HomeMy WebLinkAboutReso 117-06 Co-op Agmt w/DSRSD re:DoughertyRdImpr
RESOLUTION NO. 117 - 06
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
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APPROVING COOPERA TIVE AGREEMENT BETWEEN THE CITY OF DUBLIN
AND THE DUBLIN SAN RAMON SERVICES DISTRICT CONCERNING THE
DOUGHERTY ROAD IMPROVEMENTS - HOUSTON PLACE TO 1-580 PROJECT
AND ADJ USTMENTS TO V ARlOUS VALVES, METERS AND OTHER APPURTENANCES
WHEREAS, the City of Dublin (CITY), as part of the Capital Improvement Program project
known as the Dougherty Road Improvements - Houston Place to 1-580, will widen and improve segments
of Dublin Boulevard and Dougherty Road approaching the intersection of the two streets; and
WHEREAS, as part of these improvements, it is necessary to modify facilities owned and
maintained by the Dublin San Ramon Services District (DISTRICT); and
WHEREAS, in terms of scheduling and reducing conflicts that could result from two contractors
operating in the same vicinity, it is beneficial for one contractor to construct improvements owned by both
the CITY and the DISTRICT, and
WHEREAS, the CITY will take the lead in letting and administering the single contract and will
be responsible tor the majority of the work.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin hereby
approves the Cooperative Agreement between the CITY and the DISTRICT, attached hereto as Exhibit
"A."
BE IT FURTHER RESOLVED that the Mayor of the Citv of Dublin is hereby authorized to
execute the Cooperative Agreement.
PASSED, APPROVED AND ADOPTED this 20th day of June, 2006, by the following vote:
AYES Council members Hildenbrand, McCormick, Oravetz and Zika, and Mayor Lockhart
NOES None
ABSENT None
ABSTAIN None
ATTE~
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Reso 117-06, Adopted 6120106, Item No. 4.18
Page 1 of 1
COOPERATIVE AGREEMENT
BETWEEN THE CITY OF DUBLIN AND
THE DUBLIN SAN RAMON SERVICES DISTRICT
CONCERNING DOUGHERTY ROAD IMPROVEMENTS - HOUSTON
PLACE TO 1-580 PROJECT AND ADJUSTMENTS TO VARIOUS VALVES,
METERS AND OTHER APPURTENANCES
This Agreement, entered into this
day of
, 2006, by
and between the Dublin San Ramon Services District, a public agency located in the
Counties of Alameda and Contra Costa, California ("District"), and the City of Dublin,
California, a municipal corporation of the State of California ("City");
WIT N E SSE T H:
WHEREAS, City proposes to construct certain public improvements generally
described as the Dougherty Road Improvements - Houston Place to 1-580 project
("City's Project"); and
WHEREAS, District requires adjustments to various valves, meters and other
appurtenances as needed, which work ("District's Project") is included in, and listed as,
various bid items in the construction contract itemization of work for City's Project; and
WHEREAS, City plans to solicit bids for City's Project, which bids will be
obtained following advertisement therefor in accordance with public bidding
requirements applicable to City, which requirements satisfy District's public construction
contract bidding requirements; and
WHEREAS, construction of District's Project In conjunction with City's Project will
result in cost savings and avoid inconvenience to the public; and
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 1 of 14
WHEREAS, the parties desire to provide for the combined construction of the
City's Project and the District's Project and provide for reimbursement to City for costs
incurred related to construction of District's Project;
NOW, THEREFORE THE PARTIES HERETO AGREE AS FOLLOWS:
