HomeMy WebLinkAboutS20 - Newport Theater Arts Center Lobby - Guyed Tower - Radio Building - Building 3 RemodelCITY OF NEWPORT BEACH
• CITY COUNCIL STAFF REPORT
Agenda Item No. s20
May 22, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Lloyd Dalton, PE
949 - 644 -3328 or Idalton(ci)city.newi2ort-beach.ca.us
SUBJECT: AWARD CONSTRUCTION CONTRACT NO. 3742 FOR:
(1) NEWPORT THEATRE ARTS CENTER LOBBY ADDITION,
(2) RETROFIT OF (E) 320' GUYED TOWER,
(3) UTILITIES YARD RADIO BUILDING, AND
(4) UTILITIES YARD BUILDING 3 REMODEL.
RECOMMENDATIONS:
A. AWARD CONSTRUCTION CONTRACT TO MACERICH CONSTRUCTION, INC.:
1. Authorize the City Manager to enter into a Reimbursement Agreement and Long-
Term Lease with the County of Orange.
2. Approve the plans and specifications.
3. Award Contract No. 3742 to Macerich Construction, Inc., for the Total Bid Price
of $923,000 and authorize the Mayor and the City Clerk to execute the contract.
4. Approve a Budget Amendment appropriating $3130 from the General Fund
unappropriated fund balance to 7011- C5100809 for the Newport Theatre Arts
Center Lobby Addition.
5. Approve a Budget Amendment appropriating $221,500 to Account No.
7251- C5100976 from a contribution from the County of Orange and increasing
revenue estimates by $221,500 representing the contribution; appropriating
$68,316.25 from the General Fund unappropriated fund balance to Account No.
7017- C5100976; and appropriating $68,316.25 ($35,639.00 from Account No.
7501- C5100277, $32,677.25 from Account No. 7501- C5500074) to Account No.
7501- C5100976 for the Tower and Radio Building.
6. Approve a Budget Amendment appropriating $153,817.50 from Account No.
7501- C5500074 to 7501- C5500930 for the Utilities Yard Building 3.
7. Establish an amount of $92,300 (10% of the award amount) to cover the. cost of
unforeseen work and construction expenses.
• OR
Newport Theater Arts Center Lobby Addition, Retrofit of (E) 320' Guyed Lobby Addition; Utilities Yard Radio Building;
and Utilities Yard Building 3 Remodel - Award Contract No- 3742
May 22, 2007
Page 2
B. AWARD CONSTRUCTION CONTRACT TO BIG WEST CONSTRUCTION •
CORP:
1. Authorize the City Manager to enter into a Reimbursement Agreement and Long -
Term Lease with the County of Orange.
2. Approve the plans and specifications.
3. Award Contract No. 3742 to Big West Construction Corporation for the Total Bid
Price of $1,009,475, and authorize the Mayor and the City Clerk to execute the
contract.
4. Approve a Budget Amendment appropriating $35,990 from the General Fund
unappropriated fund balance to 7011- C5100809 for the Newport Theatre Arts
Center Lobby Addition.
5. Approve a Budget Amendment appropriating $221,500 to Account No.
7251- C5100976 from a contribution from the County of Orange and increasing
revenue estimates by $221,500 representing the contribution; appropriating
$82,188.50 from the General Fund unappropriated fund balance to Account No.
7017- C5100976; and appropriating $82,188.50 ($35,639.00 from Account No.
7501- C5100277, $24,725.00 from Account No. 7501- C5500074, and $21,824.50
from Account No. 7501- C5100768) to Account No. 7501- C5100976 for the Tower •
and Radio Building.
6. Approve a Budget Amendment appropriating $188,335 from Account No.
7501- C5500074 to 7501- C5500930.
7. Collect Macerich Construction, Inc's., bid bond (10% of their bid amount) or
negotiate another settlement amount with Macerich because of their errors in
bidding Contract No. 3742.
8. Establish an amount of $100,947 (10% of the award amount) to cover the cost of
unforeseen work and construction expenses.
INTRODUCTION:
Contract No. 3742 constructs four small projects that staff wrapped into one contract in
an attempt to attract more bidders and result in lower bid prices. If the City awards
Contract No. 3742 and enters into a Reimbursement Agreement and Long -Term Lease
with the County of Orange, construction will first commence on three of the projects at
the Utilities Yard, then move to the Newport Theater Arts Center this fall.
DISCUSSION:
In 2001, the County determined that despite various technical enhancements to improve
communication in several areas within Orange County, public safety radio coverage in •
Newport Beach remained inadequate. In 2005, the City acquired the radio tower located
at the City Utilities Yard from Entravision Communications for eight thousand dollars
Newport Arts Center Lobby Addition, Retrofit of (E) 320' Guyed Lobby Addition; Utilities Yard Radio Building;
and Utilities Yard Building 3 Remodel - Award Contract No. 3742
May 22, 2007
Page 3
® ($8,000). The City elected to acquire the tower because the Utilities Department and the
Information Technology Division use the tower for communication purposes.
After acquiring the tower, the City contacted the Orange County Sheriffs Communications
Division and informed them that the City would like the County to consider installing an
800 MHz communication facility on the tower to improve radio communications for the
City's Police and Fire Departments.
u
The County then performed a review of this potential new 800 MHz radio site. They
determined that it was possible to attain a 30 percent improvement for on- street and in-
building radio coverage in the core Newport Beach area. The Newport Beach Police
Department has stated that this improvement in coverage would be beneficial and that
this shared project was highly desirable for public safety.
Location of Radio Tower
Photo of Tower
After discussing the coverage issue with the County and performing a structural analysis
of the tower, City and County staff agreed that the tower could be used to install the
800 MHz communication facility; however, it would be necessary to: (1) upgrade the tower
(the tower upgrades would need to be made whether or not the 800 MHz system was
installed); (2) design and construct a 600 square foot building (300 square feet would be
used for the 800 MHz system and 300 square feet would be used by the City for other
purposes); (3) remove the old broadcast antennas (the old broadcast antennas would
need to be removed whether or not the 800 MHz system was installed); and (4) install the
800 MHz communication equipment.
Almost two years of tower studies and discussions have resulted in a reimbursement
agreement and lease that City staff believes is acceptable, and which the County Board
of Supervisors has already approved.
® REIMBURSEMENT AGREEMENT:
Newport Theater Arts Center Lobby Addition, Retrofit of (E) 320' Guyed Lobby Addition; Utilities Yard Radio Building;
and Utilities Yard Building 3 Remodel - Award Contract No. 3742
May 22, 2007
Page 4
The proposed reimbursement agreement authorizes the City to construct a shared •
600 square foot radio communications building and upgrade to the radio tower to
accommodate 800 MHz Countywide Coordinated Communications System (CCCS)
antennas, with the County reimbursing the City in the amount of $221,500 for the
County's share of the project cost. The total estimated project cost is $339,770 (i.e. (1)
structural analysis of the tower ($9,020); (2) preparation of bid documents and plans for
the tower upgrade ($3,750); (3) tower upgrade ($27,000); (4) design of the 600 square
foot building ($19,000); and (5) construction of the 600 square foot building ($281,000).
The County is also paying all costs to remove radio equipment from the tower and to
provide electrical service to the new building. The total estimated cost to the City of
entering into the reimbursement agreement is $118,270 (i.e. $339,770 minus $221,500).
The County has agreed to pay the majority of the costs because the City owns the land
and the tower. Under the agreement, the County will own the equipment to be installed
at the site, including the generator, the auto transfer switch and the diesel fuel tank.
The City will own the building, manage construction of the facility, and be responsible
for any cost overruns and for ongoing' maintenance of the tower and the building.
LEASE AGREEMENT:
The proposed Lease Agreement will allow the County to use the facility rent -free for a
period of 20 years, at which time the lease may be extended by mutual agreement.
CONSTRUCTION CONTRACT BIDDING: •
At 11:00 am on April 17, 2007, the City Clerk opened and read the following Total Bid
Prices for Contract No. 3742:
Bidder Total Bid Price
Low Macerich Construction, Inc. $918,000
2 Big West Construction Corporation 1,009;475
3 General Consolidated Constructors, Inc. 1,035,000
4 Horizons CCI Services, Inc. 1,049,400
5 Klassic Engineering & Const., Inc. 1,325,858
6 United Contractors Company, Inc. 2,184,800
The Total Bid Price of the apparent low bidder, Macerich Construction, Inc., contained a
$5,000 addition error; so that their correct total should be $923,000 (See attached
Proposal).
