Staff Report/Resolution Reimbursement Agreement with the Merced Union High School District for Removal and Replacement of the Transite Water Pipeline on Peach Avenue

STAFF REPORT

AGENDA ITEM: Resolution Approving a Reimbursement Agreement with the Merced Union
High School District for Removal and Replacement of the Transite Water
Pipeline on Peach Avenue and Authorizing the Interim City Manager to Execute the Reimbursement Agreement.

MEETING DATE: April 19, 2011

PREPARED BY: Nanda Gottiparthy, City Engineer

REVIEWED BY: Victoria Lewis, Interim City Manager

RECOMMENDATION:

Staff recommends adoption of Resolution No. 2011 approving the reimbursement agreement with the Merced Union High School District for removal and replacement of the transite water pipeline on Peach Avenue and authorizing the Interim City Manager to execute the reimbursement agreement.

BACKGROUND:

As part of the Livingston High School Enlargement Project, the School District contracted with Teichert Construction, Inc. to reconstruct the existing Peach Avenue and part of Main Street/Lincoln Boulevard. As construction work went on it was determined that the City water line on Peach Avenue was made of transite pipe. Such pipe contains asbestos and is brittle. Although it is one foot below the grade, it was determined by the contractor, the City Engineer, and the School District engineer that the weight of construction vehicles would likely crack the transite pipe resulting in water leaks under the new road.
Hence the City required the School District to remove the transite line and replace it for the 1,200 foot length of the Peach Avenue construction. This resulted in a change order to Teichert’s contract for $170,267.82. Inspection costs were $660.00

DISCUSSION:

The water line on Peach Avenue is part of the Citywide water system and serves more than the high school campus’ demand for fire and potable water needs. City staff met with the School District staff regarding sharing the cost of the transite water line removal and replacement on Peach Avenue, and determined that 50% of the cost of the pipe removal and replacement should be reimbursed to the School District. Teichert Construction has completed the work and submitted its billing to the School District.

The City has prepared the attached reimbursement agreement. The School District’s legal counsel and the City Attorney have reviewed the agreement.

FISCAL IMPACT:

The total reimbursement amount of $85,463.91 will be paid to the School District in three equal monthly installments following the approval of the Reimbursement Agreement by the City Council and execution of the Agreement by all parties to the Agreement. The reimbursement will be paid from the Water Fund.

1

ATTACHMENTS:

1. Resolution No. 2011-

2. Reimbursement Agreement

2

RESOLUTION NO. 2011-

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LIVINGTON APPROVING THE REIMBURSEMENT AGREEMENT WITH THE MERCED UNION HIGH SCHOOL DISTRICT FOR REMOVAL AND REPLACEMENT OF THE TRANSITE WATER PIPELINE ON PEACH AVENUE AND AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE THE
REIMBURSEMENT AGREEMENT

WHEREAS, as part of the Livingston High School Enlargement Project, the Merced
Union High School District ("School District") contracted with Teichert Construction,
Inc. to reconstruct the existing Peach Avenue and part of Main Street/Lincoln Boulevard;
and

WHEREAS, the City required the School District to remove the transite line and replace it for the 1,200 foot length of the Peach Avenue construction; and

WHEREAS, this resulted in a change order to Teichert’s contract for $170,267.82. Inspection costs were $660.00; and

WHEREAS, City staff met with the School District staff regarding sharing the cost of
the transite water line removal and replacement on Peach Avenue, and determined that
50% of the cost of the pipe removal and replacement should be reimbursed to the School
District; and

WHEREAS, Teichert Construction has completed the work and submitted its billing to the School District; and

WHEREAS, the City has prepared the reimbursement agreement and the School District’s legal counsel and the City Attorney have reviewed the agreement.

NOW, THEREFORE, BE IT RESOLVED, that the City Council of City of Livingston
hereby adopts Resolution No. 2011-approving the Reimbursement Agreement with

the Merced Union High School District for removal and replacement of the transite water pipeline on Peach Avenue, and authorizing the Interim City Manager to execute the Reimbursement Agreement, attached hereto as Exhibit A.

