shall not deny the Agreement's benefits to any person on the basis of religion, color, ethnic group identification, sex, age, physical or mental disability, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religion, color, national origin, ancestry, physical handicap, mental disability, mental condition, marital status, age (over 40) or sex. The Responsible Party(ies) shall insure that the evaluation and treatment of their respective employees and applicants for employment are free of such discrimination. 2. The Responsible Party(ies) shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §§ 12900 et sM.), the regulations promulgated thereunder (California Code Regs., Title 2, §§ 7285.0 et sem.), the provisons of Article 9.5, Chapter 1, Park 1, Division, Title 2 of the Government Code (Gov. Code §§ 11135- 11139.5), and the regulations or standards adopted by AGENCY to implement such article. 3. The Responsible Party(ies) shall permit access by representatives of the Department of Fair Employment and Housing ("DFEH") and AGENCY upon reasonable Capistrano Valley Water District(3078) 8 12/02/94 notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as DFEH or AGENCY shall require to ascertain compliance with this clause. 4. The Responsible Party(ies) and their respective contractors and subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. 5. The Responsible Party(ies) shall include the nondiscrimination and compliance provisions of this clause in all contracts and subcontracts to perform work under this Agreement. J. CCC shall indemnify, defend and save free and harmless OWNER, AGENCY, its current and future members, the State of California acting by and through its Department of Transportation ("Caltrans"), and their successors and assigns and their respective officers, authorized agents, employees, engineers, contractors, and subcontractors, from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' and expert witness fees and costs) which may arise as a result of any act or omission of CCC or its officers, agents, employees, engineers, contractors or subcontractors with respect to the Relocation Work in accordance with this Agreement prior to acceptance of the Relocation Work by OWNER, except to the extent that such expense, liability or claim is proximately caused by the negligence or willful misconduct of the indemnified party or its agents, servants, or independent contractors (other than CCC)who are directly responsible to such indemnified party. K. OWNER shall indemnify, defend, and hold AGENCY, its current and future members, CCC, its joint venturers, Caltrans, and their successors and assigns and their respective shareholders, officers, directors, employees, authorized agents, engineers, contractors, and Capistrano Valley Water District(3078) 9 12/02/94 subcontractors from and against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorneys' and expert witness fees and costs) which may arise as a result of any act or omission by OWNER or its officers, agents, employees, engineers, contractors or subcontractors with respect to the Relocation Work covered by this Agreement, including without limitation the design, construction, maintenance and/or operation thereof, except to the extent that such expense, liability or claim is proximately caused by the negligence or willful misconduct of the party indemnified or its agents, servants, or independent contractors who are directly responsible to such indemnified party. L. AGENCY shall indemnify, defend and save free and harmless OWNER and its successors and assigns and their respective officers, authorized agents, employees, engineers, contractors, and subcontractors, from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys' and expert witness fees and costs) which may arise as a result of any act or omission of AGENCY or its officers, agents, employees, Cotk2— � Viah (1L'C) engineers, contractors or subcontractonwithrespect to the Relocation Project in accordance with this Agreement except to the extent that such expense, liability or claim is proximately caused by the negligence or willful misconduct of the indemnified parry or its agents, servants, or independent contractors(ether thwrGE-e) who are directly responsible to such indemnified party. M. In the event of any inconsistency between the foregoing indemnities and any other indemnity which may be applicable to an occurrence for which a claim of indemnity hereunder is made, the indemnity which provides the greatest protection to the indemnitee shall prevail. N. In any litigation arising out of this Agreement, the prevailing party shall be entitled to recover from losing party reasonable costs and attorney's fees. Any representations, warranties, indemnities, reservations of rights, and waivers set forth in this Agreement shall Capistrano Valley Water District(3078) 10 12/02/94 survive the termination of this Agreement for any reason. This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of the parties hereto; provided, however, that without affecting the provisions of any Joint Use Agreement or Consent to Common Use Agreement which may be executed by the parties hereto, Caltrans shall not be bound by this Agreement except by executing an instrument whereby Caltrans expressly agrees to become bound hereby. This Agreement may be modified or amended only by the written agreement of the parties hereto. This Agreement contains the entire Agreement among OWNER, on the one hand, and CCC and/or AGENCY on the other hand, with respect to the subject matter hereof, and supersedes all prior negotiations, representations and agreements, if any, whether written or oral. If any section, paragraph, sentence or clause of this Agreement is declared by a court of competent jurisdiction to be unenforceable or void by reason of public policy of otherwise, then the remaining provisions of this Agreement shall nonetheless remain enforced to the fullest extent permitted by law. Any approval required or permitted to be given by any party hereto must be in writing to be effective for purposes of this Agreement. IN WITNESS WHEREOF, the above parties have executed this Agreement the day and year first above written. AGENCY OWNER San Joaquin Hills Transportation Capistrano Valley Water District Corridor Agency By: 6-c� By: Printed Nam Printed Name- Title: am :Title: At, 5 CTitle:�/f/� eri4rJ ��%/tel� Capistrano Valley Water District(3078) 11 12/02/94 APPROVED AS TO FORM. APPROVED AS TO FORM. Nossaman, Guthner, Knox & Elliott By: h��r '�l /��l�i By: PrintedPrinted e:_ RICHARD K. DENNALTIR, CITY ATTORW CCC California Corridor Constructors 14401-/By: �,4 Lloyd E. 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