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HomeMy WebLinkAboutCalifornia, State Of - Boating; 1996-01-01;A &$cc3 -&% s5 - -3@-Jq Agreement No. BE-R CITY OF D R OF s THIS AGREEMENT is entered into on~~Q,AP~/./q?& , between the City of Carlsbad (CITY) and the Californid fjepartment of Boating and Waterways (DEPARTMENT). 1. 2. 3. 4. ARTICLE I RECITALS The project funded by this agreement consist of the construction of: 1) approximately 2250 feet of concrete capped sheetpile seawall with two stairways and three access ramps, all fronted by a rock riprap scour apron, 2) a 415 foot rock revetment on the north end of the project, and 3) add alternates for a 250 foot extension of the seawall south of the warm water outlet, and 380 feet of rock revetment at the southern portion of the project. This construction shall be hereafter referred to as llPROJECT1l. The DEPARTMENT is authorized under Harbors and Navigation Code Section 65.2 to contract with a municipal agency to construct beach erosion projects for the best interest of the State. Departmental partnership policy establishes a 75% State share and a 25% local agency match. The DEPARTMENT and the CITY jointly exercise their authority for the cost-share participation of the PROJECT construction. The DEPARTMENT is authorized under Harbors and Navigation Code Sections 65.5 and 65.7 to expend State funds for participation in beach erosion projects undertaken by the U.S. Army Corps of Engineers, (GOVERNMENT). AGREEMENT Department of Boating and Waterways 5. State participation in U.S. Army Corps of Engineers section 103 small beach erosion control projects is provided pursuant to section 65.7 of the Harbors and Navigation Code. Congress has by enactment of Public Law 874, Eighty-Seventh Congress, Section 103 of the Rivers and Harbors Act of 1962, Title I of Public Law 89-298, 79 Stat. 1073 (33 USC 426(f) and 426 (g)), provides for small beach erosion control projects not specifically authorized by Congress and undertaken by the United States Corps of Engineers. This provides for Federal cost-sharing participation of 65% of the total project cost or up to a $2,000,000 maximum participation. ARTICLE II GENERAL TERMS UNDERTAKEN BY TEE CITY WITB GOVE- PARTICIPATION 1. If any portion of this project is performed in cooperation with the United States Army Corps of Engineers (GOVERNMENT) the CITY will enter into an Project Cooperative Agreement (PCA) with the GOVERNMENT to become local sponsor for undertaking the PROJECT. 2. The CITY will include the DEPARTMENT representative on the Project Coordination Team. 3. The CITY shall obtain within ONE HUNDRED TWENTY (120) days of completion and acceptance of the PROJECT a full accounting from the GOVERNMENT, including an itemiz‘ation of any funds contributed by the various parties thereof, and shall diligently pursue refund of any such unexpended money, and receipt thereof, shall divide proportionately any such monies between the DEPARTMENT and the CITY. UNDERTAKEN BY CITY WITHOUT GOVE- PARTICIPATION 1. PLANS AND SPECIFICATIONS A. The plan for work shall be approved by the DEPARTMENT in writing prior to advertising for bids and no change in h AGREEMENT Department of Boating and Waterways the plans and specifications shall be made without the advance written approval of the DEPARTMENT. B. The CITY agrees to perform, or cause to be performed, the work specified in the approved plan. C. The work undertaken by the CITY shall be constructed and performed in accordance with the law applicable to the CITY's public works projects and with the State Contract Act, provided that if the CITY's public works law and the State Contract Act conflict, the latter shall govern. 