REIMBURSEMENT AGREEMENT
REGARDING
ADJUSTMENT OF YLWD FACILITIES
This REIMBURSEMENT AGREEMENT REGARDING ADJUSTMENT OF
YLWD FACILITIES ("Agreement") is made and entered as of this 10th day of November, 2022 ("Effective Date"), by and between YORBA LINDA WATER DISTRICT, a public agency, created and operating under authority of Division 12 of the California Water Code ("YLWD"), and the CITY OF PLACENTIA, a municipal corporation ("CITY").
RECITALS
A. CITY periodically undertakes street improvement projects, a number of which involve construction, adjustment, or relocation of YLWD water and sewer facilities ("CITY Proi ects").
B. The parties have determined that on certain projects, as determined by YLWD, it is more efficient and cost effective for CITY, rather than YLWD, to carry out the adjustment of, as part of the CITY Projects, YLWD facilities, including but not limited to water valves, water vaults, and sewer manhole covers ("YLWD Facilities").
C. For certain CITY Projects, as determined by YLWD, YLWD is amenable to the CITY'S adjustment of YLWD Facilities, which cost shall be reimbursed to CITY by YLWD as provided herein.
D. The parties intend for all YLWD Facilities to remain the property of YLWD.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties agree as follows:
SECTION 1. YLWD FACILITIES. CITY shall provide YLWD with the CITY'S contractor bid amount to adjust YLWD Facilities for CITY Projects so YLWD has the opportunity to bid the adjustment of the same YLWD Facilities for CITY Projects to compare the two amounts and determine whether to authorize the CITY to adjust the YLWD Facilities for the amount stated in the CITY'S contractor bid amount. Only YLWD Engineering Manager, Assistant General Manager, or General Manager may provide such authority, which must be in writing (email is acceptable). If YLWD authority is provided to CITY, CITY shall initiate, and pursue to completion, construction of the CITY Projects, including the adjustment of YLWD Facilities as shown on the plans and specifications for the CITY Projects. YLWD shall cooperate with CITY regarding the construction and schedules for adjustment of YLWD Facilities.
SECTION 2. NON-EXCLUSIVE. This Agreement shall be non-exclusive and YLWD retains the right to use its own contractor, and is not obligated to use CITY'S contractor, for CITY 1 Reimbursement Agreement
Projects. YLWD retains the right to approve or reject the contract price of the CITY'S contractor on a project -by -project basis as described above in Section 1.
SECTION 3 . REIMBURSEMENT. Within thirty (30) days following receipt from CITY of each invoice for the portion of construction progress payment attributable to YLWD Facilities, together with supporting documentation, YLWD shall approve the work being invoiced upon its determination that such work has been completed to YLWD standards and satisfaction; and shall pay to the City the amount of such invoice. YLWD shall not pay more than amount stated in its written authorization in Section 1 above unless, by mutual written agreement by the parties, it is determined that changed circumstances or unforeseen conditions necessarily resulted in additional construction costs more than the authorized amount.
SECTION 4. LAWS, ORDINANCES, RULES AND REGULATIONS. CITY shall require in its contract for adjustment of YLWD Facilities that its contractor be fully informed of and comply with all laws, ordinances, rules and regulations, including, but not limited to, all applicable requirements of the California Labor Code, prevailing wage laws, and YLWD Rules and Regulations regarding adjustment of YLWD Facilities.
SECTION 5. INSPECTION. YLWD shall be entitled to inspect the adjustment of YLWD Facilities as it deems necessary to assure compliance with YLWD Standard Drawings and Specifications, including shop drawing review and/or material inspection thereof. YLWD shall promptly notify CITY of any portion of the work on YLWD Facilities which appears not to conform to YLWD's Standard Drawings and Specifications. YLWD's determination regarding conformity of YLWD Facilities with YLWD Standard Drawings and Specifications shall be made in YLWD's sole and absolute discretion. CITY shall require its contractor to adjust YLWD Facilities so the YLWD Facilities conform to YLWD Standard Drawings and Specifications.
SECTION 6. ACCEPTANCE AND WARRANTY. YLWD shall accept the YLWD Facilities when the respective CITY Projects, which includes the YLWD Facilities, have been (a) completed, including any change orders approved by YLWD, as provided in Section 4 hereof and (b) accepted by CITY. At the time of completion and acceptance of a given CITY Project, CITY agrees to furnish YLWD with "as -built" drawings for the YLWD Facilities. CITY shall warrant YLWD Facilities for one year following YLWD's acceptance of the YLWD Facilities.
SECTION 7. OWNERSHIP. YLWD owns the YLWD Facilities and shall continue to own, operate, and maintain the YLWD FACILITIES following acceptance described in Section
6. GENERAL PROVISIONS
SECTION 8. RECITALS. The Recitals set forth above are true and correct.
SECTION 9. MUTUAL INDEMNIFICATION. CITY shall indemnify, defend and hold YLWD, its officers, agents and employees, harmless from any expense, liability or claim for 2 Reimbursement Agreement
death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen during adjustment of the YLWD Facilities and prior to acceptance by YLWD, as a result of any work or action performed by CITY or on behalf of CITY, except for the sole negligence, willful misconduct, or breach of this Agreement by YLWD, or its elected officials, officers, volunteers, agents and employees.
YLWD shall indemnify, defend and hold CITY, its officers, agents, and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen either (i) as a result of any act performed by YLWD, its officers, agents, or employees, regarding adjustment of YLWD Facilities, or (ii) following YLWD acceptance of the YLWD Facilities, regarding maintenance and operation of the YLWD Facilities, except for the sole negligence, willful misconduct, or breach of this Agreement by CITY, or its elected officials, officers, volunteers, agents and employees.
SECTION 10 . INSURANCE AND BONDING. CITY shall cause its contractors for the adjustment of YLWD Facilities to obtain insurance coverage sufficiently broad to insure the matters set forth in this Agreement and to include YLWD as an additional insured on all insurance policies that CITY requires its contractors to provide. As evidence of such insurance coverage, CITY shall, prior to commencement of adjustment of YLWD Facilities, provide YLWD with certificates of insurance and insurance endorsements procured by the City's contractor in forms that are acceptable to YLWD. Prior to commencement of construction, CITY shall furnish to YLWD a surety bond procured by the City's contractor on the Project, which shall be in full force and effect for one (1) year from the date of YLWD's acceptance (defined in Section 5) of the YLWD Facilities. The surety bond shall be in an amount not less than one hundred (100) percent of the engineer's estimate of the cost to adjust the YLWD Facilities (`Engineer's Estimate").
SECTION 1 1 . TERMINATION. Either party shall have the right, upon written notice to the other which shall become effective five (5) days after receipt pursuant to Section 14, to terminate this Agreement at any time, subject to the provisions of this section. If at the requestor direction of YLWD, the YLWD Facilities adjustment is not fully completed, YLWD shall remain obligated for YLWD Facilities partially completed and accepted by YLWD to the date of termination. In the event of termination by YLWD prior to the full completion of adjustment of YLWD Facilities, neither the City nor its contractor or surety shall be obligated to continue adjustment of YLWD Facilities to full completion; and such cost, labor, and work shall be the obligation of YLWD. In the event of termination by either party, YLWD shall have 15 days to either approve the work completed up to the date of termination and/or deem unapproved work as incomplete; which, work, shall then be completed at the cost, labor, and expense of YLWD.
SECTION 12. NOTICE. Any notice or other written instrument required or permitted by this Agreement to be given to either party shall be deemed received either when personally served or three (3) calendar days after being deposited in the U.S. Mail, postage prepaid, registered or certified and addressed as follows:
3 Reimbursement Agreement
YLWD:
Yorba Linda Water District
1717 E. Miraloma Avenue, Placentia, CA 92870
Attn: Rosanne Weston, Engineering Manager
CITY:
City of Placentia
401 E. Chapman Avenue,
Placentia, CA 92870
Attn: Masoud Sepahi, City Engineer
If the parties agree to accept electronic service, service of any notice may be effectuated by email to an email address provided by the parties.
