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HomeMy WebLinkAboutCA DEPT TRANSPORTATION 17 - 2006A-2006-017 District Agreement No. 530 12-0RA-55-PM 6.8/7.2 Route 55 at MacArthur Blvd. 12-216-OH251K District Agreement No. 12-530 COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON fpr' L ;� , 2006, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE"; and CITY OF SANTA ANA, a body politic and a municipal corporation (chartered City) of the State of California, referred to herein as CITY. Revised June 27, 2005 edition District Agreement No. 530 RECITALS 1. STATE and CITY, pursuant to Streets and Highways Code sections 114 and 130, are authorized to enter into a Cooperative Agreement for improvements to State highways within CITY's jurisdiction. 2. CITY desires State Highway improvement consisting of replacement planting on Route 55 at MacArthur Blvd., referred to herein as "PROJECT", and is willing to fund one hundred percent (100%) of all capital outlay and support costs for PROJECT. The total PROJECT cost is estimated to be $805,800 as shown on Exhibit A, attached hereto and made a part of this Agreement. CITY desires and has requested STATE to perform all necessary preliminary engineering, including environmental documentation (PA&ED), Plans, Specifications, and Estimates (PS&E), including utility identification and location, and to advertise, award, and administer the construction contract, including a Resident Engineer and such other construction related engineering, inspection and testing as may be required for satisfactory completion of PROJECT, referred to herein as "SERVICES." 4. The parties now define hereinbelow the terms and conditions under which PROJECT is to be developed, designed, constructed, financed, owned, operated, and maintained. SECTION I STATE AGREES: 1. To provide SERVICES at CITY's expense 2. To submit a billing in the amount of $110,000 to CITY immediately following execution of this Agreement. Said billing shall represent the total estimated cost of preparation of the PROJECT PA&ED and PS&E. 3. To submit an initial billing in the amount of $115,000 to CITY fifteen (15) days prior to STATE's bid advertising date of a construction contract for PROJECT. Said billing shall represent the total estimated cost of STATE's SERVICES for estimated cost of construction engineering ($70,000) and for one (1) month estimated construction capital cost ($45,000) for PROJECT. 4. Thereafter, to prepare and submit to CITY monthly billing statements for estimated expenditures for construction capital one (1) month in advance as construction of PROJECT proceeds. 5. To provide CITY quarterly reports of actual expenditures compared to the monthly advances made by CITY and to provide updated planned reimbursement schedules. The payment amounts may be revised based on updated planned expenditure schedules. STATE will monitor the actual versus the planned expenditures monthly to assure that CITY's payments pursuant to Section II will always be sufficient. Revised June 27, 2005 edition District Agreement No. 530 6. To submit a monthly construction progress report to CITY which describes the work performed and completed during the reporting period with pertinent contract data such as change orders issued, cumulative costs of change orders, progress payments made (reported in dollars), and percentage progress achieved to date, all in accordance with STATE's standard accounting practices. 7. To allow on the site of PROJECT, at no cost to STATE, a field site representative of CITY, who is a qualified licensed civil engineer in the State of California, to represent CITY during the construction of PROJECT 8. To consult with CITY on all change orders for PROJECT with an estimated cost over $50,000 before implementation except when the safety of motorists and/or pedestrians or the protection of property requires the immediate issuance of that change order. 9. Upon completion of PROJECT and all work incidental thereto, to furnish CITY with a detailed statement of the total actual costs of construction and SERVICES for PROJECT, including the costs of any claims related to the construction contract which have been allowed to the construction contractor pursuant to the construction contract administrative claims process or arbitration and all claims -related defense costs incurred by STATE. STATE thereafter shall refund to CITY promptly after completion of STATE's final accounting of costs for PROJECT any amount of CITY's payments STATE remaining after actual costs to be borne by CITY have been deducted or STATE shall invoice CITY for any additional amounts required to complete CITY's financial obligations assumed pursuant to this Agreement. SECTION II CITY AGREES: 1. To bear one hundred percent (100%) of the total actual PROJECT capital construction costs, estimated to be $625,800, including the cost of materials furnished by STATE, COZEEP (construction zone enhancement enforcement program), supplemental work, change orders, claims related to the construction contract paid to the construction contractor, including those paid as a result of STATE's administrative claims process and/or as an award in arbitration, and the cost of STATE's defense of all PROJECT - related claims which may be filed by said contractor. The actual construction costs of PROJECT shall be determined only after completion of all work, the closure of all claims, and upon final accounting of all costs for PROJECT. 