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HomeMy WebLinkAboutCounty of Orange - 2015-06-15THE COUNTY OF ORANGE AND THE CITY OF HUNTINGTON BEACH FOR HUNTINGTON HARBOUR WATERLINE PROJECT This COOPERATIVE AGREEMENT (Agreement) FOR THE HUNTINGTON HARBOUR WATERLINE PROJECT is made and entered into this day of Auk u,sil , 2015, (herein "Effective Date") by and between the COUNTY OF ORANGE, a political subdivision of the State of California (hereafter the "County"), and the CITY OF HUNTINGTON BEACH, a municipal corporation (hereafter the "City") The County and City may be referred to herein individually as a "Party," or collectively as the "Parties " RECITALS WHEREAS, the County has a maintenance project to dredge the Sunset/Huntington Harbour main channel in areas shown on "Exhibit A — Sunset/Huntington Harbour Dredging Areas", attached hereto, and such project is known as the Sunset/Huntington Harbour Maintenance Dredging Project (hereafter the `Dredging Project"), and WHEREAS, the City has a Capital Improvement Project to construct a waterline in the Huntington Harbour area, and such project is known as the Huntington Harbour Waterline Project (hereafter the "Waterline Project") as shown on "Exhibit B — Huntington Harbour Waterline Project Area", attached hereto, and WHEREAS, the City desires to construct the proposed Waterline Project jointly with the Dredging Project to take advantage of the cost of a mobilized dredging contractor to dredge a trench area in the harbor to construct the Waterline Project that is not included in the Dredging Project area and WHEREAS, the County has agreed to construct the Waterline Project jointly with the Dredging Project with the City financially responsible to pay for all costs associated with the construction of the Waterline Project, and WHEREAS, the County will be responsible for advertising, bidding, and awarding both Projects jointly and facilitating the construction of the Waterline Project with the Dredging Project, and WHEREAS the City and the County desire to enter into this Agreement to describe the City's and County's responsibility for the construction of the Waterline Project, and 15-4567/121550 I J-4JV/!IG IJJV NOW THEREFORE, the County and the City agree as follows 1 The Parties agree that the above recitals are true and correct to the best of each Party's knowledge, and shall incorporate into this Agreement the full terms set forth herein 2 After both the County and the City have reviewed and approved the Plans and Specifications, the County agrees to advertise both Dredging Project and Waterline Project (hereafter the "Project") Should the County award the Project, the County agrees to award the Project under one contract approved by the County Board of Supervisors and construct the Project jointly 3 After opening the bids for the Project, the County shall notify the City of the bid contents as soon as is reasonably feasible The County will determine whether it will or will not award a contract and inform the City of such decision as soon as reasonably feasible The County Reserves the right to reject all bids as consistent with the law If the County determines it will not proceed with awarding the Project, this Agreement shall terminate immediately The City shall be financially responsible for any applicable expenses incurred by the County with regard to advertising the Waterline Project If the County determines it will proceed with the Dredging portion of the project, then the terms of this Agreement shall remain in effect and the County shall award the Project consistent with public bidding and award procedures 4 If the County awards the a contract for the Project, the City will provide the County with a lump sum check for an amount not to exceed TOME 44/0 7712&ZF dollars ($ /� boo, 000 a v ) at least thirty (30) calendar days prior to the County Board of Supervisors awarding the contract to the contractor The lump sum amount to the County will include all costs related to the construction of the Waterline Project including and not limited to the contractor's bid proposal plus fifteen (15%) contingency, construction management, specialty inspection and testing, eelgrass mitigation and monitoring, water turbidity monitoring, and bird nesting survey 5 The County agrees to facilitate the construction of the Waterline Project with the Dredging Project and use City's pre -paid funds to pay for all cost associated with the Waterline Project 2 15-4567/121550 0 Should the cost of constructing the Waterline Protect exceed the City's lump sum amount provided to the County the City shall allocate additional funds within thirty (30) calendar days to the County to pay for any additional costs related to constructing the Waterline Protect 7 The County shall separately file a Notice of Completion (NOC) for the Dredging Protect and Waterline Protect The NOC for the Waterline Protect shall identify the City as the owner of the newly constructed waterline 8 The County shall request and obtain from the contractor a one-year Warranty Bond, in an amount equal to the total payments made to the contractor for the construction of the Waterline Protect. The County shall include in the contract document a requirement for the contractor to provide the County with a Warranty Bond and name the City as