1. Proiect Construction.
(a) Bid Review. The parties acknowledge that City prepared contract
documents (the "Contract Documents") inCluding, but not limited to, plans and
specifications for the construction of City's Project and the District's Project. The
District will review specifications and plans for District's Project that will be included in
,
the Contract Documents. The Contract Documents will include District's Project as
discrete ("line") items for bidding purposes. These items wili include specific bid items
in the contract bid list. Between City and District, City shall be solely responsible (and
District shall not be responsible) for the City's Project specifications and plans
prepared by City inCluding, without limitation, the accuracy and completeness of such
specifications and plans; and, between the City and District, District shall be solely
responsible (and City shall not be responsible) for the District's Project specifications
and plans prepared by the City for review by District including, without limitation,
responsibility for the accuracy and completeness of such specifications and plans so
long as and to the extent City makes revisions requested by District following its review
Upon approval by District of that portion of the Contract Documents
pertaining to District's Project, City shall advertise for bids for the construction of City's
Project (including the District's Project) in accordance with public construction contract
bidding requirements pertaining to City Upon opening of the bids for the construction
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 2 of 14
of City's Project (including the District's Project), City shall provide copies thereof to
District.
On or before the expiration of ten (10) calendar days frorn receipt of the
bids opened by City for the City's Project (including the District's Project), District shall
review the line-item bids for District's Project and shall advise City in writing either of
District's questions or concerns, if any, regarding the responsiveness or qualification of
the apparent low bidder in relation to the District's Project, or that the District has no
questions or concerns regarding the responsiveness or qualification of the apparent iow
bidder If the District has concerns regarding the responsiveness or qualification of the
apparent low bidder in relation to the District's Project, the City will cooperate with the
District to determine the responsiveness and qualification of the apparent low bidder in
light of such concerns and in accordance with applicable law
The District and City understand and agree that, in accordance with
applicable law, and subject to appropriate cooperation in the mutual interest of the
District and City and to the terms of this Agreement, the City shall have sole, ultimate
authority for letting and administering the City's Project (including the District's Project)
including, without limitation, the authority to determine. the responsiveness of bids and
qualification of bidders for the City's Project (including the District's Project), whether
and to whom to award the City's Project (including the District's Project), and whether
and how to enforce the City's rights under the Contract Documents and applicable law
(b) Construction. If City's City Council accepts the aforesaid bid for
City's Project (including District's Project), City shall proceed with the construction of
City's Project (including District's Project) pursuant to the Contract Documents. Any
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 3 of 14
and all change orders for, or other modifications to, District's Project shall be subject to
District's prior written approval in the manner set forth in this Agreement, irrespective of
whether such construction proceeds under this paragraph or the next following
paragraph of this Paragraph 1 (b).
If City's City Council does not accept the aforesaid bid for City's Project
(including District's Project), or the aforesaid apparent lowest responsible bidder does
not enter into the contract with City for the construction of said Projects after
acceptance of its bid, the parties shall meet and confer regarding acceptance of the bid
of the next apparent lowest responsible bidder Notwithstanding its meeting and
conference with District, City shall continue to have sole, ultimate authority to determine
whether and to whom to award the City's Project (including District's Project).
(c) Inspection/TestinQ. During the course of construction of City's
Project (including District's Project), District shall inspect, or provide for the inspection
of, District's Project. District shall be solely responsible for inspection of District's
Project, and approval thereof, and hereby relieves City of all responsibility therefor City
shall be solely responsible for inspection, and/or testing and approval of City's Project
(excluding District's Project) and hereby relieves District of all responsibility therefor
City hereby authorizes District or District's contractor(s), or other representative(s) to
enter upon and temporarily occupy the area encompassed by City's Project (including
District's Project) for the foregoing purposes, District shall use its best efforts to
coordinate to minimize impacts to the City's Project (including District's Project) in
carrying out the inspection and testing of District's Project. City shall use its best efforts
to coordinate to minimize impacts to District's Project. District shall be responsible for
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 4 of 14
delays in construction of City's Project to the extent such delays result from inspection
or other activities of District. City shall be responsible for delays in construction of
District's Project to the extent such delays result from inspection, testing, or other
activities of City
(d) Acceptance. Within thirty (30) days of completion of construction
of District's Project, District's Engineer shall review and either approve or disapprove of
the results of the inspection thereof Within thirty (30) days of completion of
construction of District's Project, District shall notify City in writing of District's intended
recommendation concerning acceptance or rejection of District's Project. If District
recommends acceptance of District's Project, upon Final Closeout of City's Project
(hereinafter defined), District shall acquire District's Project as hereinafter provided.