Passed and adopted this 19`h day of April, 2011, by the following vote:

AYES:

NOES:

ABSENT:

Rodrigo Espinoza, Mayor
of the City of Livingston

Page 1 of 2

ATTEST:

I, hereby certify that the foregoing resolution was regularly introduced, passed and

adopted at a regular meeting of the City Council of the City of Livingston this 19th day of April, 2011.

Antonio Silva, City Clerk
of the City of Livingston

Page 2 of 2

REIMBURSEMENT AGREEMENT
FOR

REMOVAL OF TRANSITS WATER LINE PIPE AND INSTALLATION OF
NEW WATER LINE IN PEACH AVENUE

THIS REIMBURSEMENT AGREEMENT (hereinafter "Agreement"), made this day of April, 2011, is made by and between THE CITY OF LIVINGSTON (hereinafter "City"), and MERCED UNION HIGH SCHOOL DISTRICT (hereinafter "District").

RECITALS

A. The District is the owner of the real property (hereinafter "Project") located in the
City of Livingston, identified as Assessors Parcel Number 047-280-017, 047-280-

027, 024-212-004, 024-230-004, located at the northeast and southeast corners of the intersection of Main Street/Lincoln Blvd, and Peach Avenue.

B. As part of the required improvements related to the expansion of high school facilities at the Project location, the District is currently in the process of constructing the Peach Avenue improvements between Main Street and Seventh Street.

C. District’s Contractor for the Project, Teichert Construction (hereinafter "Contractor"), submitted a Change Order request, dated December 13, 2010, for the removal of existing Transite water line in Peach Avenue, and its replacement with 12" C900 PVC water line per City Standards.

D. The Transite water line serves more than the high school and is part of the city
wide water system benefiting a large portion of the city.

E. The District has filed a request with the City in conformance with the Livingston
Municipal Code requesting reimbursement for the above improvements.

NOW THEREFORE, THE PARTIES MUTUALLY AGREE AS FOLLOWS:

1. RECITALS TRUE AND CORRECT. Each party has reviewed the recitals set forth above and agrees that all facts set forth therein are true and correct.

2. REIMBURSEMENT FOR EXPENSES INCURRED. District shall be entitled to a reimbursement of 50% of the total cost incurred for the removal of existing Transite water line in Peach Avenue, and the installation of the replacement 12" C900 PVC water line per City Standards.

CITY OF LIVINGSTON – REIMBURSEMENT AGREEMENT Water Main Replacement in Peach Avenue

Page 2 of 5

The City hereby agrees to reimburse the District the above amount per the schedule outlined in ATTACHMENT I

3. ASSIGNMENT AND DELEGATION. This Agreement and any portion thereof shall not be assigned or transferred, nor shall any of the parties’ duties be delegated without the written consent of all parties. Any attempt to assign or delegate this Agreement without the written consent of all parties shall be void and of no force and effect. A consent by all parties to one assignment shall not be deemed to be a consent to any subsequent assignments.

4. MODIFICATIONS. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by both parties.

5. WAIVERS. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement.

6. MUTUAL INDEMNIFICATION. The District shall indemnify, defend and hold harmless the City, its officers, agents, employees and representatives from and against any and all claims, losses, liabilities or damages, demands and actions, including payment of reasonable attorneys’ fees, arising out of or resulting from the performance of this Agreement, caused by any negligent or willful act or omission of the District, its officers, agents, employees, or anyone directly or indirectly acting on behalf of the District.

The City shall indemnify, defend and hold harmless the District, its officers, agents, employees and representatives from and against any and all claims, losses, liabilities or damages, demands and actions, including payment of reasonable attorneys’ fees, arising out of or resulting from the performance of this Agreement, caused by any negligent or willful act or omission of the City, its officers, agents, employees, or anyone directly or indirectly acting on behalf of the City.

