1 COOPERATIVE AGREEMENT NO. C-3-2654
2 BETWEEN
3 ORANGE COUNTY TRANSPORTATION AUTHORITY
4 AND
5 CITY OF HUNTINGTON BEACH
6 FOR
7 1-405 IMPROVEMENT PROJECT
8 THIS COOPERATIVE AGREEMENT (Agreement), is effective this day of 9 _ 2023 (Effective Date), by and between the Orange County Transportation 10 Authority, 550 South Main Street, P.O. Box 14184, Orange California 92863-1584, a public corporation 11 of the State of California (herein referred to as "AUTHORITY") and the City of Huntington Beach, 2000 12 Main Street, Huntington Beach, California 92648, a municipal corporation duly organized and existing 13 under the constitution and laws of the State of California (herein referred to as "CITY") each individually 14 known as "Party" and collectively known as the "Parties". 15 RECITALS:
16 WHEREAS, AUTHORITY, in cooperation and partnership with the California Department of 17 Transportation, herein referred to as "CALTRANS", is proposing to reduce congestion and improve 18 lane continuity through the Interstate 405 (1-405) corridor with improvements to mainline and 19 interchanges on the I-405 between State Route 73 (SR-73) and Interstate 605 (I-605); and 20 WHEREAS, the improvements are generally defined as adding one general-purpose lane from 21 Euclid Street to I-605, plus adding an additional median lane which will be combined with the existing 22 high-occupancy vehicle (HOV) lane and operated as dual express lanes in each direction of the 1-405 23 from SR-73 to I-605, replacing and/or widening structures, and other additional geometric and 24 interchange improvements, including improvements to CITY-owned and operated streets, and traffic 25 facilities hereinafter referred to as CITY FACILITIES potentially impacted by this project, all of which 26 are hereinafter referred to as "PROJECT".
COOPERATIVE AGREEMENT NO. C-3-2654
1 WHEREAS, AUTHORITY has hired a design-build team, OC405 Partners, JV, herein referred 2 to as "CONTRACTOR", to design, and construct PROJECT via a design-build delivery method, and 3 design-build contract was executed January 31, 2017. Contract documents (CONTRACT 4 DOCUMENTS) refer to all documents as part of the contract with OC405 Partners, JV; and 5 WHEREAS, Cooperative Agreement C-5-3614 between AUTHORITY and CITY concerning 6 this Project has expired on April 30, 2023,; and WHEREAS, this Cooperative Agreement defines the specific terms, conditions, and funding responsibilities between the AUTHORITY and CITY regarding 8 the design and construction of PROJECT in regards to CITY FACILITIES through Project closeout 9 anticipated June 30, 2024; and
10 WHEREAS, AUTHORITY is the sponsor and the primary funding agency for PROJECT; and 11 WHEREAS, CITY-owned and operated utilities will be subject to an utility agreements) and 12 separate from, and outside of this Agreement; and
13 WHEREAS, PROJECT is located within and adjacent to the CALTRANS right of way in the Cities 14 of Costa Mesa, Fountain Valley, Huntington Beach, Westminster, Garden Grove, Seal Beach, Los 15 Alamitos, and County of Orange; and
16 WHEREAS, AUTHORITY has contracted with Parsons Transportation Group, Inc., as the 17 Program Management Consultant (PMC) for this PROJECT, to assist with the administration and 18 oversight of the procurement, and design and construction phases of PROJECT; and 19 WHEREAS, AUTHORITY has contracted with Jacobs Project Management Co., as the 20 Construction Management Consultant (CMC) for this PROJECT, to assist with the administration and 21 oversight of the procurement, and construction phases of PROJECT; and 22 WHEREAS, AUTHORITY agrees to acquire right of way; and 23 WHEREAS, AUTHORITY shall ensure CONTRACTOR's compliance with all applicable 24 requirements contained in this Agreement; and
25 WHEREAS, CITY FACILITIES will potentially be impacted by PROJECT, and AUTHORITY 26 desires to collaborate with CITY during the design and construction of PROJECT; and
COOPERATIVE AGREEMENT NO. C-3-2654
1 WHEREAS, AUTHORITY will provide contract administration for all phases of PROJECT work 2 on CITY FACILITIES, and work within CITY right of way, while adhering to State, Federal, and CITY 3 standards and requirements, as applicable; and