the bond holder of such Warranty Bond for the Waterline Protect The County shall provide the City with the original bond within fourteen (14) calendar days after release of the final retention payment to the contractor Upon the City's receipt of the bond, the City shall be responsible for tracking and releasing the bond to the contractor As deemed appropriate and as applicable by both Parties, the City shall accept any warranties, including manufacturer's warranty, related to the Waterline Protect as provided by the contractor 9 The County shall reimburse the City all unused pre -paid funds for the Waterline Protect within ninety (90) calendar days from the effective date of the Notice of Completion for the Waterline Protect filed with the Orange County Recorder's Office 10 The Parties agree to pay a pro-rata share of the cost for eeigrass mitigation and monitoring or alternate approaches to eeigrass mitigation for eeigrass impacted by each Party's individual protect Each Party is financially responsible to pay for their fair share of costs for the mitigation measures identified in the eeigrass mitigation plan approved by the California Coastal Commission and referenced in the approved Coastal Development Permit (CDP) issued under one permit for both protects Each Party is also financially responsible to pay a pro-rata share of the cost for eeigrass mitigation requirements/conditions specified in the approved CDP, U S Army Corps of Engineer permit, and California Regional Water Quality Control Board 401 permit 11 Indemnification A County Neither City nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by County under or in connection with any work or 3 15-4567/121550 activity under this Agreement It is understood and agreed that, pursuant to Government Code Section 895 4, County shall fully indemnify and hold City harmless from any liability imposed injury (as defined by Government Code Section 810 8) occurring by reason of anything done or omitted to be done by County under or in connection with any work or activity under this Agreement B City Neither County nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by City under or in connection with any work or activity under this Agreement It is understood and agreed that, pursuant to Government Code Section 895 4, City shall fully indemnify and hold County harmless from any liability imposed injury (as defined by Government Code Section 810 8) occurring by reason of anything done or omitted to be done by City under or in connection witri any work or activity under this Agreement 12 Governing Law The City and County understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the Parties to this Agreement and also govern the interpretation of this Agreement 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 to hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394 Furthermore, the Parties specifically agree to waive any and all rights to request that an action be transferred for trial to another County 13 Assignment This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties No assignment of County's interest in this Agreement shall be made without the written consent of the City Furthermore, County agrees that any City funds received under this Agreement shall not be expended on, given to, shared with, or otherwise provided to any other city, local agency or other entity not contemplated under this Agreement 14 Amendments This Agreement is the sole and only Agreement between the Parties regarding the subject matter hereof, and other agreements on this subject matter either oral or written are void Any amendments to this Agreement shall be in writing and shall be properly executed by both Parties and approved as to form by County's County Counsel and City's City Attorney 4 15-4567/121550 15 Integration This Agreement constitutes the entire agreement of the Parties No other agreement, oral or written, pertaining to the work to be performed under this Agreement shall be of any force or effect unless it is in writing and signed by both Parties 16 Severability 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 17 Termination This Agreement shall terminate under the following circumstances (a) The County determines it will withdraw from the Project during the bidding process or (b) The County determines it will not proceed to award a contract after bids are received, or (c) The Project is completed and a NOC is filed Either Party may terminate this Agreement under the following circumstances (a) Material breach is committed by the other Party and has not been cured within a reasonable amount of time after a "Notice of Termination" is given to the other Party or mutually agreed upon plan for curing the breach is not entered into by both Parties A Party alleging breach by the other Party must provide written notice of the breach in a "Notice of Termination" which shall be effective the date that the Notice is received The Notice shall clearly state the reason for the termination, explain the material breach that is alleged, and the date upon which the termination is effective If this Agreement is terminated for material breach, the City shall reimburse the County within thirty (30) calendar days of termination for all applicable costs incurred by the County on the City s behalf