2. To bear one hundred percent (100%) of the actual SERVICES costs, estimated to be $180,000. Said PROJECT support costs shall include costs of providing personnel resources and their equipment and all direct and indirect costs (functional and administrative overhead assessment) attributable to PROJECT support applied in accordance with STATE's standard accounting practices and procedures,. The actual cost of SERVICES shall be determined only after completion of all work, the closure of all claims, and upon final accounting of all costs for PROJECT. Revised June 27, 2005 edition 3 District Agreement No. 530 3. To deposit with STATE within twenty-five (25) days of receipt of billing therefore, the amount of $110,000, which figure represents CITY's share of the total estimated cost of the PROJECT PA&ED and PS&E. 4. To deposit with STATE within twenty (20) days of receipt of billing (which billing will be forwarded fifteen (15) days prior to STATE's bid advertising date of a construction contract for PROJECT), the amount of $115,000. Said figure represents CITY's estimated initial deposit for one (1) month estimated construction capital cost ($45,000) and the total estimated cost of construction engineering ($70,000) required to complete PROJECT. To deposit with STATE not later than ten (10) working days preceding the beginning of each month, the estimated expenditures for that month, and to continue making such advance deposit on a monthly basis until completion of PROJECT construction. 6. CITY's initial total obligation for the costs of SERVICES is estimated to be $180,000. This amount is subject to being increased to cover the costs of. a.) additional utility protection, relocation, or removal as provided in Article 13 of Section III of this Agreement, b.) for remedy and/or remedial action of hazardous substance or contaminated sites, c.) the protection of cultural, archaeological, paleontological, or other protected materials as is provided for in Articles 14 and 15 of Section III of this Agreement. Upon receipt of STATE's complete PROJECT accounting report and supplementary invoice with supporting information, CITY will endeavor to notify STATE in writing within seven (7) working days but in no event more than thirty (30) days, of those charges with which CITY disagrees. 8. To make supplemental payments when required within twenty (20) calendar days after receipt of invoice. 9. To pay STATE any amount over the aforementioned payments required to complete CITY's financial obligation assumed pursuant to this Agreement after completion of all work and within twenty-five (25) working days after receipt of a detailed statement made upon final accounting of costs. 10. Upon execution of this Agreement, to certify that funds are budgeted for the total PROJECT cost. 11. STATE's construction contract claims process will be used for all PROJECT related claims by the construction contractor (with STATE acting as the lead agency in consultation with CITY and CITY shall abide by the outcome of said process. In the event that arbitration under the provisions of Public Contract Code section 10240 et seq. results from that contract claims process, STATE will act as lead agency in said arbitration unless otherwise mutually agreed to by STATE and CITY. Revised June 27, 2005 edition 4 District Agreement No. 530 12. Upon completion of work under this Agreement, CITY will assume maintenance and the expense thereof for any part of PROJECT located outside of the current State highway right of way until acceptance of any such part of PROJECT into the State highway system by STATE, approval by the Federal Highway Administration, if re- quired, and conveyance of acceptable title to STATE. SECTION III IT IS MUTUALLY AGREED: 1. STATE's contractual obligations are subject to State Budget Act authority, the appropriation of resources by the Legislature, and the allocation of funds by the California Transportation Commission. 2. Should any portion of PROJECT be financed with Federal funds or State gas tax funds, all applicable laws, rules, and policies relating to the use of such funds shall apply notwithstanding any other provision of this Agreement to the contrary. 3. STATE's goal for the utilization of Disabled Veteran Business Enterprise (DVBE) will be included in the construction contract for PROJECT. The contract goal will be based on a technical analysis of contract items and certified DVBE subcontractors in the area. STATE will award the construction contract to the lowest responsible bidder who meets the goals or who made, in the sole judgment of STATE, a good faith effort to do so. 4. STATE shall not advertise for bids for a contract to construct PROJECT until after this Agreement is fully executed and CITY delivers to STATE control and/or possession to any required new rights of way, free and clear of all encumbrances detrimental to STATE's present and future uses at a time of CITY certification of rights of way ready for construction. Acceptance of said title by STATE is subject to a review of a Policy of Title Insurance in the name of the State of California to be provided and paid by CITY. 5. Prior to advertising for bids for the construction contract for PROJECT, CITY may terminate this Agreement in writing, provided that CITY pays STATE for all already incurred and all unavoidable PROJECT costs related to termination of PROJECT incurred by STATE under the terms of this Agreement. 6. If, upon opening of bids for the construction contract for PROJECT, the lowest responsible bid is not more than ten percent (10%) over the Engineer's Estimate, STATE and CITY may conduct a joint review of the bids immediately following opening of bids and prior to submittal of STATE's District 12 letter of recommendation to award to STATE's Office Engineer in Sacramento, if so requested by CITY. After the joint review, and within the time allowed for award, STATE may then award the construction contract for PROJECT. Revised June 27, 2005 edition 5 District Agreement No. 530 7. If upon review of the aforementioned bids, CITY, by written notice to STATE's District 12 Office, elects to not proceed with PROJECT, thereby causing STATE to reject all bids, CITY agrees to pay STATE for all of STATE's already incurred and all unavoidable costs related to termination of PROJECT incurred by STATE, including all legal costs and damages resulting from rejection of all PROJECT bids. 8. If, upon opening of bids for the contract to construct PROJECT, it is found that the lowest responsible bid exceeds the Engineer's Estimate by more than ten percent (10%), STATE and CITY shall consult upon a course of action. If, after fifteen (15) days, a course of action is not agreed upon, this Agreement shall be deemed to be terminated by mutual consent pursuant to Article 10 of this Section III. 9. If termination of this Agreement is by mutual consent, CITY will bear one hundred percent (100%) of all PROJECT -related costs incurred by STATE pursuant to this Agreement. 