4 WHEREAS, AUTHORITY will reimburse CITY for actual costs for CITY SERVICES, as related to 5 improvements to CITY FACILITIES, and defined as:
6 • Review and approval of plans, specifications, and other pertinent engineering plans, 7 and reports, and for oversight construction inspection services 8 • Review and acceptance of Transportation Management Plan (TMP) 9 • Traffic engineering, and oversight detour inspections 10 • CITY police services; and
11 WHEREAS, AUTHORITY has paid to CITY, in the amount of Six Hundred Eighty Two Thousand 12 Seven Hundred Thirty Seven Dollars ($682,737), for pavement mitigation costs, as quantified and priced 13 by the AUTHORITY, and identified in the Structural Pavement Investigation and Report, 1-405 Final 14 Concept Detour Routes Impact Study, 1-405 Improvement Project, dated October 11, 2018; and 15 WHEREAS, in addition to the pavement mitigation reimbursement by AUTHORITY as set forth 16 above, Parties agree to assess and evaluate actual post-construction impacts to CITY streets, on a case- 17 by case basis, as a result of PROJECT's signed, long-term detours within CITY's jurisdiction, as well as 18 the costs of mitigating such impacts, if any; and
19 WHEREAS, CITY agrees to manage its staff and consultants to provide CITY SERVICES within 20 the Maximum Obligation amount as amended herein; and 21 WHEREAS, AUTHORITY's Board of Directors authorized this Agreement on the _ day of 22 _ 2023; and
23 WHEREAS, CITY's City Council approved this Agreement on the _day of 24 - 2023.
25 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as follows:
26
COOPERATIVE AGREEMENT NO. C-3-2654
1 ARTICLE 1. COMPLETE AGREEMENT
2 A. This Agreement, including any attachments incorporated herein and made applicable by 3 reference, constitutes the complete and exclusive statement of the terms) and conditions(s) of this 4 Agreement between AUTHORITY and CITY and it supersedes all prior representations, understandings, 5 and communications. The invalidity in whole or in part of any term or condition of this Agreement shall 6 not affect the validity of other terms) or conditions(s) of this Agreement. The above referenced Recitals 7 are true and correct and incorporated by reference herein. 8 B. AUTHORITYS' failure to insist on any instance(s) of CITY's performance of any terms) 9 or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's 10 right to such performance or to future performance of such terms) or condition(s), and CITY's obligation 11 in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall 12 not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized 13 representative of AUTHORITY by way of a written amendment to this Agreement and issued in 14 accordance with the provisions of this Agreement.
15 C. CITY's failure to insist on any instance(s) of AUTHORITY's performance of any terms) or 16 condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to such 17 performance or to future performance of such terms) or condition(s), and AUTHORITY's obligation in 18 respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not 19 be binding upon CITY except when specifically confirmed in writing by an authorized representative of 20 CITY by way of a written amendment to this Agreement and issued in accordance with the provisions of 21 this Agreement.
22 ARTICLE 2. SCOPE OF AGREEMENT
23 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the 24 subjects and projects addressed herein. Both AUTHORITY and CITY agree that each will cooperate and 25 coordinate with the other in all activities covered by this Agreement and any amendments to this 26 Agreement.
COOPERATIVE AGREEMENT NO. C-3-2654
ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
2 AUTHORITY agrees to the following responsibilities for PROJECT:
3 A. To be the sponsor and funding agency to manage and administer the design-build 4 contract for PROJECT, which includes preliminary engineering, right of way acquisition,, and other 5 related services, including improvements to CITY FACILITIES which are necessary as part of PROJECT. 6 B. To perform right of way acquisition and right of way certification for PROJECT, and 7 specifically, for CITY FACILITIES, if necessary.
