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HomeMy WebLinkAboutWEST ORANGE COUNTY WATER BOARD - 2004-04-05Council/Agency Meeting Held: D Deferred/Continued to: Approved Q Conditionally Approved Q Denied _ Cit lefirs S na#ure Council Meeting Date: ' 04/05/04 1 Department ID Number. PW 04-029 CITY OF HUNTINGTON BEACH _ REQUEST FOR ACTION SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL _Y SUBMITTED BY: RAY SILVER, City Administrator orzf P r "PREPARED BY: ROBERT F. BEARDSLEY, Director Of Public Works � _��' SUBJECT: APPROVE A REIMBURSEMENT AGREEMENT WITH THE WEST ORANGE COUNTY WATER BOARD FOR RELOCATION OF VAULT FACILITIES Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: In conjunction with a major construction project scheduled in the City's Water Master Plan, the West Orange County Water Board requests that the City bid and manage a vault relocation construction project. The City is a member and owns 56.1 % of the West orange County Water Board facilities. Funding Source: Initial payment will be made from Water Master Plan account 50791020.82100. The West Orange County Water Board will then be invoiced for their portion of the work, including inspection and salaries. Recommended Action: Approve and authorize the Mayor and City Clerk to execute the agreement with the West Orange County Water Board. Alternative Actions : Do not approve the agreement and instruct staff on how to proceed. 16� kw., - REQUEST FOR ACTION MEETING DATE: 04105/04 DEPARTMENT ID NUMBER: PW 04-029 Analysis: The West Orange County Water Board (WOCWB) is a Joint Powers Agreement between the Cities of Seal Beach, Westminster, Garden Grove and Huntington Beach for the purpose of purchasing water from the Municipal Water District of Orange County, and transporting it via Feeders No. 1 and No. 2, ovmed by the Joint Powers cities. Huntington Beach owns 56.1 percent of this system. WOCWB is comprised of representatives from each of the Joint Powers agencies, with Council Members Jill Hardy and Dave Sullivan representing the City of Huntington Beach on the Board. Over the course of the last several years, WOCWB has been systematically relocating and upgrading their vault facilities. This year the Board has budgeted for the last of these vault relocations. The facility in question is located at the intersection of Newland and Edinger (Feeder No. 1) and serves Huntington Beach. It essentially marks the spot where the Board's facilities stop and the City's transmission line begins. The City's Fiscal Year 03-04 budget contains $5,300,000 in the Water Master Plan for modifications to this transmission line beginning at the vault and heading south. In an effort to provide the necessary coordination of the projects and take advantage of economies of scale, the Board has requested that the City bid and manage the vault relocation project as part of the larger transmission main project. All costs attributed to the relocation of the vault will then be invoiced to WOCWB. The reimbursement agreement was approved by WOCWB at the January 21, 2004 regular meeting of the Board. Public Works Commission: Not required. Environmental Status: Not applicable to this agreement. Attachment(s): RCA Author: Ken Dills, extension (375) 5055 GAR C AV004W-029 April 5 Dills (WOCWB Vault Relocation)Ax -2. 311T/2004 2:34 PM ATTACHMENT 1 v AGREEMENT BETWEEN TIIE NEST ORANGE COUNTY WATER BOARD AND TIIE CITY OF IIIFN71NGTON BEACH FOR RELOCATION OF VAULT FACILITIES This Agreement ("Agreement") is made and entered as of April 5 , 2004, by and between the WEST ORANGE COUNTY WATER BOARD (hereinafter called "Board"), a joint powers agency established pursuant to that certain Joint Powers Agreement executed on October 25, 1967, and the CITY OF HUNTINGTON BEACH, a California charter city, organized and operating pursuant to the laws of the State of California (hereinafter the "City"). The Board and the City may in some instances herein be collectively referred to as the "Parties". RECITA1,S WHEREAS, the Board is a joint powers agency which owns and operates certain water transportation and distribution facilities located within the County of Orange; and "WHEREAS, the City is a member agency of the Board and operates as the Board's manager pursuant to and agreement for contract management services; and WHEREAS, the Board has identified certain facilities, as described in Attachment "A", attached hereto and incorporated herein by this reference, which need to be relocated and rebuilt (collectively the "Project"); and WHEREAS, the Board and the City desire to enter into this Agreement for the relocation and rebuilding of the Project by the City, to be paid for by the Board, all as described and set forth herein. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS, COVENANTS AND CONDITIONS SET FORTH HEREIN, THE PARTIES HERETO DO AGREE AS FOLLOWS: W Section 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference. Section 2. Intention. It is the intention of the Parties that City shall provide for the bidding, contracting for, construction and completion of the Project upon the terms and conditions set forth herein. Section 3. Design Plans. The Board shall, at its cost and expense, cause plans and specifications for the Project ("Plans") to be prepared. The Plans shall be prepared by a registered civil engineer with experience in preparing such plans and specifications. The Plans shall provide for the Project to be constructed and located in the alignments as generally set forth in Attachment "B", attached hereto and incorporated herein by this reference. All such Plans shall comply with the requirements of this Agreement, Board's standard specifications and requirements and vvith all other applicable laws and regulations. The Plans shall also comply with any applicable requirements of the City to the extent the Project is within the right-of-way of City streets. Upon completion of the Plans, the Board shall submit such Plans to the City for review and approval. The City may make comments on the Plans, or approve the Plans, within thirty (30) days of the receipt thereof, however, any changes to the Plans shall be solely within the purview of the Board. Failure by the City to make comments on the Plans within the time period set out in the preceding sentence shall be deemed, for all purposes, to be acceptance thereof by the City. The Board shall require any and all engineer(s) preparing such Plans to obtain Errors and Omissions Insurance in a coverage amount of not less than the estimated Project costs, which Insurance shall include the City as a covered insured. Section 4. Preparation of Contract Documents. The City shall prepare, or cause to be prepared, contract documents for the construction of the Project. The contract documents for the Project may be combined with one or more other public works projects of the City, subject to the terms and limitations set forth herein. Such contract documents shall include or incorporate the Plans and, to the extent applicable, the terms and conditions set forth herein, in particular the provisions of Sections 8, 11, 12, 15 and 16 hereof. In preparing such contract documents the City BAWQREMdcwN474l.4 19007 M 15 2109104 Final -2- shall comply with all applicable federal, State of California ("State") and local laws and regulations applicable thereto, including, but not limited to, prevailing wage requirements, competitive bidding requirements, payment and performance bonding requirements and worker's safety requirements. Such contract documents shall be presented to the Board, through the Board's manager or engineer, prior to advertisement for bids and the City shall not solicit bids for the Project until the Board has approved the contract documents, which approval shall not be unreasonably withheld. Sections, Selection of_Contractor(s). The City shall construct, or employ a contractor or contractors to construct, the Project and all work thereon shall be performed in strict accordance with the approved Plans and contract documents. Any contractor(s) employed by the City pursuant to the terms hereof shall be licensed to perform such work by the State and shall be competent to perform and complete such work. City shall promptly furnish to Board, or the Board's manager, all shop drawings and all invoices, bills and other documents from City's contractors, suppliers and subcontractors confirming the types, form and quantity of materials, parts and equipment delivered, produced or installed in connection with the construction of the Project. Board shall, upon request, be entitled to review, inspect and photocopy all or any part of each contract entered into between City and each contractor and/or supplier for the performance of any work or the furnishing ofany materials in connection with the construction of the Project. Section 6. Board Access and Right to Inspect. (a) Board, through its employees, inspectors or agents, shall have access to all phases of the Project work and all construction records and reports for the purpose of inspection to ensure that the work is in accordance with the approved Plans and contract documents. Questions by Board, or Board's inspector(s), regarding the work being performed pursuant to this Agreement shall be initially directed to the City Engineer or an officer of City who has the authority to order changes in order to construct the Project according to the approved Plans. The City shall promptly consult with the Board inspector(s) and/or representative(s) to address Board's concerns. If such consultations BA W G/RGA/dew /94 741.4 19007 6115 2/09104 