under this Agreement and the County shall reimburse the City all used pre -paid funds per the terms and conditions specified in this Agreement 18 Breach The failure of the County or City to comply with any of the terms and conditions of this Agreement shall be a material breach of this Agreement 5 154567/121550 19 Binding Obligation The Parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes the ►egally binding obligation of their respective organization or entity enforceable in accordance with its terms 20 Attorneys' Fees in any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense each Party shall bear its own attorney's fees, costs and expenses 21 Reserved 22 Counterparts This Agreement may be executed in two or more counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument 23 Notices Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally or by first class mail, postage prepaid, to each Party at the address listed below Either Party may change the notice address by notifying the other Party in writing Notices may be sent by either facsimile or U S Mail Notices shall be deemed received upon receipt of same or within 3 days of deposit in the U S Mail, whichever is earlier Notices sent by facsimile shall be deemed received on the date of the facsimile transmission To County County of Orange OC Parks 13042 Old Myford Road Irvine, CA 92602-2304 Attn Director OC Parks Fax (714) 667-6511 To City City of Huntington Beach 2000 Main Street P 0 Box 190 Huntington Beach, CA 92648 Attn Director of Public Works Fax (714) 374-1573 24 Attachments This Agreement includes the following, which are attached hereto and made a part hereof I Exhibit A — Sunset/Huntington Harbour Dredging Areas 11 Exhibit B — Huntington Harbour Waterline Project Area 15-4567/121550 IN WITNESS WHEREOF. the Pampas have executed tries Agreement by and through their authorized officers as o� thedazeswritten below CITY City of Huntington Beacn, a California municipal corporation w10 - - FUMP'T"MR-mm MORN A olwld-o�� a APPROVED ASS FORM INITIATED AND APPROVED 1�2 Direbt& of/ Wc'W6`" Cron-) 154567/121550 "0 trilkyj County of Orange, a political subdivision of, the State of California Signed and beriffied that a copy of this Document has been delivered to the Chair of the Board per G.0 Sec 25103, Resolution 79-1535 Attest Clerk of Board of Supervisors Orange Counsel Orange County California Date a APPR,D , - 11 OFFICE 0.= T �ATJ I i' COUNSEL ORANGE O'WTY, CA,IFORNIA BY_ DGPIAY ORANGE COUNTY BOARD OF SUPERVISORS MINUTE ORDER August 25, 2015 SubmittingAgency/Department OC PUBLIC WORKS Approve plans and specifications and set bid opening for 9/16/15, 2 00 p m for Sunset/Huntington Harbour Maintenance Dredging and Waterline Installation Project, approve cooperative agreement with City of Huntington Beach, and consider application of prior Mitigated Negative Declaration No IP 14-148 and other findings - District 2 The following is action taken by the Board of Supervisors: APPROVED AS RECOMMENDED ® OTHER ❑ Unanimous ® (1) DO Y (2) STEEL Y (3) SPITZER Y (4) NELSON Y (5) BARTLETT Y Vote Key Y=Yes, N=No, A=Abstain, X=Excused, B O =Board Order Documents accompanying this matter: ❑ Resolution(s) ❑ Ordmances(s) ❑ Contract(s) Item No 21 Special Notes Copies sent to OCPW/Wendy Brown OCPW/Eric Swint OCCR/Steve Franks City of Huntington Beach/Duncan Lee, 0 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 Robin Stieler, Interim Clerk of the Board By Deputy Agenda Item AGENDA STAFF REPORT LEGAL ENTITY TAKING ACTION: BOARD OF SUPERVISORS DISTRICT(S): SUBMITTING AGENCY/DEPARTMENT: DEPARTMENT CONTACT PERSON(S): ASR Control 15-001003 08/25/ 15 Board of Supervisors 2 OC Public Works (Approved) Shane Stlsby (714) 667-9700 Stacy Blackwood (949) 923-3743 SUBJECT: Advertise Sunset/Huntington Harbour Maintenance Dredging and Waterline Install` �.O CEO CONCUR COUNTY COUNSEL REVIEW CLERK OF THE BOARD Concur Approved Agreement to Form Consent Calendar 3 Votes Board Majority Budgeted: Yes Current Year Cost: N/A Annual Cost: N/A Staffing Impact: No # of Positions: Sole Source: No Current Fiscal Year Revenue: N/A 119 Funding Source: See Financial Impact Section County Audit in last 3 years: No Prior Board Action: N/A RECOMMENDED ACTION(S): 1. Find that Mitigated Negative Declaration No. IP 14-148, previously approved by Board of Supervisors on January 27, 2015 reflects the independent judgment of the County of Orange and is adequate to satisfy the requirements of the California Environmental Quality Act (CEQA) for the Sunset/Huntington Harbour Maintenance Dredging and Waterline Installation Project based on the following additional findings: a. The circumstances Of the project are substantially the same and Mitigated Negative Declaration No. IP 14-148 adequately addressed the effects of the proposed project. No substantial changes have been made in the project, no substantial changes have occurred In the circumstances under which the project is being undertaken and no new information of substantial importance to the project which was not known or could not have been known when the previous Mitigated Negative Declaration No. IP 14-148, was adopted had become known; therefore no further environmental review is required. b. Mitigated Negative Declaration No. IP 14-148 is adequate to satisfy the requirements of CEQA for the Sunset/Huntington Harbour Maintenance Dredging and Waterline Installation Project. rye' 2. Approve plans, specifications and bid documents for the Sunset/Huntington Harbour Maintenance All Dredging and Waterline Installation Project. Page 1 3. Approve the Cooperative Agreement between the County and the City of Huntington Beach for the Waterline Project. 