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HomeMy WebLinkAboutOC SANITATION DISTRICT - URBAN RUNOFF/COASTAL REMEDIATION ACTION PLAN - 2002-02-19\ r) lin''° 6y-Ovvz COOPERATIVE FUNDING AND REIMBURSEMENT AGREEMENT This AGREEMENT is made and entered into this day of , 2001(the "effective date"), BY and BETWEEN the City of Huntington Beach, a municipal corporation, hereinafter referred to as "CITY," AND The Orange County Sanitation District, hereinafter referred to as DISTRICT;" which entities are sometimes individually referred to as "PARTY," or collectively as "PARTIES." r R�CITALS WHEREAS, coastal waters in Huntington Beach experienced high levels of bacteria during the latter months of the Summer, 1999, which exceeded health and safety standards, resulted in beach posting and closures and have a significant impact on the local economy and opportunities for coastal recreation; and WHEREAS, task forces led by the DISTRICT and CITY have worked cooperatively to identify the sources of coastal water contamination; and WHEREAS, the results of the investigations were inconclusive as to the source of pollution, but targeted urban runoff from the Talbert Marsh and Lower Santa Ana River watersheds as possible contributors to the elevated levels of bacterial indicators; WHEREAS, CITY has developed an "Urban Runoff/Coastal Remediation Action Plan" (Remediation Action Plan) designed to provide specific recommendations for maintenance and modification of CITY sewer and local drainage infrastructure, and includes modeling of coastal tides and currents to further pinpoint the source of coastal contamination; and WHEREAS, CITY, on January 3,*2000, entered into a contract with KOMEX-H20 SCIENCE, INC. (Contractor) to accomplish the tasks identified in CITY's Remediation Action Plan; specifically to provide geologic, hydrogeologic and geophysical consulting services in support thereof, hereinafter referred to as "SERVICES," which when completed, will further increase the understanding of the impacts of urban runoff and be a benefit to all PARTIES; and WHEREAS, said January 3, 2000 contract with Contractor has been subsequently amended on August 21, 2000; December 18, 2000; and May 7, 2001; and WHEREAS, CITY has asked that DISTRICT share in the cost of funding portions of Contractor's SERVICES which would directly benefit the PARTIES; and WHEREAS, the CITY will administer the contract with Contractor, on behalf of the PARTIES; and WHEREAS, it is agreed that the solutions to coastal water quality problems are regional in nature, and require an awareness and participation by all local governments in the watershed to increase knowledge and understanding of the potential causes of the problem; and WHEREAS, it is further agreed that it is in the public's interest that the PARTIES participate in cooperatively share the funding responsibilities for completion of SERVICES. WHEREAS, as of the effective date of this AGREEMENT, CITY has spent, or is obligated to spend, a total of $801,784.00, for Contractor's SERVICES; with DISTRICT agreeing to reimburse CITY the sum of $165,120.00 for such SERVICES; WHEREAS, a breakdown of the project's phases, and the respective funding obligations of both CITY and DISTRICT, is set forth as follows: Huntington Beach OCSD Total Phase 1 $105,000 $45,000 $150,000 Phase 1 Additional Work $17,391 $17,391 Phase II $243,880 $120,120 $364,000 Phase II Additional Work $78,043 $78,043 Downtown Study $89,810 $89,810 Downtown Study Expanded $102,540 $102,540 Scope $636,664 $165,120 $801,784 Total NOW, THEREFORE THE PARTIES MUTUALLY AGREE AS FOLLOWS: 01agrcc/co-op funding/9/6/01 2 1 PURPOSE The purpose of this AGREEMENT is to establish the terms and conditions of the scope of services under which the SERVICES will be accomplished, administered and funded. The scope of SERVICES, has previously been approved by the authorized representatives of the PARTIES. 2. PARTIES a. CITY's Water Operations Manager, or authorized designee, hereinafter referred to a "MANAGER," shall be CITY's representative for all matters pertaining to this AGREEMENT. b. DISTRICT's Director of Technical Services, or authorized designee, hereinafter referred to as "DISTRICT DIRECTOR," shall be DISTRICT's representative for all matters pertaining to this AGREEMENT. 3. TERM a. The term of this AGREEMENT shall commence upon approval and signature by all of the PARTIES, and shall terminate within six (6) months after that date, or when all SERVICES have been accomplished to the satisfaction of the PARTIES, whichever is the earlier date. b. The period for completion, however, shall be extended by the period that completion is delayed by acts otherwise outside the control of CITY, but in no event shall the total period for completion extend beyond twelve (12) months from the effective date of this AGREEMENT. The details substantiating any such delay(s) shall be set forth in writing by CITY, and submitted to DISTRICT, in accordance with Paragraph 10 ("NOTICES"), below. 4. SERVICES a. SERVICES shall consist of the deliverables/reports/studies and shall be based upon the breakdown of costs, as identified in the RECITALS provisions of this AGREEMENT. b. Proposed changes and/or adjustments to SERVICES as deemed necessary in order to advance the purposes of this AGREEMENT, which modify the scope of SERVICES, may be authorized upon mutual agreement of all PARTIES in accordance with Paragraph 27 01igree/co-op funding/1/9/02 3 ("AMENDMENTS") below, provided that such action does not in the aggregate, increase the total amount of funding assistance specified in Paragraph 5 ("MAXIMUM 24 FUNDING OBLIGATION"), below. Changes and/or adjustments to SERVICES, which increase PARTIES' funding obligations, must be approved in writing by each PARTY's Board or Council, as applicable. 