Final -3, do not result in a resolution of the matter to Board's satisfaction the City Engineer of City shall, upon Board's request, promptly consult with the Board's designated engineer to address Board's remaining concerns. It is the desire of Board and City to resolve construction questions by informal consultations and corresponding actions as part of this Agreement. After consultation and consideration, City shall have the right to direct the work, provided that the work shall be performed in accordance with the terms of Section 5, above, and this Section. In the event of an emergency, as determined in the reasonable discretion of City's designated representative, where prompt action is necessary to protect the Project, City shall have the right to direct the wort: without consultation on Board's questions. City shall promptly notify Board in writing of any emergency action taken. (b) All work in connection with construction of the Project shall be performed in a workmanlike manner and in accordance with industry standards of construction quality. City shall also comply with the requirements of Section 16 of this Agreement. Any Project construction work reasonably determined by Board to be inconsistent with the plans and specifications or defective shall be promptly remedied or replaced at no cost to Board. The parties at this point specifically reference the provisions of Section 17 hereof. It is specifically and expressly acknowledged by City that Board shall be under no obligation to accept the Project, or any portion thereof, if City fails to comply with the provisions of this Section 6, or if it is defective or does not strictly conform to the plans and specifications approved pursuant to Sections 3 and 4, hereof, as may be amended pursuant to the following paragraph. (c) All change orders, or other deviations, from the plans and specifications, approved pursuant to Sections 3 and 4 of this Agreement, shall be approved of, in writing, by Board prior to any work on such change order or deviation commencing. Board's approval shall not be unreasonably withheld. Requests for approval of such change order(s), or deviations(s), shall be submitted in writing to Board pursuant to Section 23 hereof. Board shall approve or deny such requests within fifteen (15) calendar days of their receipt by Board. In the event that Board does not deny or object to such request within such time period, Board shall be deemed to have consented to such request. iiAwGaEAlacw194741.4 19007 N1 15 2109 O Final 4- 6M Section 7. Coordination During Construction. Board and City acknowledge that the timely completion of the Project will be influenced by the ability of the Board and City to coordinate their activities, communicate with each other, and respond promptly to reasonable requests. In addition to conforming with the approved Plans and contract documents and furnishing reports as set forth above in this Agreement, City agrees to notify Board of all relevant information regarding the Project. City shall also, in as timely a manner as reasonably possible, provide Board with other information pertinent to the Project. Board and City agree to take all steps reasonably required to coordinate their respective duties hereunder in respect to such construction work. Section 8. Responsibility for Governmental Permits. Except as expressly provided in Section 3, hereof, City shall be responsible for obtaining, at no cost to Board, any and all permits, licenses, or other approvals required by all applicable governmental agencies for the construction of the Project in accordance with the approved Plans and contract documents approved pursuant to Sections 3 and 4 hereof. The requirements of this Section may be satisfied by a contractor(s) retained by the City for the completion of the Project. Section 9. Compliance with California Environmental Quality Act. The Parties acknowledge and agree that responsibility for compliance with the California Environmental Quality Act with regard to the Project shall be the sole responsibility of the City and, notwithstanding Section 21, shall be preformed at the sole cost and expense of the City. Section 10. Ownership of Project. Until the formal acceptance of the Project pursuant to Section 20, below, City shall have the full charge of the Project, and shall bear the risk of injury or damage to any part thereof by the action of the elements or from any other cause (other than the active negligence or willful misconduct of Board, or its officers, directors, consultants, employees or agents), whether arising from the execution or from the nonexecution of work on the Project. Section 11. Bonds. Prior to the commencement of construction under this Agreement City shall furnish to Board, at no cost to Board, a payment bond in an amount