10. After award of the construction contract for PROJECT, should CITY, after a request by STATE, not fulfill its funding commitments, STATE shall ensure that all operating roadways are in a safe and satisfactory permanent operating condition and then shall cease work on PROJECT. Costs incurred by STATE pursuant to this Agreement in excess of payment made by CITY will be billed to CITY and are subject to payment by CITY within thirty (30) days. 11. During the construction of PROJECT, CITY may, at no cost to STATE, furnish a representative, if it so desires. STATE's Resident Engineer and CITY's representative shall cooperate and consult with each other, but the decision of STATE's Resident Engineer shall be final. CITY's assigned representative shall have no direct contact with STATE's contractor, the public, other local agencies, etc., without prior consent of STATE's Resident Engineer. While said representative and STATE's Engineer will cooperate and consult with each other, the decisions of STATE's Resident Engineer shall prevail as final, binding and conclusive in all matters concerning the PROJECT construction contract. 12. If unknown existing public and/or private utility facilities are discovered during PROJECT construction, or if there is a significant change required in any approved utility relocation plan, the provisions of STATE's current Standard Specifications Section 8-1.10 (Utilities and Non -Highways Facilities) shall apply. STATE will make all necessary arrangements with the owners of such facilities for the protection, relocation, or removal of the discovered utility facilities in accordance with STATE's policy and procedure for those facilities located within the limits of work providing for the improvement to the State highway and in accordance with [Local Agency's] policy for those facilities located outside of the limits of work for the improvement to the State highway. The cost of the protection, relocation, or removal shall be apportioned between the owner of the utility facility and CITY in accordance with STATE's policy and procedure. STATE shall require any utility owner performing relocation work in the State highway right of way to obtain an encroachment permit from STATE prior to the performance of said relocation work. The requirements of the most current Revised June 27, 2005 edition 6 District Agreement No. 530 version of STATE's "Policy on High and Low Risk Underground Facilities Within Highway Rights of Way" shall be fully complied with. Any relocated or new facilities shall be correctly shown and identified on the "As -Built" plans for PROJECT. 13. If cultural, archaeological, paleontological or other protected materials are encountered during construction of PROJECT, STATE shall stop work in that area until a qualified professional can evaluate the nature and significance of the find and a plan is approved for the removal or protection of that material. 14. Any hazardous material or contamination of an HM -1 category found within the existing State Highway right of way during construction requiring remedy or remedial action (as defined in Division 20, Chapter 6.8 et seq. of the Health and Safety Code) shall be the responsibility of STATE. Any hazardous material or contamination of an HM -1 category found within the local road right of way during construction requiring the same defined remedy or remedial action shall be the responsibility of CITY . For the purpose of the Agreement, hazardous material of HM -1 category is defined as that level or type of contamination which State or Federal regulatory control agencies having jurisdiction have determined must be remediated by reason of its mere discovery regardless of whether it is disturbed by PROJECT or not. STATE shall sign the HM -1 manifest and pay all costs for remedy or remedial action within the existing State Highway right of way, except that if STATE determines, in its sole judgment, that STATE's cost for remedy or remedial action is increased as a result of proceeding with construction of PROJECT, that additional cost identified by STATE shall be borne by CITY. As between CITY and STATE, CITY shall sign the HM -1 manifest and pay all costs for required remedy or remedial action within a local road or other property. While STATE will exert every reasonable effort to fund the remedy or remedial action for which STATE is responsible. In the event STATE is unable to provide funding, CITY will have the option to either delay further construction of PROJECT until STATE is able to provide funding or CITY may proceed with the remedy or remedial action as a PROJECT expense without any subsequent reimbursement by STATE. 15. Any remedy or remedial action with respect to any hazardous material or contamination of an HM -2 category found both within and outside the existing State highway right of way during construction shall be the responsibility of CITY, at CITY's expense, as a consequence of proceeding with PROJECT construction. For the purpose of this Agreement any hazardous material or contamination of HM -2 category is defined as that level or type of contamination which said regulatory control agencies would have allowed to remain in place if undisturbed or otherwise protected in place had PROJECT not proceeded. CITY shall sign any HM -2 manifest if construction of PROJECT proceeds and HM -2 material is removed in lieu of being treated in place. 