"Final Closeout of City's Project" means City's acceptance of City's Project (including
District's Project) as complete in accordance with the Contract Documents and
applicable law, recordation of a Notice of Completion and subsequent release of final
payment and retention (or securities in lieu of retention) for said Projects,
If District accepts District's Project with reservation of all rights to dispute
amounts claimed by said contractor concerning District's Project [excluding City's
Project] (collectively, "Disputed Claims"), at District's request and to the extent permitted
by law, City shall assign to District all rights of City under the Contract Documents, or
otherwise accruing to City to contest said Disputed Claims. Thereupon, District shall
solely be responsible for resolution or other satisfaction of said Disputed Claims,
including, without limitation, resolution by litigation,
If District's Engineer recommends rejection of District's Project, in whole
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 5 of 14
or in part, based upon nonconformance thereof with the Contract Documents or
otherwise based upon defects in construction, City shall, at the request of, and in
cooperation with District, cause City's contractor to reconstruct or otherwise rectify the
construction of District's Project, or otherwise enforce City's rights and/or remedies
under the Contract Documents and applicable law to meet the requirements of the
Contract Documents concerning District's Project and otherwise to protect the interests
of District. Notwithstanding any contrary provision In this Agreement, City shall have no
obligation to act to enforce any of City's rights and/or remedies or to cause City's
contractor to reconstruct or otherwise rectify the construction of District's Project, under
the Contract Documents and applicable law regarding District's Project, unless and until
a District official authorized to bind District requests such action in a signed writing
which obligates District to bear all costs of City reasonably incurred in such action
("Costs of Enforcement").
(9) ACQuisition of District's Proiect. Upon acceptance of District's
Project by the District Engineer and payment of the remaining Costs of Construction in
accordance with the provisions of Paragraph 2(b) hereof, and Final Closeout of City's
Project, and payment by District to City of the Costs of Enforcement, if any, in
accordance with the provisions of Paragraph 1 (d) of this Agreement, City shall convey
title of District's Project to, or confirm vesting of title in, District by a resolution duly
adopted by City's City Councilor other document approved as to form by District's
counsel. District's Project shall thereafter be operated and maintained by District and
shall become merged with and be a part of District's distribution facilities
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 6 of 14
2. Costs of Construction/Reimbursement.
(a) Costs of Construction. "Cost of Construction" as used in this
Agreement means the line item bids approved and accepted for District's Project
(included in the bid of the lowest responsible bidder, or the next lowest responsible
bidder for City's Project accepted by City) and in addition the following:
(i) costs specified in change orders or other modifications
pertaining to District's Project as approved by District;
(ii) an amount equal to seven and one-half percent (7 Y>%) of
the sum of the foregoing costs for City's overhead,
management, and administration pertaining to District's
Project,
The parties acknowledge and agree that the foregoing amounts, with
reference to the bid of the apparent lowest responsible bidder, will be calculated after
acceptance of the bid by the City
City shall, upon request by District, verify all such costs by originals or
copies of invoices, canceled checks, or other accounting records made, received, or
maintained by City relating to District's Project. Without limitation upon the foregoing,
City shall, upon District's request, provide District access to, or true copies of, any and
all other accounting records, invoices, canceled checks, or other documents pertaining
to costs and expenses associated with District's Project.