As stated above, Contract No. 3742 constructs four small projects under one contract in
staffs attempt to attract bidders and obtain lower bid prices. Apparently the strategy
worked. Six bids were received and, disregarding the low bid, the next three bids came
in within 4% of each other (see attached Bid Summary). Staff feels that this is a strong
validation of the correctness to award Contract No. 3742.
Macerich Construction, Inc., possesses a General Building Contractor Class B License as
specified in the contract documents. Macerich is a six year -old firm that has •
Newport Theater Arts Center Lobby Addition, Retrofit of (E) 320' Guyed Lobby Addition; Utilities Yard Radio Building;
and Utilities Yard Building 3 Remodel - Award Contract No. 3742
May 22, 2007
Page 5
• satisfactorily completed building projects for Mt. San Antonio College, the Newport-
Mesa Unified School District, the City of Santa Fe Springs, and St. Mary's Church.
Macerich's corrected bid total is 12% above the $822,840 sum of the design consultants'
estimates, which are listed below. Knowing full -well that construction and materials for
projects are being bid much higher than estimated costs, staff increased the sum of the
design consultants' estimates by 15% and advertised the project at $950,000. Macerich's
Total Bid Price is 3% below this increased estimate.
However, Macerich has asked to withdraw their bid since they allege that a $321,000
portion of the bid was inadvertently omitted from their Total Bid Price (see attached letter).
State law allows an agency to relieve a bidder from an erroneous bid provided that the
bidder furnishes the agency adequate information to explain its bid error (see attached
letters from the City Attorney to Macerich). However, as of the day this memo is being
written, Macerich has not provided such evidence to the City (see attached letters from
Macerich to the City Attorney). Accordingly, Macerich must either perform the work for
the corrected bid amount of $923,000, forfeit their bid bond (10% of their Total Bid Price)
or agree to another settlement amount with the City.
As of the day this memo is being written, the City Attorney is attempting to negotiate
another settlement amount with Macerich. If Contract No. 3742 is awarded to the #2
bidder, the settlement amount will be applied toward the award amount to the #2 bidder
is and the $188,335 General Fund budget amendment that is requested elsewhere in this
memo will likewise be reduced.
The #2 bidder, Big West Construction Corporation, possesses a General Building
Contractor Class B License as specified in the contract documents. Big West is a five
year -old firm that has satisfactorily completed building projects for the Irvine School
District, UCI, the LA Boys and Girls Club, and Mt. San Antonio College. Big West's
president and owner has been licensed as a general contractor since 1990, and will
superintend the project.
Big West's bid is 23% above the $822,840 sum of the design consultants' estimates,
which are listed below. Big West's Total Bid Price is 6% above the City's construction
estimate.
NEWPORT THEATRE ARTS CENTER LOBBY ADDITION:
Work at Newport Theater Arts Center (NTAC) includes demolishing certain portions of
the lobby, excavating to construct additional footings, constructing a 445 square foot
lobby addition, and making accessibility modifications to the public's path of travel to
the theater and its restrooms. The City bid the job a year ago, then rejected all three
bids when they came in too high (see attached Staff Report dated May 23, 2006). This
year the three validating NTAC bids averaged 21 % less than last year's three bids.
isPlans and specifications for the remodeling work at NTAC were prepared by Jorgensen
Architects (now known as Rossetti Jorgensen), working hand -in -hand with the Friends
Newport Theater Arts Center Lobby Addition, Retrofit of (E) 320' Guyed Lobby Addition; Utilities Yard Radio Building;
and Utilities Yard Building 3 Remodel - Award Contract No. 3742
May 22, 2007
Page 6
of NTAC. Last year, Jorgensen's construction estimate was $250,000, which staff is
bumped up 10% to $275,000 to account for a year of inflating construction cost.
RETROFIT OF EXISTING 320' GUYED TOWER:
Work on the City's 320 -foot high guyed tower in the Utilities Yard includes constructing
additions to existing guy anchor posts and footings. The tower is currently used only to
broadcast radio transmissions between City staff. The retrofitted tower will additionally
broadcast 800 MHz transmissions by the Orange County Sheriffs Department and local
law enforcement agencies to and from areas that are poorly served by the Sheriffs
other transmission towers.