5. MAXIMUM FUNDING OBLIGATION For the duration of this AGREEMENT, the maximum funding obligation for PARTIES shall not exceed the following: a. CITY -Not to exceed $636,664.00 b. DISTRICT -Not to exceed $165,120.00 6. CITY's RESPONSIBILITIES a. Be designated "Lead Agency" for all requirements within the context of the California Environmental Quality Act of 1970, as amended. b. Appoint a representative, at no cost to DISTRICT, to function as CITY's representative for coordinating all aspects of SERVICES with PARTIES. C. Administer and obtain all government agency approvals for completion of SERVICES including but not limited to the selection of contractors, management of contractors' work, administration of contractors for compliance with the requirements this AGREEMENT and any applicable local codes and other regulations. d. Furnish evidence that all insurance required of Contractor (and Subcontractors) is in accordance with DISTRICT's insurance requirements as specified in Paragraph 13 ("INSURANCE REQUIREMENTS"), below, and is provided to PARTIES prior to commencement of SERVICES. All insurance shall be obtained and held from a company or companies licensed to do business in the State of California, and shall be approved by in writing by DISTRICT representatives. e. Coordinate review of and incorporate comments from PARTIES, as respect to the development of the scope for SERVICES. 01agree/co-op funding/9/6101 4 f. Provide PARTIES' representatives with opportunity to review and comment on all deliverables/reports/studies submitted by Contractor, in accordance with Paragraph 8 ("DELIVERABLES/REPORTS/STUDIES"), below. g. Invoice DISTRICT for its respective share of costs, based upon completion of deliverables/reports/studies, in accordance with Paragraph 9 ("INVOICES and FINAL ACCOUNTING"). h. Provide funding in an amount not to exceed $636,664.00 which represents CITY's total funding obligation for SERVICES authorized pursuant to this AGREEMENT. i. Obtain DISTRICTSs representatives' advance written approval of proposed changes to approved SERVICES, prior to implementing such changes. j. Furnish PARTIES representatives, upon completion of SERVICES and all work incidental thereto, a detailed statement of each PARTIES' proportionate share of the costs paid and authorized pursuant to this AGREEMENT. k. Permit PARTIES to review cost records relating to expenditures for SERVICES. Cost records shall be retained and made available to PARTIES for review for a minimum of three (3) years after completion of SERVICES. 7. DISTRICT'S RESPONSIBILITIES a. Appoint a representative, at no cost to CITY, whose function shall be to verify that SERVICES are accomplished in accordance with the scope of SERVICES. b. Review proposed scope for SERVICES and if determined at the discretion of DISTRICT, to be satisfactory and in conformance with DISTRICT practices, standards and criteria, approve scope for SERVICES. C. Review and provide comments to drafts and final deliverables/reports/studies, upon receipt of request for comments from CITY. 01 agree/co-op funding/9/6/01 5 d. Provide funding in an amount not to exceed $165,120.00 which represents DISTRICT's funding obligation for SERVICES authorized pursuant to this AGREEMENT, in accordance with Paragraph 9 ("INVOICES AND FINAL ACCOUNTING"), below. 8. DELIVERABLES/REPORTS/STUDIES a. Copies of all draft deliverables/reports/studies shall be provided by CITY to DISTRICT for review and comment, with allowance for reasonable review and response times, as follows: 1) Fifteen (15) copies delivered to DISTRICT. b. Copies of all final deliverables/reports/studies shall be provided by CITY to DISTRICT for review and comment, with allowance for reasonable review and response times, as follows: 1) Twenty-(20) copies delivered to DISTRICT. 9. INVOICES and FINAL ACCOUNTING a. CITY shall invoice DISTRICT on a one-time basis, in the total amount of $165,120.00, in accordance with actual approved costs (time and materials) incurred by Contractor, subject to completion of deliverables/reports/studies and identified costs. b. DISTRICT shall pay said invoice within sixty (60) days of receipt and approval. Approval of said invoice and payment of funds shall be subject to the routine processing requirements of DISTRICT's Account's Payable Office. C. CITY agrees to furnish PARTIES, upon completion of SERVICES and any work incidental thereto, with a detailed final accounting of total costs paid by PARTIES. 10. NOTICES a. Notices or other communications which may be required or provided under the terms of this AGREEMENT shall be given as follows: 01agree/co-op funding/9/6/01 6 CITY: Water Operations Manager City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Phone (714) 536-5527 Facsimile No. (714) 847-1067 DISTRICT: Director, Technical Services Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, CA 92708 Phone (714) 962-962-2411 Facsimile (714) 962- 962-6957 b. All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, PARTIES may also provide notices by facsimile transmittal, and any such notice so given shall be deemed to have been given upon receipt during normal business hours, or in the event of receipt after business hours, on the following business day. Any notices, correspondence, reports and/or statements authorized or required by this AGREEMENT, addressed in any other fashion shall be deemed not given. C. The PARTIES hereto may change the address to which notices are to be sent by giving notice of such change to the other PARTIES. 11. AVAILABILITY OF FUNDS The financial obligation of each PARTY is subject to the availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating the PARTIES to expend or as involving the PARTIES in any contract or other obligation for the future payment of money in excess of appropriations authorized by law. 01agree/co-op funding/9/6/01 7 12. FEDERAL AND/OR STATE FUNDING Should any portion of PROJECT be financed with federal funds or state funds, all applicable laws, regulations and policies relating to the use of such funds shall apply, notwithstanding other provisions of this AGREEMENT. 13. INSURANCE REQUIREMENTS a. CITY shall deliver from its designated Contractor to DISTRICT the "Certificates of Insurance' identified as being required by this section, which shall include evidence of additional insurance as referenced in 13.e.2, with copies of endorsements, and shall maintain at all times during the term of this AGREEMENT, the following policies of insurance: 1) Workers' Compensation Insurance to cover Contractor's employees. Similarly, Contractor shall require all subcontractors ("Subcontractors") to provide Workers' Compensation Insurance as required by the Labor Code of the State of California for all of its employees and its Subcontractors employees. 2) Employers' Liability Insurance. 