8 C. To include within the CONTRACT DOCUMENTS, in regard to CITY FACILITIES, design 9 criteria which meets acceptable CITY standards, and are applicable at the time of Contract execution. 10 This responsibility was achieved through, and referenced in, Cooperative Agreement C-5-3614. 11 D. To coordinate with CITY during the development of the CONTRACT DOCUMENTS, and 12 afford the CITY the opportunity to review, and comment on the CONTRACT DOCUMENTS, in regard to 13 CITY FACILITIES, and in accordance with the terms of this Agreement. This responsibility was achieved 14 through, and referenced in, Cooperative Agreement C-5-3614. 15 E. The CITY review times will be applicable to the design and construction of PROJECT in 16 regard to CITY FACILITIES. AUTHORITY will hold Joint Resolution Meetings (JRT) with CITY to resolve 17 CITY comments and obtain approvals, if applicable.
18 F. To coordinate the design and construction of PROJECT with the CITY and hold regular 19 technical and partnering meetings to brief the CITY on the status of PROJECT, solicit input, and provide 20 a forum to discuss and resolve PROJECT issues which impact the CITY. 21 To comply with all requirements of the Final Environmental Impact Report/Environmental 22 Impact Statement (FEIR/FEIS) for the PROJECT, including but not limited to the preparation and 23 processing of any, and all supplemental environmental documents, including those required for CITY 24 FACILITY improvements as part of PROJECT.
25 /
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COOPERATIVE AGREEMENT NO. C-3-2654
1 H. If AUTHORITY encounters hazardous, archeological, paleontological, cultural, or other 2 protected materials and/or species within any existing or future CITY-owned right of way for the CITY 3 FACILITIES, AUTHORITY shall notify the CITY and responsible control agencies of such discovery. 4 The costs for any remediation or protection for Article 3, Paragraph H, shall be covered 5 as a PROJECT cost, provided that AUTHORITY may seek reimbursement from other third parties which 6 may be jointly or severally liable for such removal or protection. 7 J. To protect in place, rearrange or relocate after CITY consultation and concurrence, CITY 8 owned public utility facilities found to be in conflict with PROJECT. All conditions of this clause shall be 9 subject to utility agreements which are separate from, and outside of this Agreement. 10 K. To secure and comply with any, and all other governmental and/or regulatory approvals, 11 permits and/or clearances required for the design and construction of CITY FACILITIES included in 12 PROJECT.
13 L. In the event CITY requests additional improvements, they shall be evaluated and 14 processed in accordance with Article 4, Paragraph L, of this Agreement. 15 M. To implement a Quality Management Plan during all phases of PROJECT. 16 N. To monitor all PROJECT activities to ensure compliance with the approved PROJECT 17 schedule, quality and budget goals of PROJECT.
18 0. To obtain concurrence for permanent easements, if required, for CITY FACILITIES. 19 To facilitate discussion between CITY, local agencies, and others regarding resolution of 20 ownership, operation, and maintenance of CITY FACILITIES. 21 Q. To coordinate with CALTRANS and CITY for preparation and execution of Maintenance 22 Agreements.
23 R. To convey ownership of any property acquired by AUTHORITY for PROJECT, and which 24 is necessary for CITY FACILITIES upon completion of the CITY FACILITIES, and title to such right of 25 way having been acquired by AUTHORITY. Conveyance of such property to the CITY shall be completed 26
COOPERATIVE AGREEMENT NO. C-3-2654
1 through an executed Property Transfer Agreement with AUTHORITY. AUTHORITY shall convey such 2 property in a condition acceptable to the CITY and in accordance with CALTRANS' Right of Way Manual. 3 S. To require CONTRACTOR to submit to CITY for review and approval, including but not 4 limited to, plans, specifications, and other pertinent engineering plans, and reports, for CITY FACILITIES 5 prior to construction thereof. During construction, CITY may provide construction oversight inspection 6 services. Such reviews and approvals, and construction oversight inspection services (CITY SERVICES) 7 shall be in accordance with the CONTRACT DOCUMENTS, and reimbursable to CITY by this 8 Agreement.
