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HomeMy WebLinkAbout09 REIMBURSEMENT AGREEMENT WITH IRWD FOR TUSTIN LEGACY1'tY O AGENDA REPORT MEETING DATE: JULY 16, 2013 TO: JEFFREY C. PARKER, CITY MANAGER Agenda Item Reviewed: City Manager Finance Director FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS /CITY ENGINEER SUBJECT: APPROVAL OF REIMBURSEMENT AGREEMENT BETWEEN IRVINE RANCH WATER DISTRICT AND THE CITY OF TUSTIN FOR A VARIETY OF CAPITAL FACILITIES FOR THE TUSTIN LEGACY DEVELOPMENT SUMMARY The proposed Reimbursement Agreement between the City of Tustin and the Irvine Ranch Water District (IRWD) outlines each agency's responsibilities for the design and construction of IRWD capital facilities at Tustin Legacy and is a replacement of a similar Agreement approved in 2012 as part of the Tustin Ranch Road, Valencia Avenue, Park Avenue, and Legacy Road Ph. 2 Roadway Improvements Construction Project (CIP No.'s 70100, 70204, 70206, 70214, & 70215) and for the design only of IRWD capital facilities in Warner Avenue and South Loop Road (CIP No.'s 70202 and 70216). RECOMMENDATION It is recommended that the City Council approve the Reimbursement Agreement between the Irvine Ranch Water District and the City of Tustin for the design and /or construction of a variety of IRWD capital facilities at Tustin Legacy and authorize the Mayor and City Clerk to execute the Agreement on behalf of the City subject to approval as to form with any minor non - substantive modifications required by the City Attorney. FISCAL IMPACT The Engineer's estimate to design and construct the IRWD capital facilities at Tustin Legacy is $600,000 and $6,681,430, respectively. Pursuant to the proposed Agreement, actual project costs will be reimbursed by IRWD. A project contingency is also set aside for technical services, field engineering, and unforeseen conditions that may occur during construction. A 4% administration fee will also be reimbursed by IRWD for the City's administrative oversight of the contract which shall be deemed to cover all costs of project administration including accounting, inspection, construction administration, submittal review, permits and rights -of -way, surveying, geotechnical services, bonds, and insurance, based upon actual cost of facilities constructed. Reimbursement will be made in the form of progress payments as work is completed for IRWD capital facilities. DISCUSSION On June 5, 2012, the City Council approved an Agreement for the City to be reimbursed by IRWD for the design and installation of their capital facilities in conjunction with the Tustin Ranch Road, Valencia Avenue, Park Avenue, and Legacy Road Ph. 2 Roadway Improvements Construction Project (CIP No.'s 70100, 70204, 70206, 70214, & 70215), as well as to be reimbursed by IRWD for the design of their capital facilities within Warner Avenue and South Loop Road (CIP No.'s Approval of Reimbursement Agreement with IRWD for Various Tustin Legacy Capital Facilities July 16, 2013 Page 2 70202 and 70216). Since that time, both design and construction work by the City is progressing on additional IRWD capital facilities in Moffett Drive, Park Avenue, Barranca Parkway, Warner Avenue, and Armstrong Road. This proposed Agreement simply expands the reimbursable work to cover all of Tustin Legacy including this additional work in progress. Stack, P.E. Public Works /City Engineer Attachment: Reimbursement Agreement between IRWD and City of Tustin SACity Council Itemst2013 Council Items\Approval 2013 IRWD Capital Facilities Legacy Reimbursement Agreement.docx File No. 11379 (1047) REIMBURSEMENT AGREEMENT BETWEEN IRVINE RANCH WATER DISTRICT AND THE CITY OF TUSTIN FOR A VARIETY OF IRWD FACILITIES RELATED TO THE TUSTIN LEGACY DEVELOPMENT This Agreement is made and entered into as of this day of 20, by and between IRVINE RANCH WATER DISTRICT ("DISTRICT "), a California water district formed and existing pursuant to the California Water District Law of the State of California, and THE CITY OF TUSTIN ( "TUSTIN "), a public body, corporate and politic. WITNESSETH: WHEREAS, TUSTIN and The City of Tustin as Successor Agency to the Tustin Community Redevelopment Agency ("SUCCESSOR AGENCY ") (TUSTIN and SUCCESSOR AGENCY are collectively referred to herein as "CITY ") propose to construct street and utility improvements for Tustin