4. Authorize the Clerk of the Board to advertise the Sunset/Huntmgton Harbour Maintenance Dredging _ w and Waterline Installation Project for bids and set 2.00 PM, Wednesday, September 16, 2015, as the time and date for bid opening unless extended pursuant to Public Contract Code 4104.5. SUMMARY: Approval of the plans, specifications, and bid documents and authorizing the Clerk of the Board to advertise the Sunset/Huntington Harbour Maintenance Dredging and Waterline Installation Project will enhance waterway navigation, increase fire protection, and restore critical habitat. BACKGROUND INFORMATION: Sunset/Huntington Harbour is located in the cities of Seal Beach and Huntington Beach. The County of Orange is responsible for maintaining the manna depths in Sunset Aquatic Marina (Sunset Harbour) and the channel depths in the Main Channel between the Pacific Coast Highway bridge in Seal Beach and Warner Avenue in Huntington Harbour. The County of Orange has carried out previous maintenance dredging projects in Sunset Harbour with the most recent maintenance dredging cycle occurring in 2001. New maintenance dredging needs to be accomplished for waterway navigational purposes both in Sunset Harbour and the Main Channel. The overall Sunset/Huntington Harbour Maintenance Dredging and Waterline Installation Projec`l (project) also includes the installation of a 14-inch-diameter waterline under the Huntington Harbour channel. The waterline is the responsibility of City of Huntington Beach and is being installed for fire protection purposes. Because dredging equipment will be required to complete both the maintenance dredging and the waterline installation components of the project, considerable cost and scheduling efficiencies can be achieved by installing the waterline during the maintenance dredging work. A Cooperative Agreement has been prepared to cover the City's portion of the project. The disposal sites for dredged material will be at an open ocean Environmental Protection Agency approved site, with a small amount of dredge material to be deposited in the Surfside/Sunset Beach surf zone and a portion at the Seal Beach National Wildlife Refuge for habitat restoration of marsh areas located adjacent to the harbor. The purpose of the marsh restoration pilot project is to study the effects of applying a thin layer of dredge material to low elevation salt marsh while monitoring and recording marsh conditions for up to one year before and for five years after the application of the dredge material. The estimated construction cost for the dredging project is $6,400,000 and the estimated cost of the waterline project is $925,000. A copy of the plans, specifications, and bid documents is on file with the Clerk of the Board. Compliance with CEQA: This project is a necessarily included element of the project considered in Mitigated Negative Declaration No IP 14-148, approved by the Board of Supervisors on January 2(7, 2015 for the Sunset/Huntington Harbour Maintenance Dredging and Waterline Installation Project whi&',',- adequately addressed the effects of the proposed project. No substantial changes have been made in the Page 2 project, no substantial changes have occurred in the circumstances under which the project is being undertaken and no new information of substantial importance to the project which was not known or ould not have been known when the Mitigated Negative Declaration IP 14-148 was approved has ecome known; therefore no further environmental review is required. FINANCIAL IMPACT: OC Parks has budgeted sufficient appropriations to pay for this Project. The City of Huntington Beach will pay all costs associated with the waterline project. OC Parks Capital Projects Fund 406: 87%; City of Huntington Beach: 13%. STAFFING IMPACT: N/A REVIEWING AGENCIES: OC Community Resources ATTACHMENT(S): Attachment A - Notice to Contractors Attachment B - Project Location Map x Attachment C - Public Contract Code 4104.5 Attachment D - Cooperative Agreement Page 3 Dept ID PW 15-035 Page 1 of 2 Meeting Date 6/15/2015 CITY OF HUNTINGTON BEACH REQUEST FOR CITY COUNCIL ACTION MEETING DATE: 6/15/2015 SUBMITTED TO. Honorable Mayor and City Council Members SUBMITTED BY, Fred A Wilson, City Manager PREPARED BY. Travis K Hopkins, PE, Director of Public Works SUBJECT- Adopt Resolution No 2015-28 authorizing intent to enter into a proposed future Cooperative Agreement with the County of Orange for the Huntington Harbour Waterline Proiect, CC-1446 Statement of Issue The Public Works Department desires to construct a new waterline crossing one of the channels in Huntington Harbour to improve redundancy and reliability The City has the opportunity to construct this project along with the County of Orange ("County") Harbor Dredging Project This will allow the City to take advantage of the cost of mobilizing a dredging contractor to dredge a trench area in the harbor for the City waterline