3) Professional Liability Insurance. (If professional Liability policy is a "claims made" policy, Contractor's professional liability policy shall contain a "discovery clause" stating that coverage will be provided for claims made following insurance policy expiration for a period of not less than two (2) years. b. The policy(ies) of insurance under subparagraphs 1), 2), and 3), above shall provide that it (they) shall not be canceled or altered without thirty (30) days written advance notice thereof, to the DISTRICT at P.O. Box 8127, Fountain Valley, CA 92728-8127, Attention: Director of Technical Services and the CITY at 2000 Main Street, Huntington Beach, CA 92648, Attention: Director of Public Works. 01agrcc/co-op funding/1/9/02 8 C. CITY or its Contractor may self -insure against Workers' Compensation losses. A certificate of consent to self -insure issued by the Director of Industrial Relations shall be provided to the PARTIES. d. For all, operations of CITY's Contractor and/or Subcontractors in performing the services authorized in this AGREEMENT, insurance coverages with the following minimum limits shall be provided in a form satisfactory to PARTIES: Coverages Minimum Limit Workers' Compensation Statutory Comprehensive General Liability Statutory One Million Dollars, per occurrence Comprehensive Automobile Liability One Million Dollars, (including coverage for owned, combined single limit non -owned and hired automobile hazards) Employers' Liability Insurance One Million Dollars, each accident. Professional Liability Insurance One Million Dollars, minimum limit per claim. e. The policy of insurance provided by the CITY from its designated Contractor to the PARTIES must be obtained and held from a company or companies licensed to do business in the State of California, and shall contain the following four clauses: 1) "This insurance shall not be cancelled, limited in scope of coverage or non - renewed until after 30 days written notice has been given by mail to the to the Orange County Sanitation District at P.O. Box 8127, Fountain Valley, CA 92728-8127, Attention: Director of Technical Services and the City of Huntington Beach at 2000 Main Street, Huntington 6 Beach, CA 92648, Attention: Director of Public Works. 2) With the exception of Professional Liability Insurance, Orange County Sanitation District and the City of Huntington Beach are added as additional insureds in regard to 01agree/co-op funding/9/6/01 9 W incidents arising out of the performance of AGREEMENT." This shall be by an endorsement separate from the Certificate of Insurance. 3) "It is agreed that any insurance maintained by Orange County Sanitation District and/or City of Huntington Beach shall apply in excess of and not contribute with insurance provided by this policy." 4) "Any losses shall be payable notwithstanding any act or failure to act or negligence of the Orange County Sanitation District, the City of Huntington Beach, or any other person or entity." 14. INDEMNIFICATION a. To the extent permitted by law, CITY shall indemnify, defend with counsel approved by DISTRICT, and save harmless the DISTRICT, its elected and appointed officials, agents and employees from and against all claims, demands, loss or liability of any kind or nature which the DISTRICT, its elected and appointed officials, agents and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a result of the negligence or wrongful act or omission by CITY, its elected and appointed officials, officers, agents, employees or invitees in carrying out the terms of this AGREEMENT, save and except to the extent such injury, death, damage or loss is determined by a court of competent jurisdiction to have resulted from a negligent or wrongful act or omission of, respectively, the DISTRICT, its elected and appointed officials, agents, employees or invitees. b. To the extent permitted by law, DISTRICT shall indemnify, defend with counsel approved by CITY, and save harmless the CITY, its elected and appointed officials, agents and employees from and against all claims, demands, loss or liability of any kind or nature which the CITY, its elected and appointed officials, agents and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a 01 agree/co-op funding/9/6/01 10 0 result of the negligence or wrongful act or omission by DISTRICT, its directors, officers, agents, employees or invitees in carrying out the terms of this AGREEMENT, save and except to the extent such injury, death, damage or loss is determined by a court of competent jurisdiction to have resulted from the negligence or wrongful act or omission of, respectively, the CITY, its elected and appointed officials, agents, employees or invitees. 15. TERMINATION a. Prior to CITY's commitment of funds for SERVICES such as award of contract(s) to expend funds contributed by PARTIES, any PARTY may terminate this AGREEMENT with or without cause, upon written notice to the other PARTIES. b. After CITY has made a commitment of funds for SERVICES, DISTRICT, may terminate this AGREEMENT only if CITY does not proceed with SERVICES in accordance with the provisions hereof. C. In the event that CITY is unable to proceed with SERVICES in accordance with the term and conditions described in this AGREEMENT, CITY may terminate this AGREEMENT with or without cause, upon delivery of thirty (30) days written notice to all PARTIES. d. The terminating PARTY shall be responsible for any funding obligations hereunder, to the extent incurred and agreed to by the PARTY, prior to the effective.date of termination. C. Notice of Termination shall be in writing and shall state the date upon which such termination is effective. Notice shall be served as provided in Paragraph 10 ("NOTICES"), above. 16. INDEPENDENT CONTRACTOR STATUS This AGREEMENT is by and between CITY, and DISTRICT, and is not intended and shall not be construed so as to create the relationship of agent, servant, employee, partnership, joint venture or association, as between CITY and DISTRICT. 01agree/co-op funding/9/6/01 1 I 17. SUCCESSORS AND ASSIGNS The terms and provision of this AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and their successors and assigns. 