not less than one hundred percent (100%) of the estimated Project construction cost, and a faithful performance bond Eir111'CyREAMew/94741 A 19007 M 15 2109/04 final 'S- M in an amount not less than one hundred percent (I00%) of the estimated Project construction cost, which bonds shall be maintained in full and effect through the guarantee period set forth in Section 17. The bonds shall be in favor of or shall include Board as a beneficiary, shall be issued by an admitted surety, and shall be on the forms acceptable to the Board and the Board's legal counsel. The requirements of this Section may be satisfied by a contmctor(s) retained by the City for the completion of the Project. Section 12. Insurance. Prior to the commencement of construction on the Project, City shall furnish to Board certificates evidencing all of the insurance required herein from companies acceptable to Board. City shall not permit any contractor or subcontractor to commence or undertake construction on any portion of the Project until all such insurance required herein is obtained and proof thereof furnishcd to Board. The following policies of insurance shall be taken out and maintained throughout the entire period that the Project is under construction: 1. Workers' Compensation Insurance: City, and each contractor employed by City, shall take out and maintain workers' compensation insurance to cover all of its employees as required by law; and each contractor shall require all subcontractors similarly to provide such workers' compensation insurance for all of the Iances employees. Each such policy of insurance shall contain the following endorsements: (a) "The insurer waives all rights of subrogation against the West Orange County Water Board, the City of Huntington Beach and their respective officers, directors, employees and representatives." (b) "This insurance policy shall not be canceled, limited, reduced or non renewed until thirty (30) days after receipt by the West Orange County Water Board of a written notice of such cancellation, limitation, non renewal or reduction of coverage as evidenced by receipt of a registered letter." BA1 GMr-• Ndcw/94741.4 19007 11115 ?MAM Final -6- M 2. Liability Insurance: City and each employed contractor who will perform in excess of one percent (1.0%) of the Project construction under this Agreement shall take out and maintain comprehensive general liability insurance, including owned, non-o%%med and hired vehicles, providing the following minimum limits: (a) Bodily injury: $1,000,000.00 per occurrence; and (b) Property damage: $500,000.00 per occurrence and such insurance shall cover the following hazards: (i) Premises --Operations; (ii) Contractors Protective; (iii) Blanket Contractual; (iv) Products and/or Completed Operations; (v) Property Damage Liability arising out of the so-called "XCU" hazards (explosion, collapse and underground damage); (vi) Broad Form Property Damage; (vii) Policy to include severability of interest clause; and (viii) Personal Injury --Exclusion "D" removed. Each such policy of insurance shall contain the following endorsements: (i) "The West Orange County Water Board, the City of Huntington QAWG REA/dcw/94741.4 19M7 R115 2MIN Final -7- Beach and their officers, directors, agents, employees, and consultants are hereby declared to be additional insureds under the terms of this policy." (ii) "This insurance policy not be canceled, limited, reduced or non renewed until thirty (30) days after receipt by the West Orange County Water Board of a written notice of such cancellation, Iimitation, non rene%%ml or reduction of coverage as evidenced by receipt of a registered letter." (iii) "This insurance policy is primary insurance and no insurance held or owned by the designated additional insureds shall be called upon to cover a loss under said policy; neither the West Orange County Water Board or the City of Huntington Beach shall be liable for the payment of premiums or assessments on this policy." The City may satisfy such insurance requirements through self-insurance provided that the Manager of the Board consents to such self-insurance and the City provides the Board Nvith written confirmation of such self-insurance. Section 13. Insurance Renewal. At least thirty (30) days prior to the expiration of any policy of insurance required above in Section 12, above, including all subsections thereof, a signed and complete certificate of insurance, with all endorsements required therein, showing that such insurance coverage has been renewed or extended, shall be filed with Board. City shall not permit any contractor or subcontractor to continue construction on any portion of the Project if such insurance is not renewed or if proof of such insurance renewal is not provided to Board in accordance with this