7. SEVERABILITY. In the event any term of this Agreement is held invalid by a court of competent jurisdiction, the Agreement shall be construed as not containing that term, and the remainder of this Agreement shall remain in full force and effect.

8. JURISDICTION AND VENUE. The interpretation, validity, and enforcement ofthe Agreement shall be governed by and construed under the laws of the State ofCalifornia. Any suit, claim, or legal proceeding of any kind related to thisAgreement shall be filed and heard in a court of competent jurisdiction in theCounty of Merced.

CITY OF LIVINGSTON — REIMBURSEMENT AGREEMENT Water Main Replacement in Peach Avenue

Page 3 of 5

9. ATTORNEYS’ FEES. In the event any legal action is commenced to enforce this Agreement, the prevailing party is entitled to reasonable attorneys’ fees, costs, and expenses incurred.

10. ENTIRE AGREEMENT. This Agreement, including all documents incorporated
herein by reference, comprises the entire integrated understanding between the
parties concerning the improvements constructed for this Project. This Agreement
supersedes all prior negotiations, representations, or agreements.

11. NOTICES.

11.1. All notices, demands, or other communications which this Agreementcontemplates or authorizes shall be in writing and shall be personallydelivered or mailed to the respective party as follows:

To City: To District:

Superintendent

Merced Union High School District

City Manager 3430 "A" Street

City of Livingston Atwater, CA 95301

1416 "C" Street P.O. Box 2147

Livingston, CA 95334 Merced, CA 95344-0147

11.2. Communications shall be deemed to have been given and received on the first to occur of. (1) actual receipt at the address designated above, or (2) three working days following the deposit in the United States Mail of registered or certified mail, sent to the address designated above.

11. ENTIRE AGREEMENT. This Agreement and the items incorporated herein contain all of the agreements of the parties hereto with respect to the matters contained herein; and no prior agreement of understanding pertaining to any such matter shall be effective for any purpose. No provisions of this Agreement may be amended or modified in any manner whatsoever except by an agreement in writing signed by duly authorized officers of each of the parties hereto, except that any modifications which relate to the adjustment of time limitations or the form of documents may be made by legal counsel to the parties.

12. TERM OF AGREEMENT. The term of this Agreement shall commence upon the effective date on which the Agreement is executed by the Mayor of the City of Livingston, and shall, continue for a period of three (3) years thereafter.

13. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the District

CITY OF LIVINGSTON — REIMBURSEMENT AGREEMENT Water Main Replacement in Peach Avenue

Page 4 of 5

and the City. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

IN WITNESS WHEREOF the parties do hereby agree to the full performance of the terms set forth herein.

MAYOR OF THE CITY OF LIVINGSTON

ATTEST:

CITY CLERK

APPROVED AS TO FORM:

CITY ATTORNEY

Merced Union High School District

V. Scott Scambray

Secretary to the Board of Trustees and MUHSD Superintendent

CITY OF LIVINGSTON – REIMBURSEMENT AGREEMENT

Water Main Replacement in Peach Avenue

Page 5 of 5

ATTACHMENT 1

REIMBURSEMENT AGREEMENT

Removal of Transite water line and Installation of new water line

Total Reimbursement Amount

Total reimbursement amount for the removal of existing Transite water line in Peach Avenue, and replace with 12" C900 PVC water line per City Standards and associated improvements shall be determined by the City Engineer based on the actual costs as supported by contractor invoices, as-built plans, material, equipment and labor costs as applicable to the work. The total reimbursement shall not exceed $90,000.

The total reimbursement amount shall be paid to the District in three equal monthly
installments following the approval of the Reimbursement Agreement by the City
Council of the City of Livingston and execution of the Agreement by all parties to the

Agreement before October 1, 2011..

Construction Costs $170,267.82

Additional Improvement Costs

Encroachment Permit Costs

Inspection Fee Costs $660.00

TOTAL CONSTRUCTION COSTS $170,927.82

TOTAL REIMBURSEMENT at 50% $85,463.91

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