and to piggy back on their environmental document therefore reducing project costs and conserving on staff time and resources Financial Impact $1,100,000 is available from undesignated Water Fund (506) balance No appropriation is required or requested at this time Appropriation will be requested at a later date after the County obtains bids for contracts Recommended Action Adopt Resolution No 2015-28, "A Resolution of the City Council of the City of Huntington Beach Authorizing Intent to Enter Into Proposed Cooperative Agreement Between the City of Huntington Beach, California and County of Orange, California " Alternative Action(s) Do not adopt the resolution and forego opportunity to collaborate with the County to reduce construction costs and to minimize impact to the Huntington Harbour for a new waterline Analysis To improve the redundancy and reliability of the water supply to the Huntington Harbour and Sunset Beach areas, the City proposes to construct the Huntington Harbour Waterline to serve as a backup to an existing 12-inch ductile iron waterline located beneath the harbor channel near Peter's Landing The Huntington Harbour Waterline Project will consist of constructing approximately 670 lineal feet of 14-inch diameter pipeline across the harbor main channel The existing 12-inch ductile iron pipeline is a critical pipeline segment that provides a loop (redundant) waterline for the two areas and supports the water flow necessary for fire protection purposes A pipeline failure or shutdown of the 12-inch water pipeline would result in a significant reduction in fire flow capacity to these areas, ranging between 37 to 58 percent HB -65- Item 10. - 1 Dept ID PW 15-035 Page 2 of 2 Meeting Date 6/15/2015 The County of Orange currently has a maintenance dredging project in the Sunset/Huntington Harbour area and has agreed to Include the City's proposed waterline project Since the pipeline project will also require dredging of a section of the harbor, staff believed this was an opportune time to work together with the County since the City's waterline must address environmentally sensitive issues, testing, and permitting similar to the County's dredging project This collaboration with the County is saving the City hundreds of hours of staff time and will accelerate the construction of the waterline project by piggybacking on the County's dredging project The County is requiring a Cooperative Agreement ("Agreement"), which describes the conditions under which each party agrees to facilitate the construction of the waterline project The attached Agreement has been approved "As to Form" by legal counsel The Agreement will need to be signed by both agencies after County opens bids for both projects Prior to County awarding both projects, City and County will need to finalize the agreement and the City will need to provide the County with a lump sum payment for construction, contingency, construction support, inspection, and other relevant costs associated with the new waterline After completion of the waterline project, the County will return any unused funds to the City The County anticipates advertising both projects as early as July 2015 and awarding the contract in September 2015 The County is tentatively scheduled to begin construction in Fall of 2015, and complete the waterline project and dredging maintenance work in Spring of 2016 The Huntington Waterline project has an engineer's estimate of approximately $1,100,000 00 Public Works Commission Action - Not required However, an informational presentation was given to the Commission on November 19, 2014 Environmental Status Not applicable as all permits and environmental documentations were prepared through the County Strategic Plan Goal Enhance and maintain infrastructure Attachment(s) 1 Location Map - Waterline 2 Resolution No 2015-28, "A Resolution of the City Council of the City of Huntington Beach Authorizing Intent to Enter Into Proposed Cooperative Agreement Between the City of Huntington Beach, California and County of Orange, California" 3 "Cooperative Agreement Between the County of Orange and the City of Huntington Beach for Huntington Harbour Waterline Project", approved "As to Form" by City Attorney Item 10. - 2 HB -66- ATTACHMENT 1 HUNTINGTON HARBOUR WATERLINE PROJECT VICINITY MAP PRC HB -67- REA Item 10. - 3 RESOLUTION NO 2015-28 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH AUTHORIZING INTENT TO ENTER INTO PROPOSED COOPERATIVE AGREEMENT BETWEEN THE CITY OF HUNTINGTON BEACH, CALIFORNIA AND COUNTY OF ORANGE, CALIFORNIA WHEREAS, the COUNTY OF ORANGE, a political subdivision of the State of California (hereafter the "County") has a maintenance project to dredge the Sunset/Huntington Harbour main channel, and such project is known as the Sunset/Huntington Harbour Maintenance Dredging Project (hereafter the "Dredging Project"); and The CITY OF HUNTINGTON BEACH, a municipal corporation (hereafter the "City") has a Capital Improvement Project to construct a waterline in the Huntington Harbour area, and such project is known as the Huntington Harbour Waterline Project (hereafter the "Waterline Project"), and The City desires to construct the proposed Waterline Project jointly with the Dredging Project to take advantage of the cost of a mobilized dredging contractor