16. If hazardous material or contamination of either HM -1 or HM -2 category is found during construction on new right of way acquired by or on account of CITY for PROJECT, CITY shall be responsible, at CITY's expense, for all required remedy or remedial action and/or protection in the absence of a generator or prior property owner willing and prepared to perform that corrective work. Revised June 27, 2005 edition 7 District Agreement No. 530 17. Locations subject to remedy or remedial action and/or protection include utility relocation work required for PROJECT. Costs for remedy and remedial action and/or protection shall include, but not be limited to, the identification, treatment, protection, removal, packaging, transportation, storage, and disposal of such material. 18. The party responsible for funding any hazardous material cleanup shall be responsible for the development of the necessary remedy and/or remedial action plans and designs. Remedial actions proposed by CITY on the State highway right of way shall be pre - approved by STATE and shall be performed in accordance with STATE's standards and practices and those standards mandated by the Federal and State regulatory agencies. 19. Additional costs arising out of any or all of the situations described in Articles 13 through 18 above of this Section III shall be borne by CITY as part of the PROJECT cost which CITY is entirely funding. STATE may be required to stop work on PROJECT until additional funding is provided by CITY or the PROJECT site will be restored to a condition of safe operation using then unexpended funds for PROJECT if those additional funds are not made available for PROJECT. 20. Upon PROJECT completion and acceptance, subject to the approval of STATE, STATE will operate and maintain those PROJECT facilities constructed within STATE's right of way (excepting CITY encroachments) at STATE's cost. 21. Upon satisfactory completion of all PROJECT work under this Agreement, as determined by STATE, actual ownership and title to materials, equipment, and appurtenances installed within the State highway right of way will automatically be vested in STATE, and materials, equipment, and appurtenances installed outside of the State highway right of way will automatically be deemed to be under the control of CITY or an appropriate third party as determined by CITY. No further agreement will be necessary to transfer ownership as herein before stated. 22. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the development, design, construction, operation, and maintenance of State highways and public facilities different from the standard of care imposed by law. 23. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done CITY under or in connection with any work, authority or jurisdiction arising under this Agreement. It is understood and agreed that CITY shall fully defend, indemnify and save harmless STATE and all its officers and employees from all claims suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortuous, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. Revised June 27, 2005 edition 8 District Agreement No. 530 24. Neither CITY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction arising under this Agreement. It is understood and agreed that STATE shall fully defend, indemnify and save CITY and all its officers and employees from all claims suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortuous, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 25. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 26. Those portions of this Agreement pertaining to the completion of PROJECT shall terminate upon completion and acceptance of the construction contract for PROJECT by CITY and the satisfactory completion of all post- 9�onscti n obligations of CITY, with concurrence of STATE, or on/, 1fic11lVer is earlier in time. However, the ownership, operation, maintenance, indemnification, and claims clauses shall remain in effect until terminated or modified, in writing, by mutual agreement. Should any construction -related or other claims arising out of PROJECT be asserted against one of the parties, the parties agrees to extend the termination date of this Agreement. Revised June 27, 2005 edition 9 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION WILL KEMPTON Director of Transportation as to form and procedure: Attorney Department of Transportation Certified as to available funds: District B dget Manager for A?c4o BSc bev Certified as to financial terms and JX&tmet Rudget-Manager , a i A*j, aru s Revised June 27, 2005 edition 10 District Agreement No. 530 [sit"OWIYl�►f .V.W". By: �Z4eec City Manager Attest Clerk of the Council l 1 Approved as to form and procedure: / , /j Fey ` � L I hereby certify upon my own personal Knowledge that budgeted funds are available for the period and the purpose of payments to STATE 5tdf"de din this District Agreement No. 530 EXHIBIT A COST ESTIMATE BREAKDOWN Phase of Work STATE CITY TOTAL Capital Support $0 $110,000 $110,000 PA & ED and PS&E Construction Engineering $0 $70,000 $70,000 Construction Capital $0 $625,800 $625,800 TOTAL $0 $805,800 $805,800 Revised June 27, 2005 edition 11 MAYOR Miguel A. Pulido MAYOR PRO TEM Lisa Fist COUNCIL MEMBERS Claudia C. Alvarez Carlos Bustamante Alberta D. Christy Mike Garcia Jose Solorio MEETING DATE: CITY OF SANTA ANA 20 CIVIC CENTER PLAZA ^ P.O. BOX 1988 SANTA ANA, CALIFORNIA 92702 MINUTES EXCERPT February 6, 2006 CITY MANAGER David N, Ream CITY ATTORNEY Joseph W. Fletcher CLERK OF THE COUNCIL Patricia E. Healy COUNCIL MEMBERS PRESENT: Alvarez, Bist, Bustamante, Christy, Garcia, Pulido, Solorio (7) ABSENT: None (0) AGREEMENTS 255. AGMT 2006-017 - COOPERATIVE AGREEMENT FOR LANDSCAPING AT STATE ROUTE 55 AND MACARTHUR BOULEVARD INTERCHANGE (PROJECT NO. 06-1015) - With Caltrans in the amount of $805,800 — Public Works Agency Motion: Direct the City Attorney to prepare and authorize the City Manager and Clerk of the Council to execute agreements. (Items 25.13, through 251.) MOTION: Alvarez VOTE: AYES: STATE OF CALIFORNIA COUNTY OF ORANGE SECOND: Garcia Alvarez, Bustamante, Pulido, Bist, Christy, Garcia, Solorio (7) NOES: None (0) ABSTAIN: None (0) ABSENT: None (0) I, PATRICIA E. HEALY, Clerk of the Council, of the City of Santa Ana, California, hereby certify the foregoing to be a full, true and correct copy of the minute action and the Ordinance on record in this office. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 7th day of March, 2006 % Patricia E. Healy Clerk of the Council C4 196 A-2006-017 copyDistrict Agreement No. 530 12 -ORA -55 -PM 6.8/7.2 Route 5 at MacArthur Blvd. 0, 1,104 (.0vst-A44, 12-216-OH251K C D • 61, 0 d,01 ' District Agreement No. 12-530 COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON 2006, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE"; and CITY OF SANTA ANA, a body politic and a municipal corporation (chartered City) of the State of California, referred to herein as CITY. Revised June 27, 2005 edition District Agreement No. 530 RECITALS STATE and CITY, pursuant to Streets and Highways Code sections 114 and 130, are authorized to enter into a Cooperative Agreement for improvements to State highways within CITY's jurisdiction. 2. CITY desires State Highway improvement consisting of replacement planting on Route 55 at MacArthur Blvd., referred to herein as 'PROJECT", and is willing to fund one hundred percent (100%) of all capital outlay and support costs for PROJECT. The total PROJECT cost is estimated to be $805,800 as shown on Exhibit A, attached hereto and made a part of this Agreement. 3. CITY desires and has requested STATE to perform all necessary preliminary engineering, including environmental documentation (PA&ED), Plans, Specifications, and Estimates (PS&E), including utility identification and location, and to advertise, award, and administer the construction contract, including a Resident Engineer and such other construction related engineering, inspection and testing as may be required for satisfactory completion of PROJECT, referred to herein as "SERVICES." 4. The parties now define hereinbelow the terms and conditions under which PROJECT is to be developed, designed, constructed, financed, owned, operated, and maintained. SECTION I STATE AGREES: L To provide SERVICES at CITY's expense 2. To submit a billing in the amount of $110,000 to CITY immediately following execution of this Agreement. Said billing shall represent the total estimated cost of preparation of the PROJECT PA&ED and PS&E. 3. To submit an initial billing in the amount of $115,000 to CITY fifteen (15) days prior to STATE's bid advertising date of a construction contract for PROJECT. Said billing shall represent the total estimated cost of STATE's SERVICES for estimated cost of construction engineering ($70,000) and for one (1) month estimated construction capital cost ($45,000) for PROJECT. 4. Thereafter, to prepare and submit to CITY monthly billing statements for estimated expenditures for construction capital one (1) month in advance as construction of PROJECT proceeds. To provide CITY quarterly reports of actual expenditures compared to the monthly advances made by CITY and to provide updated planned reimbursement schedules. The payment amounts may be revised based on updated planned expenditure schedules. STATE will monitor the actual versus the planned expenditures monthly to assure that CITY's payments pursuant to Section II will always be sufficient. Revised June 27, 2005 edition 2 District Agreement No. 530 6. To submit a monthly construction progress report to CITY which describes the work performed and completed during the reporting period with pertinent contract data such as change orders issued, cumulative costs of change orders, progress payments made (reported in dollars), and percentage progress achieved to date, all in accordance with STATE's standard accounting practices. 7. To allow on the site of PROJECT, at no cost to STATE, a field site representative of CITY, who is a qualified licensed civil engineer in the State of California, to represent CITY during the construction of PROJECT 8. To consult with CITY on all change orders for PROJECT with an estimated cost over $50,000 before implementation except when the safety of motorists and/or pedestrians or the protection of property requires the immediate issuance of that change order. 9. Upon completion of PROJECT and all work incidental thereto, to furnish CITY with a detailed statement of the total actual costs of construction and SERVICES for PROJECT, including the costs of any claims related to the construction contract which have been allowed to the construction contractor pursuant to the construction contract administrative claims process or arbitration and all claims -related defense costs incurred by STATE. STATE thereafter shall refund to CITY promptly after completion of STATE's final accounting of costs for PROJECT any amount of CITY's payments STATE remaining after actual costs to be borne by CITY have been deducted or STATE shall invoice CITY for any additional amounts required to complete CITY's financial obligations assumed pursuant to this Agreement. SECTION II CITY AGREES: 1. To bear one hundred percent (100%) of the total actual PROJECT capital construction costs, estimated to be $625,800, including the cost of materials furnished by STATE, COZEEP (construction zone enhancement enforcement program), supplemental work, change orders, claims related to the construction contract paid to the construction contractor, including those paid as a result of STATE's administrative claims process and/or as an award in arbitration, and the cost of STATE's defense of all PROJECT - related claims which may be filed by said contractor. The actual construction costs of PROJECT shall be determined only after completion of all work, the closure of all claims, and upon final accounting of all costs for PROJECT. 