Loading...
HomeMy WebLinkAbout09 - MOA for Construction of the Girl Scouts Leadership Center� SEW PpRr CITY OF o e NEWPOUBEACH City Council Staff Report Agenda Item No. 9 January 14, 2014 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949 - 644 -3330, dawebb(a)newportbeachca.gov APPROVED:, TITLE: Memorandum of Agreement for Construction of the Girl Scout Leadership Center within Marina Park ABSTRACT: City staff has been in discussions with the Girl Scouts of Orange County (GSOC) for many months developing a Memorandum of Agreement (MOA) for Construction of the proposed Girl Scout Leadership Center within the City's Marina Park. The purpose of this agreement is to define the terms and roles of both the City and the GSOC should the GSOC elect to have the City construct the new Girl Scout facility on their behalf as part of the Marina Park Construction project. Both parties are now in agreement with the final MOA document and are recommending City Council review and approve the agreement. RECOMMENDATIONS: 1. Approve the attached Memorandum of Agreement for Construction of the Girl Scout Leadership Center within Marina Park By and Between the City of Newport Beach and The Girl Scouts of Orange County defining each party's role for construction of the new GSOC facility. 2. Direct the Mayor to execute said Memorandum of Agreement and delegate authority to the City Manager to execute all documents necessary to implement the terms of the Agreement to complete the Girl Scout Leadership Center facility within the City's Marina Park. FUNDING REQUIREMENTS: There is no City funding required for this action. Per the agreement, the GSOC will be responsible to pay for all costs to design and construct their new facility. A small 1 of 20 Memorandum of Agreement for Construction of the Girl Scout Leadership Center within Marina Park Page 2 amount of City staff time is expected to be required to coordinate and oversee parallel construction activities within the City's master construction contract with the future contractor. DISCUSSION: In June 2013, the City Council approved a new fifty year Ground Lease with the GSOC to allow for the construction of a new Girl Scouts Leadership Center within the City's future Marina Park. The Marina Park property consists of approximately 10.5 acres at 1600 West Balboa Boulevard that is being redeveloped into an open space Park, Marina, Community Center, Sailing Center, and a proposed GSOC Leadership Center. Under the terms of the approved lease, the GSOC are allowed to construct a new facility within the northwest corner of Marina Park adjacent to 18th Street that will be used for operation and maintenance of Girl Scout programs consistent with the GSOC mission and City- approved Use Permit. Proposed uses include Girl Scouts troop and youth group meetings, program activities and overnight stays, as well as adult leadership training and fundraising events on a limited basis during non -peak seasons. GSOC were also provided non - exclusive use of an adjacent City parking lot per the terms provided in their lease. In accordance with Section 8.5.2 of the lease — "Construction of Improvements ", the City and the GSOC were to meet and develop a MCA defining the terms and roles of each party which would, if the GSOC were amenable to, allow the City to construct the new Girl Scout Leadership Center as a part of the City's Building /Park construction contract for the new Marina Park facility on behalf of the GSOC. The GSOC were also provided the option in the lease to construct their own facility after the City files a Notice of Completion for the Marina Park project. Either option requires the GSOC to pay for all costs associated with the design and construction of their new facility. Under the terms of this MOA presented to City Council tonight, the City will include the plans and specifications for the new GSOC Leadership Center as an alternative bid item within the City's construction bid package for the project's Buildings & Park construction. Upon receiving responsive construction bids, the GSOC will have five days to review the proposed low bid and advise the City in writing whether they wish to accept the bid and be included as part of the City's construction contract, or decline the proposed bid alternative price and thus construct their own building after the City completes the entire Marina Park Project. Should the GSOC agree to be included as part of the City's construction project, this MCA will apply. The MCA generally states: ❖ The City will construct and deliver a complete and finished GSOC Leadership Center building to the GSOC in accordance with the GSOC provided, and City approved, plans and specifications. 2 of 20 Memorandum of Agreement for Construction of the Girl Scout Leadership Center within Marina Park Page 3 ❖ The GSOC will attend applicable construction meetings and be responsible for timely approvals of any contractor submittals, requests for information, change orders, etc. associated with the GSOC building. The City, however, shall maintain exclusive direction and control of the contractor's contract and project schedule. ❖ The GSOC will be responsible for all costs associated with construction of their new facility including design, permits, construction, construction management, inspection, testing, etc. The City will be responsible for paying the contractor all costs associated with the construction of the entire project and will invoice the GSOC for reimbursement to the City for the costs to construct the GSOC Leadership Center building. ❖ The City shall provide copies of all related construction documents associated with the Leadership Center building at the completion of the project including as- built plans, warranties and manuals, Notice of Completion, Certificate of Occupancy, etc. to the GSOC. ❖ The GSOC may visit the construction site as prescribed