956753.1 Page 1 of 7
AGREEMENT
THIS AGREEMENT ("Agreement"), dated this _____ day of _________________, 202_, is made and entered into by and between the City of Garden Grove , a municipal corporation, hereinafter referred to as “GARDEN GROVE ” and the City of Anaheim , a municipal corporation and charter city, hereinafter referred to as “ANAHEIM”.
WITNESSETH:
WHEREAS, GARDEN GROVE has selected a contractor and began construction on September 23, 2024, to rehabilitate the pavement surface of Chapman Avenue from Harbor Boulevard to Haster Street, located in the City of Garden Grove, (hereinafter the “GG PORTION”); and,
WHEREAS, there is a portion of Chapman Avenue from Harbor Boulevard to Somerset Place located within the boundaries of ANAHEIM (hereinafter “ ANAHEIM PORTION”); and,
WHEREAS, ANAHEIM desires to have GARDEN GROVE rehabilitate the ANAHEIM PORTION of Chapman Avenue in conjunction with the GG PORTION, collectively the “PROJECT”, and GARDEN GROVE is willing to do so. The exact location of the ANAHEIM PORTION is graphically illustrated in the document attached hereto as Exhibit A “Location Map”, incorporated herein by this reference. The estimated cost of the ANAHEIM PORTION, including a ten percent (10%) contingency is One Hundred and Five Thousand Dollars ($105,000.00) (the "Estimated Cost").
NOW, THEREFORE, in consideration of the following promises, covenants, and conditions, the parties hereto do agree as follows:
1. DUTIES OF GARDEN GROVE
a. Upon commencement of the PROJECT, GARDEN GROVE shall include the ANAHEIM PORTION as a part of GARDEN GROVE’s public works project, prepare the request for bids, hire the lowest responsible bidder (the “Successful Contractor”), and oversee and administer the PROJECT in the ANAHEIM PORTION in the same manner and to the same extent as the GG PORTION, all in accordance with all applicable laws governing construction of public works by GARDEN GROVE , including, but not limited to, the California Environmental Quality Act and laws governing public bidding and the payment of prevailing wages. If GARDEN GROVE, in its sole discretion, determines not to proceed with the PROJECT at any time prior to commencement of actual work, this Agreement shall terminate with no further action required by either party. In the event the projected actual cost of the
956753.1 Page 2 of 7
ANAHEIM PORTION, as reflected in the Successful Contractor's bid, exceeds the Estimated Cost by twenty percent (20%), GARDEN GROVE shall not execute a contract change order with the Contractor for the ANAHEIM PORTION without prior written approval of ANAHEIM.
b. GARDEN GROVE opened bids on July 24, 2024, and RJ Noble Company was selected as the Successful Contractor . GARDEN GROVE ’s City Engineer provided ANAHEIM’s City Engineer with a copy of the PROJECT’s plans and specifications for review. ANAHEIM’s City Engineer reviewed and marked up the plans to include any additional improvements to the PROJECT and GARDEN GROVE will transmit the revised plans to RJ Noble Company.
c. GARDEN GROVE agrees that it shall not permit nor cause any hazardous materials to be brought upon, kept, used, stored, generated or disposed of in, or, or about the ANAHEIM PORTION. “Hazardous Materials” shall mean any material that, because of its quantity, concentration, or physical or chemical characteristics, or any combination thereof, is deemed by a federal, state, or local governmental authority to pose a present or potential hazard to human health or safety or to the environment.
d. GARDEN GROVE shall ensure that its contract with the Successful Contractor requires the Successful Contractor provide insurance to ANAHEIM as shown in Exhibit “B: Certificate of Liability Insurance,” to name ANAHEIM as an additional insured, and to indemnify, defend, and hold harmless ANAHEIM in the same manner and to the same extent as GARDEN GROVE. GARDEN GROVE shall not permit construction of any portion of the PROJECT to commence until evidence of the required insurance and additional insured endorsements have been provided to and approved by ANAHEIM.
2. ANAHEIM’S DUTIES
a. ANAHEIM shall pay GARDEN GROVE for the actual cost of the work on the ANAHEIM PORTION based upon unit bid prices of the Successful Contractor and quantities actually used on the ANAHEIM PORTION.
ANAHEIM shall pay GARDEN GROVE the total amount due for the ANAHEIM PORTION upon official final approval of the work by ANAHEIM provided that such final approval shall not be unreasonably withheld.
b. ANAHEIM agrees that any permits required by the Successful Contractor for the work to be performed on the ANAHEIM PORTION shall be issued to the Successful Contractor at no cost to GARDEN GROVE or the Successful Contractor.
956753.1 Page 3 of 7
c. ANAHEIM shall provide its own inspection services for the ANAHEIM PORTION of the work.
d. ANAHEIM agrees to fully cooperate with GARDEN GROVE and the Successful Contractor in the prosecution of the work, traffic control, and any other matters required for completion of the PROJECT in the ANAHEIM PORTION.
e. ANAHEIM acknowledges that GARDEN GROVE is not the contractor for the PROJECT and that GARDEN GROVE does not warrant any work performed by the Successful Contractor. Notwithstanding the above, GARDEN GROVE shall require the Successful Contractor to provide ANAHEIM with any and all warranties, insurance coverage, and indemnities and any other rights the Successful Contractor agrees to provide to GARDEN GROVE under the construction contract and as provided by law.
f. In addition to the above, ANAHEIM also agrees to pay GARDEN GROVE for all costs associated with any change orders pertaining to the ANAHEIM PORTION, provided the change orders have been previously approved in writing by ANAHEIM’s City Engineer.