2. PERFORMANCE OF WORK. A. The CITY shall do, or cause to be done, under its direct supervision, the work provided for under this agreement; such work shall be performed to the satisfaction of the DEPARTMENT and shall be subject at all times to their inspection and approval. To this end, the CITY shall allow the DEPARTMENT reasonable access to the work site. The CITY shall assign one inspector to the project on a full time basis at any time that the Contractor is actively working on the project site. B. If construction administration is to be performed by consultants, the DEPARTMENT shall participate in an advisory capacity in the evaluation of the Consultants and may communicate directly with the Consultant during design and construction. c. If the work is to be performed by contract, a summary of the estimates, bids, bid summaries, and contract shall be forwarded by the CITY to the DEPARTMENT for approval prior to award. No payment shall be made for work performed on any such contract awarded by CITY until said approval has been obtained. Performance and labor and materials bonds shall be provided by the Contractor in an amount equal to 100 percent of the contract work to ensure completion. D. Insofar as the CITY may be authorized by the DEPARTMENT to perform any part of the work with its own forces, CITY- owned equipment used for said work may be charged at the . . AGREEMENT Department of Boating and Waterways rental rates established heretofore by the CITY, if such rates have not been so established, allowance for use of such equipment may be charged as approved by the DEPARTMENT. 3. REPORTS. Within Sixty (60). days after completion of work, CITY shall file with the DEPARTMENT a final report of expenditures. All reports, plans, specifications, estimates, statements of expenditures and expenses, and other documents required to be submitted by the CITY to the DEPARTMENT shall be in a form satisfactory to the DEPARTMENT. UNDERTAKEN BY DEPAR- 1. FUNDS. A. The DEPARTMENT will reimburse the CITY up to $1,335,000 as the DEPARTMENT's share of the cost of PROJECT. The DEPARTMENT's share of the PROJECT costs is as follows: I) Any work undertaken by the GOVERNMENT on behalf of the CITY, subject to terms of this agreement, shall be reimbursed at FIFTY PERCENT (50%) of the CITY's share of the PROJECT costs. II) Any work undertaken by the CITY or the CITY's contractor, subject to terms of this agreement, shall be reimbursed for up to SEVENTY-FIVE PERCENT (75%). III) The DEPARTMENT shall under no circumstances be obliged to expend under this agreement any amount in excess of funds herein made available. B. None of the funds made available under this agreement are to be used to pay the CITYrs general overhead or administrative costs, including, but not limited to, its legal, clerical, or other personnel expenses, except to the extent that such costs are directly attributable to the subject project and are approved by the DEPARTMENT. AGREEMENT Department of Boating and Waterways 2. PAYMENT A. Payment to cover the cost of construction to the GOVERNMENT portion of the project will made in accordance to the PCA. B. Payments to cover the costs of CITY construction may be made either through advances or in arrears. C. Advances shall be subject to the following conditions: I) The CITY may request an advance from the DEPARTMENT to cover the CONSTRUCTION COSTS expected to occur in the succeeding THIRTY (30) day period. II) Requests for advances may not be made more than once every THIRTY (30) days. III) All advanced funds shall be deposited in an account which shall reflect all receipts and expenditures of such funds. ' IV) All expenditures of advanced funds shall be made only after receiving the written approval of the DEPARTMENT; requests for such approval must be accomplished by invoices or other evidence of CONSTRUCTION COSTS and may be made only once every THIRTY (30) days. VI The CI,TY shall request DEPARTMENT approval of the final expenditure of advanced funds no later than THIRTY (30) days following the DEPARTMENT approval of CONSTRUCTION acceptance. VI) The DEPARTMENT may withhold from the advances an amount equal to TEN PERCENT (10%) of approved CONSTRUCTION COSTS until the DEPARTMENT has approved the acceptance of the CONSTRUCTION. VII) All funds advanced by the DEPARTMENT to the CITY shall remain the property of the DEPARTMENT until such - funds are approved for expenditure by the DEPARTMENT. AGREEMENT Department of Boating and Waterways VIII) The CITY will invest any advanced funds, that are not required to meet immediate contractual obligations, in an interest bearing account, and any interest accrued from such investments shall be deposited in the above specified account and shall be used to help pay the CONSTRUCTION COSTS. IX) The CITY shall return to the DEPARTMENT any advanced funds remaining in the account after all CONSTRUCTION COSTS have