Legacy (the "Project "), within the jurisdictional boundaries of DISTRICT and TUSTIN; and WHEREAS, prior to or in conjunction with CITY's construction of the Project, IRWD is desirous of TUSTIN designing and /or constructing, within or adjacent to the street improvements that comprise the Project, a substantial amount of those certain capital facilities and appurtenances generally depicted on Exhibit "A" attached hereto and incorporated by reference herein which consist generally of the following: approximately 17,000 lineal feet (LF) of 12 -inch domestic water pipeline; 12,700 LF of 12 -inch to 18 -inch sewer pipeline; 31,500 LF of 6 -inch to 16 -inch recycled water pipeline; and abandonment/demolition of a temporary sewer lift station on the north side of Valencia Road (hereinafter referred to as the "IRWD FACILITIES "); and WHEREAS, the parties have determined that it would be more expedient for TUSTIN to design and/or construct the IRWD FACILITIES rather than the DISTRICT; and 846165.1 WHEREAS, DISTRICT is amenable to the design and /or construction of the IRWD FACILITIES by TUSTIN, at the cost of TUSTIN, which cost is to be reimbursed by DISTRICT; and WHEREAS, except as otherwise provided herein, upon the completion of the IRWD FACILITIES, the IRWD FACILITIES shall become the property of DISTRICT in accordance with the terms and conditions hereinafter set forth. NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and covenants hereinafter set forth, do agree as follows: SECTION 1. The IRWD FACILITIES. In conjunction with the Project, TUSTIN agrees to initiate and diligently pursue to completion the design and /or construction of the IRWD FACILITIES. SECTION 2. PLANS. The IRWD FACILITIES shall be constructed by TUSTIN in conjunction with the Project pursuant to plans prepared by TUSTIN's design engineer. TUSTIN agrees to submit all project plans and specifications and all bidding documents to DISTRICT at least fifteen (15) days prior to advertisement for bids for the Project, and agrees that such advertisement shall not commence until DISTRICT has given its written approval of the plans, specifications and bidding documents pertaining to the IRWD FACILITIES. DISTRICT shall have five (5) calendar days from its receipt of the plans, specifications and bidding documents pertaining to the IRWD FACILITIES to review them and indicate approval or request changes, and the parties shall cooperate in good faith to address such requests. TUSTIN agrees that the IRWD FACILITIES shall be completed pursuant to such approved project plans and specifications pertaining to the IRWD FACILITIES (the "Plans and Specifications "). The Plans and Specifications shall be deemed to incorporate the applicable portions of DISTRICT's latest edition of "Construction Manual for the Construction of Water, Sewer, and Reclaimed Water Facilities" (the "Construction Manual "). The costs associated with the design of the Plans and Specifications shall be on a time - and - material basis for services and are currently estimated at $600,000, subject to adjustment for actual costs incurred by TUSTIN for the design services, including design services required in connection with any approved design revisions and change orders approved as specified in Section 4. SECTION 3. BIDDING AND AWARD. The parties agree that the construction of the IRWD FACILITIES shall be included in TUSTIN's contract(s) awarded for the Project and that 2- 846165.1 the IRWD FACILITIES shall be bid as a separate item or items that can be deleted. During the bidding process, TUSTIN shall deliver to IRWD one (1) complete set of the bid documents that include the IRWD FACILITIES, including all related addenda concurrently with the distribution thereof to prospective bidders. Upon opening of bids by CITY, TUSTIN will submit the bids or a spread sheet summary of the bids to DISTRICT. DISTRICT will have a period of ten (10) calendar days from its receipt of the bid results for review and approval of the IRWD FACILITIES bid item(s) submitted by the bidder identified to DISTRICT by TUSTIN as CITY's proposed successful bidder. TUSTIN agrees that bids received for the construction of the IRWD FACILITIES bid item(s) shall be subject to the approval of DISTRICT prior to award of the Project construction contract(s) that include the IRWD FACILITIES; and