Section 13. Section 14. Indemnification by City. City shall indemnify, defend and hold harmless the Board, its current and future members and their respective successors and assigns and their respective directors, officers, agents, employees, engineers, contractors, subcontractors or consultants, from and against any and all actions, claims, damages, losses, liabilities, costs and BAWG(REA/ CW/9-17dI.a 19007 N115 2109104 Final '$' ti,J �1 expenses (including reasonable attorneys' fees and costs, and expert witness fees and costs) and liability of any kind arising out of the construction activities of the Project based on this Agreement or any act or omission of City or its officers, agents, employees, engineers, contractors, subcontractors or invitees with respect to the Project, whether or not there is concurrent passive negligence on the part of Board or its officers, agents, directors, employees, representatives, agents, engineers, subcontractors, or consultants, but excluding the portion ofsuch actions, claims, damages, losses, liabilities, costs and expenses arising from the active negligence or willful misconduct of an indemnified party or its agents, servants or independent contractors (other than City) who are directly responsible to such indemnified party. Section 15. No Liens on Materials, Supplies orF.quipment. No materials, supplies, or equipment for the work under this Agreement shall be purchased subject to any chattel mortgage or under a conditional sale contract or other agreement by which an interest therein or any part thereof is retained by the seller or supplier. City hereby warrants to Board clear and good title to all materials, supplies, and equipment installed and incorporated in the Project work and agrees upon completion of all work to deliver the premises together with all improvement and appurtenances constructed to be placed thereon by City to Board free from any claims, liens, encumbrances, or charges and further agrees that neither City nor any person, firm or corporation furnishing any material or labor for any work covered in this Agreement shall have any right to a lien upon the premises or any improvement or appurtenance thereon, provided that this shall not preclude City from installing metering devices or other equipment of utility companies or of municipalities, the title of which is commonly retained by the utility company or the municipality. Nothing contained in this section, however, shall defeat or impair the right of such persons fumishing materials or labor under any bond given by City for their protection. The provisions of this Section shall be inserted in all subcontracts and material contracts, and notice of the terms of this Section shall be given to all persons furnishing materials for the work when no formal contract is entered into for such materials. Following completion of the Project, the City shall file a Notice of Completion with the County of Orange and shall require and obtain lien and material releases from all contractors and subcontractors and shall provide copies of such Notice of Completion and releases to the Board prior to formal acceptance of the Project by the Board pursuant to the provisions of Section 20 hereof. 13AWG/REA/dcw/9474l .4 19007 N11S 2/09/04 Final -9- Section 16. Quality of Materials and Work. All equipment, materials and supplies to be incorporated in the Project work shall be new, unless otherwise specified. All equipment, materials, and supplies shall be produced in a good and workmanlike manner. When the quality of a material, process, or article is not specifically set forth in the plans and specifications, the best available quality of the material, process or article shall be provided. Whenever any material, process, or article is indicated or specified by grade, patent or proprietary name, or by name of manufacturer, such specification shall be deemed to be used for the purpose of facilitating description of materials, process, or articles desired and shall be deemed to be followed by the words "or equal", and City may offer any material, process, or article which shall be substantially equal or better in every respect to tlw so indicated or specified; provided, however, that if the material process or article ordered by City is not, in the opinion of Board, equal or better in every respect to that specified, then City must furnish the material, process, or article specified within the plans and specifications. Section 17. Guarantec oMork. In addition to guarantees provided by material suppliers or required herein, City shall and hereby does guarantee the work on and construction of the Project for a period of one (1) year after the date of written acceptance of the work by the Board as shall be provided by Board to City under the terms of Section 