3. ENTIRE AGREEMENT
This writing constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all oral or written representations or written agreements that may have been entered into between the parties. No modifications or revisions shall be of any force or effect, unless the same is in writing and executed by the parties hereto.
4. ORDER OF PRECEDENCE
In the event of an inconsistency in this Agreement and any of the attached Exhibit, the terms set forth in this Agreement shall prevail. If, and to the extent this Agreement incorporates by reference any provision of any document, such provision shall be deemed a part of this Agreement. Nevertheless, if there is any conflict among the terms and conditions of this Agreement and those of any such provision or provisions so incorporated by reference, this Agreement shall govern over the document referenced.
5. ASSIGNMENT
Neither ANAHEIM nor GARDEN GROVE may assign or transfer its rights or obligations under this Agreement, or any part thereof, without the written consent of the other party.
956753.1 Page 4 of 7
6. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California. If any portion of this Agreement is held invalid under any applicable statute or rule of law, then such portion only shall be deemed invalid. Venue shall exclusively be in a court of competent jurisdiction in the County of Orange, California.
7. NO WAIVER
No waiver or failure to exercise any right, option, or privilege under the terms of this Agreement on any occasion shall be construed to be a waiver of any other right, option, or privilege on any other occasion.
8. NO THIRD PARTY RIGHTS
The parties do not intend to create rights in, or to grant remedies to, any third party as a beneficiary of this Agreement or of any duty, covenant, obligation, or undertaking established herein.
9. NOTICES
Notices and communication concerning this Agreement shall be sent to the following addresses:
GARDEN GROVE ANAHEIM
City of Garden Grove City of Anaheim
Attention: Dan Candelaria, P.E., T.E. Attention: Carlos Castellanos, P.E.
City Engineer City Engineer
11222 Acacia Parkway 200 S. Anaheim Blvd., Suite 276
Garden Grove, CA 92842 Anaheim, CA 92805
Either party may, by notice to the other party, change the address specified above.
Any notices, documents, correspondence or other communications concerning this Agreement may be provided by personal delivery, facsimile or mail and shall be addressed as set forth above. Such communication shall be deemed served or delivered: a) at the time of delivery if such communication is sent by personal delivery; b) at the time of transmission if such communication is sent by facsimile; and c) five (5) calendar days after deposit in the U.S. Mail as reflected by the official U.S. postmark if such communication is sent through regular United States mail.
10. EFFECTIVE DATE
The effective date of this Agreement shall be the latest date of execution hereinafter set forth opposite the names of the signatures hereto.
956753.1 Page 5 of 7
11. INDEMNITY
GARDEN GROVE and ANAHEIM each hereby agrees to indemnify, defend, protect and hold harmless the other party, and its elected and appointed officials, officers, employees, representatives, volunteers, and agents from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, workers’ compensation benefits, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses of any kind or nature, arising from the activities of the indemnitor or its officers, agents, or employees on the PROJECT, or any breach of contract, negligent acts, omissions or breach of law, or willful misconduct of the indemnitor, or its officers, agents, or employees arising out of the performance of, or failure to perform, any provisions of this Agreement. Neither party assumes liability for the acts or omissions of persons other than each party’s respective officers, agents, or employees. In the event judgment is entered agains t both p arties because of joint or concurrent negligence of both parties, or their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. The respective obligations of the parties pursuant to this Section shall survive expiration or earlier termination of this Agreement.
12. COOPERATION
In the event any claim or action is brought against GARDEN GROVE relating to the performance rendered under this Agreement, ANAHEIM shall render any reasonable assistance and cooperation which GARDEN GROVE might require.
13. COSTS
Each party shall bear its own costs and fees incurred in the preparation and negotiation of this Agreement and in the performance of its obligations hereunder except as expressly provided herein.
14. HEADINGS
Paragraphs and subparagraph headings contained in this Agreement are included solely for convenience and are not intended to modify, explain or to be a full or accurate description of the content thereof and shall not in any way affect the meaning or interpretation of this Agreement.
15. CONSTRUCTION.
The parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises with respect to this Agreement, this Agreement shall be construed as if drafted jointly by the parties and in accordance with its fair meaning. There shall be no presumption or burden
956753.1 Page 6 of 7
of proof favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement.
16. SEVERABILITY
If any provision of this Agreement is determined by a court of competent jurisdiction to be unenforceable in any circumstance, such determination shall not affect the validity or enforceability of the remaining terms and provisions hereof or of the offending provision in any other circumstance. Notwithstanding the foregoing, if the value of this Agreement, based upon the substantial benefit of the bargain for any party, is materially impaired, which determination made by the presiding court or arbitrator of competent jurisdiction shall be binding, then both parties agree to substitute such provision(s) through good faith negotiations.
17. COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall constitute but one and the same instrument.
18. CORPORATE AUTHORITY
The persons executing this Agreement on behalf of the parties hereto warrant that they are duly authorized to execute this Agreement on behalf of said parties and that by doing so the parties hereto are formally bound to the provisions of this Agreement.
[Signatures on the following page.]