further agrees that in the event DISTRICT does not approve such bids within the time permitted for DISTRICT's review and approval above, either party may terminate this Agreement upon twenty -four (24) hours' prior written notice, in which event TUSTIN shall have no further obligation to construct the IRWD FACILITIES, and DISTRICT shall install the IRWD FACILITIES with its own contractor in conjunction with and in cooperation with CITY's Project and within timeframes provided by TUSTIN. In such event TUSTIN shall be obligated to provide reasonable construction windows and site access for DISTRICT's contractors. If DISTRICT approves of the IRWD FACILITIES bid item(s) of CITY's successful bidder, TUSTIN agrees to cause the IRWD FACILITIES to be constructed as part of the contract awarded to such bidder, except that TUSTIN retains the right to reject all bids and not award a contract for the Project or the IRWD FACILITIES. The total engineer's estimate of construction cost for the IRWD FACILITIES, excluding design costs identified in Section 2, is $6,681,430; provided, however, the amount to be reimbursed by DISTRICT shall be based on the actual costs of construction. Upon award of the construction contract, TUSTIN shall provide DISTRICT with one (1) original copy of the fully executed contract documents and one (1) copy of the bid package relating to the IRWD FACILITIES received from the successful bidder. SECTION 4. DESIGN REVISIONS AND CONSTRUCTION CHANGE ORDERS. TUSTIN and DISTRICT agree that if, during design or construction, TUSTIN requests or initiates any revision to the Plans and Specifications, then the cost of any such revision shall be borne by TUSTIN and shall not be reimbursed by DISTRICT, unless such revision and additional costs are necessary to construct the IRWD FACILITIES in accordance with the Construction Manual and not for the benefit of any third party, could not reasonably have been foreseen at the time of advertisement for bids for the Project and prior written approval thereof has been given by DISTRICT. DISTRICT shall reimburse TUSTIN for the cost of any revisions requested or initiated by DISTRICT. TUSTIN shall promptly furnish DISTRICT with copies of any 3- 846165.1 proposed design revisions and construction change orders to the Project contract within five (5) working days of initiation of changed conditions to such contract, which change orders shall be subject to DISTRICT approval if and to the extent any of the IRWD FACILITIES are affected thereby. DISTRICT will review and respond to proposed construction change orders affecting the IRWD FACILITIES within five (5) working days of receipt by DISTRICT. A design revision or construction change order or increase in the quantity of any unit price item over the bid quantity involving the IRWD FACILITIES shall be considered null and void for purposes of reimbursement hereunder unless approved in writing by both IRWD and TUSTIN authorized representatives. Nothing in this Agreement shall require IRWD to reimburse the cost of any design or construction costs that are incurred as a result of or to correct design errors or omissions or faulty work of the contractor or other parties retained by TUSTIN, and TUSTIN shall be responsible for recovering such costs from the applicable parties. SECTION 5. REIMBURSEMENT. DISTRICT agrees to reimburse TUSTIN for the following costs (collectively, the "Costs "): (1) the actual costs of design and construction incurred by TUSTIN for the design and construction of the IRWD FACILITIES, including any project revisions and construction change orders that are reimbursable in accordance with Section 4 and a share of mobilization and demobilization corresponding to the IRWD FACILITIES bid schedule costs in proportion to all Project bid schedule costs, plus (2) an administration fee which shall be equal to four percent (4 %) of the actual cost of construction (actual cost of construction is defined as costs paid directly to TUSTIN's contractor for construction only, excluding any cost for design, surveying, geotechnical or other work) of the IRWD FACILITIES. The administration fee shall be deemed to cover all costs of the IRWD FACILITIES project administration including, but not limited to, accounting, inspection, construction administration, submittal review, permits and rights -of