been paid; such funds shall be returned to the DEPARTMENT no later than SIXTY (60) days following date of acceptance of the construction by the CITY. D. Payments made in arrears shall be made as follows: CITY shall render to DEPARTMENT, monthly, in triplicate, full and complete statements of all expenditures and expenses incurred by CITY in the performance of work. Subject to the terms and provisions of this agreement, DEPARTMENT shall, upon approval, reimburse CITY for DEPARTMENT's share of all amounts incurred or expended by CITY in performance of said work. The DEPARTMENT may stop payment if the CITY fails to comply with any of the provisions of this agreement. 4. MISCELLANEOUS PROVISIONS. A. CITY shall procure any and all permits, licenses or authorization which may be required by federal or state law in reference to said work before payments will be made under this agreement and no expenditures therefore shall be chargeable against the cost of this project. B. CITY shall comply with all local, state, and federal laws and regulations regarding non-discrimination based upon race, color, creed, sex, national or ethnic origin, etc., in the administration of this contract and any contracts issued as a result of this contract. All contractors and subcontractors shall be required to comply with this condition. AGREEMENT Department of Boating and Waterways 1. The term of this AGREEMENT, subject to any provision for the prior termination, shall begin with the effective date of the AGREEMENT and shall continue for FOUR (4) years from such date. 2. 3. This AGREEMENT may be extended, amended or canceled upon agreement of both the DEPARTMENT and the CITY. The PROJECT will be completed by September 30, 1998. ARTICLE IV OWNERSHIP AND MAINTENANCE The DEPARTMENT acquires no ownership or interest in the PROJECT C. The waiver of a breach of any of the provisions of this agreement shall not be deemed to be a waiver of any other provisions hereof, or of a subsequent breach of such provisions. D. CITY shall certify its compliance with Government Code section 8355 in matters: relating to providing a drug-free workplace. ARTICLE III TERM OF CONTRACT and shall not be responsible or liable for its maintenance, operation or adequacy. The CITY will maintain and operate the PROJECT during its useful life as may be required to serve its intended purpose. ARTICLE V LIABILITY 1. The CITY waives all claims and recourse against the DEPARTMENT including the right to contribution for any loss or damage arising from, growing out of or in any way connected with or incident to this AGREEMENT except claims arising from the concurrent or sole negligence of the DEPARTMENT, its officers, agents and employees. 2. To the extent permitted by law, the CITY shall indemnify, hold harmless, and defend the DEPARTMENT, its officers, agents and employees against any and all claims, demands, damages, costs, expenses or liability arising out of the - AGREEMENT Department of Boating and Waterways acquisition, design, construction, operation, maintenance or failure of the PROJECT. 3. If the DEPARTMENT is named as a co-defendant pursuant to Government Code Sections 895, et seq, the CITY shall notify the DEPARTMENT and represent it unless the DEPARTMENT elects to represent itself. If DEPARTMENT undertakes its own defense, it shall bear its own litigation costs, expenses and attorney's fees. ARTICLE VI WAIVER OF RIGHTS It is the intention of the parties hereto that from time to time either party may waive certain of its rights under this AGREEMENT. Any waiver by either party hereto of its rights with respect to a default or any other matter arising in connection with AGREEMENT, shall not be deemed to be a waiver with respect to any other default or matter. ARTICLE VII REhlEiDIES NOT EXCLUSIVE The use by either the DEPARTMENT or the CITY of any remedy specified in the AGREEMENT for the enforcement of the AGREEMENT is not exclusive and shall not deprive the party or limit the application of, any other remedy provided by law. ARTICLE VIII OPINIONS AND DETERMINATIONS Where the terms of this AGREEMENT provide for action to be based upon the opinion, judgment, approval, review, or determination of either the DEPARTMENT or CITY, such terms are not intended to be and shall never be construed as permitting