2. To bear one hundred percent (100%) of the actual SERVICES costs, estimated to be $180,000. Said PROJECT support costs shall include costs of providing personnel resources and their equipment and all direct and indirect costs (functional and administrative overhead assessment) attributable to PROJECT support applied in accordance with STATE's standard accounting practices and procedures,. The actual cost of SERVICES shall be determined only after completion of all work, the closure of all claims, and upon final accounting of all costs for PROJECT. Revised June 27, 2005 edition 3 District Agreement No. 530 To deposit with STATE within twenty-five (25) days of receipt of billing therefore, the amount of $110,000, which figure represents CITY's share of the total estimated cost of the PROJECT PA&ED and PS&E. 4. To deposit with STATE within twenty (20) days of receipt of billing (which billing will be forwarded fifteen (15) days prior to STATE's bid advertising date of a construction contract for PROJECT), the amount of $115,000. Said figure represents CITY's estimated initial deposit for one (1) month estimated construction capital cost ($45,000) and the total estimated cost of construction engineering ($70,000) required to complete PROJECT. 5. To deposit with STATE not later than ten (10) working days preceding the beginning of each month, the estimated expenditures for that month, and to continue making such advance deposit on a monthly basis until completion of PROJECT construction. 6. CITY's initial total obligation for the costs of SERVICES is estimated to be $180,000. This amount is subject to being increased to cover the costs of: a.) additional utility protection, relocation, or removal as provided in Article 13 of Section III of this Agreement, b.) for remedy and/or remedial action of hazardous substance or contaminated sites, c.) the protection of cultural, archaeological, paleontological, or other protected materials as is provided for in Articles 14 and 15 of Section III of this Agreement. Upon receipt of STATE's complete PROJECT accounting report and supplementary invoice with supporting information, CITY will endeavor to notify STATE in writing within seven (7) working days but in no event more than thirty (30) days, of those charges with which CITY disagrees. 8. To make supplemental payments when required within twenty (20) calendar days after receipt of invoice. 9. To pay STATE any amount over the aforementioned payments required to complete CITY's financial obligation assumed pursuant to this Agreement after completion of all work and within twenty-five (25) working days after receipt of a detailed statement made upon final accounting of costs. 10. Upon execution of this Agreement, to certify that funds are budgeted for the total PROJECT cost. 11. STATE's construction contract claims process will be used for all PROJECT related claims by the construction contractor (with STATE acting as the lead agency in consultation with CITY and CITY shall abide by the outcome of said process. In the event that arbitration under the provisions of Public Contract Code section 10240 et seq. results from that contract claims process, STATE will act as lead agency in said arbitration unless otherwise mutually agreed to by STATE and CITY. Revised June 27. 2005 edition 4 District Agreement No. 530 12. Upon completion of work under this Agreement, CITY will assume maintenance and the expense thereof for any part of PROJECT located outside of the current State highway right of way until acceptance of any such part of PROJECT into the State highway system by STATE, approval by the Federal Highway Administration, if re- quired, and conveyance of acceptable title to STATE. SECTION III IT IS MUTUALLY AGREED: 1. STATE's contractual obligations are subject to State Budget Act authority, the appropriation of resources by the Legislature, and the allocation of funds by the California Transportation Commission. 2. Should any portion of PROJECT be financed with Federal funds or State gas tax funds, all applicable laws, rules, and policies relating to the use of such funds shall apply notwithstanding any other provision of this Agreement to the contrary. 3. STATE's goal for the utilization of Disabled Veteran Business Enterprise (DVBE) will be included in the construction contract for PROJECT. The contract goal will be based on a technical analysis of contract items and certified DVBE subcontractors in the area. STATE will award the construction contract to the lowest responsible bidder who meets the goals or who made, in the sole judgment of STATE, a good faith effort to do so. 4. STATE shall not advertise for bids for a contract to construct PROJECT until after this Agreement is fully executed and CITY delivers to STATE control and/or possession to any required new rights of way, free and clear of all encumbrances detrimental to STATE's present and future uses at a time of CITY certification of rights of way ready for construction. Acceptance of said title by STATE is subject to a review of a Policy of Title Insurance in the name of the State of California to be provided and paid by CITY. 5. Prior to advertising for bids for the construction contract for PROJECT, CITY may terminate this Agreement in writing, provided that CITY pays STATE for all already incurred and all unavoidable PROJECT costs related to termination of PROJECT incurred by STATE under the terms of this Agreement. 