way, surveying, geotechnical, bonds, insurance, and all other items not specifically included in the bid schedules for the IRWD FACILITIES. TUSTIN shall keep a separate accounting of all Costs incurred by TUSTIN in relation to the IRWD FACILITIES. Within thirty (30) days following receipt by DISTRICT of a contractor invoice for DISTRICT's portion of a construction progress payment on a certified form provided by the contractor to TUSTIN, accompanied by supporting documentation as may be necessary to show the amounts which represent Costs of the IRWD FACILITIES, DISTRICT shall provide a progress payment to TUSTIN. As part security for the fulfillment of the obligations under this Agreement for construction of the IRWD FACILITIES, TUSTIN will retain, from progress 4- 846165.1 payments made to the contractor, 10% of such estimated value from each progress payment requested. Within sixty (60) days of DISTRICT's acceptance of the IRWD FACILITIES as provided in Section 8, and filing a notice of completion, a final accounting of the Costs shall be made by TUSTIN and submitted to DISTRICT as a final invoice for the remaining Costs so found to be due after deducting therefrom all previous payments and shall include any supporting documentation necessary to show the amounts which represent remaining Costs of the IRWD FACILITIES. Within thirty (30) days of said final accounting, DISTRICT agrees to pay to TUSTIN the total amount of the remaining Costs. Within thirty (30) days of said final accounting, DISTRICT agrees to pay to TUSTIN the total amount of the Costs, less previous progress payments made by DISTRICT pursuant to the preceding paragraph. If the total of the previously made progress payments exceeds the Costs, TUSTIN shall refund the difference to DISTRICT within thirty (30) days of said final accounting. SECTION 6. LAWS, ORDINANCES, RULES AND REGULATIONS. TUSTIN shall require in its contract for the construction of the IRWD FACILITIES that its contractor be fully informed of and comply with all laws, ordinances, rules and regulations, including, but not limited to, all applicable requirements of the California Labor Code, prevailing wage laws, the Construction Manual, and the Rules and Regulations of DISTRICT, in connection with the construction of the IRWD FACILITIES. SECTION 7. INSPECTION. DISTRICT shall have sole and absolute discretion as to all aspects of design and construction of the IRWD FACILITIES, and DISTRICT shall be entitled to inspect the construction of the IRWD FACILITIES as it deems necessary to assure compliance with the approved Plans and Specifications, including shop drawing review and material inspection thereof. DISTRICT shall have access to all phases of the Project work to be performed by TUSTIN for the purpose of such inspection; provided, however, all questions and any field inspection issues and requests from DISTRICT regarding the work being performed shall be directed by DISTRICT to TUSTIN's resident engineer and not directly by DISTRICT to the contractor, but the foregoing is not intended to prohibit DISTRICT from discussing such issues and requests with the contractor. DISTRICT will promptly notify TUSTIN of any portion of the work on the IRWD FACILITIES which appears not to conform to the approved Plans and Specifications. The determination of DISTRICT as to conformity of the IRWD FACILITIES with the approved Plans and Specifications shall be made in DISTRICT's sole and absolute discretion. DISTRICT agrees not to unreasonably withhold its approval as to such conformity of 5- 846165.1 the IRWD FACILITIES with the approved Plans and Specifications, and DISTRICT agrees to defend and indemnify TUSTIN against all disputes related to a DISTRICT determination regarding conformity with approved Plans and Specifications. TUSTIN shall require its contractor to construct the IRWD FACILITIES so that the IRWD FACILITIES conform to the approved Plans and Specifications. TUSTIN agrees to assume full responsibility for certifying or obtaining certification of the compaction of backfill material in the trench zone over the IRWD FACILITIES. DISTRICT shall assume full responsibility for certifying or obtaining certification of the compaction of backfill material in the pipe bedding zone beneath and surrounding the IRWD FACILITIES. SECTION 8. ACCEPTANCE. DISTRICT