to dredge a trench area in the harbor to construct the Waterline Project that is not included in the Dredging Project area; and The County has agreed to construct the Waterline Project jointly with the Di edging Project with the City financially responsible to pay for all costs associated with the construction of the Waterline Project; and The County will be responsible for advertising, bidding, and awarding both Projects jointly and facilitating the construction of the Waterline Project with the Dredging Project; and The City and the County desire to enter into a Cooperative Agreement (Agreement) to describe the City's and County's responsibility for the construction of the Waterline Project, and NOW, THEREFORE, the City Council of the City of Huntington Beach does hereby resolve as follows 1 That the Director of Public Works, or his delegate, is authorized to notify the County to advertise City's Waterline Project with County's Dredging Project, and that the City intends to cooperate with the County per the proposed Agreement 2. That three copies of the proposed Agreement, to be considered by this body, are available for interested persons to review at the City Clerk's office prior to the projected Agreement approval date of A o4j v S T- , 2015 15-4732/121445 doc PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the 15tl ay of June , 2015 APPROVED�fO FORM - INITIATED AND AP ROVED L Diiector of Pub is Works REVIE D APPROVED: City 1 er 15-4732/121445 doe 2 Res. No. 2015-28 STATE OF CALIFORNIA COUNTY OF ORANGE ) ss: CITY OF HUNTINGTON BEACH ) I, JOAN L FLYNN the duly elected, qualified City Clerk of the City of Huntington Beach, and ex-officio Clerk of the City Council of said City, do hereby certify that the whole number of members of the City Council of the City of Huntington Beach is seven, that the foregoing resolution was passed and adopted by the affirmative vote of at least a majority of all the members of said City Council at a Regular meeting thereof held on June 15, 2015 by the following vote AYES: Posey, O'Connell, Katapodis, Hardy, Sullivan, Peterson NOES: None ABSENT: Delgleize ABSTAIN: None Ex e -0-4: �:&WLffiMWMWM - City rk and ex-officio erk of the City Council of the City of Huntington Beach, California ATTACHMENT }3 f COOPERATIVE AGREEMENT BETWEEN THE COUNTY OF ORANGE AND THE CITY OF HUNTINGTON BEACH FOR HUNTINGTON HARBOUR WATERLINE PROJECT This COOPERATIVE AGREEMENT (Agreement) FOR THE HUNTINGTON HARBOUR WATERLINE PROJECT is made and entered into this day of , 2015, (herein "Effective Date") by and between the COUNTY OF ORANGE, a political subdivision of the State of California (hereafter the "County"), and the CITY OF HUNTINGTON BEACH, a municipal corporation (hereafter the "City") The County and City may be referred to herein individually as a "Party," or collectively as the "Parties " RECITALS WHEREAS, the County has a maintenance project to dredge the Sunset/Huntington Harbour main channel in areas shown on "Exhibit A — Sunset/Huntington Harbour Dredging Areas", attached hereto, and such project is known as the Sunset/Huntington Harbour Maintenance Dredging Project (hereafter the "Dredging Project"), and WHEREAS, the City has a Capital improvement Project to construct a waterline in the Huntington Harbour area, and such project is known as the Huntington Harbour Waterline Project (hereafter the "Waterline Project") as shown on "Exhibit B — Huntington Harbour Waterline Project Area", attached hereto, and WHEREAS, the City desires to construct the proposed Waterline Project jointly with the Dredging Project to take advantage of the cost of a mobilized dredging contractor to dredge a trench area in the harbor to construct the Waterline Project that is not included in the Dredging Project area, and WHEREAS, the County has agreed to construct the Waterline Project jointly with the Dredging Project with the City financially responsible to pay for all costs associated with the construction of the Waterline Project, and WHEREAS, the County will be responsible for advertising, bidding, and awarding both Projects jointly and facilitating the construction of the Waterline Project with the Dredging Project, and WHEREAS, the City and the County desire to enter into this Agreement to describe the City's and County's responsibility for the construction of the Waterline Project, and 1 15-45671121550 NOW THEREFORE, the County and the City agree as follows 1 The Parties agree that the above recitals are true and correct to the best of each Party's knowledge, and shall incorporate into this Agreement the full terms set forth herein 2 After both the County and the City have reviewed and approved the Plans and Specifications, the County agrees to advertise both Dredging Project and Waterline Project (hereafter the "Project") Should the County award the Project, the County agrees to award the Project under one contract approved by the County Board of Supervisors and construct the Project jointly 3 After opening the bids for the Project, the County shall notify the City of the bid contents as soon as is reasonably feasible The County will determine whether it will or will not award a contract and inform the City of such decision as soon as reasonably feasible The County Reserves the right to reject all bids as consistent with the