9 To require CONTRACTOR to implement all applicable elements of the approved 10 Transportation Management Plan (TMP) and TMP amendments.. The TMP addresses construction- 11 related impacts to existing CITY street traffic, and includes normal traffic handling requirements during 12 PROJECT construction including staging, lane closures, re-striping, detours, and signalization, and 13 specifies requirements for communicating with the public and local agencies during construction. 14 Modifications to streets, intersections, signals, etc., required to address traffic impacts during construction 15 will be borne as a PROJECT cost. Such review and acceptance of TMP (CITY SERVICES) shall be in 16 accordance with the CONTRACT DOCUMENTS, and reimbursable to CITY by this Agreement. 17 To obtain a written acceptance of TMP amendments from CITY. 18 V. To reimburse the CITY for its actual costs for oversight detour inspections, traffic 19 engineering services (including staff overhead and third-party traffic signal maintenance service costs 20 contracted out by CITY), and police services (including overtime costs). Ongoing deployment of 21 police services related to PROJECT traffic management will require prior approval by AUTHORITY. 22 Such traffic engineering, oversight detour inspections, and police services (CITY SERVICES) shall be 23 in accordance with the CONTRACT DOCUMENTS, and reimbursable to CITY by this Agreement. 24 W. To monitor and ensure CONTRACTOR compliance with the TMP. 25 X. To work collaboratively with CITY to prepare a methodology for approval by Parties, for 26 post-detour analysis of pavement conditions of CITY streets that were used for signed, long-term and
COOPERATIVE AGREEMENT NO. C-3-2654
1 alternate route detours. As part of the pre-detour analysis of pavement conditions of CITY streets, 2 AUTHORITY has previously reimbursed CITY the amount of Six Hundred Eighty Two Thousand Seven 3 Hundred Thirty Seven Dollars ($682,737), for pavement mitigation costs, as quantified and priced by the 4 AUTHORITY, and identified in the Structural Pavement Investigation and Report, I-405 Final Concept 5 Detour Routes Impact Study, 1-405 Improvement Project, dated October 11, 2018. The pre-detour 6 pavement analysis identified CITY street segments that were determined to need pavement repair due 7 to signed, long-term and alternate route detours, based on the existing pavement conditions and 8 forecasted impacts resulting from the PROJECT. Analysis of post-detour pavement conditions for 9 signed, long-term and alternate route detours, will be performed when the respective detours) is no 10 longer needed. Parties will agree on the final AUTHORITY reimbursement cost for the individual detours 11 upon review of the post-detour pavement analysis for each specific detour, at which time CITY can invoice 12 for that agreed upon cost. Pavement mitigation amounts for street pavement repairs (CITY SERVICES) 13 shall be in accordance with the CONTRACT DOCUMENTS, and reimbursable to CITY by this Agreement 14 and applicable amendments.
15 Y. To require CONTRACTOR to repair street pavements that receive damage as a result of 16 construction. CONTRACTOR will be required to adhere to CITY's requirements for removal and 17 replacement of pavement in accordance with the CONTRACT DOCUMENTS and this Agreement. 18 Z. To require CONTRACTOR to obtain a no fee encroachment permit from CITY prior to 19 commencing construction of PROJECT. Provided all conditions of such permit have been fulfilled, the 20 permits shall authorize CONTRACTOR to commence work within CITY right of way, or areas which affect 21 CITY FACILITIES.
22 AA. To monitor and ensure CONTRACTOR compliance with CITY's permit. 23 BB. To implement a Public Awareness Campaign during PROJECT that advises CITY, local 24 businesses, residents, elected officials, motorists, and media, of construction status, street detours, and 25 ramp and freeway closures, if and where applicable.
26 CC. To provide PROJECT closeout activities, including walk-through, punch list, final payment
COOPERATIVE AGREEMENT NO. C-3-2654
1 accounting, and furnish approved "As-builts" to CITY for CITY FACILITIES. 2 DD. To develop, for CITY, a record of survey, final maps, and all necessary title transfers 3 relative to PROJECT.