20, hereof. An equivalent written guarantee, which otherwise satisfies the requirements of this Section provided by the City's contractor(s) and expressly extending to the Board shall be considered satisfaction of the foregoing sentence and this Section 17 for purposes of this Agreement. The guarantee period for portions of the work so utilized or placed into service shall be one (1) year commencing on the date of Board's acceptance or Board's use of completed portions, whichever occurs first. City shall repair or remove and replace any and all such work, together with any other work which may be displaced in so doing, that is found to be defective in workmanship and/or materials within said one (1) year period, without expense whatsoever to the Board, ordinary wear and tear and unusual abuse or neglect excepted. In the event of failure to comply with the above -mentioned conditions within seven (7) calendar days after City is notified in writing, Board is hereby authorized to have the defects DAWCWRl:AJdcw&474 l .4 19007 M 15 2J09J04 Final -10- remedied and made good at the sole expense of City which hcreby agrees to pay the costs and charges therefore immediately on demand. Such action(s) by the Board will not relieve City of the guarantees required by this subsection or elsewhere in the Agreement. The performance bond and the payment bond shall continue in full force and effect for the guarantee period. If in the opinion of the Board, defective work creates a dangerous condition or requires immediate corrections or attention to present further loss to the Board or to prevent interruption of operations of the Board, the Board will attempt to give the notice required by this subsection. If City cannot be contacted or does not comply with Board's request for correction within a reasonable time as determined by the Board, the Board may, notwithstanding the provisions of this Section proceed to make such correction or provide such attention; and the costs of such corrections or attention shall be charged against City. Such action by the Board «'ill not relieve City of the guarantees required by this Section or elsewhere in this Agreement. This Section does not in any way limit the warranty on any items for which a longer %warranty is specified or on any items for which a manufacturer or supplier gives a warranty for a longer period. City shall furnish the Board all appropriate guarantee certificates upon completion of the Project. No guarantee period whether provided for in this subsection or elsewhere shall in any way limit the liability of City or its sureties or insurers under the indemnityor insurance provisions of this Agreement. Section 18. As -Built Tlansmrawings. City agrees to provide to the Board, prior to acceptance of the Project as described herein, a complete set of reproducible "As Built" plans, drawings and diagrams of the completed Project. Section 19. Final Inspection. Upon completion of the construction of the Project, City shall so inform Board and shall concurrently furnish Board with a complete set of record drawings depicting the precise locations and elevations of all portions of the Project. Within fifteen (15) days of such notification and provision of such drawings, Board shall conduct final inspection of the %vork and determine in writing whether or not to accept the Project. DAWG/REA/dm/94741.4 19W7 M 15 2109104 l-inal -11 Section 20. Format Acceptance and Ownership of theProiect. Board shall, following the final inspection pursuant to Section 19, hereof, take action on the formal acceptance of the Project. If City has performed the Project construction in strict compliance with the Plans approved pursuant to Section 3, hereof, and the provisions of this Agreement, in particular Section 16, hereof, Board's formal acceptance of the Project will not be unreasonably withheld. If City has not performed in accordance with the preceding sentence, Board shall make a determination as to formal acceptance of the Project in its complete discretion. Board shall have no liability, of any kind, for the refusal to formally accept the Project as set forth in this Section 20. For purposes of this section, formal acceptance shall be a written notice, in a form acceptable to Board, as executed by Board's manager or engineer. Upon formal acceptance, the Project shall become and remain the sole and exclusive property of Board. Section 21. Project Costs and Payment. City shall provide the Board with regular periodic updates on the progress of the Project construction and completion and updated cost estimates of the Project costs allocated to the Board. City shall, within thirty (30) days of formal acceptance of the Project, as set forth in Section 20 hereof, provide the Board with a full accounting for the final construction