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HomeMy WebLinkAboutOlivenhain Municipal Water District; 2007-06-22;AMENDMENT NO. 1 TO EXTEND THE AGREEMENT FOR REIMBURSEMENT OF COSTS FOR COLD MILLING AND REPAYING WITH RUBBERIZED ASPHALT OF RANCHO SANTA FE ROAD AND CALLE ACERVO FOR NORTHWEST QUADRANT RECYCLED WATER PIPELINES BETWEEN CALLE BARCELONA AND CAMINO DE LOS COCHES This Amendment No.1 is entered into and effective as of the 1st day of January, 2008, extending the agreement dated June 22 2007 (the "Agreement") by and between the City of Carlsbad, a municipal corporation, ("City"), and OLIVENHAIN MUNICIPAL WATER DISTRICT (OMWD), ("Contractor") (collectively, the "Parties"). RECITALS A. The Parties desire to extend the Agreement for a period of 12 months; and NOW, THEREFORE, in consideration of these recitals and the mutual covenants contained herein, City and OMWD agree as follows: 1. The Agreement, as may have been amended from time to time, is hereby extended for a period of 12 months ending on January 1, 2009. 2. All other provisions of the Agreement, as may have been amended from time to time, shall remain in full force and effect. 3. The individuals executing this Amendment and the instruments referenced each represent and warrant that they have the legal power, right and actual authority to bind to the terms and conditions hereof of this Amendment. OLIVENHAIN MUNICIPAL WATER DISTRICT, a CALIFORNIA PUBLIC CITY OF, corporati iAD, a municipal (sign here) KIMBERLYA. THORNER General Manager ^ X LOR^AlNE City Clerk ~ O :e£3& City Attorney ApproveB ^Isf/ Proper notarial acknowledgment of execution must be attached. If a Corporation, Agreement must be signed by one corporate officer from each of the following two groups. *Group A. **Group B. Chairman, Secretary, President, or Assistant Secretary, Vice-President CFO or Assistant Treasurer Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation. APPROVED AS TO FORM: RONALD R. BALL, City Attorney OL Deputy City Attorney City Attorney Approved Version # 05.22.01 CALIFORNIA ALL-PURPOSE CERTIFICATE OF ACKNOWLEDGMENT State of County of ) On 20&7 before me, (here insert name and titl f MWAfelf POfcllA le of the officer) ' personally appeared A - personally known to me, (or proved to tae-•the basis of eaticfacte ividcnee) to be the person^*) whose is/we subscribed to the within instrument and acknowledged to me that fce/she/4key executed the same in his/her/tkeir authorized capacity{*es^, and that by his/her/tbeir signature(s)-on the instrument the person(s)7or the entity upon behalf of which the person^) acted, executed the instrument. WITNESS my hand and official seal. Signature of Notaw Public JOHN CARNEGIE COMM. # 1752939 | NOTARY PUBLIC - CALIFORNIA^ y SAN DIEOO COUNTY g My Comm. Expires June<24,2011J (Seal) ADDITIONAL OPTIONAL INFORMATION DESCRIPTION OF THE ATTACHED DOCUMENT (Title or description of attached document) (Title or description of attached document continued) Number of Pages Document Date (Additional information) CAPACITY CLAIMED BY THE SIGNER D Individual (s) D Corporate Officer n D n n (Title) Partner(s) Attorney-in-Fact Trustee(s) Other INSTRUCTIONS FOR COMPLETING THIS FORM Any acknowledgment completed in California must contain verbiage exactly as appears above in the notary section or a separate acknowledgment form must be properly completed and attached to that document. The only exception is if a document is to be recorded outside of California. In such instances, any alternative acknowledgment verbiage as may be printed on such a document so long as the verbiage does not require the notary to do something that is illegal for a notary in California (i.e. certifying the authorized capacity of the signer). Please check the document carefully for proper notarial wording and attach this form if required. • State and County information must be the State and County where the document signer(s) personally appeared before the notary public for acknowledgment. • Date of notarization must be the date that the signer(s) personally appeared which must also be the same date the acknowledgment is completed. • The notary public must print his or her name as it appears within his or her commission followed by a comma and then your title (notary public). • Print the name(s) of document signer(s) who personally appear at the time of notarization. • Indicate the correct singular or plural forms by crossing off incorrect forms (i.e. he/she/thoy, is /are) or circling the correct forms. Failure to correctly indicate this information may lead to rejection of document recording. • The notary seal impression must be clear and photographically reproducible. Impression must not cover text or lines. If seal impression smudges, re-seal if a sufficient area permits, otherwise complete a different acknowledgment form. • Signature of the notary public must match the signature on file with