ORANGETHORPE AVENUE
STREET IMPROVMENTS
JOINT PARTICIPATION AGREEMENT
THIS AGREEMENT is made and entered into this day of
2024 by and between the City of Fullerton, a municipal corporation and general city ("FULLERTON") and the City of Anaheim, a municipal corporation and charter city ("ANAHEIM").
A. Recitals.
(i) FULLERTON desires to construct certain street improvements in and upon Orangethorpe Avenue between State College Boulevard and Placentia Avenue ("the PROJECT").
(ii) A portion of Orangethorpe Avenue between State College Boulevard and Placentia Avenue within the area of the PROJECT is located within the boundaries of ANAHEIM.
(iii) ANAHEIM desires to have FULLERTON improve that area of Orangethorpe Avenue between State College Boulevard and Placentia Avenue that is within the limits of ANAHEIM ("the ANAHEIM PORTION") as part of the PROJECT and FULLERTON is willing to do so.
(iv) It is the intent of FULLERTON and ANAHEIM in entering this Agreement to set forth terms and conditions applicable to FULLERTON'S provision of services necessary to complete the PROJECT, in order to benefit ANAHEIM and FULLERTON.
B. Agreement.
NOW, THEREFORE, FULLERTON and ANAHEIM agree as follows:
1. Duties of FULLERTON:
A. Prepare or cause to be prepared, all environmental documents, plans and specifications required for the PROJECT, subject to the reimbursement provisions contained herein.
B. Submit the plans and specifications including an engineer's cost estimate, for the FULLERTON PORTION of the PROJECT to ANAHEIM'S City Engineer for approval.
1 C. Pay its pro-rata share of PROJECT design, construction and engineering costs, which is approximately $3,576,499.35 (or approximately 87.0% of the total PROJECT cost of $4,111,124.00). PROJECT final cost shall be based on the actual cost of the PROJECT upon completion.
D. Conduct public bidding for the PROJECT work as may be required by law, award a contract for the PROJECT work in accordance with the approved plans and specifications, and administer the contract through completion of the PROJECT.
E. Provide one (1) invoice to ANAHEIM for work done on the ANAHEIM PORTION at the completion of the PROJECT.
F. Prior to commencing construction, obtain or cause to be obtained insurance coverage from contractors performing the PROJECT work, in the amount and in the types approved by the Risk Management Departments of FULLERTON and ANAHEIM, respectively.
G. Provide ANAHEIM a copy of the County Recorded Notice of Completion and PROJECT Record Drawings developed from the As-Built plans.
2. Duties of ANAHEIM:
A. By execution of this Agreement, designate FULLERTON as the lead agency for the purpose of accomplishing the PROJECT.
B. Pay its pro-rata share of the actual costs of design, construction and administration for work performed by FULLERTON in connection with the PROJECT, based on the actual quantities worked within the boundaries of ANAHEIM.
C. Pay its pro-rata share of the PROJECT's design, construction and construction engineering costs, which is approximately $534,624.65 (or approximately 13.0% of the total PROJECT cost of $4,111,124.00).
PROJECT final cost shall be based on the actual cost at completion.
D. Make final payment to FULLERTON within forty five (45) days after receiving the invoice.
3. Mutual obligations and general terms:
A. FULLERTON shall require contractor to also name ANAHEIM as an additional insured on required liability insurance policies and also indemnify ANAHEIM for contractor's negligence or willful misconduct. 2 B. Prior to the commencement of construction of the Project, contractor shall secure a Right of Way Construction Permit from ANAHEIM. There shall be no fee for such permits.
C. During construction, FULLERTON shall furnish a resident engineer to perform the usual functions of a resident engineer. ANAHEIM may also, but is not obligated to, provide its own engineer. Said resident engineers shall cooperate and consult with each other, however, decisions of FULLERTON'S resident engineer shall be final.
D. Any contract changes deemed necessary or advisable by FULLERTON may be undertaken by FULLERTON except that any changes which may affect the ANAHEIM PORTION shall first be approved, in writing, by ANAHEIM. Any changes requested by ANAHEIM may in FULLERTON'S discretion may be approved and included provided that any resulting increase in cost shall first be agreed upon in writing.