costs of the Project and shall provide the Board with a invoice for the allocated costs of the Project completion. The Board shall review such cost accounting and invoice and shall either pay the City the amount of such invoice within thirty (30) days of the receipt thereof or shall identify any disputed portion(s) and/or item(s) thereof. In the event of a dispute on any portion(s) and/or item(s) of such costs, the Board shall pay to the City the undisputed amount(s) and thereafter the Board, or its representatives shall promptly meet with representatives of the City on any such disputed amount(s) in order to resolve such matter. Section 22. Recordkee in : ins ection of Records. Each Party hereto agrees to keep written records of all expenditures, actions, permits, dedications, warranties, inspections and operational activities undertaken by that Party during the term hereof. Such records shall be available for review by the other Party hereto during normal business hours on each business day with at least 48 hours advance notice. Each Party hereto shall retain all such records for at least 2 DA11'CdRC• A/dcwN474 l .4 19W7 N115 2MM4 Final -12- V years follo%N ing the completion of the warranty period referenced in Section 17. Section 23. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to any Party or other person shall be deemed to have been received when personally delivered or upon deposit of the same in the United States Post Office registered or certified, postage prepaid, addressed as follows: Board: West Orange County Water Board Attn: Manager 2000 Main Street Huntington Beach, CA 92648 City: City of Huntington Beach P.O. Box 190 Huntington Beach, CA 92648 Each Party can change its address for delivery of notice by delivering written notice of such change or address to the other Parties within ten (10) calendar days prior to such change. Section 24. Waiver. Subject to the provisions hereof, any party to this Agreement may specifically and expressly waive, in writing, compliance by another party hereto owned to such first party with any term, condition or requirement set forth in this Agreement. Any party to this Agreement may specifically and expressly waive, in writing, any breach of any term, condition or requirement of this Agreement, owed to such first party, however, in the event that any party makes or gives such a waiver, such action shall not constitute a further or continuing waiver of any preceding or succeeding breach, or requirement or compliance with, the same or any other provision or contractual requirement, unless a specific statement to the contrary is contained within such waiver. The waiving party may, at any time thereafter, require future compliance by the other party hereto with the requirements or provisions of this Agreement that have been so waived. The consent of one party to any act by the other party for which such written consent was required shall not be deemed to imply consent or waiver of the necessity of obtaining such written consent for the same or similar acts in the future. No waiver or consent shall be implied from the silence or from the DAWG/REAldew/94741.4 19007 M 15 2M/04 Final .13- failure of any party to an act, except as otherwise specified in this Agreement. Section 25 Interpretation. (i) The parties hereto acknowledge and agree that each has been given the opportunity to independently review this Agreement with legal counsel, and/or has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions of the Agreement. (ii) In the evcnt ofa controversy ordispute between the parties concerning the provisions herein, this document shall be interpreted according to the provisions herein and no presumption shall arise concerning the draftsman of such provision. Section 26. Applicable Law. (i) The parties hereto understand and agree that the terms of this Agreement, and the Attachments hereto, have been negotiated and executed within the State of California and shall be governed by and construed under, the laws of the State of California. (ii) The parties hereto do expressly agree that in the event of a dispute concerning the terms hereof, venue for any legal action shall be with the appropriate court in the County of Orange, State of California. Section 27. Amendments. No addition to, or modification of, any provision contained in this Agreement shall be effective unless fully set forth in writing signed by the authorized representative(s) of all the parties hereto. Section 28. Successors and Assigns. The terms, conditions, representations and indemnities set forth in this Agreement shall be binding on the successors and assigns of the parties hereto. Any assignment of the provisions hereof shall be subject to the prior written consent of the DAWGIRL-Aldew•N4741 A 19007 Ai 15 2M104 Final -14- LIE other Party hereto, and absent such consent any attempted assignment shall be void. Section 29. Cooperation. The parties hereto agree to cooperate with each other in the execution of such further documents, and to take such other actions, as are reasonably necessary in good faith to effectuate this Agreement and the intent hereof. Section 30. Force N19leure. The time within which either party hereto shall be required to perform any act under this Agreement, other than the payment of money, shall be extended by a period of time equal to the number of days during which performance of such act is unavoidably delayed by strikes, lockouts, acts of God, governmental restrictions, failure or inability to secure materials or labor by reason of priority or similar regulations or order of any government or regulatory body, war, civil disturbance, fire and unavoidable casualties hereto. Section 31. Captions. The captions contained within this Agreement are for purposes of reference only and shall not limit or define the meaning of the provisions hereof. Section 32. Entire Agreement. This Agreement contains the entire agreement and understanding concerning the subject matter hereof and supersedes and replaces all prior negotiations and proposed agreements, written or oral. Each of the parties hereto acknowledges that no other party, nor the agents nor the attorneys for any party, has made any promise, representation, or warranty whatsoever, express or implied, not contained herein to induce the execution of this Agreement, and acknowledges that this Agreement has not been executed in reliance upon any promise, representation, or warranty not contained herein. Section 33. Severahility. If any term, provision, condition or covenant of this Transfer Agreement or the provisions thereof applicable to any party or circumstances shall, to any extent be held invalid or unenforceable for the remainder of this Transfer Agreement, or the application of such term, provision, covenant or condition to persons or circumstances other than those to whom or which it is held invalid or unenforceable, shall not be connected thereby, and each term and provision of this Transfer Agreement shall be valid and enforceable to the fullest extent provided BAWG,IRcnraew/94741.a 19007 h115 2/09104 Final -15- by law. Section 34. Warranty of Authorih. All parties hereto represent and warrant that they each have all requisite power and authority to execute and deliver, and to perform their obligations under, this Agreement and that this Agreement constitutes a legal, valid and binding obligation of the respective parties hereto and is enforceable as against the respective parties hereto in accordance with the terms and provisions contained herein. [Reminder of this page is blank] B,XWGME-Mdcw194741 A I9007 JQ 15 2IM03 final -16- IN WITNESS WHEREOF, this Agreement has been authorized and executed by the parties hereto as of the day and year first written above. WEST ORANGE COUNTY WATER BOARD, a joint powers agency i B Chairman APPROVED AS TO FORM: Bowie, Arneson, Wiles & Giannone By: 00 < Legal Counsel to West Orange County Water Board CITY: APPROVED AS TO FORM: CITY OF HUNTINGTON BEACH, a California lL/' 3 f ay City Attorney -Vol �r� APPROVED: 2 Director of Public Works municipal corporation Mayo ATTEST: City ATTACIUMENT "A., PROJECT DESCRIPTION The project includes the relocation of the WOCWB OC-9 water import connection (i.e. pressure reducing and metering station), which is currently located in an underground vault within the Edinger/Newland intersection. This connection is proposed to be replaced with a new connection, to be located in an above ground enclosure, approximately 500 ft south of the intersection. A-1 1r.! ATTACHMENT "B" PROJECT LOCATION/ALIGNMENT VICINITY MAP N.T.S. 1.J- 1� RCA ROUTING SHEET I INITIATING DEPARTMENT: I Public Works I SUBJECT: Approve a Reimbursement Agreement with the West Orange County Water Board for Relocation of Vault Facilities COUNCIL MEETING DATE: I April 5, 2004 1 RCA ATTACHMENTS STATUS Ordinance wlexhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Ma , Location Map and/or other Exhibits Not Applicable Contract/Agreement (wlexhibits if applicable) Si ned in full b the Cif Aftome Attached Subleases, Third Party Agreements, etc. (Approved as to form by Cky Attome Not Applicable Certificates of Insurance (Approved by the City Attome Not Applicable Financial Impact Statement Unbud et, over $5,000 Not Applicable Bonds If applicable) Not Applicable Staff Report If applicable) Not Applicable Commission, Board or Committee Report if a licable Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR RDED Administrative Staff AssistanLg2iy Administrator Initial City Administrator Initial City Clerk EXPLANATION FOR RETURN OF ITEM: RCA Author: