HomeMy WebLinkAbout98-039 CC Resolution__ RESOLSON NO. 98-39
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF TEMECULA APPROVING THAT CERTAIN
AGREEMENT ENTITLED "REIMBURSEMENT
AG~ FOR THE DESIGN, CONSTRUCTION AND
CONTRACT ADMINISTRATION OF CERTAIN REGIONAL
STORM DRAIN FACRATIF~" AND MAKING FINDINGS IN
CONNECTION THEREWITH
THE CITY COUNCIL OF THE CITY OF TEMECULA DOES HEREBY RESOLVE AS
FOLLOWS:
,qection 1. The City Council does hereby find, determine and declare as follows:
A. The City of Temecula, Forest City Development California, Inc. and LGA-7
Inc., an Illinois Corporation entered into a Development Agreement on December 17, 1996 by
which the City agreed to design and construct certain regional storm drain facilities in connection
with the Promenade Mall souther easterly of the intersection of Winchester Road and Ynez Road.
B. A portion of the regional storm drain improvements consisting of "Line A",
"Line B", and "Line C" as described on those certain drawings rifled "Promenade Mall in
Temecula, Parcel Map 28530" is proposed to be designed and constructed by the Developer of
the Mall, Forest City Development California, Inc. (the "Improvements").
C. The design, construction and contract administration of the Project by the
Developer and the Payment of costs by the City shall be governed by the proposed
"Reimbursement Agreement for the Design, Construction and Contract Administration of Certain
Regional Storm Drain Facilities" (the "Agreement"), attached hereto.
D. The ~ Agreement provides that the Developer shall pay prevailing
wages for the construction of the Improvements.
E. The proposed Agreement also provides that the Developer shall solicit three
bids for the construction of the Improvements.
F. Strict compliance with the bidding requiremeats of the Temecula Municipal
Code and the Public Contract Code will not be in the best interests of the City, will be impractical
or uneconomical, and will not provide the City with the highest quality and cost effectiveness in
constructing the Improvements based, in part, on the following facts: (1) The proposed agreement
actually provides for subslanfial compliance with the bidding requirements; (2) the Developer will
be constructing storm drain improvements on its property and portions of the public right-of-way
adjacent to the Mall property and confficts will result from two contractors working in the same
Resos. 98-39 1
area; (3) conflicts will result from two contractors working on the same Improvements on different
portions of the line; and (4) substantial savings will be accomplished by having one contractor
perform the work on the Improvements on both the public and private portions of the project.
G. The public interest, convenience and necessity require the execution of this
Agreement and the waiving of strict compliance with the bidding requirements of the Temecula
Municipal Code and the Public Contract Code.
Section ~. On the basis of the firgiings described in Section 1 hereof, the City Council
of the City of Temecula hereby waives the bidding requirements pursuant to the Temecula
Municipal Code and the Public Contract Code for the construction of the Improvements to the
extent the procedures set forth in the Agreement do not fully comply with said requirements.
~ection 3. The Improvements are being undertaken pursuant to Specific Plan No. 263
(Regional Center) for which full and complete Environmental Impact Report was prepared and
certified prior to adoption of the Specific Plan by Resolution No. 93-57 and addendum to the EIR
by Resolution No. 94-100. Additionally, the environmental findings for the Improvements were
also reviewed in connection with the approval of the Development Agreement December, 1996
by Resolution No. 96-24. The approval of the Improvements is exempt from CEQA pursuant to
Sections 15282(1), 15301, and 15163 of the CEQA Guidelines (Title 14, Chapter 3 of the
California Administrative Code). None of the findings set forth in Sections 15162 or 15163 of
the CEQA Guidelines (Title 14, Chapter 3 of the California Administrative Code) requiring a
subsequent or supplement environmental impact report can be made and, therefore, further
environmental review is not required.
~ection 4. The City Council of the City of Temecula hereby approves that certain
agreement entitled 'Reimbursement Agreement for the Design, Construction and Contract
Administration of Certain Regional Storm Drain Facilities* and authorizes the Mayor to execute
the Agreement on behalf of the City in substantially the form attached hereto as Exhibit
~ection 5. The City Clerk shall certify the adoption of this Resolution.
Ream. 98-39 2
PASSED, APPROVED, AND ADOlYFED, by the City Council of the City of Temecula
at a regular meeting held on the 12th day of May, 1998.
Ron Roberts, Mayor
ATTEST:
T~san 7' Jones,
A¢{~ City Clerk
[SEAL]
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) ss
CITY OF TEMECULA )
I, Susan W. Jones, CMC, Acting City Clerk of the City of Temecula, California, do hereby
certify that Resolution No. 98-39 was duly and regularly adopted by the City Council of the City
of Temecula at a regular meeting thereof held on the 12th day of May, 1998, by the following
vote:
AYES:
NOES:
ABSENT:
COUNCILMEMBERS:
COUNCILMEMBERS:
COUNCILMF~MBERS:
Comerchero, Ford, Lindemans, Stone, Roberts
None
None
Susa~ W' J?nes, CMC
Acti~ City Clerk
Resos. 98-39 3
EXHIBIT A
REIMBURSEMENT AGREEMENT
FOR THE DESIGN, CONSTRUCTION AND
CONTRACT ADMINISTRATION
CERTAIN REGIONAL STORM DRAINAGE FACILITIES
This Agreement is entered into as of this 12th day of May, 1998, by and between the CITY OF
TEMECULA, a general law City in the State of California (the "City"), and FOREST CITY
DEVELOPMENT CALIFORNIA, INC., a California corporation ("the Developer"). This Agreement is
entered into with respect to the following facts.
R!~.CITAI.S
(1) The City and Developer have entered into that certain Development Agreement(s) dated December
17, 1996. (" 1996 Development Agreement') The Development Agreement requires, among other things, that
the City design and construct regional storm drain facilities, and a portion of these thcilities, namely the
"Project", (Exhibit A), as defined below is the subject of this Agreement.
(2) Developer and City desire to install regional storm drainage facilities referred to herein as ""Project"",
at property located southeast of the intersection of State Route 79 (North) and Ynez Road, and desire to specify
the terms and conditions under which "Project" is to be engineered, constructed, and financed. The ""Project""
is defined as the following pipelines and all theft associated structures, junctions, terminations and connections
found on that certain set of drawings prepaid by Robert Bein, William Frost & Associates, dated 3/31/98, and
titled "Promenade Mall" in Temecula, Parcel Map 28530, Storm Drain" consisting of 21 sheets:
a.) Line "A" Staffing at Margarita Road (including the twin 36" structures) to the transition at the box
culvert at Ynez Road, and
b.) Lateral A-14 on sheet 18 consisting of 431.50 LF of 48" CIPP, and
c.) Line "B" from the transition at the box culvert at Ynez Road to and including the manhole at
Station 37 + 63.74 where the pipeline transitions to a size less than 48" in diameter, and
d.) Line "C" from its junction at Line "B" up to and including a manhole at station 40 + 31.43 where
the pipeline transitions to a size less than 48" in diameter.
(3) As the ""Project"" is to be designed and constructed throughout the regional mall and power center to
be developed by the DEVELOPER, the City and the DEVELOPER desire that the design and construction
management for the "Project" be under a single point of control to facilitate the construction coordination.
(4) These regional storm drainage facilities will be connected to existing down stream storm drain facilities
at Ynez Road.
(5) The City finds no competitive advantage is lost by allowing the DEVELOPER to manage the design
and construction of the "Project".
R:~AGM'rs'0~ ALLkFORE,~TC.AG R
In consideration of the foregoing and the mutual promises and covenants contained herein, the parties
agree as follows:
1. Developer shall use reasonable diligence to cause the "Project" to be designed as soon as is
reasonably practicable, and shall diligently pursue construction when the plans are released for construction
by the City.
2. Developer has full responsibility for securing all easements and right-of-ways for the
construction of the "Project".
3. The City Engineer has solicited design proposals from civil engineers for the "Project". The
City has reviewed the design proposals, and has approved Robert Bein, William Frost and Associates (the
"Engineer") to be designers of the "Project". The City Engineer has forwarded the Engineer's contract
proposal, with agreed upon modifications, and noted as J.N. 401213, Revision No. 2 to the Developer.
Upon execution of this Agreement, the Developer shall execute this contract between
Developer and Engineer without any need for further approval from the City.
4. Developer shall draft and shall submit to the City Engineer for approval, a request for bid
proposals including the contract forms to be used to construct the "Project". The Regional Storm Drainage
Facilities shall be constructed by a contractor or contractors licensed by the State of Califorma (the
"Contractor"). The bid proposals for construction shall include a provision requiring the contractor to pay
prevailing wages for the construction of the Regional Storm Drain Facilities in accordance with the
requirements of Labor Code Section 1770 et. Seq. and other applicable law. The Contractor shall be required
to provide faififful performance, labor and materials bonds, and warranty bonds to the "Project" for the benefit
of City and Developer. The Contractor shall name both the City and Developer and their employees, officers,
directors, and agents and consultants thereof as additional insured under a comprehensive general liability
insurance policy in conformance with "ISO-CGL Form No. CG-00 01 11 85 or 88" in an amount not less than
one million dollars ($1,000,000) per occurance and general aggregate coverage of not less than two million
dollars ($2,000,000). The City and its employees and agents shall be additional insureds as shown under "ISO
form CG 20 10 11 85." In addition Contractor Auto coverage shall be provided in conformance with "ISO
Business Auto Coverage form CA 00 01 06 92 including symbol 1." The bid and contract documents shall
include the bond and insurance requirements as set forth by mutual agreement between the City and
DEVELOPER, and said requirement shall not be less than those stated above.
The Developer shall solicit at least three (3) bid proposals. Complete copies of the bid
submittals, Developer's bid analysis, and Developer's recommendations shall be submitted to the City
Engineer for his review and approval.
Prior to the award of any construction contract for the "Project", the City Engineer shall
approve the contractor, his bid proposal and contract. The City Engineer shall also confirm in writing, that
there are sufficiem funds appropriated by the City Council to cover the award of the bid for the "Project". No
award of a contract for the Regional Storm Drainage Facilities shall be made unless City funds are
appropriated to cover the contract award, including a contingency amount equal to ten percent (10%) of the
contract price and all costs for inspecting said contract. Failure by the Developer to secure approval as to the
availability of funds prior to the award of contract may result in the City not honoring any Payment Request
Forms submitted for said contract until City can determine that funds are available. Upon receiving written
confirmation from the City of the approved Contract, Developer shall contract directly with the Contractor.
R :La.G M'r $~M ALL'~FO R F-.$TC. AG R 199~
6. Exhibit "B" provides an estimated budget for the design and construction of the "Project". This
budget has been prepared by engineers retained by Developer and reviewed by City staff. The Developer shall
endeavor to manage the design and construction of the "Project" within the approved budget. If there are
changes to the budget, the Developer shall immediately notify the City Engineer, and the City Engineer shall
provide instructions on how the Developer shah proceed with requests to modify the budget (see paragraph
8 regarding change orders).
7. Developer shall execute and administer the design, and construction, and miscellaneous
contracts for the "Project". The City and/or County of Riverside shall provide plan check and construction
inspection of the "Project" at no cost to the Developer. Developer shall obtain soils inspections including
compaction testing and submit soils reports as required for the "Project".
8. The Developer may not approve change orders without receiving prior confirmation from the
City Engineer. Any change orders that exceed the cumulative budget must have the written approval of the
City Council. Additionally, the City Engineer shall confirm that there is sufficient funds to fund any change
order greater than the approved budget.
9. Developer shall prepare and execute a Notice of Completion for the "Project", record said
Notice with the Office of the Recorder of the County of Riverside, State of California, and cause the
Conlractor and all subcontractors to provide lien and material releases with respect thereto. Developer shall
provide copies of each said Notice and all releases to the City.
10. Upon completion of construction, Developer shall offer for dedication to the City the Regional
Storm Drainage Facilities free and clear of all liens and encumbrances, provided all Consultants and
Contractors are paid in full. The City or their assignee shall immediately accept and maintain the "Project".
The Contractor shall provide a ten percent (10%) warranty bond which shall remain in effect for twelve (12)
months following acceptance of the "Project". All guarantees and warranties shall pass to the benefit of the
City.
1 I. City shall reimburse Developer its reasonable costs and expenses as approved by the City
Engineer in connection with the design, construction and contract administration of the "Project". Upon
monthly submission by Developer of a Payment Request Form with supporting invoices and lien releases to
the City, monies will be advanced to Developer in the amounts specified to pay for the design and construction
costs, inspection fees, encroachment fees or utility deposits actually incurred and paid for by Developer for
the "Project". City shall advance monies (within 30 days) of receipt of valid Payment Request Form.
Developer shall make the payment to Contractor within five (5) business days of receipt of such funds from
City.
12. The Developer's administrative and preconstruction costs incurred in managing the "Project",
reviewing and approving the plans, preparing specifications and bid documents, soliciting bids, negotiating
contracts, and administrating the work is difficult to accurately determine. Therefore, the City agrees to
reimburse the Developer for his overhead an amount equal to 5 % of each monthly draw.
13. Until the "Project" is accepted, Developer shall assume the defense of, protect, indemnify,
and hold harmless the City and its respective officer, employees, agents, and consultants, and each and every
one of them, from and against all actions, damages, claims, losses, and expenses of every type and description
to which they may be subjected or placed, by reason of, or resulting from, (1) the negligent actions or
inactions of Developer pursuant to this Agreement to manage the design and construction of the "Project",
provided that nothing in this paragraph shall limit, in any manner, the City's rights against any of Developers
contractors, architects or engineers.
R :~AG M'I'SXM ALLWO RF-.STC.AG R 1998
This indemnification shall expire upon acceptance of the "Project" improvements for
maintenance by the City. No provision of this Agreement shall in any way limit the extent of the responsibility
of the Developer for the payment of damages resulting from its own operations or the operations of any of its
contractors, agents or employees.
The City shall assume the defense of, protect, indemnify, and hold harmless Developer and
its respective officers, employees, agents, and consultants and each and every one of them, from and against
all actions, damages, claims, losses, liabilities and expenses of every type and description to which they may
be subjected or placed, by reason of, or resulting from, the negligent actions or inactions of the City taken in
the performance of this Agreement. No provision of this Agreement shall in any way limit the extent of the
responsibility of the City for the payment of damages resulting from its own operations or the operations of
any of its contractors, agents or employees.
Developer acknowledges and agrees that it has assumed responsibility for the administration
of the construction contract for the construction of the Regional Storm Drain Facilities and will have the
authority and ability to complete the Regional Storm Drain Facilities within the time required under the 1996
Development Agreement and the time required for Developer's opening of the Regional Center. Therefore,
Developer agrees that City shall not be liable under the 1996 Development Agreement for delays in
constructing the "Project", provided that the City has complied with its obligations under this Agreement.
14. Any notice given hereunder shall be deemed effective (I) on receipt by personal delivery; (ii)
one business day after being sent by a recognized overnight mail delivery service; or (iii) four business days
after being deposited in the U.S. mail, first class postage prepaid, certified, return receipt requested. Notices
shall be sent addressed as follows:
City:
City of Temecula
43200 Business Park Drive
P.O. Box 9033
Temecula, CA 92589-9033
Attn: Director of Public Works
Developer:
Forest City Development California, Inc.
949 South Hope Street, Suite 200
Los Angeles, CA 90015
Attn: Colm Macken
Any party may change its address for Receipt of Notice by giving written notice to all other
parties.
15. Upon completion of construction both parties agree to execute a Notice of Completion and
record it with the County Recorder.
16. This Agreement sets forth and contains the entire understanding and agreement of the parties,
and there are no oral or written representations, understanding, or ancillary covenants, undertakings or
agreements which are not contained or expressly referred to herein, except for the 1996 Development
Agreement.
R:~AGMTS~ ALL~FORESTC.AGR 19~
17. This Agreement and any dispute arising hereunder shall be governed and interpreted in
accordance with the laws of the State of California. This Agreement shall be construed as a whole according
to its fair language and common meaning to achieve the objectives and purposes of the parties hereto. The
rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be
employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and
preparation hereof.
18. The burdem of this shall be binding upon, and the benefits of this Agreement shall inure to,
all successors in interest to the parties to the Agreemere. All provisions of this Agreement shall be enforceable
as equitable servitude.
19. This Agreement may be executed by the parties in counterparts, which counterparts shall be
construed together and have the same effect as is all of the parties had executed the same insmunent.
20. Should it become nece_qqary for any party to bring legal action to enforce any provision of this
Agreement, then the prevailing party in such action shall be entified to recover all attorney's fees and court
costs reasonably incurred thereby.
IN WITNESS THEREOF, the parties have executed this Agreement as of the day and year set first
forth above.
CITY OF TEMECULA
APPROVED AS TO FORM:
Ron Roberts, Mayor
Peter M. Thorson, City Attorney
ATTEST:
Susan W. Jones, CMC
Acting City Clerk
BY:
FOREST CITY DEVELOPMENT
CALIFORNIA, INC.
BY:
R:~AGMTS'xM ALLWO~C.AGR 19~
STATE OF CALIFORNIA )
COUNTY OF RIVERSIDE ) SS
CITY OF TEMECULA )
On before me, the undersigned, a Notary Public in and for the State of California, personally
appeared , personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to
me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
PLEASE ACKNOWLEDGE BEFORE A NOTARY PUBLIC
R :~.G MTS~M ALL~FO RF...$TC.AG R 1998
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R :~AG MT$~.M ALLhCORF. STC.AGR 1998
EXI-IIBIT "B"
DESIGN AND CONSTRUCTION AGREEMENT
REGARDING REGIONAL STORM DRAINAGE FACILITIES
APPROVED PROJECT BUDGET
Design Engineering
(RBF Contract)
TOTAl, COSTS
$93,580
Plan check and Review Fees:
City
City)
County
$ -0- (Note: paid directly by the
$ -0- (paid by the City)
Inspection Fees:
City
City)
County
Private Soils Deputy Inspector/Testing
(Unit Price Contractor)
$ -0- (Note: paid directly by the
$ -0- (paid by the City)
$10,000.00
Allowance for fill required to bury pipe near
Ynez road crossing:
$ 20,000.00
Construction Contract
(Slater Inc.)
$638,052.00
Contingency 10%
$ 76,163.20
Developer Admin Fee 5 %
$ 41,889.76
TOTAL: $879,684.96
7 R:~AGMT$~[ ALLWORESTC.AG R