4 EE. To reimburse CITY for combined costs identified as "CITY SERVICES", and in 5 accordance with the attached SCHEDULE A, "REIMBURSEMENT SCHEDULE FOR 6 COMBINED CITY SERVICES."
7 EE. To reimburse CITY for actual costs, within 30 days from receipt of an acceptable invoice, 8 which is complete, properly prepared and complies with the requirements of ARTICLE 5, REQUEST FOR 9 REIMBURSEMENT, below.
FF. AUTHORITY's reimbursement for CITY SERVICES will not exceed the combined 11 maximum amount shown on SCHEDULE A.
12 GG. To perform all work associated with the PROJECT at no cost to the CITY, unless 13 specifically provided otherwise herein or in any amendment to this Agreement. 14 HH. To cause all contractors and vendors who perform work or provide supplies for CITY 15 FACILITIES to name the CITY as an additional insured on policies of insurance wherein AUTHORITY 16 requires CITY to be named as an additional insured and, prior to the commencement of work, provide 17 certificates of insurance to CITY showing the CITY as an additional insured. 18 ARTICLE 4. RESPONSIBILITIES OF CITY
19 CITY agrees to the following responsibilities for PROJECT:
20 A. To collaborate and cooperate with AUTHORITY during the development of the 21 CONTRACT DOCUMENTS and during the design and construction of PROJECT. 22 B. To provide CITY SERVICES for PROJECT as agreed by CITY and AUTHORITY. 23 C. To review, and provide comment on, in a timely manner, and in accordance with the 24 CONTRACT DOCUMENTS and this Agreement, all plans and other submittals related to PROJECT, and 25 approve and/or concur with AUTHORITY or CONTRACTOR's submittals when CITY determines such 26 submittals comply with CITY's standards and criteria to facilitate AUTHORITY's delivery of PROJECT.
COOPERATIVE AGREEMENT NO. C-3-2654
1 D. To make available to AUTHORITY all necessary CITY regulations, policies, procedures, 2 manuals, standard plans, and specifications required for the construction of PROJECT when requested 3 by AUTHORITY.
4 E. To attend and participate in the PROJECT's regular technical and partnering meetings for 5 AUTHORITY to brief CITY on the status of PROJECT, and to provide a forum to discuss and to resolve 6 CITY's concerns and issues.
7 F. To make reasonable efforts and devote reasonable resources for the issuance of 8 encroachment permits, and other necessary permits, if applicable, to CONTRACTOR at no fee, and upon 9 CONTRACTOR's compliance with permit requirements, to not cause delay to PROJECTS' construction 10 schedule. Such permits shall authorize CONTRACTOR to commence work within CITY right-of-way, or 11 areas which affect CITY FACILITIES.
12 G. To make necessary efforts to coordinate and cooperate with AUTHORITY, its agents, and 13 contractors, to meet or exceed design-build schedule criteria as identified by AUTHORITY. 14 H. To waive any moratorium on the excavation or trenching work on CITY streets that were 15 recently resurfaced where such excavation or trenching are necessary for PROJECT. CONTRACTOR 16 will be required to adhere to CITY's requirements for the removal and replacement of pavement in 17 accordance with the CONTRACT DOCUMENTS and this Agreement. 18 I. To cooperate with AUTHORITY and use its best efforts to cause the rearrangement or 19 relocation of all municipal and public utility facilities, in accordance with applicable State or local franchises 20 or laws, that may be determined by the AUTHORITY and the CITY to be within CITY's jurisdiction and 21 pose a conflict with the PROJECT. The CITY hereby agrees to exercise and invoke its rights under 22 any applicable State or local franchises or laws, or any prior rights or superior rights the CITY may 23 have to effectuate such rearrangement or relocation at the expense of the affected public utility as 24 necessary to conform to PROJECT. The CITY shall cooperate with the AUTHORITY and provide all 25 appropriate and necessary support to achieve this result. In the event the public utility fails to make 26 the rearrangement or relocation or fails to agree to make the rearrangement or relocation in a timely
COOPERATIVE AGREEMENT NO. C-3-2654
