HomeMy WebLinkAboutReso 143-05 PotableWaterLine
RESOLUTION NO. 143 - 05
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
* * ~ * * * ~ . *
APPROVING COOPERATIVE AGREEMENT WITH THE DUBLIN SAN RAMON SERVICES
DISTRICT CONCERNING I-580/FALLON ROAD INTERCHANGE IMPROVEMENTS AND
CONSTRUCTION AND ACQUISITION OF POTABLE WATER LINE AND APPURTENANCES
WHEREAS, the City of Dublin plans to construct the I-580/Fallon Road Interchange
Improvement project; and
WHEREAS, the Dublin San Ramon Services District (DSRSD) also plans to install a potable
water line within the limits of the City project, adjustments to various valves and other appurtenances; and
WHEREAS, DSRSD has requested that the City incorporate the installation of DSRSD' s
facilities in the I-580/Fallon Interchange Improvement project to minimize construction impacts on the
citizens of Dublin; and
WHEREAS, the City of Dublin concurs that combining the two projects will result in cost
savings, and will reduce inconvenience to the public.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin approves
the cooperative agreement with DSRSD concerning I~580/Fallon Road Interchange Improvement project
and construction and acquisition of a potable water line, adjustments to various valves and other
appurtenances.
BE IT FURTHER RESOLVED that the Mayor is authorized to execute the agreement, attached
hereto as EII'hibit "A"
PASSED, APPROVED AND ADOPTED this 5th day ofJuly, 2005.
AYES:
Council members Hildenbrand, Oravetz and Zika, and Mayor Lockhart
NOES:
None
ABSENT:
Council member McCormick
ABSTAIN: None
~~~JI
Mayor
AáST:
OU~^ -.J
, Deputy City Clerk
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COOPERATIVE AGREEMENT CONCERNING
I-S8D/FALLON ROAD INTERCHANGE IMPROVEMENTS AND
CONSTRUCTION AND ACQUISITION OF POTABLE WATER LINE AND
APPURTENANCES
(CITY OF DUBLIN)
This Agreement, entered into this ~ day of .-~,Jl'f
, 2005, 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 "1-5S0/Fallon Road Interchange Improvements" project ("City's
Project"); and
WHEREAS, District requires the installation and construction of the following
facilities ("District's Project"):
A) 20-inch diameter potable water pipeline extending approximately 600 feet within
and beyond the box structure of the new Fallon/EI Charm over-crossing,
B) A connection to the existing 20-inch diameter potable water line on the north and
south sides of the over crossing and all fittings necessary for each connection,
C) Adjustments to various valves and other appurtenances as needed and listed as
various bid items in the construction contract itemization of work for City's
Project; and
WHEREAS, the District has already paid City for all costs of the design of
District's Project; and
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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 the 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
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. Project 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 will 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 ànd 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,
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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 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 from 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
responsiveness or qualification questions or concerns regarding the responsiveness or
qualification of the apparent low bidder. If the District has responsiveness or
qualification concerns regarding 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
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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), whether to reject all bids 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 and all
change orders for, or other modifications to, District's Project shall be subject to
District's prior written approval, which shall be given· on the District business day
following receipt of each potential change order 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. If District approves and authorizes
acceptance of the bid of said next apparent lowest responsible bidder with respect to
District's Project and City accepts said bid for the construction of City's Project
(including District's Project), City shall proceed with the construction of said Projects.
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(c) InSDectionrrestlnQ. 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. Upon apparent completion of the construction of District's Project,
District shall observe, and once it is satisfactorily demonstrated, approve the
contractor's pressure and bacteriological testing thereof. District shall be solely
responsible for inspection and/or testing 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 delays in construction of
City's Project to the extent such delays result from inspection, testing, 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) AcceDtance. 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 testing 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
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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 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
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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").
(e) ACQuisition of District's Project. 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 Council or 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.
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 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 twelve percent (12%) of the sum of the foregoing
costs for City's overhead, management, and administration pertaining to
District's Project;
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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 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
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foreseeable respective risks under this Agreement. District has reviewed and approved
the insurance requiremants 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, 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 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
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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, 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
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:
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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) 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 party must be
made by giving written notice of the change to the parties within five (5) 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.
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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 Agreement.
1 D. No Representations. 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 unenforceable, the remaining provisions will
continue in full force without being impaired or invalidated in any way.
12. Leaal Advice. Legal counsel for all parties has reviewed this Agreement,
and no presumption or rule that ambiguities shaH 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.
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15. DisDute 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 impliedly 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.
16. Amendments; SUDDlemental Aareements. This Agreement 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.
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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 municipal corporation of
the State of California
By:
Mayor, City of Dublin
ATTEST:
City Clerk
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