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HomeMy WebLinkAboutContracts & Agreements_81-2005_CCv0001.pdf Execution Copy Construction and Operation and Maintenance Agreement for the Alabama Street and Orange Street Bridge Replacement Project 3 4 5 This Construction and Operation and Maintenance Agreement for the Alabama Street and 6 Orange Street Bridge Replacement Project ("Agreement") is entered into and effective this 18th 7 day of May, 2005 by and between the City of Redlands (the "City") and the San Bernardino 8 Valley Municipal Water District (the"District"). The City and the District are each referred to 9 herein as a"Party" and are collectively referred to as the "Parties." 10 11 Recitals 12 13 A. The City has issued bid specifications for a project that involves the construction of new 14 bridges to replace the existing Santa Ana River crossings at Alabama Street and Orange Street in 15 the City, including the necessary approach roadway construction (the"Project"), which bid 16 specifications are attached hereto as Exhibit A and incorporated herein by reference; 17 18 B. The bid specifications include provisions for installation of pipes, conduits, casings and 19 appurtenances that utilities, including the District, would use to provide services to their 20 respective customers; 21 22 C. The District wishes to include in the Project two 36 inch diameter pipelines within the 23 Alabama Street Bridge, one 30 inch diameter pipeline within the Orange Street Bridge, and the 24 associated pipes, casings, and appurtenances (collectively, the "Pipelines") needed to allow the 25 District to convey water across the Santa Ana River in order to serve the District's customers 26 more effectively and so to improve water supply reliability in the San Bernardino Valley; 27 28 D. The City wishes to include the Pipelines in the Project, provided that the District agrees 29 to reimburse the City for the costs of constructing such facilities and agrees to operate and 30 maintain those facilities in a reasonable manner at no additional cost to the City; 31 32 E. The Parties wish to memorialize their agreement on the terms and conditions under which 33 the City will include the Pipelines in the Project. 34 35 Agreements 36 37 The Parties hereby agree as follows: 38 39 1. Construction of the Project 40 a. Award of Project by City. The City shall expeditiously review bids for the 41 construction of the Project as described in the specifications contained in Exhibit 42 A and shall, as promptly as feasible, award a contract for the construction of the 43 Project to the lowest responsible, responsive bidder in full compliance with 44 applicable California law. Construction and 01/M Agreeinent May 2005 Page 1 of 8 Execution Copy 45 b. Construction of Project by City. The City shall construct the Project in full 46 conformity with the terms of Exhibit A within as expeditiously as possible, 47 consistent with funding limitations and good engineering practices. 48 C. Compliance with Applicable Laws. The City warrants and represents that: (i) it 49 has fully complied with the provisions of the California Environmental Quality 50 Act and other applicable laws in the planning, design and approval of the Project 51 and(ii) it will construct the Project in a manner that fully complies with all 52 applicable laws. 53 d. As-Built Drawings. The City shall provide the District with two copies of the "as- 54 built" drawings of the Project no later than sixty days after the City files a notice 55 of completion for the Project. Such drawings shall be in sufficient detail to allow 56 the District to operate and maintain the Pipelines without interfering with other 57 utility operations and without interfering with traffic circulation on the two 58 bridges. If the City files a separate notice of completion for each Pipeline, the 59 City shall provide the District with two copies of the "as-built" drawings for each 60 Pipeline no later than sixty days after filing each notice of completion. 61 e. Reimbursement of City by District. The City shall provide the District with a 62 copy of the line item in the lowest responsible, responsive bid for the construction 63 of the Pipelines within five days after the date on which the City awards the 64 contract for the construction of the Project. If change orders are required in 65 connection with the construction of the Pipelines, the City shall only authorize 66 such change orders with the prior written approval of the District, which approval 67 shall not be unreasonably withheld or delayed. The City shall present the District 68 with an invoice for the final cost that the City incurs resulting from the 69 construction of each Pipeline within ninety days of the date upon which the City 70 and the District jointly determine the construction of a Pipeline to be complete. 71 The District shall reimburse the City for the costs incurred by the City in 72 constructing each Pipeline by payment made within thirty days of the date of the 73 City's invoice. 