the office of the county clerk. * Additional information is not required but could help to ensure this acknowledgment is not misused or attached to a different document. •> Indicate title or type of attached document, number of pages and date. •J« Indicate the capacity claimed by the signer. If the claimed capacity is a corporate officer, indicate the title (i.e. CEO, CFO, Secretary). • Securely attach this document to the signed document CAPA vl2.10.05 Cby Association of Professional Notaries & CSA 800-873-9865 www.notaryclasses.com AGREEMENT FOR REIMBURSEMENT OF COSTS FOR COLD MILLING AND REPAYING WITH RUBBERIZED ASPHALT OF RANCHO SANTA FE ROAD AND CALLE ACERVO FOR NORTHWEST QUADRANT RECYCLED WATER PIPELINES BETWEEN CALLE BARCELONA AND CAMINO DE LOS COCHES This Agreement for Reimbursement of Costs for the Repaying with Rubberized Asphalt of Rancho Santa Fe Road and Calle Acervo for Northwest Quadrant Recycled Water Pipelines between Calle Barcelona and Camino De Los Coches, dated as of 2007 ("Agreement") is made at San Diego County, California, by and between the CITY OF CARLSBAD (City), and OLIVENHAIN MUNICIPAL WATER DISTRICT (Olivenhain), a Water District operating pursuant to Water Code S71000, et seq., with reference to the following recitals: RECITALS A. Olivenhain is constructing recycled water pipelines in the area within the District boundaries known as Northwest Quadrant ("Project") located in the City of Carlsbad, California (the "City"), more particularly described as Northwest Quadrant Recycled Water Facilities in construction plans SD-O01-632-00 on file at Olivenhain, which have been reviewed and approved by the City for work within City streets. B. The City requires that rubberized asphalt be used for the surface course paving on these particular streets to match existing pavement. This condition requires that a change order be issued by Olivenhain to their Contractor because this is a new requirement not identified in the construction plans. Since rubberized asphalt is not manufactured all year, the cost quoted by the Contractor for this amount of paving with rubberized asphalt is excessive. Combining this work with the upcoming City rubberized asphalt paving project this summer will lower the cost substantially. C. The City agrees that the traffic control, cold milling, paving with rubberized asphalt, and striping for the areas to be repaved because of pipelines installed by Olivenhain's Contractor in these City streets may be included in the City's project, to be paid for at the unit prices bid in the City's upcoming paving contract. D. Olivenhain agrees to reimburse the City for the costs of this work for quantities agreed to between the parties at the unit prices bid in the City's contract. The quantities and unit costs are to be reviewed and agreed upon between the City and Olivenhain. NOW, THEREFORE, the City and Olivenhain agree as follows: 1. Recitals. The Recitals, above, are true and correct and are incorporated herein by this reference. 2. Satisfaction of Obligation. City's agreement to perform the Work, as set forth herein, and the actual construction thereof, shall fully satisfy and constitute compliance with all requirements regarding the Project solely with respect to the Street Repaving Work as described above in paragraph C. -2- n 3. General Olivenhain Obligations. (a) In consideration of the City's undertakings as set forth herein, Olivenhain agrees to identify the areas to be repaved on the Northwest Quadrant plans, as shown in the attached Exhibit "A", which are incorporated herein by this reference: (i) Street Repaving Work on Rancho Santa Fe Road includes all work to resurface the areas affected by recycled water pipeline construction from Station 11 +50 to Station 30+30 on sheets 3, 4, and 5 of the Northwest Quadrant plans. The thickness of rubberized asphalt shall be 2". Widths shall be as defined in Exhibit "A". (ii) Street Repaving Work on Calle Acervo includes all work to resurface the areas affected by recycled water pipeline construction from Station 3+20 to Station 9+95 on sheet 14 of the Northwest Quadrant Plans. The thickness of rubberized asphalt shall be 1-1/2". Widths shall be as defined in Exhibit "A". The Street Repaving Work includes all traffic control, grinding of existing asphalt to the proper depth, paving with rubberized asphalt to match existing surfaces, restriping and relettering, and replacement of all pavement markers. (b) Olivenhain agrees to review and approve or reject the unit prices in the successful Bidder's Bid Schedule for the 2007 Pavement Overlay Project within 15 days of receipt from the City. (c) Olivenhain agrees to reimburse the City for Street Repaving Work as described in Sections 6 and 7 below. 