18. NO THIRD PARTY BENEFICIARIES Nothing expressed or mentioned in this AGREEMENT is intended or shall be construed to give an person, other than the PARTIES hereto, and any permitted successors, any legal or equitable right, remedy or claim under or in respect of this AGREEMENT or any provisions herein contained. This AGREEMENT and any condition and provisions hereof, is intended to be and is for the sole and exclusive benefit of the PARTIES hereto and the others mentioned above, and for the benefit of no other person. 19. REFERENCE TO CALENDAR DAYS Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided. 20. WAIVER AND INTERPRETATION Titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this AGREEMENT or any provisions hereof. No provision in this AGREEMENT is to be interpreted for or against a PARTY because that PARTY or its legal representative draft such provision. 21. WAIVER OF RIGHTS The failure by the CITY, or DISTRICT, to insist upon strict performance of any of the terms, covenants or conditions of this AGREEMENT shall not be deemed a waiver of any right or remedy the CITY or DISTRICT may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants and conditions of this AGREEMENT thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant or condition of this AGREEMENT. 01agree/co-op funding/9/6/01 12 22. 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. 23. OWNERSHIP OF DOCUMENTS Upon completion of all work authorized under this AGREEMENT, ownership of all documents and reports will automatically be shared with all PARTIES. PARTIES shall not be limited in any way in their use of all data from the SERVICES provided, including but not limited to reports, files, plans, drawings, specifications, proposals, sketches, diagrams and calculations, provided that any such use not within the purposes of this AGREEMENT, shall be at the sole risk of the PARTY using the document. PARTIES particularly state their intent to share the research study information with the public, as well as other entities in the TALBERT/lower Santa Ana River watersheds. 24. ATTORNEY FEES/COSTS Should litigation be necessary to enforce any terms or provisions of this AGREEMENT, then each PARTY shall bear its own litigation and collection expenses, witness fees, court costs and attorney's fees. 25. GOVERNING LAW AND VENUE This AGREEMENT has been negotiated and executed in the State of California and shall be governed by and construed in accordance with the laws of the State of California. 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 do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. The PARTIES specifically agree that by soliciting and entering into and performing services under this AGREEMENT, PARTIES shall be deemed to constitute doing business within Orange 01 agree/co-op funding/9/6/01 13 County from the time of initiation of work, through the period when all work under this AGREEMENT is completed, and continuing until the expiration of any applicable limitations period. Furthermore, the PARTIES have specifically agreed, as part of the consideration given and received for entering into this AGREEMENT, to waive any and all rights to request that an action be transferred for trial to another county under Code of Civil Procedure Section 394. 26. AUTHORITY 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. 27. AMENDMENTS It is mutually understood and agreed that no addition to, alteration of, or variation of the terms of this AGREEMENT or the Scope of SERVICES, nor any oral understanding or agreement not incorporated herein or by subsequent amendment hereto, shall be valid unless made in writing and signed and approved by all necessary PARTIES. 28. ENTIRE AGREEMENT This document sets forth the entire AGREEMENT between CITY and, DISTRICT, and may be modified only by further written amendment between the PARTIES hereto, in accordance with Paragraph 27 ("AMENDMENTS"), above. IN WITNESS WHEREOF, each PARTY hereto has executed this AGREEMENT by its duly authorize representatives as of this AGREEMENT's effective date as set forth above. 0 1 agree/co-op funding/9/6/01 14 DISTRICT, BY: Blake P. Anderson, General Manager, APPROY.F.y AS TO FORM: BY: Thomas L. Woodruff, District C isel CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California he Mayor ATTEST: City Clerk 3 _S aZ APPROVED AS TO FORM: REVIEWED AND APPROVED: 0 ` !O)VITIA.�D City AttorneyCity A minlstrator �bAND APWVED: Director of Public Works -1n�'0v Olagree%o-op funding/9/6/01 15 ��y OF HUNTINGTON BEAC, . )_ T - k.pai,, Dew-I#1 MEETING DATE: 2/19/02 DEPARTMENT ID NUMBER: PW 02-023 Council/Agency Meeting Held: 02--11-02 Deferred/Continued to: �4 1,�Approved ❑ Conditio ally Approved ❑ Denie � CI CI r s Signature Council Meeting Date: 2/19/02 Department ID Number: F.1N Q2-021 CITY OF HUNTINGTON BEACH_ REQUEST FOR ACTION C7 r— ' . �-Tr 70 SUBMITTED TO: HONORABLE MAYOR AND CITY COUNCIL MEMBERS,, ) ' c SUBMITTED BY: RAY SILVER, City AdministratorrRA/ n PREPARED BY: ROBERT F. BEARDSLEY, Director of Public Work I SUBJECT: EXECUTE A COOPERATIVE FUNDING AGREEMENT FOR COASTAL WATER QUALITY AND URBAN RUNOFF MANAGEMENT STUDIES Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status; Attachment(s) 'Statement of 'Issue: The Orange County Sanitation District (OCSD) will reimburse the City for certain expenses incurred as a result of the Urb'R an unoff/Coastal Remediation Action Plan. wi This" reimbursement ll' occur upon completion of a Cooperative Funding and Reimbursement Agreement. Funding Source: Full funding was provided by the City beginning in fiscal year 1999-2000 from the General Fund, Coastal Remediation, Account No. 10086001.69365. Upon receipt, the reimbursement will be deposited to the General Fund. Recommended Action: Motion to: Authorize the Mayor and City Clerk to execute the Cooperative Funding and Reimbursement Agreement for the Coastal Remediation Action Plan. Alternative Action(s): Do not approve, the agreement. This action will result in the forfeiture of $165,120 in reimbursement to the General Fund. Analysis: On January.3, 2000, the City Council approved . the selection of Komex • H2O Science to provide consulting services in support of the Urban Runoff/Coastal Remediation Action Plan. On April 17, 2000, a Phase II study was approved. Over the course of the next year, these studies were completed. The total contract amount for the Phase I and II studies was $514,000. Because of the urgency at the time to perform the studies, the City acted as lead agency while negotiations regarding funding were ongoing with the