74 f. Indemnification of District by City. The City shall defend and indemnify the 115 District, its directors, officers, employees, agents and authorized volunteers from 76 and against all claims, demands or liability for damages arising out of the City's 77 performance of the terms of this paragraph I where such liability is caused or 78 claimed or alleged to be caused by the willful misconduct, sole negligence or 79 active negligence of the City or any person or organization for whom or which the 80 City is legally liable. 81 g. Insurance. The City shall cause its contractor, as well as any subcontractors, to 82 carry insurance in substantially the form set forth in Exhibit 13, which insurance 83 shall be primary; shall name the District, its directors, officers, employees, 84 consultants and agents as additional insureds by endorsement; and shall provide 85 that the District shall be given at least fifteen days' advance notice in the event of Construction and O/M Agreement May 2005 Page 2 of 8 Execution Copy 86 proposed cancellation for nonpayment of premiums. The City shall cause its 87 contractor, as well as any subcontractors, to provide such certificates of insurance 88 to the District before the contractor, or any subcontractor, commences work on 89 the Project. 90 2. Operation and Maintenance of the Project 91 a. General Operation and Maintenance of the Project. The City agrees that it shall 92 be responsible for the general operation and maintenance of the Project in 93 perpetuity and that, save as set forth in paragraph 2.b(3) below, the District shall 94 have no obligation to operate or maintain, or contribute to the operation or 95 maintenance, of the Project. 96 b. Operation and Maintenance of the Pipelines. 97 (1) Grant of Easement to District. The City hereby grants the District, its 98 directors, officers, employees and agents a non-exclusive perpetual 99 easement and right of way 19 feet in width, beginning19 feet east of the 100 Orange Street centerline and 21 feet, 8 inches in width beginning 6 feet 101 west of the Alabama Street centerline as constructed for the purpose of 102 inspecting, patrolling, operating, maintaining, repairing, altering, 103 rehabilitating, reconstructing and replacing each of the Pipelines, together 104 with such valves, equipment, conduits or other appurtenances useful, 105 convenient or valuable in connection therewith or incidental thereto. The 106 easement and right of way include the rights of ingress and egress to the 107 Pipelines and associated facilities across adjacent lands (including the 108 Alabama and Orange Street Bridges) during normal business hours (save 109 in cases of emergency) at convenient points for the enjoyment of the 110 foregoing uses, rights, and privileges. 111 (2) Survey of Easement and Recordation ofAgreetnent. The City shall cause 112 the location of the Pipelines to be surveyed within sixty days of the date 113 upon which the City issues a notice of completion for the Project. The 114 City shall promptly record this Agreement, with such survey attached 115 hereto as Exhibit C and incorporated herein by reference, in the Official 116 Records of the County of San Bernardino and shall provide the District 117 with a copy of the recorded Agreement no later than one hundred twenty 118 days after the date upon which the City issues a notice of completion for 119 the Project. 120 (3) District to Operate and Maintain the Pipelines. The District shall, in a 121 manner consistent with the provisions of paragraph 2.c below, inspect, 122 patrol, operate maintain, repair, alter, rehabilitate, reconstruct and replace 123 each of the Pipelines, together with associated valves, equipment, conduits 124 or other appurtenances, at its sole cost. Construction and 0/,N4 Agreement May 2005 Page 3 of 8 Execution Copy 125 c Non-Interference and Reimbursement. The District shall operate and maintain the 126 Pipelines, as provided in paragraph 2.b(3) above in a manner that, to the extent 127 practicable, does not interfere with: (i) traffic on the Alabama and Orange Street 128 Bridges and (ii) other utilities with pipelines or conduits located on the Alabama 129 and Orange Street Bridges. The District shall reimburse the City for any direct 130 costs incurred by the City as a result of the District's use of the easement granted 131 in paragraph 2.b above if that use interferes with traffic flow on either bridge. 132 The City shall reimburse the District for any direct costs incurred by the District 133 as a result of the City's operation or maintenance of the Alabama or Orange Street 134 Bridges. The City shall require all other utilities with facilities located on the 135 Alabama or Orange Street Bridges to agree to similar provisions that would 136 reimburse the District for any direct costs incurred by the District as a result of 137 those utilities' use of the easements, license, pen-nits or rights of way granted by 138 the City for the use of the Alabama or Orange Street Bridges. 