1 manner, the CITY shall assign its rights as they apply to such rearrangement or relocation as 2 necessary to permit the AUTHORITY to cause rearrangement or relocation in a timely manner. The 3 CITY shall cooperate with the AUTHORITY, provide assistance to the AUTHORITY as needed, and 4 join with the AUTHORITY as a party in the prosecution or defense of the CITY's and the AUTHORITY's 5 rights under the laws of the State of California to cause such rearrangements or relocations. Wherever 6 possible, any rearrangement or relocation of a public utility shall be made to an area covered by a 7 State or local franchises or laws. All conditions of this clause shall be subject to utility agreements 8 which are separate from and outside of this Agreement. 9 J. To agree to take ownership of property acquired by AUTHORITY for PROJECT, and 10 which is necessary for CITY FACILITIES upon completion of the CITY FACILITIES, and title to such right 11 of way having been acquired by AUTHORITY. Conveyance of such property to the CITY shall be 12 completed through an executed Property Transfer Agreement with AUTHORITY. AUTHORITY shall 13 convey such property in a condition acceptable to CITY and in accordance with CALTRANS Right of Way 14 Manual.
15 K. To accept operation and maintenance of the CITY FACILITIES, or portion thereof, upon 16 their acceptance by AUTHORITY, and based upon the AUTHORITY's written certification that the 17 AUTHORITY has complied with all terms of the Agreement. The acceptance of the CITY FACILITIES 18 and written certification shall not unreasonably be withheld. CITY acknowledges that CITY FACILITIES 19 may be completed at different times and accepted in different stages of PROJECT. 20 L. In the event CITY requests additional CITY FACILITY improvements to be incorporated 21 into PROJECT, CITY shall be solely responsible for all costs and expenses related thereto, including:
22 1) the costs incurred to incorporate the improvements into the PROJECT's scope of work; 2) additional 23 design, construction and oversight costs arising from or associated with the improvements, including 24 change orders related thereto; 3) additional operations and maintenance costs arising from or 25 associated with the improvements, including change orders related thereto; and 4) costs associated 26 with any impact on the design and construction schedule associated with the improvements, including
COOPERATIVE AGREEMENT NO. C-3-2654
1 any associated PROJECT delay costs and damages. This is not intended to eliminate mitigations 2 for required PROJECT changes identified during construction. AUTHORITY, at its sole discretion, 3 may agree to incorporate such CITY FACILITY improvements, via an amendment to this 4 Agreement, identifying the CITY FACILITY improvements, estimated costs, and funding sources from 5 CITY for these improvements.
6 M. To submit monthly invoices to AUTHORITY for work completed and actual costs incurred 7 by CITY for CITY SERVICES, pursuant to ARTICLE 5. REQUEST FOR REIMBURSEMENT. CITY shall 8 submit final invoice no later than ninety (90) days after final acceptance of PROJECT. Any costs in 9 excess of the amounts specified herein shall not be incurred without a written amendment to this 10 Agreement.
11 ARTICLE 5. REQUEST FOR REIMBURSEMENT
12 In order for CITY to be reimbursed for incurred costs relative to PROJECT, CITY agrees:
13 A. To prepare and submit to AUTHORITY a monthly invoice with supporting 14 documentation. CITY's invoice shall include allowable PROJECT costs incurred and paid for by CITY. 15 The invoice submitted by CITY shall be signed by an authorized agent who can duly certify the 16 accuracy of the included information.
17 B. The invoice shall be submitted on CITY's letterhead. 18 C. The invoice shall be submitted by CITY, and in duplicate, to AUTHORITY's Accounts 19 Payable Office. Each invoice shall include the following information:
20 1. Agreement Number C- X-XXXX
21 2. The total of PROJECT expenditures shall specify the percent and amount of funds 22 to be reimbursed, and include support documentation for all expenses invoiced. 23 3. Adequate detail describing all work completed.