E. Within forty five (45) days after completion of and acceptance of the work by FULLERTON, its City Engineer shall notify ANAHEIM in writing, of the date thereof and the probable date that a final accounting of ANAHEIM'S share of the cost of the PROJECT will be submitted. If outstanding charges (such as contractor's claims and liens) delay the final accounting, FULLERTON shall so advise ANAHEIM and a final accounting shall be presented within ninety (90) days from the date of completion of the work.
F. ANAHEIM shall have the right to review all invoices, warrants and other related documents used in preparing the final accounting.
G. FULLERTON and ANAHEIM shall cooperate to the fullest extent possible in seeing the PROJECT to completion.
H. To the fullest extent permitted by law, FULLERTON shall defend, indemnify and hold harmless ANAHEIM, its officers, officials, employees, and agents, from any liability, claims, suits, actions, arbitration proceedings, administrative proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged, or threatened, actual attorney's fees incurred by ANAHEIM, court costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation, and to the extent incurred in relation to, as a consequence of, arising out of or in any way attributable, actually, allegedly or impliedly, to the negligence of FULLERTON in its performance of this Agreement. All obligations under this provision are to be paid by FULLERTON as they are incurred by ANAHEIM.
To the fullest extent permitted by law, ANAHEIM shall defend, indemnify and hold harmless FULLERTON, its employees, agents and officials, from any liability, claims, suits, actions, arbitration proceedings, administrative 3 proceedings, regulatory proceedings, losses, expenses or costs of any kind, whether actual, alleged, or threatened, actual attorney's fees incurred by FULLERTON, court costs, interest, defense costs including expert witness fees and any other costs or expenses of any kind whatsoever without restriction or limitation, and to the extent incurred in relation to, as a consequence of, arising out of or in any way attributable actually, allegedly or impliedly, to the negligence of ANAHEIM in its performance of this Agreement. All obligations under this provision are to be paid by ANAHEIM as they are incurred by FULLERTON.
J. This Agreement supersedes any and all other agreements, either oral or in writing, between parties with respect to the subject matter herein. Each party to this Agreement acknowledges that no representation by any party which is not embodied herein, nor any other agreement, statement, or promise not contained in this Agreement shall be effective unless it is in writing signed by all parties.
K. The term of this Agreement shall commence upon the date of mutual execution and shall continue thereafter until performance by both parties has been completed in compliance with this Agreement, unless sooner terminated in accordance with this subsection. Unless otherwise agreed upon in writing, either party may immediately terminate for a material breach by the other that remains uncured following service of not less than ten (10) days prior written notice of such breach. In addition, this Agreement may be terminated by either party upon thirty (30) days prior written notice.
L. Notices permitted or required to be provided pursuant to this Agreement shall be sent to the following addresses:
FULLERTON: ANAHEIM:
City of Fullerton City of Anaheim
Attention: Public Works Director Attention: Director of Public Works 303 W. Commonwealth Ave 200 S. Anaheim Blvd
Fullerton, California 92832
Anaheim, California 92805-5009
By notice to the other party, either party may, change the address specified above. Service of notice or communication shall be complete, if personally served, when received at the designated address, or five (5) days after deposit of said notice or communication in the United States mail, postage prepaid, whichever occurs first.
M. The parties do not intend to create rights in, or to grant remedies to, any third party as a beneficiary to this Agreement, or as a result of any duty, covenant, obligation or undertaking established herein. 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement by and through their authorized officers this day of 2024.
CITY OF FULLERTON,
A Municipal Corporation
By:
Date:
Attest:
Stephen Bise, Public Works Director
Approve as to Form:
FULLERTON CITY ATTORNEY
Lucinda Williams, City Clerk By:
Richard D. Jones, City Attorney
CITY OF ANAHEIM,
A Municipal Corporation
Date: By:
Rudy Emami, Director of Public Works
Attest:
Approve as to Form:
ANAHEIM CITY ATTORNEY
Theresa Bass, City Clerk
‘14•7 n M. orIey,De.v .
At ey
153464
5 r-m
q
STATE COLLEGE BLVD RLLERTOH O1Y LIWTS
MAtiEgM Pre MOTS
ATTACHMENT: EXHIBIT A - LOCATION MAP
rtkityi,
C4V Or), ijAfj_ PlAcrA,DA
44411S
AN,4004, orv curs
PL44)vA Q r 41;7
PLAceiv7 44 A