139 d. Indemnification. Each Party shall defend and indemnify the other Party and the 140 other Party's directors, officers, employees, agents and authorized volunteers 141 from and against all claims, demands, or liability for damages arising out of the 142 Party's performance of the terms of this paragraph 2 where such liability is caused 143 or claimed or alleged to be caused by the willful misconduct, sole negligence or 144 active negligence of the Party or any person or organization for whom or which 145 the Party is legally liable. 146 3. Administration of Agreement 147 a. Workers' Compensation. Each Party certifies that it is aware of the provisions of 148 section 3700 of the California Labor Code which requires every employer to be 149 insured against liability for workers' compensation or to undertake self-insurance 150 in accordance with the provisions of that code and each Party agrees that it will 151 comply with such provisions before the commencing the performance of any 152 work under this Agreement. Each Party and any contractors or subcontractors 153 will keep workers' compensation insurance for their employees in effect during 154 all work covered by this Agreement. Upon request, each Party will provide the 155 other with the certificate required by Labor Code section 3700. 156 b. Books and Records. Each Party shall have access to and the right to examine the 157 other Party's pertinent books, documents, papers or other records (including, 158 without limitation, records contained on electronic media) relating to the 159 performance of that Party's obligations pursuant to this Agreement. The Parties 160 shall each retain all such books, documents, papers or other records to facilitate 161 such review. Access to each Party's books and records shall be during normal 162 business hours only. Nothing in this paragraph shall be construed to operate as a 163 waiver of any applicable privileges. Construction and O/M Agreement May 2005 Page 4 of 8 �07v-�s, Execution Copy 164 C. Disputes. The Parties recognize that there may be disputes regarding the 165 obligations of the Parties or the interpretation of this Agreement. The Parties 166 agree that they may attempt to resolve disputes as follows: 167 (1) Statement Describing Alleged Violation of Agreement. A Party or Parties 168 alleging a violation of this Agreement (the "Initiating Party(ies)") shall 169 provide a written statement describing all facts that it believes constitute a 170 violation of this Agreement to the Party(ies) alleged to have violated the 171 terms of this Agreement (the"Responding Party(ies)"). 172 (2) Response to Statement of Alleged Violation. The Responding Party(ies) 173 shall have sixty days from the date of the written statement to prepare a 174 written response to the allegation of a violation of this Agreement and 175 serve that response on the Initiating Party(ies) or to cure the alleged 176 violation to the reasonable satisfaction of the Initiating Party(ies). The 177 Initiating Party(ies) and the Responding Party(ics) shall then meet within 178 thirty days of the date of the response to attempt to resolve the dispute 179 amicably. 180 (3) Mediation of Dispute. If the Initiating Party(ies) and the Responding 181 Party(les) cannot resolve the dispute within ninety days of the date of the 182 written response, they shall engage a mediator, experienced in water- 183 related disputes, to attempt to resolve the dispute. Each Party shall ensure 184 that it is represented at the mediation by a Director or Trustee. These 185 representatives of the Initiating Party(ies) and the Responding Party(ies) 186 may consult with staff and/or technical consultants during the mediation 187 and such staff and/or technical consultants may be present during the 188 mediation. The costs of the mediator shall be divided evenly between the 189 Initiating Party(ies) and the Responding Party(ies). 190 (4) Reservation of Rights. Nothing in this paragraph 3.c shall require a Party 191 to comply with the dispute resolution process contained herein and each 192 Party retains and may exercise at any time all legal and equitable rights 193 and remedies it may have to enforce the terms of this Agreement; 194 provided, that prior to commencing litigation, a Party shall provide at least 195 five calendar days' written notice of its intent to sue to all Parties. 196 4. General Provisions. 197 a. Authority. Each signatory of this Agreement represents that s/he is authorized to 198 execute this Agreement on behalf of the Party for which s/he signs. Each Party 199 represents that it has legal authority to enter into this Agreement and to perform 00 all obligations under this Agreement. 201 b. Amendment. This Agreement may be amended or modified only by a written 202 instrument executed by each of the Parties to this Agreement. Construction and O/M Agreement May 2005 Page 5 of 8 Execution Copy 203 C. Jurisdiction and Venue, This Agreement shall be governed by and construed in 204 accordance with the laws of the State of California, except for its conflicts of law 205 rules. Any suit, action, or proceeding brought under the scope of this Agreement 206 shall be brought and maintained to the extent allowed by law in the County of San 207 Bernardino, California. 