24 4. Such other information as requested by AUTHORITY. 25 D. To consult with AUTHORITY's Project Manager for questions regarding non-reimbursable 26 expenses.
COOPERATIVE AGREEMENT NO. C-3-2654
1 E. That total payments shall not exceed the maximum obligation specified in ARTICLE 7. 2 MAXIMUM OBLIGATION.
3 ARTICLE 6. DELEGATED AUTHORITY
4 The actions required to be taken by CITY in the implementation of this Agreement are delegated 5 to its CITY's Public Works Director, or designee, and the actions required to be taken by AUTHORITY in 6 the implementation of this Agreement are delegated to AUTHORITY's Chief Executive Officer or 7 designee.
8 ARTICLE 7. MAXIMUM OBLIGATION
9 Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and CITY 10 mutually agree that AUTHORITY's maximum cumulative payment obligation hereunder shall be Two 11 Hundred Thousand dollars ($200,000), unless agreed to and amended by both Parties. 12 ARTICLE 8. AUDIT AND INSPECTION
13 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally 14 accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized 15 representatives of the AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and 16 other data and records of CITY for a period of four (4) years after final payment, or until any on-going 17 audit is completed. For purposes of audit, the date of completion of this Agreement shall be the date of 18 AUTHORITY's payment of CITY's final billing (so noted on the invoice) under this Agreement. 19 AUTHORITY shall have the right to reproduce any such books, records, and accounts. The above 20 provision with respect to audits shall extend to and/or be included in contracts with CITY's contractor or 21 consultant.
22 ARTICLE 9. INDEMNIFICATION
23 A. To the fullest extent permitted by law, CITY shall defend (at CITY's sole cost and expense 24 with legal counsel reasonably acceptable to AUTHORITY, indemnify, protect, and hold harmless AUTHORITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from 26 and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration
COOPERATIVE AGREEMENT NO. C-3-2654
1 awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and 2 attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of 3 persons (CITY's employees included), for damage to property, including property owned by AUTHORITY, 4 or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent 5 acts, omissions or willful misconduct of CITY, its officers, directors, employees or agents in connection 6 with or arising out of the performance of this Agreement. 7 B. To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY's sole 8 cost and expense with legal counsel reasonably acceptable to CITY, indemnify, protect, and hold 9 harmless CITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from 10 and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration 11 awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and 12 attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of 13 persons (AUTHORITY's employees included), for damage to property, including property owned by CITY, 14 or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent 15 acts, omissions or willful misconduct of AUTHORITY, its officers, directors, employees or agents in 16 connection with or arising out of the performance of this Agreement. 17 C. The indemnification and defense obligations of this Agreement shall survive its expiration 18 or termination.
19 ARTICLE 10. ADDITIONAL PROVISIONS
20 A. Term of Agreement: The term of this Agreement shall be in full force and effect through 21 June 30, 2024.
22 B. Termination: In the event either Party defaults in the performance of its obligations under 23 this Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party shall provide 24 written notice to the defaulting Party to cure such default within thirty (30) days of such default. If the 25 default cannot be cured within such time, as determined by the non-defaulting Party, then the defaulting 26 Party shall have such additional time as provided in the written notice or such time as the Parties may
COOPERATIVE AGREEMENT NO. C-3-2654
1 otherwise agree in writing. In any event, the non-defaulting Party shall promptly take such actions as are 2 reasonably necessary to cure the default. If the default or breach is material and not cured within the 3 time provided herein, either Party has the option, in addition to any other remedies available at law, to 4 terminate this Agreement upon thirty (30) days' prior written notice to the other Party. 5 C. Compliance with All Laws: AUTHORITY and CITY shall comply with all applicable federal, 6 state, and local laws, statues, ordinances and regulations of any governmental authority having jurisdiction over the PROJECT.