OCSD. G:\R C A12002102-023 Feb 19 Dills (OCSD Agreement).doc -2/12/0210:00 AM 1 O-REQUEST FOR ACTION MEETING DATE: 2119/02 DEPARTMENT ID NUMBER: PW 02-023 On January 28, 2000, the OCSD Board of Directors approved funding of $45,000 for the Phase I Komex Study. On July 19, 2000, an additional $120,120 was approved for the Phase II Komex Study bringing OCSD's total contribution to $165,120. The funding agreement presented formalizes this arrangement. Once approved, the agreement will be forwarded to the OCSD General Manager for execution and an invoice will be processed. Environmental Status: NIA Attachment(s) RCA Author: Ken Dills:jm G-iR C Ai2002ti92-023 Feb 19 Dills (OCSD Agreement).doc 4- 2/12102 10:00 AM ATTACHMENT #1 COOPERATNE FADING AND REIMBURSEMENT AGREEMENT This AGREEMENT is made and entered into this day of , 2001 (the "effective date"), BY and BETWEEN the City of Huntington Beach, a municipal corporation, hereinafter referred to as "CITY," AND The Orange County Sanitation District, hereinafter referred to as DISTRICT;" which entities are sometimes individually referred to as "PARTY," or collectively as "PARTIES." RECITALS WHEREAS, coastal waters in Huntington Beach experienced high levels of bacteria during_ the latter months of the Summer, 1999, which exceeded health and safety standards, resulted in beach posting and closures and have a significant impact on the local economy and opportunities for coastal recreation; and WHEREAS, task forces led by the DISTRICT and CITY have worked cooperatively to identify the sources of coastal water contamination: and WHEREAS, the results of the investigations were inconclusive as to the source of pollution, but targeted urban runoff from the Talbert Marsh and Lower Santa Ana River watersheds as possible contributors to the elevated levels of bacterial indicators; WHEREAS, CITY has developed an "Urban Runoff/Coastal Remediation Action Plan" (Remediation Action Plan) designed to provide specific recommendations for maintenance and modification of CITY sewer and local drainage infrastructure, and includes modeling of coastal tides and currents to further pinpoint the source of coastal contamination; and NkT EREAS, CITY, on January 3, 2000, entered into a contract with KOMEX-H20 SCIENCE, INC. (Contractor) to accomplish the tasks identified in CITY's Remediation Action Plan; specifically to provide geologic, hydrogeologic and geophysical consulting services in support thereof, hereinafter referred to as "SERVICE•S," which when completed, will further increase the understanding of the impacts of urban runoff and be a benefit to all PARTIES; and WHEREAS, said January 3, 2000 contract with Contractor has been subsequently amended on August 21, 2000; December 18, 2000; and May 7, 2001; and WHEREAS, CITY has asked that DISTRICT share in the cost of funding portions of Contractor's SERVICES which would directly benefit the PARTIES; and WHEREAS, the CITY will administer the contract with Contractor, on behalf of the PARTIES; and W 14EREAS, it is agreed that the solutions to coastal water quality problems are regional in nature, and require an awareness and participation by all local governments in the watershed to increase knowledge and understanding of the potential causes of the problem; and WHEREAS. it is further agreed that it is in the public's interest that the PARTIES participate in cooperatively share the funding responsibilities for completion of SERVICrS- WHEREAS, as of the effective date of this AGREEMENT, CITY has spent, or is obligated to spend, a total of S801,784.00, for Contractor's SERVICES; with DISTRICT agreeing; to reimburse CITY the sum of S 165,120.00 for such SERVICES; WIJEREAS, a breakdown of the projects phases, and the respective funding obligations of both CITY and DISTRICT, is set forth as follows: Phase I Phase I Additional Work Phase IT Phase II Additional Work Downtown Study Downtown Study Expanded Scope Total Huntington Beach OCSD Total S 105,000 $45,000 $150,000 S 17,391 $ l 7,391 $243,880 $120,120 $364,000 $78,043 $78,043 S89,8I0 $89,810 S 102,540 _ 102 540 $636,664 $165,120 $801,784 NOW, THEREFORE TI IE PARTIES M[JTUALLY AGREE AS FOLLOWS- Olagreeico-op funding:916-:01 0 -0 PURPOSE The purpose of this AGREEMENT is to establish the terms and conditions of the scope of services under which the SERVICES will be accomplished, administered and funded. The scope of SERVICES, has previously been approved by the authorized representatives of the PARTIES. 2. PARTIES CITY's Water Operations Manager, or authorized designee, hereinafter referred to a "MANAGER," shall be CITY's representative for all matters pertaining to this AGREEMENT. b. DISTRICT's Director of Technical Services, or authorized designee, hereinafter referred to as "DISTRICT DIRECTOR," shall be DISTRICT's representative for all matters pertaining to this AGREEMENT. 3. TERM a. The term of this AGREEMENT shall commence upon approval and signature by all of the PARTIES, and shall terminate within six (6) months after that date, or when all SERVICES have been accomplished to the satisfaction of the PARTIES, whichever is the earlier date_ b. The period for completion, however, shall be extended by the period that completion is delayed by acts otherwise outside the control of CITY, but in no event shall the total period for completion extend beyond tv,-elve (12) months from the effective date of this AGREEMENT. The details substantiating any such delay(s) shall be set forth in writing by CITE', and submitted to DISTRICT, in accordance with Paragraph 10 ("NOTICES"), below. 4. SERVICES SI-:RVICI-S shall consist of the del iverahles!reports`studies and shall be based upon the breakdown of costs, as identified in the RECITALS provisions of this AGREEMENT. b. Proposed changes and•'or adjustments to SERVICES as deemed necessary in order to advance the purposes of this AGREEMENT. which modify the scope of SERVICES, may be authorized upon mutual agreement of all PARTIES in accordance with Paragraph 27 01agrec1co-op funding IA02 3 ("AMENDMENTS") below, provided that such action does not in the aggregate, increase the total amount of funding assistance specified in Paragraph 5 ("MAXIMUM 24 FUNDING OBLIGATION"), below. Changes and/or adjustments to SERVICES, which increase PARTIES' funding obligations, must be approved in writing by each PARTY's Board or Council, as applicable. 