Certain antennas and other apparatus that are no longer in use will be removed from
the tower as part of the work. Other antennas and apparatus will likewise be added to
the tower, which will remain in- service during construction. In addition, City staff is
presently investigating the option of installing apparatus to transmit Public Works' traffic
signal data and other department's data between the tower and City Hall which staff
feels will conflict with the 800 MHz system.
Plans and specifications for the tower work were prepared by Conlan Engineering and
Construction Corporation of Tulare. Conlan's October, 2005 construction estimate was
$26,950, which staff bumped up to $30,000 for 1'/2 years of inflating construction cost.
UTILITIES YARD RADIO BUILDING: •
Work on Utilities Yard Radio Building includes removing surface parking and planter
improvements adjacent to the guyed tower, constructing site improvements and a
20 foot by 30 foot heated - and - air - conditioned masonry radio building, installing an
emergency power generator and fuel tank, and extending utility services into the new
building. The building will be equally- funded and occupied with radio equipment and
staff of the County of Orange Sheriffs Department and the City of Newport Beach.
Plans and specifications for the Radio Building were prepared by Paul J. Ruffing, AIA.
Ruffing's recent construction estimate for the work was $247,740.
UTILITIES YARD BUILDING 3 REMODEL:
Work on Utilities Yard Building 3 includes demolishing the interior portion of the
currently - unused two story building and constructing new second floor framing, stairway
and restroom for Utilities Department personnel. New windows and doors will be added
to the southerly and westerly sides of the building, The remodeling includes heating
and air conditioning of the 1,535 square foot area.
The remodeled building will house Utilities staff. The public will have direct access to
Utilities staff from 16th Street rather than through the restricted Utilities Yard. Plans and
specifications for the Utilities Building were also prepared by Paul Ruffing. His recent
construction estimate for the Building 3 work was $270,100. •
ENVIRONMENTAL REVIEW:
Newport Theater Arts Center Lobby Addition. Retrofit of (E) 320' Guyed Lobby Addition; utilities Yard Radio Building;
and utilities Yard Building 3 Remodel - Award Contract No. 3742
May 22, 2007
Page 7
is The projects are categorically exempt from the provisions of CEQA per Section 15303,
Class 3 pertaining to the construction of limited numbers of new, small facilities and the
conversion of existing small structures, and Section 15301, Class 15301 pertaining to
the minor alteration of existing facilities involving negligible or no expansion of use
beyond that existing at the time of the lead agency's determination. Notices of
Exemption have been filed with and posted by the County Clerk as required by law.
PUBLIC NOTICE:
This agenda item was noticed in accordance with the Brown Act (72 hours in advance
of the public meeting at which the City Council considers the item).
FUNDING AVAILABILITY FOR AWARD TO MACERICH CONSTRUCTION:
If the City Council approves the Reimbursement Agreement, $221,500 of the cost of the
project will be borne by the County of Orange. The remainder of funding is available in
the General Fund, Contributions Fund and Building Excise Tax. Upon approval of the
recommended budget amendments to transfer unused budgeted funds from other
budget appropriations, funds will be available for award and construction contingency in
the following accounts:
• Account Description Account Number
Newport Theatre Arts Ctr Lobby Addition - Gen Fund 7011- C5100809
Amount
$300,220.00
Newport Theatre Arts Ctr Lobby Addition - Contribution 7251- C5100809
25,000.00
Newport Theatre Arts Ctr Lobby Addition — G. F. Amendment 7011- C5100809
3,130.00
Tower and Radio Building costs — Orange County's share 7251- C5100976
221,500.00
Tower and Radio Building - General Fund Amendment 7017- C5100976
68,316.25
Tower and Radio Building — Water Fund Amendment 7501- C5100976
68,316.25
Building 3 - Wastewater Fund 7531- C5500930
50,000.00
Building 3 - Water Fund 7501- C5500930
278.817.50
Total:
$1,015,300.00
Proposed project costs are as follows:
Pro'ect Purpose
Amount
Newport Theatre Arts Center Lobby Addition Construction and Mobilization
$298,500.00
Newport Theatre Arts Center Lobby Addition 10% Construction Contingency
29,850.00
Tower and Radio Building Construction and Mobilization