SECTION 13. SUCCESSORS AND ASSIGNS; INTEGRATION; AMENDMENT.
This Agreement shall be binding upon and inure to the benefit of the successors and assigns of CITY and YLWD. This Agreement constitutes the entire Agreement between CITY and YLWD and supersedes all prior understandings and Agreements between the parties with respect to the subject hereof. This Agreement may be modified only in writing, signed by both parties hereto.
SECTION 14. RESOLUTION OF DISPUTES. If any dispute shall arise with respect to this Agreement and is not resolved voluntarily by the parties hereto, or, otherwise, by some form of mutually agreeable alternative resolution prior to the pursuit of judicial remedies by either party, then such dispute shall be determined by a general judicial reference pursuant to California Code of Civil Procedure Sections 638 et seq. in the County of Orange, before one general referee.
Nothing herein shall be construed to waive or replace any claims presentation requirements under applicable law.
The parties shall meet to select the referee no later than thirty (30) days after service of the initial complaint on all defendants named in the complaint. The referee shall be a retired judge who has served in either the California Superior Court or Federal Court in Orange County, California with substantial experience in the type of matter in dispute and without any relationship to either party, unless the parties agree otherwise.
All other fees and costs incurred in connection with the judicial reference proceeding, including the cost of the stenographic record, shall be advanced equally by the parties. However, the referee shall have the power to reallocate such fees and costs among the parties in the referee's final ruling.
SECTION 15. LEGAL FEES. In the event of any legal action or proceeding involving the parties to this Agreement and in connection with this Agreement, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs and reasonable attorneys' fees.
4 Reimbursement Agreement
SECTION 16. SEVERABILITY. If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
SECTION 17. APPLICABLE LAW. This Agreement shall be construed and enforced in accordance with the laws of the State of California. Venue shall be Orange County, California.
SECTION 18. WAIVER. The waiver of any provision of this Agreement by either party shall not be deemed to be a waiver of any other provision or of any preceding or subsequent breach hereunder.
SECTION 19. FURTHER COOPERATION. The parties agree to execute, acknowledge if appropriate, and deliver any and all documents and cooperate in performing any and all acts in any commercially reasonable manner as may be necessary to carry out the intent of this Agreement as set forth in the Recitals and implement the terms and conditions of this Agreement.
SECTION 20. CONSTRUCTION. The terms and conditions contained herein shall not be construed in favor of or against either party but shall be construed as if both parties prepared the Agreement.
SECTION 21. FORCE MAJEURE. Upon written notice by a party, the respective duties and obligations of the parties hereunder shall be suspended for the time period that performance of the parties is prevented or impeded by a pandemic, work force strikes, riots, fire, flood, state or county regulatory action, war, or terrorism.
SECTION 22. TERM. The term of this Agreement is for three (3) years from the Effective Date unless either terminated sooner as provided herein or extended by written amendment to this Agreement as provided herein.
SECTION 23. ELECTRONIC SIGNATURES / COUNTERPARTS. Any party may execute this Agreement using an "electronic signature," as that term is defined in California Civil Code Section 1633.2, or a "digital signature," as defined by California Government Code Section
16.5. An electronic or digital signature will have full legal effect and enforceability. This Agreement may be executed in multiple counterparts, each of which is an original. All signatures taken together will be considered as one and the same agreement. (signatures on the following page)
Reimbursement Agreement
5 IN WITNESS HEREOF, the parties have executed this Agreement as of the Effective Date.
YORBA LINDA WATER DISTRICT CITY OF PLACENTIA
By: By:
Richard Mark Toy Damien R. Arrula
General Manager City Administrator
REVIEWED BY: ATTEST:
By:
Rosanne P. Weston
Engineering Manager
APPROVED AS TO FORM:
Kidman Gagen Law LLP
By:
Andrew B. Gagen
General Counsel
Reimbursement Agreement
By:
Robert S. McKinnell
City Clerk
APPROVED AS TO FORM:
6