5. MAXIMUM FUNDING OBLIGATION For the duration of this AGREEMENT, the maximum funding obligation for PARTIES shall not exceed the following: a. CITY -Not to exceed $636,664.00 b. DISTRICT -Not to exceed $165,120.00 6. CITY's RESPONSIBILITIES a. Be designated "Lead Agency" for all requirements within the context of the California Environmental Quality Act of 1970, as amended. b. Appoint a representative, at no cost to DISTRIC l', to function as CITY's representative for coordinating all aspects of SERVICES with PARTIES. C. Administer and obtain all government agency approvals for completion of SERVICES including but not limited to the selection of contractors, management of contractors' work, administration of contractors for compliance with the requirements this AGREEMENT and any applicable local codes and other regulations_ d. Furnish evidence that all insurance required of Contractor (and Subcontractors) is in accordance with DISTRICT's insurance requirements as specified in Paragraph 13 ("INSURANCE REQUIREMENTS"), below, and is provided to PARTIES prior to commencement of SERVICES. All insurance shall be obtained and held from a company or companies licensed to do business in the State of California, and shall be approved by in writing by DISTRICT representatives. e. Coordinate review of and incorporate comments from PARTIES, as respect to the development of the scope for SERVICES. Wagrer/co-up fund,ng;9i6 03 4 f. Provide PARTIES' representatives with opportunity to review and comment on all deliverables/reports/studies submitted by Contractor, in accordance with Paragraph 8 ("DELIVERABLES/REPORTS/STUDIES"), below. g. Invoice DISTRICT for its respective share of costs, based upon completion of deliverables/reports/studies, in accordance with Paragraph 9 ("INVOICES and FINAL ACCOUNTING"). h. Provide funding in an amount not to exceed $636,664.00 which represents CITY's total funding obligation for SERVICES authorized pursuant to this AGREEMENT. Obtain DISTRICT's representatives' advance written approval of proposed changes to approved SERVICES, prior to implementing such changes. Furnish PARTIES representatives, upon completion of SERVICES and all work incidental thereto, a detailed statement of each PARTIES' proportionate share of the costs paid and authorized pursuant to this AGREEMENT. k. Permit PARTIES to review cost records relating to expenditures for SERVICES. Cost records shall be retained and made available to PARTIES for review for a minimum of three (3) years after completion of SERVICES. 7. DISTRICTS RESPONSIBILITIES Appoint a representative, at no cost to CITY, whose function shall be to verify that SERVICES are accomplished in accordance with the scope of SERVICES. b. Review proposed scope for SERVICES and if determined at the discretion of DIS-hRICT, to be satisfactory and in conformance with DiSTRIC-I' practices, standards and criteria, approve scope for SERVICES. Review and provide comments to drafts and final deliverables/reports/studies, upon receipt of request for comments from CITY. 0lagrce'co-op fund,ng1V6.01 • d. Provide funding in an amount not to exceed $165,120.00 which represents DISTRICT's funding obligation for SERVICES authorized pursuant to this AGREEMENT, in accordance with Paragraph 9 ("INVOICES AND FINAL ACCOUNTING"), below. 8. DELIVERABLES/REPORTS/STUDIES a. Copies of all draft deliverables/reports/studies shall be provided by CITY to DISTRICT for review and comment, with allowance for reasonable review and response times, as follows: 1) Fifteen (15) copies delivered to DISTRICT. b. Copies of all final deliverables/reports/studies shall be provided by CITY to DISTRICT for review and comment, with allowance for reasonable review and response times, as follows: I)Twenty (20) copies delivered to DISTRICT. 9. INVOICES and FINAL ACCOUNTING a. CITY shall invoice DISTRICT on a one-time basis, in the total amount of $165,120.00, in accordance with actual approved costs (time and materials) incurred by Contractor, subject to completion of del iverables./reports/studies and identified costs- b. DISTRICT shall pay said invoice within sixty (60) days of receipt and approval. Approval of said invoice and payment of funds shall be subject to the routine processing requirements of DISTRICT's Account's Payable Office. C. CITY agrees to furnish PARTIES, upon completion of SERVICES and any work incidental thereto, with a detailed final accounting of total costs paid by PARTIES. 10. NOTICES a. Notices or other communications which may be required or provided under the terms of this AGREEMENT shall be given as follows: of agree'co-op fundmgV6 01 6 0 -• CITY: Water Operations Manager City of Huntington Beach 2000 Main Street Huntington Beach, CA 92648 Phone (714) 536-5527 Facsimile No. (714) 847-1067 DISTRICT: Director, Technical Services Orange County Sanitation District 10844 Ellis Avenue Fountain Valley, CA 92708 Phone (714) 962-962-2411 Facsimile (714) 962- 962-6957 b. All notices shall be in writing and deemed effective when delivered in person or deposited in the United States mail, first class, postage prepaid and addressed as above. Notwithstanding the above, PARTIES may also provide notices by facsimile transmittal, and any such notice so given shall be deemed to hare been given upon receipt dunng normal business hours, or in the event of receipt after business hours, on the following business day. Any notices, correspondence, reports and/or statements authorized or required by this AGREEMENT, addressed in any other fashion shall be deemed not given The PARTIES hereto may change the address to which notices are to be sent by giving notice of such change to the other PARTIES. 11. AVAILABILITY OF FUNDS Fhe financial obligation of each PARTY is subject to the availability of funds appropnatcd for this purpose, and nothing herein shall be construed as obligating the PARTIES to expend or as involving the PARTIES in any contract or other obligation for the future payment of money in excess of appropriations authorized by late. 01agrm!m-cep fundmg•9'6`01 7 0 '0 12. FEDERAL AND/OR STATE FUNDING Should any portion of PROJECT be financed with federal funds or state funds, all applicable laws, regulations and policies relating to the use of such funds shall apply, nohvithstanding other provisions of this AGREEMENT. 