4. General City Obligations. (a) The City agrees to provide a copy of the successful Bidder's Bid Schedule for the 2007 Pavement Overlay Project for Olivenhain review of the unit prices applicable to this work. Before proceeding with the work, the City agrees to confirm with Olivenhain that the unit prices are acceptable to Olivenhain. If Olivenhain does not approve the unit prices, the City agrees to delete the work in this Agreement from the contract. (b) The City shall invoice Olivenhain an amount (the "Reimbursement Amount") equal to the actual authorized reimbursement Total Cost for construction of the Street Repaving Work. The actual Total Reimbursable Amount shall include all costs associated with the construction of the Street Repaving Work noted in the attached Exhibit "B" which is incorporated herein by reference for the complete, exclusive, and final compensation for the scope of the work required to repave the areas identified in Exhibit "A". (c) Prevailing Wage. Pursuant to the California Labor Code, the Director of the Department of Industrial Relations has determined the general prevailing rate per diem wages in accordance with California Labor Code, section 1773 and a copy of a schedule of said general prevailing wage rates is on file in the office of the City Engineer, and is incorporated by -3- reference herein. Pursuant to California Labor Code, section 1775, the City's Contractor shall pay prevailing wages. Contractor shall post copies of all applicable prevailing wages on the job site. (d) It shall be the responsibility of the City to observe and follow the requirements for retention of records and the submittal of information in connection with the Street Paving Work, as specified in this Agreement. 5. Reimbursable Street Repaying Work. (a) With respect to all hard costs of construction comprising the Street Repaving Work, the City shall solicit bids from reputable contractors. Reimbursable Street Repaving Work may be bid together with Non- Reimbursable work for that portion of the Street Repaving Work, which are being bid by such contractor. Upon award of a contract for the Street Repaving Work, the costs thereof shall be allocated among the categories consistent with the method and process used in Exhibit "B." The parties agree that the spreadsheet attached hereto as Exhibit "B" is a fair allocation of the costs under such contract as among the categories of Reimbursable Street Repaving Work. (b) During the performance of any Reimbursable Street Repaving Work, the City shall retain detailed payment records for all items of Reimbursable Street Repaving Work, for use by Olivenhain in auditing subsequent reimbursement requests by the City. City's requests for reimbursement (each a "Reimbursement Request") shall include copies of plans, specifications, engineer's cost estimates, bids received, contracts, change orders, invoices, payment slips, canceled checks (front and back), lien releases and other documentation reasonably required by Olivenhain to evidence the completion and payment for each item of Reimbursable Street Repaving Work. Reimbursement Requests may be submitted by the City as described in Section 6 (a) below. 6. Audit of Reimbursable Expenses. (a) Expenses for Reimbursable Street Repaving Work, including City overhead, are referred to herein collectively as "Reimbursable Expenses." Such expenses shall not exceed 5% of the construction cost of the work in this Agreement. The City shall be entitled to submit requests for Reimbursable Expenses upon Olivenhain acceptance of the Street Repaving Work. (b) All of City's Reimbursement Requests will be processed and audited for Olivenhain by a reputable consulting engineer selected by City ("Auditing Engineer"). The costs of the Auditing Engineer shall be paid directly by Olivenhain. (c) The Auditing Engineer shall review all Reimbursement Requests and the payment records submitted in connection therewith and shall within thirty (30) days thereafter issue to City and Olivenhain a report either accepting the City's submittal or specifying with particularity any reimbursement items or amounts not approved. Any reimbursement items or amounts not approved by the Auditing Engineer may be further pursued by the City using the dispute resolution provision of Section 8 below. -4- (d) With each Reimbursement Request, following 30-day review by Auditing Engineer, the Auditing Engineer shall forward one copy of each invoice submitted to Olivenhain by the City, to the Olivenhain's Engineering Manager ("Manager"), together with an invoice for all other components of the Actual Cost not otherwise reflected on the Contractor's invoice. The Manager shall confirm and approve within 30 days the Reimbursement Amount based upon the components of Actual Costs and Overhead Costs set forth in Section 5 of this Agreement. If the Manager objects to any items comprising the Reimbursement Amount, the Manager shall notify the City within thirty (30) days of receipt of all invoices forwarded by the City. Failure to so notify the City shall