(b) Reimbursement. District shall pay City for the Costs of
Construction within thirty (30) days of receipt of City's invoices (based on progress
payments) for the actual Costs of Construction incurred for District's Project. City's
Cooperative Agreement between
City of DUblin and DSRSD
June 6, 2006
Page 7 of 14
invoices shall be itemized by bid item and include Administrative Costs for the period to
which each invoice pertains. City shall submit invoices to District not more often than
monthly Irrespective of whether the successful bidder/contractor for City's Project
(including District's Project) elects to post securities in lieu of retention pursuant to
California Public Contract Code Section 22300, District shall pay City the full amount of
the Costs of Construction billed by City, and shall not deduct applicable retention
amounts, if any
3. Insurance. City and District, each to the other, acknowledge, covenant
and warrant that they maintain or otherwise provide for public liability, Worker's
Compensation, Property and Builder's Risk insurance coverage for their respective
governmental operations and that said insurance adequately covers their reasonably
foreseeable respective risks under this Agreement. District has reviewed and approved
the insurance requirements contained in the Contract Documents applicable to the
successful bidder for City's Project (including District's Project), Without limitation upon
other obligations of City hereunder, City warrants and covenants that it shall administer
and enforce the insurance provisions of the Contract Documents and protect District's
interests thereunder, including obtaining a policy endorsement confirming that the
District is a named insured under the automobile and general liability policies.
4. Indemnification. City shall defend, indemnify, and hold harmless District,
its Board of Directors, officers, employees, and agents (collectively, "District
Indemnitees") from and against any and all claims, demands, suits, actions, liability,
losses, damages, expenses, and costs, including attorney's fees and costs of suit
(collectively, "Claims") for personal injury, including death, and for damages to property,
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 8 of 14
including loss of use thereof, patent infringement, and violation of copyrights, and for
construction claims and stop notices resulting, or alleged to have resulted, in any
manner, directly or indirectly, from the specifications or plans prepared by City that
describe City's Project (excluding District's Project) which are included in the Contract
Documents, from City's Inspection, testing, failure to adequately inspect or test, use,
maintain, or failure to maintain City's Project (excluding District's Project), or from the
negligence of, or any intentional or willful tortious act or omission to act by City
hereunder, including any claims, demands, suits, actions, liability, losses, damages,
expenses, and costs, including attorney's fees and costs of suit, if any, relating to the
City's failure to record a Notice of Completion or Notice of Cessation prior to releasing
the final payment and retention. City's duty to indemnify under this Paragraph 4 shall
include the duty to defend as set forth in Section 2778 of the California Civil Code;
provided, however, that nothing herein shall be construed to require indemnification in
contravention of Section 2782 of said Code, nor shall City and/or City's contractor(s) be
required to indemnify District for the sole or active negligence, or willful misconduct of
District.
District shall defend, indemnify, and hold harmless City, its City Council,
officers, employees, and agents (collectively, "City Indemnitees") from and against any
and all claims, demands, suits, actions, liability, losses, damages, expenses, and costs
, including attorney's fees and costs of suit (collectively, "Claims") for personal injury,
including death, and for damages to property, including loss of use thereof, patent
infringement and violation of copyrights, and for construction claims and stop notices,
resulting, or alleged to have resulted, in any manner, directly or indirectly, from the
Cooperative Agreement between
City of Dublin and DSRSD
June 6. 2006
Page 9 of 14
specifications or plans prepared by District, if any, that describe District's Project which
are included in the Contract Documents, from District's inspection, testing, failure to
adequately inspect or test, use, maintain, or failure to maintain District's Project
(excluding City's Project) or from the negligence of, or any intentional or willful tortious
act or omission to act by District hereunder District's duty to indemnify under this
Paragraph 4 shall include the duty to defend as set forth in Section 2778 of the
California Civil Code; provided, that nothing herein shall be construed to require
indemnification in contravention of Section 2782 of said Code, nor shall District be
required to indemnify City for the sole or active negligence or willful misconduct of City
5. Notices. Any notice required, or convenient to the performance,
hereunder, shall be in writing and may be given to the parties by personal delivery, or
by mail (first class or equivalent), postage prepaid, addressed in the case of District as
follows:
Dublin San Ramon Services District
7051 Dublin Boulevard
Dublin, CA 94568
Attn. General Manager
and in the case of City, as follows.