agrees to accept the IRWD FACILITIES when the IRWD FACILITIES have been completed by TUSTIN in accordance with all requirements of the approved Plans and Specifications, including any change orders approved by DISTRICT as provided in Section 4 hereof. At the time of completion and acceptance of the IRWD FACILITIES, TUSTIN agrees to furnish DISTRICT with one (1) copy of the contractor's redlined set of "record" drawings (showing all revisions, manufacturer and type of valves, pipe and fittings as required by DISTRICT) and one (1) copy of the compaction reports and certificate for the IRWD FACILITIES trench zones, survey notes and cut sheets. SECTION 9. OWNERSHIP. It is mutually agreed between the parties hereto that notwithstanding the fact that TUSTIN shall accomplish the construction of the IRWD FACILITIES subject to reimbursement, the IRWD FACILITIES to be completed hereunder, together with the necessary franchises, licenses, easements, rights -of -way, and other privileges that are assigned and approved by TUSTIN, shall at all times be subject to the applicable rates, rules and regulations of DISTRICT, as modified or amended from time to time. TUSTIN hereby disclaims any interest in the IRWD FACILITIES and does hereby transfer and assign to DISTRICT any and all right, title, and interest it may have in the IRWD FACILITIES. DISTRICT shall own, operate and maintain the IRWD FACILITIES following acceptance thereof. SECTION 10. GUARANTEES. TUSTIN will, pursuant to the requirement(s) of the approved Plans and Specifications, obtain from its contractor(s) for the IRWD FACILITIES a written guarantee of the IRWD FACILITIES against defects in workmanship and materials for a period of one (1) year from the date of acceptance by TUSTIN, which acceptance shall be given only after acceptance by DISTRICT as provided in Section 8. It is further agreed that TUSTIN shall cause the IRWD FACILITIES to be brought or restored to full compliance with the 6- 846165.1 requirements of the approved Plans and Specifications, including any test requirements, for any portions of the IRWD FACILITIES which during said one (1) year period are found not to be in conformance with the provisions of the approved Plans and Specifications. This guarantee is in addition to any and all other warranties, express or implied, from TUSTIN's contractors or material manufacturers, with respect to the IRWD FACILITIES. The guarantee and obligations under this section shall in no way be relieved by DISTRICT's inspection and /or acceptance of the IRWD FACILITIES. This section sets forth the entire guarantee and warranty of TUSTIN with respect to the IRWD FACILITIES. The express or implied warranties of other persons with respect to the IRWD FACILITIES shall in no way be limited by the guarantee and warranty of TUSTIN contained in this section. If requested by DISTRICT, TUSTIN agrees to assign to DISTRICT the contractor's guarantee as it relates to the IRWD FACILITIES and /or any other guarantees or warranties relating to the IRWD FACILITIES. SECTION 11. INDEMNIFICATION. TUSTIN shall indemnity, defend and hold DISTRICT, its officers, agents, employees, and engineers harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen during construction of the IRWD FACILITIES as a result of any negligent or willful acts or omissions by TUSTIN with respect to the Project design or construction save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any act, omission, or negligence of DISTRICT, its officers, agents, employees or engineers or by any act or omission for which DISTRICT, its officers, agents, employees or engineers are liable without fault. DISTRICT shall indemnify, defend and hold TUSTIN and SUCCESSOR AGENCY, and their elected and appointed officials, agents, and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen either (i) as a result of any negligent acts or omissions by DISTRICT, its officers, agents, or employees, with respect to the IRWD FACILITIES design or construction; or (ii) following DISTRICT acceptance of the IRWD FACILITIES, with respect to maintenance and operation of the IRWD FACILITIES, save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any negligence of TUSTIN, its elected and appointed officials, agents, employees or engineers, or by any act or omission for which TUSTIN, its elected and appointed officials, agents, employees or engineers are liable without fault. 