208 d. Headings. The paragraph headings used in this Agreement are intended for 209 convenience only and shall not be used in interpreting this Agreement or in 210 determining any of the rights or obligations of the Parties to this Agreement. 211 e. Construction and Interpretation. This Agreement has been arrived at through 212 negotiations and each Party has had a full and fair opportunity to revise the terms 213 of this Agreement. As a result, the normal rule of construction that any 214 ambiguities are to be resolved against the drafting Party shall not apply in the 215 construction or interpretation of this Agreement. 216 f. Entire Agreement. This Agreement constitutes the entire agreement of the Parties 217 with respect to the subject matter of this Agreement and supersedes any prior oral 218 or written agreement, understanding, or representation relating to the subject 219 matter of this Agreement. 220 9- Partial Invalidity. If, after the date of execution of this Agreement, any provision 221 of this Agreement is held to be illegal, invalid, or unenforceable under present or 222 future laws effective during the term of this Agreement, such provision shall be 223 fully severable. However, in lieu thereof, there shall be added a provision as 224 similar in terms to such illegal, invalid or unenforceable provision as may be 225 possible and be legal, valid and enforceable. 226 h. Successors and Assigns. This Agreement shall be binding on and inure to the 227 benefit of the successors and assigns of the respective Parties to this Agreement. 228 No Party may assign its interests in or obligations under this Agreement without 229 the written consent of the other Parties, which consent shall not be unreasonably 230 withheld or delayed. 231 1. Waivers. Waiver of any breach or default hereunder shall not constitute a 232 continuing waiver or a waiver of any subsequent breach either of the same or of 233 another provision of this Agreement and forbearance to enforce one or more of 234 the remedies provided in this Agreement shall not be deemed to be a waiver of 235 that remedy. 236 j. Attorneys'Fees and Costs. The prevailing Party in any litigation or other action 237 to enforce or interpret this Agreement shall be entitled to reasonable attorneys' 238 fees, expert witnesses' fees, costs of suit, and other and necessary disbursements 239 in addition to any other relief deemed appropriate by a court of competent 240 jurisdiction. Construction and O/M Agreement -ay 2005 Page 6 of 8 Execution Copy 241 k. Necessaty Actions. Each Party agrees to execute and deliver additional 242 documents and instruments and to take any additional actions as may be 243) reasonably required to carry out the purposes of this Agreement. 244 1. Representations and Warranties. Each representation and warranty contained 245 herein or made pursuant hereto shall be deemed to be material and to have been 246 relied upon and shall survive the execution, delivery and termination of this 247 Agreement. 248 in. Compliance with Law. In performing their respective obligations under this 249 Agreement, the Parties shall. comply with and conform to all applicable laws, 250 rules, regulations and ordinances. 251 n. Third Party Beneficiaries. This Agreement shall not create any right or interest in 252 any non-Party or in any member of the public as a third party beneficiary. 253 0. Counterparts. This Agreement may be executed in one or more counterparts, 254 each of which shall be deemed to be an original, but all of which together shall 255 constitute but one and the same instrument. 256 P. Notices. All notices, requests, demands or other communications required or 257 permitted under this Agreement shall be in writing unless provided otherwise in 258 this Agreement and shall be deemed to have been duly given and received on: (i) 259 the date of service if served personally or served by facsimile transmission on the 260 Party to whom notice is to be given at the address(es) provided below, (1i) on the 261 first day after mailing, if mailed by Federal Express, U.S. Express Mail, or other 262 similar overnight courier service, postage prepaid, and addressed as provided 263 below, or (iii) on the third day after mailing if mailed to the Party to whom notice 264 is to be given by first class mail, registered or certified, postage prepaid, 265 addressed as follows: Construction and O/M Agreement May 2005 Page 7 of 8 Execution Copy 266 267 CITY OF REDLANDS: 268 City of Redlands 269 35 Cajon Street 270 Redlands, CA 92373 271 (909) 798-7533 272 (909) 798-7535 (FAX) 273 Attn: Municipal Utilities Director 274 275 276 SAN BERNARDINO VALLEY MUNICIPAL WATER DISTRICT: 277 San Bernardino Valley Municipal Water District 278 1350 S. "E" Street(92408-2725) 279 P. O. Box 5906 (92412-5906) 280 San Bernardino, CA 281 (909) 387-9222 282 (909) 387-9247 (FAX) 283 Attn: General Manager and Chief Engineer 284 285 CITY Of REDLA, S 286 By 287 SLi&,ain P ppler Iv e, 288 May 289 290 Attest: 291 By.— 292 Lorrie Poyzer 293 City Clerk 294 295 SAN B RNA O Y UNICIPAL WATER DISTRICT 296 By: 297 Patrick Milligan 298 President, Board of Directors Construction and Ofm Agreement Mav 2005 Page of o01081