law If the County determines it will not proceed with awarding the Project, this Agreement shall terminate immediately The City shall be financially responsible for any applicable expenses incurred by the County with regard to advertising the Waterline Project If the County determines it will proceed with the Dredging portion of the project, then the terms of this Agreement shall remain in effect and the County shall award the Project consistent with public bidding and award procedures 4 If the County awards the a contract for the Project, the City will provide the County with a lump sum check for an amount not to exceed dollars ($ ) at least thirty (30) calendar days prior to the County Board of Supervisors awarding the contract to the contractor The lump sum amount to the County will include all costs related to the construction of the Waterline Project including and not limited to the contractor's bid proposal plus fifteen (15%) contingency, construction management, specialty inspection and testing, eelgrass mitigation and monitoring, water turbidity monitoring, and bird nesting surrey 5 The County agrees to facilitate the construction of the Waterline Project with the Dredging Project and use City's pre -paid funds to pay for all cost associated with the Waterline Project 2 15-4567/121550 6 Should the cost of constructing the Waterline Project exceed the City's lump sum amount provided to the County, the City shall allocate additional funds within thirty (30) calendar days to the County to pay for any additional costs related to constructing the Waterline Project 7 The County shall separately file a Notice of Completion (NOC) for the Dredging Project and Waterline Project The NOC for the Waterline Project shall identify the City as the owner of the newly constructed waterline 8 The County shall request and obtain from the contractor a one-year Warranty Bond, in an amount equal to the total payments made to the contractor for the construction of the Waterline Project The County shall include in the contract document a requirement for the contractor to provide the County with a Warranty Bond and name the City as the bond holder of such Warranty Bond for the Waterline Project The County shall provide the City with the original bond within fourteen (14) calendar days after release of the final retention payment to the contractor Upon the City's receipt of the bond, the City shall be responsible for tracking and releasing the bond to the contractor As deemed appropriate and as applicable by both Parties, the City shall accept any warranties, including manufacturer's warranty, related to the Waterline Project as provided by the contractor 9 The County shall reimburse the City all unused pre -paid funds for the Waterline Project within ninety (90) calendar days from the effective date of the Notice of Completion for the Waterline Project filed with the Orange County Recorder's Office 10 The Parties agree to pay a pro-rata share of the cost for eelgrass mitigation and monitoring or alternate approaches to eelgrass mitigation for eelgrass impacted by each Party's individual project Each Party is financially responsible to pay for their fair share of costs for the mitigation measures identified in the eelgrass mitigation plan approved by the California Coastal Commission and referenced in the approved Coastal Development Permit (CDP) issued under one permit for both projects Each Party is also financially responsible to pay a pro-rata share of the cost for eelgrass mitigation requirements/conditions specified in the approved CDP, U S Army Corps of Engineer permit, and California Regional Water Quality Control Board 401 permit 11 indemnification A County Neither City nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by County under or in connection with any work or 3 15-4567/121550 activity under this Agreement It is understood and agreed that, pursuant to Government Code Section 895 4, County shall fully indemnify and hold City harmless from any liability imposed injury (as defined by Government Code Section 810 8) occurring by reason of anything done or omitted to be done by County under or in connection with any work or activity under this Agreement B City Neither County nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by City under or in connection with any work or activity under this Agreement It is understood and agreed that, pursuant to Government Code Section 895 4, City shall fully indemnify and hold County harmless from any liability imposed injury (as defined by Government Code Section 810.8) occurring by reason of anything done or omitted to be done by City under or in connection with any work or activity under this Agreement 12 Governing Law The City and County understand and agree that the laws of the State of California shall govern the rights, obligations, duties and liabilities of the Parties to this Agreement and also govern the interpretation of this Agreement 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 to hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394 Furthermore, the Parties specifically agree to waive any and all rights to request that an action be transferred for trial to another County 13 Assignment This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties No assignment of County's