7- 846165.1 SECTION 12. INSURANCE AND BONDING. TUSTIN shall cause its contractor(s) to provide performance and payment bonds for the construction of the Project including the IRWD FACILITIES and to include DISTRICT, its officers, agents, employees and engineers, as additional insureds on all liability insurance policies that TUSTIN requires its contractor(s) to provide. As evidence of such insurance coverage, TUSTIN shall, prior to commencement of construction of the IRWD FACILITIES, provide DISTRICT with copies of certificates of insurance and insurance endorsements from TUSTIN's contractor(s). SECTION 13. TERMINATION. Either parry shall have the right to terminate this Agreement at any time prior to DISTRICT's approval of one or more of the IRWD FACILITIES bid item(s) as set forth in Section 3 by providing twenty -four (24) hours prior written notice to the other party. If at the request or direction of a party other than TUSTIN, the construction of the IRWD FACILITIES is not accomplished or completed, DISTRICT shall remain obligated for the actual amount of the Costs incurred by TUSTIN. If TUSTIN's Project is canceled or modified so as to eliminate the necessity of the construction of the IRWD FACILITIES, TUSTIN shall have the right to terminate this Agreement and thereby terminate its obligation to construct the IRWD FACILITIES, by providing five (5) business days' prior written notice to DISTRICT. In such case, DISTRICT will not be obligated for any design or any other Costs incurred by TUSTIN. If IRWD elects to construct the IRWD FACILITIES, DISTRICT shall be obligated to acquire the design work from TUSTIN by separate agreement. SECTION 14. NOTICE. Any notice or other written instrument required or permitted by this Agreement to be given to either party shall be deemed received when personally served or twenty -four (24) hours after being deposited in the U.S. Mail, postage prepaid, registered or certified, return receipt requested and addressed as follows: DISTRICT: Irvine Ranch Water District 15600 Sand Canyon Avenue P.O. Box 57000 Irvine, CA 92619 -7000 Attn: General Manager TUSTIN: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Director of Public Works /City Engineer 8- 846165.1 SECTION 15. SUCCESSORS AND ASSIGNS; INTEGRATION; AMENDMENT. This Agreement shall be binding upon and inure to the benefit of the successor and assigns of TUSTIN and DISTRICT. This Agreement constitutes the entire Agreement between TUSTIN and DISTRICT and supersedes all prior understandings and agreements between the parties with respect to the subjects hereof. This Agreement may be modified only in writing signed by both parties hereto. SECTION 16. LEGAL FEES. In the event of any declaratory or other legal or equitable action instituted between TUSTIN and DISTRICT in connection with this Agreement, the prevailing party shall be entitled to recover from the losing party its reasonable costs and expenses, including court costs and reasonable attorneys' fees. SECTION 17. SEVERABILITY. If any term, provision, covenant or condition of this Agreement is held to be invalid, void or other unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. SECTION 18. APPLICABLE LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of California. SECTION 19. WAIVER. The waiver of any provision of this Agreement by either party shall not be deemed to be a waiver of any other provision or of any preceding or subsequent breach hereunder. [SIGNATURES ON FOLLOWING PAGE] 9- 846165.1 IN WITNESS WHEREOF, the parties to the Agreement execute this Agreement. By Paul Cook, General Manager ATTEST: Secretary/Assistant Secretary APPROVED AS TO FORM: By Legal Counsel, IRWD CITY OF TUSTIN Dated By Dated Elwyn A. Murray, Mayor ATTEST: By City Clerk APPROVED AS TO FORM: By City Attorney - 10- 846165.1 Dated Dated I , r 4 = 2 m 1 I a ° x > a w b• 3 i .c9 O° / °� p_ N u Z g ° LL 5 3° W (• as o . X. -1 .C' F- W & o c o 3 'n' a9 '� J 6; 6 2 ZS U^ a.m. V Q = LL \ ` _.5 0 1 \ • O N W 17 P N� J ry � W a P ~O i.1 YJ At "� z 0 6. A Y 0 b e il 3h e ~ u z .1 a m z 11 A Y. sr z ,4,4CrGQ � .:� ©may • 7 o 9 C P`.--O SEVERyN RD. Z k. 4. -1)k 78a. 7 41,„k_ ' .c,3d031 0 /),,,vo'"O ivw 4 0 b o� 0`�S P� / 0 .o• -7 N 1 se co /<% � a 0 �' 4$ sw dye 417 13314.1.S.d. 11&4 .. � ))fly G.