13. INSURANCE REQUIREMENTS CITY shall deliver from its designated Contractor to DISTRICT the "Certificates of Insurance' identified as being required by this section, which shall include evidence of additional insurance as referenced in 13.e.2, with copies of endorsements, and shall maintain at all times during the term of this AGREEMENT, the following policies of insurance: 1) Workers' Compensation Insurance to cower Contractor's employees. Similarly, Contractor shall require all subcontractors ("Subcontractors") to provide Workers' Compensation Insurance as required by the Labor Code of the State of California for all of its employees and its Subcontractors employees. 2) Employers' Liability Insurance. 3) Professional Liability Insurance. (If professional Liability policy is a "claims made" policy. Contractor's professional liability policy shall contain a "discovery clause" stating that coverage will be provided for claims made following insurance policy expiration for a period of not less than two (2) years b. The policy(ies) of insurance under subparagraphs 1), 2), and 3), above shall provide that it (they) shall not be canceled or altered without thirty (30) days written advance notice thereof, to the DISTRICT at P.O. Box 8127, I=ountain Valley, CA 92728-8127, Attention: Director of Technical Services and the CITY at 2000 Main Street, Huntington Beach, CA 92648, Attention - Director of Public Works. Olagrcc.'co-op funding 1.9-U2 8 0 .0 C. CITY or its Contractor may self -insure against Workers' Compensation losses. A certificate of consent to self -insure issued by the Director of Industrial Relations shall be provided to the PARTIES. d. For all operations of CITY's Contractor and/or Subcontractors in performing the services authorized in this AGREEMENT, insurance coverages with the following minimum limits shall be provided in a form satisfactory to PARTIES: Coverages Minimum Limit Workers' Compensation Statutory Comprehensive General Liability Statutory One Million Dollars, per occurrence Comprehensive Automobile Liability One Million Dollars, (including coverage for owned, combined single limit non -owned and hired automobile hazards) Employers' Liability Insurance Professional Liability Insurance One Million Dollars, each accident. One Million Dollars, minimum limit per claim. The policy of insurance provided by the CITY from its designated Contractor to the PARTIES must be obtained and held from a company or companies licensed to do business in the State of California, and shall contain the following four clauses- 1) "This insurance shall not be cancelled, limited in scope of coverage or non - renewed until after 30 days written notice has been given by mail to the to the Orange County Sanitation District at P O. Box 8127, Fountain Valley, CA 92728-8127, Attention: Director of Technical Services and the City of Huntington Beach at 2000 Main Street, Huntington 6 Beach, CA 92648, Attention- Director of Public Works. 2) With the exception of Professional Liability Insurance, Orange County Sanitation District and the City of I luntington Beach are added as additional insureds in regard to Oiagreelco-op funding,'9:6-'Ut 9 0 • incidents arising out of the performance of AGREEMENT." This shall be by an endorsement separate from the Certificate of Insurance. 3) "It is agreed that any insurance maintained by Orange County Sanitation District and/or City of Huntington Beach shall apply in excess of and not contribute with insurance provided by this policy." 4) "Any losses shall be payable notwithstanding any act or failure to act or negligence of the Orange County Sanitation District, the City of Huntington Beach, or any other person or entity." 14. INDEMNIFICATION To the extent permitted by law, CITY shall indemnify, defend with counsel approved by DISTRICT, and save harmless the DISTRICT, its elected and appointed officials, agents and employees from and against all claims, demands, loss or liability of any kind or nature which the DISTRICT, its elected and appointed officials, agents and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a result of the negligence or v.-rongful act or omission by CITY, its elected and appointed officials, officers, agents, employees or invitees in carrying out the terms of this AGREEMENT, save and except to the extent such injury, death, damage or loss is determined by a court of competent jurisdiction to have resulted from a negligent or wrongful act or omission of, respectively, the DISTRICT, its elected and appointed officials, agents, employees or invitees. b. 'ro the extent permitted by law, DISTRICT shall indemnify, defend with counsel approved by CITY, and save harmless the CITY, its elected and appointed officials, agents and employees from and against all claims, demands, loss or liability of any kind or nature which the CITY, its elected and appointed officials, agents and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a 0 1 agrcc,co-op funding.-Q. 6:-'01 10 result of the negligence or wrongful act or omission by DISTRICT, its directors, officers, agents, employees or invitees in carrying out the terms of this AGREEMENT, save and except to the extent such injury, death, damage or loss is determined by a court of competent jurisdiction to have resulted from the negligence or wrongful act or omission of, respectively, the CITY, its elected and appointed officials, agents, employees or invitees. 15. TERMINATION a. Prior to CFI Y's commitment of funds for SERVICES such as award of contract(s) to expend funds contributed by PARTIES, any PARTY may terminate this AGREEMENT with or without cause, upon written notice to the other PARTIES b. After CITY has made a commitment of funds for SERVICES, DISTRICT, may terminate this AGREEMENTonly if CITY does not proceed with SERVICES in accordance with the provisions hereof. C. In the event that CITY is unable to proceed with SERVICES in accordance with the term and conditions described in this AGREEN-1ENT, CITY may terminate this AGREEMENT with or without cause, upon delivery of thirty (30) days written notice to all PARTIES. d. The terminating PARTY shall be responsible for any funding obligations hereunder, to the extent incurred and agreed to by the PAR"IY, prior to the effective date of termination. e. Notice of Termination shall be in «-nling and shall state the date upon which such termination is effective. Notice shall be served as provided in Paragraph 10 ("NOTICES"), above. 