City of Dublin
100 Civic Plaza
Dublin, CA 94568
Attn: City Manager
All writings, notices or communications shall be deemed to be served and
shall be deemed to be made within five (5) working days of the date of mailing of the
writing, notice or communication. All writings, notices and communications shall be
addressed and directed as set forth in this paragraph. Any change of address by any
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 10 of 14
party must be made by giving written notice of the change to the parties within five (5)
working days of said change and In the manner as stated herein,
6. Modifications. This Agreement may only be modified by written
amendment or supplement approved and executed by the parties in the same manner
as this Agreement.
7. Term and Termination. This Agreement shall be effective on the date
first set forth hereinabove and shall expire upon the Final Closeout of City's Project,
except that the provisions of Section 4, Indemnification, shall survive said expiration,
8. ParaaraDh Headinas. Paragraph and subparagraph headings as used
herein are for convenience only, and shall not be deemed to alter or amend the
provisions of the paragraph or subparagraph headed thereby
9. Waiver. The waiver of any breach of this Agreement shall not constitute a
continuing waiver or a waiver of any subsequent breach either of the same or another
provision of this Agreernent.
10. No ReDresentations. Each party to this Agreement acknowledges that
no representations, inducements, promises or agreements, orally or otherwise, have
been made by any party, or anyone acting on behalf of any party, which are not
embodied herein, and that no agreement, statement or promise not contained in this
Agreement shall be valid or binding.
11. Enforceabilitv. If any provision in this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceabie, the rernaining provisions will
continue in full force without being impaired or invalidated in any way
Cooperative Agreement between
City of Dublin and DSRSD
June 6. 2006
Page 11 of 14
12. LeQal Advice. Legal counsel for all parties has reviewed this Agreement,
and no presumption or rule that ambiguities shall be construed against the drafting
party shall apply to the interpretation or enforcement of this Agreement.
13. Attorney's Fees. If any action, proceeding or litigation is commenced
arising out of or relating to this Agreement, or to enforce or collect any judgment or
award then the prevailing party shall be entitled to receive, in addition to any other relief
that may be granted, a reasonable amount of attorney's fees, costs, and expenses
incurred in the action or the proceeding.
14. Jurisdiction. The Agreement and the legal relations between the parties
shall be governed by and construed in accordance with the laws of the State of
California.
15. Dispute Resolution. In the event of a dispute between the parties in the
interpretation of any provision of this Agreement or of the performance of either party
expressly or implicltiy required hereunder, prior to instituting any legal proceeding or
action, the party claiming shall notify the other party in writing of the nature of said
dispute and request a meeting to confer regarding the resolution thereof. Said parties
shall meet and confer within ten (10) days of the date of said notice of dispute and shall
endeavor in good faith to resolve said dispute by agreement or may provide, by written
agreement, for said dispute to be resolved through mediation or binding arbitration. If
such agreement, or resolution through mediation, cannot be achieved, then the parties
may enforce their respective rights, as they shall determine.
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
Page 12 of 14
16. Amendments: Supplemental Aqreements. This Agreernent may be
amended or supplemented by agreements of the parties approved and executed in the
same manner as the original agreement.
17. Execution in Counterparts. This Agreement may be executed and
delivered in counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument.
Cooperative Agreement between
City of Dublin and DSRSD
June 6. 2006
Page 13 of 14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first hereinabove written.
DUBLIN SAN RAMON SERVICES DISTRICT,
a public agency of the State of California
By'
President, Board of Directors
ATTEST.
District Secretary
CITY OF DUBLIN, a municipai corporation of
the State of California
By'
Mayor, City of Dublin
ATTEST
City Clerk
Approved as to Form:
City Attorney
G:\MrSCPROJ\Daughsrty Rd Imp - HoU!~ton to 1~5aO\U1I1ities\DSRSD Coop Agmt Dublin Dougherty Intereeaticn.doc
Cooperative Agreement between
City of Dublin and DSRSD
June 6, 2006
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