in the MOA. The City shall require and maintains the necessary Insurance, Bonds, and Warranties standard to this type of construction and per the MOA. Required Insurance policies shall name the GSOC as additionally insured. A separate one -year Warranty Bond will be issued to the GSOC for their facility at the completion of the project. To the extent permissible by law, and to the extent the City does not elect to pursue such claims on the GSOC's behalf, the City will convey its rights under any contracts to pursue any latent defects to the GSOC. The agreement includes provisions for Indemnification, early termination, a Force Majeure clause and other agreement terms and language generally considered to be standard contract terms. Both parties recognize that constructing the City's Buildings /Park and the GSOC facility concurrently will maximize the economies of scale, reduce costs, maximize the exterior compatibility of the entire park, and reduce the overall impact and disruption to the surrounding area. For these reasons, staff is recommending City Council approval of the MOA with the GSOC to allow for the construction of the Girl Scout Leadership Center within Marina Park to be completed as part of the City construction contract. ENVIRONMENTAL REVIEW: All significant environmental effects for the Marina Park project have been adequately addressed in the previously certified Environmental Impact Report No. (SCH No. 3 of 20 Memorandum of Agreement for Construction of the Girl Scout Leadership Center within Marina Park Page 4 2008051096) ( "EIR "), which included this GSOC facility. Said EIR also included mitigation, monitoring & reporting program, and statement of overriding considerations, and the City of Newport Beach intends to use said document for this approval. Copies of the previously prepared environmental document are available for public review and inspection at the City of Newport Beach website at www.newportbeachca.gov/ceqadocuments. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Submitted By: avid A. Webb Director of Public Works Exhibits: A. Vicinity Map B. Memorandum of Agreement for Construction of the Girl Scout Leadership Center 4 of 20 aS NEWPORT CHANNEL GIRL SCOUT LEADERSHIP NTER INA PARK �co FRONT WEST cc PACI FI C OCEAN 11.: \G 'G:. GIRL SCOUT LEADERSHIP CENTER LOCATION MAP BouL EVgR y � �D ui w W co co CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 1/14/14 5 of 20 EXHIBIT B MEMORANDUM OF AGREEMENT FOR CONSTRUCTION OF THE GIRL SCOUTS LEADERSHIP CENTER IN MARINA PARK AND PAYMENT REIMBURSEMENT This Agreement is made this 15th day of January, 2014, by and between THE CITY OF NEWPORT BEACH ( "CITY "), a California municipal corporation and charter city and THE GIRL SCOUTS OF ORANGE COUNTY ( "GSOC "), a California corporation. The City and GSOC may be individually referred to as .a "Party' and collectively as the "Parties ". RECITALS A. City is the owner of approximately 10.45 acres of property located at 1600 West Balboa Boulevard in the City of Newport Beach, commonly known as Marina Park. The City is pursuing redevelopment of the Marina Park site (the "Marina Park Project ") and GSOC is desirous of construction of a new program facility for Girl Scouts on a portion of the City's Marina Park. B. City and GSOC have previously entered into a Ground Lease by and between the City of Newport Beach and Girl Scouts of Orange County recorded on July 8, 2013 in the Official Records of the Orange County Clerk- Recorder as Instrument No. 2013000409086 ( "Lease "), which sets forth the obligations of the parties with respect to the Lease by the GSOC of certain "Property" (as defined in the Lease) and the GSOC's design, construction, maintenance and use for a new Girls Scout facility (the "GSOC Project "). C. The Parties are now desirous of planning and coordinating construction activities proposed by both the City and GSOC on the Marina Park site so that the City's Marina Park Project and the GSOC Project can be completed in an efficient and timely manner. City and GSOC desire to provide for and define the duties of the City in assuming construction responsibility of the GSOC Project and to provide for reimbursement payment by the GSOC to the City for the cost of the GSOC Project. NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties hereby mutually agree as follows: 1. DEFINITIONS Unless otherwise defined in the Lease, terms used in this Agreement shall have the meanings herein specified. 1.1 "Actual GSOC Project Cost" means the following costs with respect to the GSOC Project: (a) the actual Construction Costs for the GSOC Project; (b) Proportional share of the City's actual cost of contract services, including, (i) plan check, permit and construction service fees in an amount equal to the sum of costs of any fees for permits, licenses or other necessary governmental approvals and reviews for the A13- 0035011.2.14 6 of 20 GSOC Project not already paid by GSOC; (ii) any inspection, certifications, construction staking and materials testing, equipment, geotechnical review, and building commissioning necessary for the GSOC Project; and, (iii) insurance and bonds. 1.1.1 GSOC shall be responsible for its own actual costs of professional services related to the Project's design, preparation of Plans for the GSOC Project, incorporation of plans into the City's plans and specifications for Marina Park, any environmental evaluations, any modification or changes to the Plans and GSOC's own actual construction management and administration costs required specifically for the GSOC Project. Additionally, GSOC will be responsible for any and all Furniture, Fixtures and Equipment ( "FF &E ") cost associated with the GSOC Project. The City will not charge GSOC for normal and expected City Staff time associated with the GSOC Project. 