16. INDEPENDENT CONTRACTOR S,I'ATUS This AGREEMENT is by and between CITY, and DISTRICT, and is not intended and shall not be construed so as to create the relationship of agent, servant, employee, partnership, joint venture or association, as between CITY and DISTRICT_ olagrcc'co-op fund ing4).!6:ol I I 17. SUCCESSORS AND ASSIGNS The terms and provision of this AGREEMENT shall be binding upon and inure to the benefit of the PARTIES hereto and their successors and assigns. 18. NO THIRD PARTY BENEFICIARIES Nothing expressed or mentioned in this AGREEMENT is intended or shall be construed to give an person, other than the PARTIES hereto, and any permitted successors, any legal or equitable right, remedy or claim under or in respect of this AGREEMENT or any provisions herein contained. This AGREEMENT- and any condition and provisions hereof, is intended to be and is for the sole and exclusive benefit of the PARTIES hereto and the others mentioned above, and for the benefit of no other person. 19. REFERENCE TO CALENDAR DAYS Any reference to the word "day" or "days" herein shall mean calendar day or calendar days, respectively, unless otherwise expressly provided- 20. WAIVER AND INTERPRETATION Titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend, or describe the scope of this AGREEMENT or any provisions hereof. No provision in this AGREEMENT is to be interpreted for or against a PARTY because that PARTY or its legal representative draft such provision. 21. WAIVER OF RIGHTS The failure by the CITY, or DISTRICT, to insist upon strict performance of any of the terms, covenants or conditions of this AGREEMENT shall not be deemed a waiver of any right or remedy the CITY or DISTRICT may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants and conditions of this AGREEMENT thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant or condition of this AGREEMENT. 01agrcc.!cn-op fundingl'9/G-41 12 22. 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. 23. OWNERSHIP OF DOCUMENTS Upon completion of all work authorized under this AGREEMENT, ownership of all documents and reports will automatically be shared with all PARTIES. PARTIES shall not be limited in any way in their use of all data from the SERVICES provided, including but not limited to reports, files, plans, drawings, specifications, proposals, sketches, diagrams and calculations, provided that any such use not within the purposes of this AGRL• EMENT, shall be at the sole risk of the PARTY using the document. PARTIES particularly state their intent to share the research study information with the public, as well as other entities in the TALBERT/lower Santa Ana River watersheds. 24. ATTORNEY FEES/COSTS Should litigation be necessary to enforce any terms or provisions of this AGREEMENT, then each PARTY shall bear its own litigation and collection expenses, witness fees, court costs and anorney's fees. 25. GOVERNING LAW AND VENUE This AGREEMENT has been negotiated and executed in the State of California and shall be governed by and construed in accordance with the laws of the State of California. 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 do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394. The PAR"TIES specifically agree that by soliciting and entering into and performing services under this AGRFEMENT, PARTIES shall be deemed to constitute doing business within Orange 4Iagrec/co-op funding 9f6;'o1 13 • 0 County from the time of initiation of work, through the period when all work under this AGREEMENT is completed, and continuing until the expiration of any applicable limitations period. Furthermore, the PARTIES have specifically agreed, as part of the consideration given and received for entering into this AGREEMENT, to waive any and all rights to request that an action be transferred for trial to another county under Code of Civil Procedure Section 394. 26. AUTHORITY 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. 27. AMENDMENTS It is mutually understood and agreed that no addition to, alteration of, or variation of the terms of this AGREEMENT or the Scope of SERVICES, nor any oral understanding or agreement not incorporated herein or by subsequent amendment hereto, shall be valid unless made in writing and signed and approved by all necessary PARTIES. 28. ENTIRE AGREEMENT This document sets forth the entire AGREEMENT between CITY and, DISTRICT, and may be modified only by further written amendment between the PARTIES hereto, in accordance with Paragraph 27 ("AMENDMENTS"), above. IN WITNESS WHEREOF, each PARTY hereto has executed this AGREEMENT by its duly authorize representatives as of this AGREEMENT's effective date as set forth above. 013grer'co-op funding/9/6!01 14 • • DISTRICT, BY: Blake P. Anderson, General Manager, APPROV AS TO FORM: BY: 1Q¢/ Thomas L. Woodruff, District C sel REVIEWED AND APPROVED: City A ministrator J CITY OF HUNTINGTON BEACH, a municipal corporation of the State of California 'AjAhv� Mayor ATTEST: City Clerk T3 _S-o2 tl APPROVED AS TO FORM: UIagrcc`ca-op funding-"9/6.%01 15 RCA AOUTING liEET INITIATING DEPARTMENT: - Public Works SUBJECT: Execute a Cooperative Funding Agreement for Coastal Water Quality and Urban Runoff Management Studies COUNCIL MEETING DATE: February 19, 2002 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Not Applicable Resolution (w/exhibits & legislative draft if applicable) Not Applicable Tract Map, Location Map and/or other Exhibits Not Applicable Contract/Agreement (w/exhibits if applicable) (Signed in full by the City Attomey) Attached Subleases, Third Party Agreements. etc_ (Approved as to form by City Attorney) Not Applicable Certificates of Insurance (Approved by the City Attomey) Not Applicable Financial Impact Statement (Unbudget, over $5,000) Not Applicable Bonds (If applicable) Not Applicable Staff Report (If applicable) Not Applicable Commission, Board or Committee Report (If applicable) Not Applicable Findings/Conditions for Approval and/or Denial Not Applicable EXPLANATION FOR MISSING ATTACHMENTS REVIEWED RETURNED FOR RDED Administrative Staff ( C,) (Y Assistant City Administrator (Initial) ( ) ( } City Administrator (Initial) ( ) ( awl } City Clerk ( ) P�-- 71,.41V7 EXPLANATION FOR.RETURN-OF-ITEM: 7JA lzjz ►�` uL