8 D. Legal Authority: AUTHORITY and CITY hereto warrants that the persons executing this 9 Agreement are authorized to execute this Agreement on behalf of said Parties and that by so executing 10 this Agreement, the Parties hereto are formally bound to the provisions of this Agreement. 11 Severability: If any term, provision, covenant or condition of this Agreement is held to be 12 invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the 13 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or 14 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 15 Counterparts of Agreement: This Agreement may be executed and delivered in any 16 number of counterparts, each of which, when executed and delivered shall be deemed an original and all 17 of which together shall constitute the same agreement. Facsimile signatures will be permitted. 18 G. Force Majeure: Either Party shall be excused from performing its obligations under this 19 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable 20 cause beyond its control, including but not limited to; any incidence of fire, flood; acts of God; 21 commandeering of material, products, plants or facilities by the federal, state or local government; national 22 fuel shortage; or a material act or omission by the other Party; when satisfactory evidence of such cause 23 is presented to the other Party, and provided further that such nonperformance is unforeseeable, beyond 24 the control and is not due to the fault or negligence of the Party not performing. 25 Assignment: Neither this Agreement, nor any of the Parties' rights, obligations, duties, or 26 authority hereunder may be assigned in whole or in part by either Party without the prior written consent
COOPERATIVE AGREEMENT NO. C-3-2654
1 of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed 2 void and of no force and effect. Consent to one assignment shall not be deemed consent to any 3 subsequent assignment, nor the waiver of any right to consent to such subsequent assignment. 4 1. Governing Law: The laws of the State of California and applicable local and federal laws, 5 regulations and guidelines shall govern this Agreement. 6 J. Litigation fees: In the event that either Party to this Agreement shall commence any legal 7 or equitable action to enforce or interpret this Agreement, the prevailing party shall be entitled to recover 8 its costs of suit, including reasonable costs and attorney's fees as determined by the court. 9 K. Notices: Any notices, requests, or demands made between the Parties pursuant to this 10 Agreement are to be directed as follows:
11 12 To CITY To AUTHORITY
13 City of Huntington Beach Orange County Transportation Authority 14 Public Works Department 550 South Main Street
15 2000 Main Street P.O. Box 14184
16 Huntington Beach, CA 92648 Orange, CA 92863-1584
17 Attention: Chau Vu Attention: Ms. Reem Hashem
18 Acting Director of Public Works Section Manager, Capital Projects 19 Tel: (714) 374 5345 Tel: (714) 560-5446
20 Email: [email protected] Email: [email protected]
21 /
22 /
23 /
24 /
25 /
26 /
COOPERATIVE AGREEMENT NO. C-3-2654
1 This Agreement shall be made effective upon execution by both Parties. 2 IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C-3-2654 to be 3 executed as of the date of the last signature below.
4 CITY OF HUNTINGTON BEACH ORANGE COUNTY TRANSPORTATION AUTHORITY 5 6 By: _ By:
Tony Strickland Darrell E. Johnson
Mayor Chief Executive Officer
8 ATTEST: APPROVED AS TO FORM:
9 10 By: _ By:
Robin Estanislau James M. Donich
11 City Clerk General Counsel
12 APPROVAL RECOMMENDED: APPROVAL RECOMMENDED:
13 14 By: _ By:
15 Chau Vu James G. Beil, P.E.
Public Works Director Executive Director, Capital Programs 16 APPROVED AS TO FORM:
18 cal
19 By:
Michael E. Gates
20 City Attorney
21 22 Attachment:
23 Schedule A - Maximum Reimbursement for Combined City Services 24 25
26
COOPERATIVE AGREEMENT NO. C-3-2654
SCHEDULE A
REIMBURSEMENT SCHEDULE FOR COMBINED CITY SERVICES
CITY OF HUNTINGTON BEACH
Description of City Services Maximum Reimbursement
Item No. Amount(1)
$180,000
inspection services related to CITY FACILITIES.
2 $14,000
Traffic engineering and detour inspection
3 Police services (including overtime costs) $6,000
TOTAL MAXIMUM REIMBURSEMENT $200,000
Ca relite res for tens two as ed, nover te far combined as unt or T SEE sal notece me Told Namum Reimbursement amount shown herein.