1.2 "Approval(s)" of submittals and other approval and review authorities under the Agreement, means approved by the GSOC Chief Executive Officer ( "CEO ") or designee whenever GSOC is used and when the City is used it shall mean the City Manager or his designee. 1.3 "City" means the City of Newport Beach, a charter City organized and existing under the laws of the State, and it successors. 1.4 "Completion" means that (a) construction is complete in conformity with this Agreement, the Construction Contract(s) and Plans for the GSOC Project, with all systems (including mechanical, electrical, structural, communication and other systems as applicable) in operating condition and ready for use such that GSOC may utilize the Improvements for their intended purpose; (b) all work required by this Agreement, the Construction Contract(s) and Plans for the GSOC Project, including corrective work and minor deficiencies or incomplete work is complete, as evidenced by a certification by the City and Project architect for the GSOC Project that the GSOC Project has been completed in a good and workmanlike manner and substantially in conformance with approved GSOC Project Plans; (c) a Notice of Completion has been recorded by the City for the GSOC Project; (d) any and all mechanic's and labor liens that have been recorded or stop notices that have been delivered with respect to the GSOC Project or the Contract(s) have been paid, settled, or otherwise extinguished, discharged, released, or waived; (e) a Certificate of Occupancy (C of O) has been issued by the City, and (f) all necessary basic HVAC commissioning needed prior to C of O has been certified as completed by the GSOC Project architect. 1.5 "Director" means the City's Director of Public Works or his designee. 1.6 "FF &E" means furniture, Fixtures and equipment described or otherwise included in the Plans. 1.7 "GSOC Project" means the "Girl Scouts Leadership Center" and the Improvements (as defined in the Lease) which shall include: the building; including mechanical, electrical, structural, communications and all other systems necessary for A13- 0035011.2.14 7 of 20 operation including any FF &E as identified in the GSOC Project Plans and Specifications; on -site sidewalks, walls and fences within the Leased Property; landscaping (except for landscaping and supporting irrigation adjacent to the front and easterly and westerly building elevations of the GSOC Project which City agrees to install and maintain in conjunction with the Marina Park Project); water, sewer, gas and electrical utility line connections necessary to serve the Property as defined in the Lease; building equipment and furnishings included in the building plans and specifications and any ancillary and incidental fixtures, structures, and improvements necessary to provide an operational Girl Scouts Leadership Center, as provided for in the Plans hereinafter defined. 1.8 "Notice of Completion" means a notice of completion as described in California Civil Code Section 9204. 1.9 "Plans" means the Design Development Plans or Final Construction Plans (as defined in the Lease), and approved by the City in its proprietary capacity as Lessor pursuant to Article 8 of The Lease. 1.10 " Representative(s)" means the Chief Executive Officer of the GSOC and /or their designee or GSOC's Construction Manager. 2. CONSTRUCTION AND CONTRACTOR SELECTION 2.1 While the GSOC shall design and construct or cause to be constructed the GSOC Project pursuant to the Lease, the Parties have determined that it would likely be more efficient for the GSOC Project and the City's Marina Park project to be constructed concurrently under the administration and contracting authority of the City, subject to the GSOC's reimbursement to the City of the Actual GSOC Project Costs. 2.1.1 GSOC shall identify and provide the Representative(s) to the City who shall be notified of construction meetings and have the authority to make Project related decisions for the GSOC. 2.1.2 City at its sole cost and expense may elect to complete a Pre - Qualification process including prequalification criteria and selection scoring for segments of City's Marina Park project and the GSOC's Project to determine a pre - qualified bidder's list. 2.1.3 GSOC, at its sole cost and expense, shall provide a complete set of Plans and all necessary building permits by the date identified in Section 4.1. 2.1.4 Prior to bid advertisement, the City shall have approved the Plans pursuant to the lease; and the GSOC shall have approved the plans, specification and construction estimate for the GSOC Project. Furthermore, once the City has permitted the GSOC Project Plans, the Parties shall not thereafter modify or add further conditions to the Bid Documents for the GSOC Project without the written consent of the other Party. A 13- 0035011.2.14 8 of 20 2.1.5 If by the date identified in Section 4.1, the GSOC has submitted a complete set of plans and the necessary building permits are ready to be issued, then the City shall include in the GSOC Project in the Marina Park Construction Bid Documents by identifying the GSOC Project as an independent bid alternative (hereafter, "GSOC Bid Alternative ") to the Marina Park Project Construction Bid Documents. The GSOC Bid Alternative format shall be consistent with the bid documents prepared by the City for the Marina Park Project. 2.2 In the event the GSOC Project is included in the Marina Park Construction Bid Documents, then, upon City's receipt of bids for the Marina Park Project, the City shall inform the GSOC in writing of the City's bid analysis and recommendation as to the lowest responsible bidder submitting a bid for the construction of the GSOC Project alternative bid item ( "GSOC Bid Alternative ") prior to approval by the Newport Beach City Council. GSOC shall have five (5) business days to notify the City in writing that GSOC (i) approves the GSOC Bid Alternative for the Project; and, (ii) if GSOC elects to have City include the GSOC Bid Alternative the City's award for the Marina Park Project. 2.2.1 If GSOC timely notifies the City that it approves the GSOC Bid Alternative and advises the City in writing that they want the GSOC Bid Alternative included in the construction award for Marina Park Project, then the GSOC Bid Alternative will be included in the award for the construction of the Marina Park Project, unless the City rejects all bids. Upon the award of a construction contract for the GSOC Bid Alternative, the City will construct the GSOC Project subject to the reimbursement payment by GSOC of the Actual GSOC Project Cost for the GSOC Project with the power and authority to enter into and administer all contracts, and procure any or all necessary services, including without limitation general contractors, subcontractors, inspectors, and testing firms in compliance with the Plans. 2.2.2 In the event that GSOC does not timely provide written notice required by Section 2.2.1 that it approves the GSOC Bid Alternative or if GSOC fails to elect to have the City include the GSOC Bid Alternative in the City's award for construction of the Marina Park Project, the City will not be required to include the GSOC Bid Alternative in the City's award for construction of the Marina Park Project and may reject all bids received by the City for the GSOC Bid Alternative. Pursuant to the terms of the Lease, GSOC will then have the opportunity to construct the GSOC Project following the City's completion of the Marina Park Project. In this event, the City will deliver possession of a graded pad as contemplated by the Lease subject to the City's right to access the GSOC Property as reasonably necessary during the construction of the Marina Park Project and this Agreement will automatically terminate. 2.3 Unless otherwise agreed to by the City, Contractor selection will be based as follows: 2.3.1 Contractor will be selected by the City in its sole and absolute discretion, and based on the lowest responsive and responsible bidder for the Marina Park Project, plus any separate alternatives for which the City may have options for, A13-0035011.2.14 9 of 20 plus the GSOC Bid Alternative, if applicable. The City expressly reserves the right to reject any and all bids for any reason. 3. CONSTRUCTION OF GSOC PROJECT BY CITY 3.1 General. City shall cause the GSOC Project to be constructed on the Property in accordance with the Plans and this Agreement. GSOC will be responsible for ensuring that all necessary building permits have been obtained and ensuring that the Plans comply with all applicable building codes and construction requirements. 3.1.1 The GSOC's responsibility shall also include, but is not necessarily limited to, providing such necessary things as requisite building permits and the entitlements necessary for the planning, design and engineering of the GSOC Project. 3.1.2 The City's responsibility shall include obtaining all appropriate permits for the Marina Park Project, inspections, grading, installing utility connections, and necessary off -site improvements. Each party shall assume its own costs of design and construction management consultants. 3.1.3 GSOC hereby grants to City, its agents and assigns, a right to enter the Property (as defined in the Lease) for construction, inspection and administration purposes at any time in connection with the construction of the GSOC Project until Completion -of -the GSOC Project. 3.1.4 During the construction of the GSOC Project, City shall have complete access to the Property and will determine resolution of any and all questions regarding construction of the GSOC Project. City will use reasonable efforts to communicate with the GSOC Representative on issues relating to the GSOC Project. 3.2 Site Preparation. The Property shall be graded and utilities installed in accordance with a Grading Plan prepared by a licensed Civil Engineer and the Plan shall be reviewed and approved by GSOC and City. Approval of said Grading Plan by GSOC and City shall not relieve City of the responsibility for complying with all applicable requirements and permits. 3.2.1 City shall be responsible for delivering the Property in a rough grade condition to GSOC. City shall construct and install all necessary utility lines and /or conduits, including those for sewer, water, gas, telephone, and electricity, underground television to a point on the GSOC building pad where such lines and /or conduits will directly serve the GSOC Project, at which point, GSOC shall be responsible for all costs and installation of the utility lines directly serving the building including any connection fees, service fees, meter installation costs, cabling etc.. 4. CONTRACT MANAGEMENT AND ADMINSTRATION 4.1 Schedule. City has provided the GSOC with the current project schedule which identifies the construction of the Marina Park buildings and park improvement work as "Bid Package 3 ", which may include the GSOC Project provided the GSOC has A13- 0035011.2.14 10 of 20 (1) obtained approval of the Plans from City in its capacity as Lessor and as required by Article 8 of the Lease; and (2) the necessary building permits are ready to be issued by January 17, 2014. GSOC shall diligently work with their design team to complete and have the permits for the GSOC Project Plans ready to be issued and will coordinate with the City so that the City can incorporate the GSOC Projects Plans into the overall Marina Park Bid Package 3 by January 17, 2014. The City will use its good faith effort to work cooperatively with GSOC and its design team to incorporate the GSOC Project Plans into the Marina Park Bid Package 3. Should the GSOC Project plans and specifications not be completed, ready for permit and coordinated into the City Marina Park Bid Package 3 by said date for any reason (unless said due date is extended in writing by the City), the GSOC Project will not be included and constructed as part of the City's Marina Park Project and the GSOC may construct their Project after the completion of the City's Marina Park Project per the terms of the Lease. 41.1 If the GSOC Project is included and constructed as part of the City's Marina Park Bid Package 3, the GSOC shall be provided with the awarded construction schedule and any update that occurs throughout the construction of the Marina Park Project. The GSOC may suggest schedule changes or modification to the GSOC Project; however the City shall have sole authority over the management, modification and /or changes to the construction contract and schedule. The cost for any schedule changes, extensions or delays requested by the GSOC shall be the sole responsibility of GSOC. Should any circumstance arise on behalf of the City or its Contractor that result in delays on other portions of the City Marina Park Project, the GSOC Project shall not be responsible for the time delays and any associated cost imposed by the contractor that can result in additional costs to the GSOC Project. The GSOC have no rights to claim damages for any and all project delays associated with either the Marina Park Project or the GSOC Project. 4.2 Submittals and Request for Information ( "RFI's) Processing. The GSOC Representative will be responsible for a timely response, review and approval of any contractor submittals and RFI's, including but not limited to product samples, mock ups, shop drawings, that GSOC wishes to review and approve. 4.3 Changes Regarding Surrounding Area or Infrastructure. City agrees to notify GSOC of any changes to the immediate surrounding area or supporting infrastructure that will have an impact on the GSOC Project and will coordinate with the GSOC on any implications to the GSOC Project. 4.4 Contractor Invoices. City shall process all invoices it receives relating to the construction of the GSOC Project and upon timely approval by the Director shall make all required payments to the Contractor based on the amount of construction completed. City shall retain 5% of any invoiced costs for the GSOC Project as contractor retention until Completion of the GSOC Project and retain any additional amounts necessary to secure the release of all stop notices or liens. . 4.5 Project Site Visits. During the course of construction, the GSOC's identified construction manager and /or the identified GSOC Representative(s) for the A13- 0035011214 11 of 20 GSOC Project shall have full access the GSOC Project site provided they check -in and make arrangements with the Public Works Director or his designee and that proper safety clothing and gear are worn while visiting the construction site. From time to time, and upon prior approval from the Director or his designee, up to four other GSOC adult management members may visit the site provided they wear the necessary safety clothing and gears, and are escorted by the Director or his designee. 4.6 Cost of Completion and City Reimbursement. 4.6.1 GSOC Invoices. GSOC agrees during construction of the GSOC Project to make reimbursement payments to the City within thirty (30) days of GSOC's receipt of a City reimbursement payment request ( "GSOC Invoice ") commensurate with the portion of the completed construction of the GSOC Project as certified in writing by Director and as recommended by the Project Architect and /or City's Construction Manager. Such reimbursement payments shall be for the GSOC Actual Costs as defined herein. For any progress reimbursement payments by GSOC, City shall provide conditional lien releases or hold back appropriate funds to cover any claims associated with reimbursement payment. Upon Completion of the GSOC Project and prior to occupancy by GSOC, City shall provide a final cost reconciliation for the GSOC Project as approved by the Director, GSOC's Construction Manager and identified GSOC Representatives, all final lien releases, and GSOC shall make a final payment to City upon determination that the GSOC Project has been completed and within thirty (30) calendar days of receipt of the final GSOC invoice. 4.7 Change Orders. City shall bring any changes discovered, necessary or requested during construction as related to the GSOC Project to the attention of the GSOC's Representative, pursuant to Paragraph 2(a), who will, in turn, provide the necessary direction, action, approvals or rejections back to the City in a timely manner, but in no case more than five (5) working days of receipt from City, so that the City can prepare the necessary Directions and Change Orders to the City's Contractor. City shall furnish GSOC's Representative with copies of any change within a reasonable and timely manner for signature approval of any proposed changed condition to the GSOC Plan, Final Construction Plans or GSOC Bid Alternative contract provisions which affect the GSOC Project. 5. WARRANTY PERFORMANCE City shall require that the GSOC be named as a covered dual obligee in the warranty bond or other security covering the construction contract for the GSOC Bid Alternative maintained during the one year period following Completion of the GSOC Project by the City. 6. INSURANCE REQUIREMENTS 6.1 The City shall or shall cause each contractor, subcontractor, vendor, equipment operator and owner operator, in each such case to the extent such Person is engaged to perform construction of the GSOC Bid Alternative to, at all times prior to A13- 0035011.2.14 12 of 20 Final Acceptance of the Project, maintain and deliver to the City and keep in full force and effect the following minimum insurance policies: 6.1.1 General Liability. General liability insurance which includes, but is not limited to coverage for personal injury, premises and operational liability, losses related to independent contractors, products