be deemed the Manager's approval of such invoices. If the Auditing Engineer objects to an invoice he shall authorize payment on all approved items of work except for the disputed work or cost item. (e) Olivenhain's reimbursement obligations hereunder shall be based upon Exhibit "B". If Olivenhain does not approve the unit prices in the successful Bidder's Bid Schedule and the Street Repaying Work in the Agreement is not done, then Olivenhain will not be obligated to pay anything, including Reimbursable Expenses. (f) Before the City submits all invoices to the Manager, the City shall obtain necessary or appropriate lien releases from all contractors, and shall obtain from the Olivenhain, and all appropriate governmental agencies, all approvals, certificates, and other documents necessary to indicate the completion of the Reimbursable Work, and the ability to put the Public Improvements into use. The date the City receives all such final lien releases, approvals, and certificates shall be deemed the date of completion of the Street Repaying Work (the "Completion Date"). In lieu of providing all final lien releases prior to reimbursement, the City shall have the right to guarantee contractor's payment pending receipt of final releases through the act of providing a bond security as guaranty of payment. Bond release would then require delivery of missing releases. 7. Payment of Reimbursable Expenses. (a) Payment of Reimbursable Expenses shall be made, within thirty (30) days after the Auditing Engineer's determination on any such Reimbursement Request (or determination pursuant to Section 8 if applicable). (b) Olivenhain shall not unreasonably withhold acceptance of the Street Repaying Work. (c) Olivenhain and City agree that the Olivenhain's General Fund is not part of this Agreement. Olivenhain has reserved funding earmarked under an approved Capital Improvement Program. 8. Disputes/Claims. If a dispute should arise regarding the performance or interpretation of this Agreement, the following procedure shall be used to resolve any question of fact or interpretation not informally resolved by the parties. Such questions, if they become identified as a part of a dispute among persons operating under the provisions of this Agreement shall be reduced to writing by the Manager or the City's Public Works -5- 3-0 Director ("Director"). A copy of such documented dispute shall be forwarded to both parties involved along with recommended methods of resolution which would be of benefit to both parties. The Manager, or Director, upon receipt, shall reply to the letter, including a recommended method of resolution within ten (10) days. If the recommended resolution is unsatisfactory to the aggrieved party, a letter outlining the dispute shall be forwarded to the City Council for their resolution through the office of the City Manager. The City Council may, but is not obligated to resolve the dispute. If the City Council considers the dispute, and directs a solution, the action of the City Council shall be binding upon the parties involved, although nothing in this procedure shall prohibit the parties from seeking remedies available to them at law. 10. Assignment of Contract. The City shall not assign this contract or any part thereof or any monies due thereunder without the prior written consent of Olivenhain, which approval shall not be unreasonably withheld. 11. Notices. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been duly delivered upon personal delivery, or by Federal Express (or similar reputable express delivery service), or by facsimile transmission with back-up copy mailed the same day, or as of the second business day after mailing by United States Certified Mail, return receipt requested, postage prepaid, addressed as shown below. Notices required to be given to Olivenhain shall be addressed as follows: Olivenhain Municipal Water District Attention: George R. Briest, Engineering Manager 1966 Olivenhain Road Encinitas, CA 92024 Telephone: (760) 753-6466 Fax:(760)753-1578 Notices to City shall be delivered to the following: CITY OF CARLSBAD Attention: Public Works Director 1635 Faraday Avenue Carlsbad, CA 92008 Telephone: (760) 602-2730 FAX: (760)602-8562 Each party shall notify the other immediately of any changes of address that would require any notice delivered hereunder to be directed to another address. 12. Transfer by City. The obligations and benefits of this Agreement shall not be transferred upon sale of the Project. 13. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute one and the same instrument. 14. Governing Law and Venue. This Agreement shall be interpreted and enforced under the laws of the State of California, and venue shall reside in San Diego County, California. -6- 15. Complete Agreement. This Agreement contains the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all negotiations, discussions, and prior drafts with respect to this subject matter. 