such opinion, judgment, approval, review, or determination to be arbitrary, capricious, or unreasonable. ARTICLE IX ASSIGNMENT No assignment or transfer of this AGREEMENT or any part hereof, rights hereunder, or interest herein by CITY shall be valid unless and until it is approved in writing by the DEPARTMENT and made subject to such reasonable terms and conditions as the DEPARTMENT may impose. . . AGREEMENT - Department of Boating and Waterways ARTICLE X SUCCESSORS AND ASSIGNS OBLIGATED This AGREEMENT and all of its provisions shall apply to and bind the successors and assigns of the parties hereto. ARTICLE XI INSPECTION OF BOOKS, RECORDS, AND REPORTS During regular office hours, each of the parties or their duly authorized representatives shall have the right to inspect and make copies of any books, records, or reports of the other party pertaining to this AGREEMENT or matters related hereto. Both parties shall maintain and make available for such inspection accurate records of all of its costs, disbursements, and receipts with respect to its activities under this AGREEMENT. ARTICLE XII PRIOR TERMINATION The AGREEMENT shall terminate on the date specified in Article III of this AGREEMENT if: 1. the CITY has not met all conditions precedent to disbursement under this AGREEMENT by such date, or 2. no disbursement by the DEPARTMENT of a PAYMENT occurs by such date. ARTICLE XIII SUBJECT TO AUDIT The contract entered into by the GOVERNMENT and CITY involving an expenditure of a PAYMENT shall contain a provision which indicates that the contracting parties shall be subject to the examination and audit of the California Auditor General for a period of THREE (3) years after final payment under this AGREEMENT. Further, the DEPARTMENT reserves the right to audit all records pertaining to and all contractors employed by the CITY involved with expenditures and expenses related to the completion of the PROJECT. ARTICLE XIV DISPUTES All disputes concerning questions of fact arising under this AGREEMENT shall be decided by the director of the DEPARTMENT, or his authorized representative, and such decisions shall be final - . AGREEMENT Department of Boating and Waterways and conclusive upon both parties to this AGREEMENT. ARTICLE XV FINAL REPORT After completion of work by GOVERNMENT the CITY shall forward the final GOVERNMENT report of expenditures to the DEPARTMENT. ARTICLE XVI UNEXPENDED BALANCE The CITY shall diligently pursue the return of funds unused by the GOVERNMENT and the CITY shall return the DEPARTMENT1s share of any such unexpended money. ARTICLE XVII GENERAL SERVICES APPROVAL This agreement is not valid until approved by the California Department of General Services. - AGREEMENT Department of Boating and Waterways IN WITNESS WHEREOF, the parties hereto have executed this - agreement on the dates opposite their respective Date lp 4-Q 6 Date +a3 l vIp of the City Council of Carlsbad, California signatures: City Coundil of Carlsbad, California STATE OF CALIFORNIA DEPARTMENT OF BOATING AND WATERWAYS .__ _._--.- _--_- ---- Departmrmt of Gcrwd Swvices APPROVED ‘JUL 31996 Asa% Chief Cound \Y-iE!! 3bli~ - ml -0ol C&6 (4 June 11, 1996 Mr. Rim Sterrett Project Manager State of California Department of Boating and Waterways Beach Erosion Program 1629 ‘3” Street Sacramento, CA 958 14 Re: Construction of Shore Protection Wall - Agua Hedionda Lagoon The Carlsbad City Council, at its meeting of June 4, 1996, adopted Resolution No. 96-188, approving a cost sharing agreement with the State of California Department of Boating and Waterways for the construction of a shore protection wall adjacent to the Agua Hedionda Lagoon. Enclosed please find seven originals of the agreement and a copy of Resolution No. 96-188 for your files. KRK:ijp Enclosures 1200 Carlsbad Village Drive - Carlsbad, California 92008-1989 - (619) 434-2808 July 15, 1996 TO: CITY CLERK FROM: Associate Engineer Jantz AGUA HEDIONDA LAGOON SHORE PROTECTION WALL Attached is the executed Cost Sharing Agreement between the State Department of Boating and Waterways and the City of Carlsbad for the construction of the seawall at the Agua Hedionda Lagoon. This item was approved by the Council on June 6”. Please place in the project file. If you have any questions, please contact me at extension 4354.