and completed operations, contractual liability, explosion, collapse, and underground hazards having not less than a combined single limit of $1,000,000.00 6.1.2 Automobile Liability. Automobile liability insurance which includes, but is not limited to owned, non - owned, and hired automobiles, in the amount of not less than a combined single limit of $1,000,000.00 6.1.3 Worker's Compensation. Worker's compensation insurance required by the California Labor Code for all persons employed directly or indirectly by City or any contractor or subcontractor in conjunction with construction of the Project in an amount not less than $1,000,000.00 6.1.4 Builder's Risk. Builder's Risk Property Insurance covering damages to the GSOC Project for "all risk" or special causes of loss with limits equal to 100% of the completed value of the contract with coverage to continue until final acceptance of the GSOC Project by City 6.2 Each policy of insurance shall be issued by an insurer licensed to do business in the State of California by the California Department of Insurance which insurer shall have a Best Rating of Grade A and Class VII or better, provided that the policies of worker's compensation insurance may be issued by insurers with a Best Rating of not less than B- and Class VII or better or such insurance may be provided through the State Compensation Fund. 6.3 Each policy shall bear an endorsement that provides that (a) the GSOC and its appointed Board, officers, agents and employees are additional insured under the policy as to the work being performed on the GSOC Project; (b) that the coverage provided under the policy is primary and no other insurance carried by the GSOC will be called upon to contribute to a loss under the policy; (c) that the coverage shall not be cancelled without 30 days written notice to GSOC. 7. LIENS AND STOP NOTICES City shall notify the GSOC of any stop notice served upon the City related to the GSOC Project and /or Property. 8. COMPLETION OF GIRL SCOUTS LEADERSHP CENTER BY GSOC 8.1 Inspection, Punch List and Substantial Completion. 8.1.1 Inspection and Punch List. City shall complete all buildings, improvements, and facilities for an operational GSOC Project pursuant to this A13- 00350/1.2.14 13 of 20 Agreement and its subsections above. After construction is concluded, the GSOC Project shall be inspected by all Parties for approval of construction by City, and GSOC. The standards to be applied in approving the GSOC Project's construction shall be as follows: (a) City has constructed the facility substantially in accordance with the Agreement and Plans with all systems (including mechanical, electrical, structural and communications and other applicable systems) in operating condition and ready for use for the intended use; and (b) The work has been completed in a good and workmanlike manner; and (c) The facility complies with applicable government requirements including building codes, regulations, restrictions, permits and approvals from authorities of the appropriate jurisdictions; and (d) To the extent that any contractor, subcontractor or material suppliers have filed liens or claims relating to the GSOC Project, City shall have furnished the GSOC copies of written lien releases and releases for any claims for stop notices, mechanic's liens or rights to payment for labor and materials, pursuant to the form set forth in California Civil Code Sections 8120 et seq. from all contractors, subcontractor's and material suppliers covering the GSOC Project. 8.1.2 Substantial Completion. All Parties shall indicate in writing to City any punch list items which shall be resolved prior to final approval of the GSOC Project and issuance of a Notice of Substantial Completion. After issuance of a Notice of Substantial Completion, the Director and /or Project Architect, as applicable, shall certify to the following: (a) all work required by this Agreement, the Construction Contract(s) and Plans for the GSOC Project, including corrective work and minor deficiencies identified in punch list items or incomplete work is complete; (b) A Certificate of Occupancy has been issued by the City; (c) City shall have furnished to GSOC two sets of equipment instructions, guarantees, and warranties, as are provided by the respective manufacturers, for items installed as part of the City's contract for the GSOC Project. In addition, GSOC shall have certified that all required owner training has been provided by the Contractor for items requiring training for the GSOC Project. (d) All HVAC commissioning has been certified as completed. 8.1.3 Completion. After receiving notification from the GSOC that the GSOC Project has been completed in accordance with Section 8.1, City shall forthwith file with the Orange County Recorder a Notice of Completion, pursuant to provisions of A13- 00350/1.2.14 14 of 20 Section 8182 of the California Civil Code, if applicable, which includes the GSOC Project. The City shall furnish to the GSOC a duplicate copy of such Notice of Completion showing thereon the date of filing with said County Recorder. Upon passage of the statutory time period for filing of liens without additional liens or stop notices being filed, any previous or new recorded or stop notices that have been delivered with respect to the GSOC Project or the Contract(s) have been paid, settled, or otherwise extinguished, discharged, released, or waived the Project shall be considered to be a Final Completion and City shall be entitled to obtain any remaining reimbursement payments due to it pursuant to the Agreement. 