16. Amendment. This Agreement may be amended by a written instrument executed by City and Olivenhain except that no amendment regarding the provisions for reimbursement to the City shall be valid unless executed by both Olivenhain and the City. 17. Term. This Agreement shall be effective as of the date first above written, and shall terminate on January 1, 2008. 18. No Third Party Beneficiaries. This Agreement shall not be deemed to confer any rights upon any individual or entity which is not a party hereto, and the parties hereto expressly disclaim any such third-party benefit. 19. Severability. The invalidity or unenforceability of any provision of this Agreement, as determined by a court of competent jurisdiction, shall in no way affect the validity or enforceability of any other provision hereof. IN WITNESS WHEREOF, the parties hereto have caused this^Agreement to be executed as of the date first above written. "" OLIVENHAIN MUNICIPAL WATER DISTRICT a CALIFORNIA PUBLIC AGENCY Cl IMBER2Y A. THORNER eneral Manager (Proper notarial acknowledgment of execution by Contractor must be attached. Chairman, president or vice-president and secretary, assistant secretary, CFO or assistant > treasurer must sign for corporations. Otherwise, the corporation must attach a resolution certified by the secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the corporation.) APPROVED AS TO FORM: RONALD R. BALL, General Counsel BY: Deputy General Couttsel -7- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ^M £)*< On a.Ql{JGa~) before me, Date personally appeared C ft. } /I.. . rne and Title of Officer (e.g., ",*^ie Dorf, Notary Public") Name(s) of Signer(s) Q^5ersonally known to me SHERRY A. FREISINGER| Commission # 1727064 I Notary Public - California i San Diego County * Camm. BC*M Fab% 2011 Place Notary Seal Above D (or proved to me on the basis of satisfactory evidence) to be the person(sfwhose namedayis/afe-subscribed to the within instrument and acknowledged to me that he/oho/thoy-executed the same in his/her/then* authorized capacity£iesf, and that by his/htn/ll leii ' signature^ on the instrument the person(sY, or the entity upon behalf of which the person(sf acted, executed the instrument. WITNESS my hand and official seal. Signatun OPTIONAL Signature of Notary Public Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of AttachedDocument Title or Type of Documentf/Stf/rihuj-J-f/ntsi'f Document Date:. Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: D Individual D Corporate Officer — Title(s): D Partner — n Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here Signer's Name: D Individual n Corporate Officer — Title(s): D Partner — D Limited D General D Attorney in Fact D Trustee D Guardian or Conservator D Other: Signer Is Representing: RIGHT THUMBPRINT OF SIGNER Top of thumb here © 2006 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 Item No. 5907 v609 Reorder: Call Toll-Free 1-800-876-6827 EXHIBIT A AREAS TO BE REPAVED ON THE NORTHWEST QUADRANT PLANS -9- LT c •s s SNOISIA3H aiva 90/S XD3HO Noisaa 080B-B9Z-9S8 IUZ6 OOZ «HK K ssita aawsoJNoo axv 90/S H03HO d/ it 3-6466 ^ 7407 Convey Court, Suite 200 San Diego, Cafifomia 92111 858-268-8080 WWW.BOYLEENGINEERING.COM DRAWN IP CHECK MARK 5/06 AKE DATE CONFORMED DWGS REVISIONS EXHIBIT B ESTIMATE OF THE COSTS FOR CONSTRUCTION OF THE STREET REPAYING WORK -10- Northwest Quadrant Street Repaving Work, Part of the City of Carsbad's 2007 Pavement Overlay Project Rancho Santa Fe Road & Calle Acervo Between Calle Barcelona & Camino De Los Coches Agreement Between the City of Carlsbad and Olivenhain Municipal Water District UNIT DESCRIPTION QUANTITY* UNIT COST" TOTAL 1 Mobilization 2 Public Notification of Work 3 Traffic Control 4 Asphalt Rubber Hot Mix (ARHM) 5 Cold Milling 1-1/2 Inches Deep 6 Cold Milling 2 Inches Deep 7 Install Temporary Pavement Markers 8 4" White Lane Line per Caltrans 9 4" Double Yellow Centerline per Caltrans 10 6" White Bike Lane Line per Caltrans 11 12" White or Yellow Two-Line Cross Walk- Thermoplastic 12 "BIKE LANE" Pavement Legend & Arrow - Thermoplastic 13 "STOP AHEAD" Pavement Legend - Thermoplastic 14 "SIGNAL AHEAD" Pavement Legend - Thermoplastic 15 Caltrans Pavement Arrows - Thermoplastic TOTAL ' Quantities are estimated, payment shall be based upon actual quantities measured in the field '* Unit costs are estimated, payment shall be based upon actual unit costs included in the Bid Schedule 1 11 380 6,700 25,000 1 2,425 44 550 3 2 1 1 1 LUMP SUM LUMP SUM LUMP SUM TONS SQ FEET SQ FEET LUMP SUM LIN FEET LIN FEET LIN FEET EACH EACH EACH EACH EACH $15,000.00 $1,000.00 $15,000.00 $118.20 $0.33 $0.44 $1,000.00 $0.49 $1.33 $0.49 $317.00 $86.00 $252.00 $319.00 $74.00 $15,000.00 $1,000.00 $15,000.00 $44,916.00 $2,211.00 $11,000.00 $1,000.00 $1,188.25 $58.52 $269.50 $951.00 $172.00 $252.00 $319.00 $74.00 $93.411.27