6. If, upon opening of bids for the construction contract for PROJECT, the lowest responsible bid is not more than ten percent (10%) over the Engineer's Estimate, STATE and CITY may conduct a joint review of the bids immediately following opening of bids and prior to submittal of STATE's District 12 letter of recommendation to award to STATE's Office Engineer in Sacramento, if so requested by CITY. After the joint review, and within the time allowed for award, STATE may then award the construction contract for PROJECT. Revised June 27, 2005 edition 5 District Agreement No. 530 7. If upon review of the aforementioned bids, CITY, by written notice to STATE's District 12 Office, elects to not proceed with PROJECT, thereby causing STATE to reject all bids, CITY agrees to pay STATE for all of STATE's already incurred and all unavoidable costs related to termination of PROJECT incurred by STATE, including all legal costs and damages resulting from rejection of all PROJECT bids. 8. If, upon opening of bids for the contract to construct PROJECT, it is found that the lowest responsible bid exceeds the Engineer's Estimate by more than ten percent (10%), STATE and CITY shall consult upon a course of action. If, after fifteen (15) days, a course of action is not agreed upon, this Agreement shall be deemed to be terminated by mutual consent pursuant to Article 10 of this Section III. 9. If termination of this Agreement is by mutual consent, CITY will bear one hundred percent (100%) of all PROJECT -related costs incurred by STATE pursuant to this Agreement. 10. After award of the construction contract for PROJECT, should CITY, after a request by STATE, not fulfill its funding commitments, STATE shall ensure that all operating roadways are in a safe and satisfactory permanent operating condition and then shall cease work on PROJECT. Costs incurred by STATE pursuant to this Agreement in excess of payment made by CITY will be billed to CITY and are subject to payment by CITY within thirty (30) days. 11. During the construction of PROJECT, CITY may, at no cost to STATE, famish a representative, if it so desires. STATE's Resident Engineer and CITY's representative shall cooperate and consult with each other, but the decision of STATE's Resident Engineer shall be final. CITY's assigned representative shall have no direct contact with STATE's contractor, the public, other local agencies, etc., without prior consent of STATE's Resident Engineer. While said representative and STATE's Engineer will cooperate and consult with each other, the decisions of STATE's Resident Engineer shall prevail as final, binding and conclusive in all matters concerning the PROJECT construction contract. 12. If unknown existing public and/or private utility facilities are discovered during PROJECT construction, or if there is a significant change required in any approved utility relocation plan, the provisions of STATE's current Standard Specifications Section 8-1.10 (Utilities and Non -Highways Facilities) shall apply. STATE will make all necessary arrangements with the owners of such facilities for the protection, relocation, or removal of the discovered utility facilities in accordance with STATE's policy and procedure for those facilities located within the limits of work providing for the improvement to the State highway and in accordance with [Local Agency's] policy for those facilities located outside of the limits of work for the improvement to the State highway. The cost of the protection, relocation, or removal shall be apportioned between the owner of the utility facility and CITY in accordance with STATE's policy and procedure. STATE shall require any utility owner performing relocation work in the State highway right of way to obtain an encroachment permit from STATE prior to the performance of said relocation work. The requirements of the most current Revised June 27, 2005 edition 6 District Agreement No. 530 version of STATE's "Policy on High and Low Risk Underground Facilities Within Highway Rights of Way" shall be fully complied with. Any relocated or new facilities shall be correctly shown and identified on the "As -Built" plans for PROJECT. 13. If cultural, archaeological, paleontological or other protected materials are encountered during construction of PROJECT, STATE shall stop work in that area until a qualified professional can evaluate the nature and significance of the find and a plan is approved for the removal or protection of that material. 14. Any hazardous material or contamination of an HM -1 category found within the existing State Highway right of way during construction requiring remedy or remedial action (as defined in Division 20, Chapter 6.8 et seq. of the Health and Safety Code) shall be the responsibility of STATE. Any hazardous material or contamination of an HM -1 category found within the local road right of way during construction requiring the same defined remedy or remedial action shall be the responsibility of CITY . For the purpose of the Agreement, hazardous material of HM -1 category is defined as that level or type of contamination which State or Federal regulatory control agencies having jurisdiction have determined must be remediated by reason of its mere discovery regardless of whether it is disturbed by PROJECT or not. STATE shall sign the HM -1 manifest and pay all costs for remedy or remedial action within the existing State Highway right of way, except that if STATE determines, in its sole judgment, that STATE's cost for remedy or remedial action is increased as a result of proceeding with construction of PROJECT, that additional cost identified by STATE shall be borne by CITY. As between CITY and STATE, CITY shall sign the HM -1 manifest and pay all costs for required remedy or remedial action within a local road or other property. While STATE will exert every reasonable effort to fund the remedy or remedial action for which STATE is responsible. In the event STATE is unable to provide funding, CITY will have the option to either delay further construction of PROJECT until STATE is able to provide funding or CITY may proceed with the remedy or remedial action as a PROJECT expense without any subsequent reimbursement by STATE. 