8.2 Latent Defects. Unless otherwise provided by law, the City hereby conveys to GSOC a non - exclusive assignment of its rights and interests under all agreements and /or contracts pursuant to which any work or services were performed by the City's consultants, contractors or other agents or representatives on the GSOC Project to the extent necessary for GSOC to file and maintain a lawsuit or otherwise enforce its rights against any such person or entity under such agreements and /or contracts for defective work or workmanship, it being understood and agreed that such assignment shall apply only to documents and contracts to the extent applicable to the GSOC Project, and to contracts that provide for such non - exclusive assignment by City. In furtherance thereof, the City shall use its best efforts to include provisions in each of such agreements and /or contracts allowing for the assignment of such rights to GSOC. 8.3 Record Drawings. GSOC's Design Consultants and Construction Manager will be responsible for delivery of final "Record Drawings" of the Project. The GSOC shall within sixty (60) days following completion and acceptance of the Project by GSOC, furnish the City with a revised complete set of Mylar reproducible plans, and a CAD electronic set of the Project, "Record Drawings" which are reproducible drawings marked and updated by GSOC's architect during construction showing all changes from the original contract documents. 9. MAINTENANCE OF THE SITE Upon issuance of a notice of completion and satisfaction of all provisions of this Agreement, including complete payment by GSOC to City of the GSOC Project Costs, GSOC may occupy the GSOC Project and commence installation of FF &E not otherwise included in the Plans. 10. INDEMNIFICATION 10.1 GOSC shall indemnify, defend, and hold harmless City, its officers, directors, consultants, agents, and employees, from and against any and all claims, demands, losses, or liabilities of any kind or nature which City, its officers, directors, consultants, agents, and employees may sustain or incur or which may be imposed upon them, or any of them, for injury to or death of persons, or damage to property as a result of, or arising out of, the negligence or willful misconduct of GSOC, its officers, agents and employees, in connection with this Agreement except to the extent caused by the acts or omissions of City. A13- 0035011.2.14 15 of 20 10.2 Likewise, City shall indemnify, defend, and save harmless GSOC its officers, directors, consultants, agents, and employees, from and against any and all claims, demands, losses, or liabilities of any kind or nature which GSOC, its officers, directors, consultants, agents, and employees may sustain or incur, or which may be imposed upon them, or any of them, for injury to or death of persons, or damage to property as a result of, or arising out of, the gross negligence or willful misconduct of City, its officers, agents and employees, in connection with this Agreement, except to the extent caused by the acts or omissions of GSOC. 10.3 The Provisions of this Section shall survive termination of this Agreement. 11. UTILITIES City shall be responsible for and pay, prior to delinquency date, all usage charges for utilities supplied to the Property during construction until a Notice of Completion is issued. Charges for utilities after Completion of the GSOC Project and during the Lease term shall be paid by GSOC in accordance with the Lease. 12. ASSIGNING, SUBLETTING, AND ENCUMBERING PROHIBITED The rights and obligations of City under this Agreement may not be transferred or assigned by the City unless the written consent of the GSOC is first obtained, which consent GSOC agrees not to unreasonably withhold. However, City shall still remain bound by all the obligations of this Agreement, other than all obligations assumed by City's assigns (which assigns have been previously approved by GSOC pursuant to this Section) and obligations imposed upon issuance of building permits for improvements on the Property. Nothing in this paragraph shall be deemed to prohibit or require GSOC approval of the City entering into any construction management, or construction agreement reasonably necessary for the performance of the City's obligations under this Agreement and the provision of bonds or other security or insurance that guarantees or secures performance of each contractor or subcontractor there under, including without limitation performance bonds, labor and material bonds, or general liability or errors and omissions policies of insurance. 13. EARLY TERMINATION If, after award of a construction contract for the GSOC Project, construction on the GSOC Project halts for any continuous period of one hundred eighty (180) days or more, GSOC may notify the City in writing that GSOC wishes to meet and confer with City to discuss whether the delay is such that the GSOC would like to terminate this Agreement. Upon receipt of such notice, the Parties shall agree to meet and confer for a minimum of thirty (30) days, or such longer length of time as may be agreed to in writing by the Parties. During the meet and confer period, the City will provide a mitigation plan setting forth the City's analysis of the construction delay and proposed measures, if any, necessary to recommence construction ( "Mitigation Plan "). GSOC shall reasonably review the Mitigation Plan in good faith during the meet and confer period. If after the meet and confer period, the GSOC reasonably believes that there is no reasonable A13- 0035011.2.14 16 of 20 foreseeable ability to recommence construction of the GSOC Project in a timely manner, the GSOC shall provide written notice to City of its election to terminate this Agreement. Within thirty (30) days after receipt of the notice, the City and GSOC shall execute written confirmation of the termination of this Agreement. In the event of a termination under this Section 13, the City and GSOC will negotiate in good faith to mutually agree to any refund of money GSOC has paid to the City for Actual GSOC Project Costs and /or any additional obligations of GSOC to reimburse the City. The provisions of this Section 13 do not apply to Force Majeure delays. 