interest in this Agreement shall be made without the written consent of the City Furthermore, County agrees that any City funds received under this Agreement shall not be expended on, given to, shared with, or otherwise provided to any other city, local agency or other entity not contemplated under this Agreement 14 Amendments This Agreement is the sole and only Agreement between the Parties regarding the subject matter hereof, and other agreements on this subject matter either oral or written are void Any amendments to this Agreement shall be in writing and shall be properly executed by both Parties and approved as to form by County's County Counsel and City's City Attorney 4 15-4567/121550 15 Integration This Agreement constitutes the entire agreement of the Parties No other agreement, oral or written, pertaining to the work to be performed under this Agreement shall be of any force or effect unless it is in writing and signed by both Parties 16 Severability 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 17 Termination This Agreement shall terminate under the following circumstances (a) The County determines it will withdraw from the Project during the bidding process, or (b) The County determines it will not proceed to award a contract after bids are received, or (c) The Project is completed and a NOC is filed Either Party may terminate this Agreement under the following circumstances (a) Material breach is committed by the other Party and has not been cured within a reasonable amount of time after a "Notice of Termination" is given to the other Party, or mutually agreed upon plan for curing the breach is not entered into by both Parties A Party alleging breach by the other Party must provide written notice of the breach in a "Notice of Termination" which shall be effective the date that the Notice is received The Notice shall clearly state the reason for the termination, explain the material breach that is alleged, and the date upon which the termination is effective If this Agreement is terminated for material breach, the City shall reimburse the County within thirty (30) calendar days of termination for all applicable costs incurred by the County on the City's behalf under this Agreement and the County shall reimburse the City all used pre -paid funds per the terms and conditions specified in this Agreement 18 Breach The failure of the County or City to comply with any of the terms and conditions of this Agreement shall be a material breach of this Agreement 5 154567/121550 19 Binding Obligation The Parties to this Agreement represent and warrant that this Agreement has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity enforceable in accordance with its terms. 20 Attorneys' Fees In any action or proceeding to enforce or interpret any provision of this Agreement, or where any provision hereof is validly asserted as a defense, each Party shall bear its own attorney's fees, costs and expenses 21 Reserved 22 Counterparts This Agreement may be executed in two or more counterpart, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 23 Notices Except as otherwise provided herein, all notices required under this Agreement shall be in writing and delivered personally or by first class mail, postage prepaid, to each Party at the address listed below Either Party may change the notice address by notifying the other Party in writing Notices may be sent by either facsimile or U S Mail Notices shall be deemed received upon receipt of same or within 3 days of deposit in the U S Mail, whichever is earlier Notices sent by facsimile shall be deemed received on the date of the facsimile transmission To County County of Orange OC Parks 13042 Old Myford Road Irvine, CA 92602-2304 Attn Director OC Parks Fax (714) 667-6511 To City City of Huntington Beach 2000 Main Street P O Box 190 Huntington Beach, CA 92648 Attn Director of Public Works Fax (714) 374-1573 24 Attachments This Agreement includes the following, which are attached hereto and made a part hereof l Exhibit A — Sunset/Huntington Harbour Dredging Areas li Exhibit B — Huntington Harbour Waterline Project Area 6 15-4567/121550 IN WITNESS WHEREOF, the Parties have executed this Agreement by and through their authorized officers as of the dates written below CITY City of Huntington Beach, a California municipal corporation Date Mayor City Clerk APPROVED -A 70 FORM Attomey u� ITIATED AND APPROVED Director of Public Works REVIEWED AND APPROVED City Manager COUNTY County of Orange, a political subdivision of the State of California Date By Chair, Board of Supervisors Signed and certified that a copy of this Document has been delivered to the Chair of the Board per G C Sec 25103, Resolution 79-1535 Attest Clerk of Board of Supervisors Orange Counsel Orange County, California Date 15-4567/121550 SUNSET/HUNTINGTON HARBOUR DREDGING AREAS REFER TO APPROVED COUNTY SUNSET/HUNTINGTON HARBOUR MAINTENANCE DREDGING AND WATERLINE PLANS FOR DREDGING LIMITS. COUNTY DREDGING AREAS EXHIBIT B TON HARBOUR WATERLINE PROJECT AREA VICINITY MAP 0 STATE ROPERTY E o •fYP oON!A G F --------------- __ ---— —�..= ZPROPOSED HUNTINGTON GENERAL HARBOUR WATERLINE L 4 F RIM ENE DREDGE AREA' G R FER " APPROVED COUNTY SUN IHUNTINGTON HARBOUR c; - M NA CE DREDGING AND WATE NE PLANS FOR DREDGING LIMITS. CITY PROJECT AREA