15. Any remedy or remedial action with respect to any hazardous material or contamination of an HM -2 category found both within and outside the existing State highway right of way during construction shall be the responsibility of CITY, at CITY's expense, as a consequence of proceeding with PROJECT construction. For the purpose of this Agreement any hazardous material or contamination of HM -2 category is defined as that level or type of contamination which said regulatory control agencies would have allowed to remain in place if undisturbed or otherwise protected in place had PROJECT not proceeded. CITY shall sign any HM -2 manifest if construction of PROJECT proceeds and HM -2 material is removed in lieu of being treated in place. 16. If hazardous material or contamination of either HM -1 or HM -2 category is found during construction on new right of way acquired by or on account of CITY for PROJECT, CITY shall be responsible, at CITY's expense, for all required remedy or remedial action and/or protection in the absence of a generator or prior property owner willing and prepared to perform that corrective work. Revised June 27, 2005 edition 7 District Agreement No. 530 17. Locations subject to remedy or remedial action and/or protection include utility relocation work required for PROJECT. Costs for remedy and remedial action and/or protection shall include, but not be limited to, the identification, treatment, protection, removal, packaging, transportation, storage, and disposal of such material. 18. The party responsible for funding any hazardous material cleanup shall be responsible for the development of the necessary remedy and/or remedial action plans and designs. Remedial actions proposed by CITY on the State highway right of way shall be pre - approved by STATE and shall be performed in accordance with STATE's standards and practices and those standards mandated by the Federal and State regulatory agencies. 19. Additional costs arising out of any or all of the situations described in Articles 13 through 18 above of this Section III shall be home by CITY as part of the PROJECT cost which CITY is entirely funding. STATE may be required to stop work on PROJECT until additional funding is provided by CITY or the PROJECT site will be restored to a condition of safe operation using then unexpended funds for PROJECT if those additional funds are not made available for PROJECT. 20. Upon PROJECT completion and acceptance, subject to the approval of STATE, STATE will operate and maintain those PROJECT facilities constructed within STATE's right of way (excepting CITY encroachments) at STATE's cost. 21. Upon satisfactory completion of all PROJECT work under this Agreement, as determined by STATE, actual ownership and title to materials, equipment, and appurtenances installed within the State highway right of way will automatically be vested in STATE, and materials, equipment, and appurtenances installed outside of the State highway right of way will automatically be deemed to be under the control of CITY or an appropriate third party as determined by CITY. No further agreement will be necessary to transfer ownership as herein before stated. 22. Nothing in the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or to affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the development, design, construction, operation, and maintenance of State highways and public facilities different from the standard of care imposed by law. 23. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done CITY under or in connection with any work, authority or jurisdiction arising under this Agreement. It is understood and agreed that CITY shall fully defend, indemnify and save harmless STATE and all its officers and employees from all claims suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortuous, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. Revised June 27, 2005 edition 8 District Agreement No. 530 24. Neither CITY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction arising under this Agreement. It is understood and agreed that STATE shall fully defend, indemnify and save CITY and all its officers and employees from all claims suits, or actions of every name, kind and description brought forth under, including, but not limited to, tortuous, contractual, inverse condemnation and other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 25. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 26. Those portions of this Agreement pertaining to the completion of PROJECT shall terminate upon completion and acceptance of the construction contract for PROJECT by CITY and the satisfactory completion of all post -con ion obligations of CITY, with concurrence of STATE, or on _( C) 'sever is earlier in time. However, the ownership, operation, maintenanc , indemnification, and claims clauses shall remain in effect until terminated or modified, in writing, by mutual agreement. Should any construction -related or other claims arising out of PROJECT be asserted against one of the parties, the parties agrees to extend the termination date of this Agreement. Revised June 27, 2005 edition STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION WILL KEMPTON Director of Transportation Ln Deputy District Director Approved as to form and procedure: Attorney Department of Transportation Certified as to available funds: District Budget Manager Certified as to financial terms and District Budget Manager District Agreement No. 530 CITY OF SANTA ANA By: aoa6Z- City Manager Attest: cT Clerk of the Council Approved as to form and procedure: /oto ey f I hereby certify upon my own personal Knowledge that budgeted funds are available for the period and the purpose Revised June 27. 2005 edition 10 District Agreement No. 530 EXHIBIT A COST ESTIMATE BREAKDOWN Phase of Work STATE CITY TOTAL Capital Support PA & ED and PS&E $0 $110,000 $110,000 Construction Engineering $0 $70,000 $70,000 Construction Capital $0 $625,800 $625,800 TOTAL $0 $805,800 $805,800 Revised June 27, 2005 edition 11