14. CITY AUTHORIZATION The City Manager of the City of Newport Beach is hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry out and implement this Agreement and to administer the City's obligations, responsibilities and duties to be performed under this Agreement. 15. FORCE MAJEURE 15.1 Neither Party shall be deemed to be in Default where failure or delay in performance of any of its obligations under this Agreement is caused, through no fault of the Party whose performance is prevented or delayed, by floods, earthquakes, other acts of God, fires, wars, riots or similar hostilities, acts of terrorism, strikes or other labor difficulties, state or federal regulations, or court actions, acts or omissions of the other Party, third party suits, initiatives and referendum. Except as specified above, nonperformance shall not be excused because of the act or omission of a third person. In addition, in no event shall the time for performance of a monetary obligation, including without GSOC's obligation to make reimbursement payments to City be extended pursuant to this Section. 15.2 If either Party (the "First Party ") believes that an extension of time is due to Force Majeure Delay, it shall notify the other Party in writing within thirty (30) calendar days from the date upon which the First Party becomes aware of such Force Majeure Delay describing the Force Majeure Delay, when and how the First Party obtained knowledge thereof, the date the event commenced, the steps the First Party anticipates taking to respond to such Force Majeure Delay and the estimated delay resulting from such Force Majeure Delay and response. The extension for Force Majeure Delay shall be granted or denied in the Second Party's reasonable discretion. If the First Party fails to notify the Second Party in writing of its request for a given Force Majeure Delay within the thirty (30) calendar days specified above, there shall be no extension for such Force Majeure Delay. All time periods under this Agreement may be extended for Force Majeure Delay. 16. GENERAL PROVISIONS 16.1 Time. Time is of the essence as to this Agreement. 16.2 Agreement Organization. The various headings and numbers herein, the A13- 00350/1.2.14 17 of 20 grouping of provisions of this Agreement into separate sections and paragraphs, and the organization hereof, are for the purpose of convenience only and shall not be considered otherwise. 16.3 Amendment. Any modification of this Agreement must be written and properly executed by both Parties. In the case of the City, amendments must be approved by the City Council. 16.4 Circumstances Which Excuse Performance. If the City hereto shall be delayed or prevented from the performance of any act required hereunder by reason of acts of nature, restrictive governmental laws or regulations, or other cause without fault and beyond the control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. 16.5 Partial Invalidity. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. 16.6 Waiver of Rights. The failure of City or GSOC to insist upon strict performance of any of the terms, covenants, or conditions of this Agreement shall not be deemed a waiver of any right or remedy that City or GSOC may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants, and conditions of this Agreement thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant, or condition of this Agreement. 16.7 City as Independent Contractor. In performing under this Agreement it is mutually understood that City is acting as an independent contractor and not an agent of the GSOC. The GSOC shall not have any responsibility for payment to any contractor, subcontractor or material supplier of labor or materials for the Project of City. 16.8 Remedies Limited. City and GSOC acknowledge they would not have entered into this Agreement if either were to be liable for any damages under or with respect to this Agreement. Neither the City nor the GSOC shall have any pecuniary liability under this Agreement for any act or omission of the GSOC or the City. In general, each of the Parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, provided, that neither Party shall be liable in damages to the other Party. 16.9 Notices. All written notices pursuant to this Agreement ( "Notices ") shall be addressed as set forth below or as either party may hereafter designate by Notice and shall be sent registered mail, return receipt requested via the United States Postal Service, or made by personal delivery to each at: A 13- 0035011.2.14 18 of 20 CITY: City Manager City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA, 92658 -8915 With a copy to: Director of Public Works 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 -8915 City Attorney 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 -8915 GSOC: Nancy Nygren Chief Executive Officer Girl Scouts of Orange County 9500 Toledo Way, Suite 100 Irvine, CA 92618 16.9.1 All notices provided for herein shall be deemed effective upon receipt, if personally served or 48 hours after being sent registered mail, return receipt requested postage prepaid via the United States Postal Service. 16.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be identical and may be introduced in evidence or used for any other purpose without any other counterpart, but all of which shall together constitute one and the same agreement. [SIGNATURES ON NEXT PAGE] A13- 0035011.2.14 19 of 20 IN WITNESS WHEREOF, the Parties have executed this Agreement the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: I By: Aaron C. Harp City Attorney ATTEST: Date: Leilani I. Brown City Clerk A13- 0035011.214 CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Rush N. Hill, II Mayor GSOC: Girl Scouts of America, a California corporation Date: Nancy Nygren Chief Executive Officer [END OF SIGNATURES] 20 of 20