325,575.00
Tower and Radio Building 10% Construction Contingency
32,557.50
Building 3 _ Construction and Mobilization
298,925.00
Building 3 10% Construction Contingency
29,892.50
Total: $1,015,300.00
FUNDING AVAILABILITY FOR AWARD TO BIG WEST CONSTRUCTION:
•
Newport Theater Arts Center Lobby Addition, Retrofit of (E) 320' Guyed Lobby Addition: Utilities Yard Radio Building;
and Utilities Yard Building 3 Remodel - Award Contract No. 3742
May 22, 2007
Page 8
If the City Council approves the Reimbursement Agreement, $221,500 of the cost of the
project will be borne by the County of Orange. The remainder of funding is available in
the General Fund, Contributions Fund and Building Excise Tax. Upon approval of the
recommended budget amendments to transfer unused budgeted funds from other
budget appropriations, funds will be available for award and construction contingency in
the following accounts:
Account Description
Newport Theatre Arts Ctr Lobby Addition - Gen Fund
Newport Theatre Arts Ctr Lobby Addition - Contribution
Newport Theatre Arts Ctr Lobby Addition — G. F. Amendment
Tower and Radio Building costs — Orange County's share
Tower and Radio Building - General Fund Amendment
Tower and Radio Building — Water Fund Amendment
Building 3 - Wastewater Fund
Building 3 - Water Fund
Proposed project costs are as follows:
Account Number Amount
7011- C5100809 $300,220.00
7251- C5100809
25,000.00
7011- C5100809
35,990.00
7251- C5100976
221,500.00
7017- C5100976
82,188.50
7501- C5100976
82,188.50
7531- C5500930
50,000.00
7501- C5500930
313.335.00
'Total:
$1,110,422.00
Protect Purpose Amount
Newport Theatre Arts Center Lobby Addition Construction and Mobilization $ 328,373.00
Newport Theatre Arts Center Lobby Addition 10% Construction Contingency 32,837.00
Tower and Radio Building Construction and Mobilization 350,797.00
Tower and Radio Building 10% Construction Contingency 35,080.00
Building 3 Construction and Mobilization 330,305.00
Building 3 10% Construction Contingency 33,030.00
Total: $1,110,422.00
Prepared by:
. . ► . .
Design
Submitted by:
tep G. Badum
Pu is Works Director
Attachments: Reimbursement Agreement
Lease Agreement
Bid Summary
Proposal by Macerich Construction, Inc.
Letters from Macerich Construction, Inc.
Responses from the City Attorney
Staff Report dated May 23, 2006
LJ
•
• Project No: GA 055 -485- 2200 -20 -2
Project Name: 800 MHz Communications Site
Project Location: City of Newport Beach — 949 West 16`h Street
City Utilities Department Yard
REIMBURSEMENT AGREEMENT
This Reimbursement Agreement (`Agreement") is made this `day of
2007 by and between the County of Orange, a political subdivision of the State of
California, ( "COUNTY ") and the City of Newport Beach, a municipal corporation,
( "CITY ").
RECITALS
I. CITY is the owner of that certain real property ( "Property ") located at 949 West
16th Street in the City of Newport Beach, County of Orange, State of California.
A depiction of the Property is attached hereto as Exhibit 1 which is incorporated
herein by this reference.
II. The Property's primary purpose is for use by CITY as its Utilities Department
operations yard.
• III. CITY and COUNTY have agreed that it is in their respective interest to upgrade
an existing communications tower owned by the CITY CTower") and construct a
new equipment building ( "Equipment Building ") on the Property at shared
expense with COUNTY, so that the COUNTY can install the CO.UNTY's 800
MHz radio mobile/wireless communications system and appurtenant equipment
( "800 MHz System ") on a portion of the Property ( "Project ").
IV. After the 800. MHz System is installed, the parties have agreed to enter into a
long term lease which will provide for the COUNTY to, among other things,
operate the 800 MHz System on the portion of the Property ( "Lease "). A copy
of the Lease is attached hereto as Exhibit 2 and incorporated herein by this
reference.
AGREEMENT
NOW, THEREFORE, in consideration of the terms and conditions set forth in this
Agreement and the Lease, the parties hereto agree as follows:
1. PROJECT DESCRIPTION
The Project Scope of Work consists of the following:
A. Preparation of Plans & Specifications for the construction of the Tower
Upgrades.
• B. Preparation of Plans & Specifications for the construction of the Equipment
Building.
1
C. Upgrade of Tower including the replacement of guy cable assemblies, tower •
base foundation expansion, guy anchor beam reinforcement and guy
anchor concrete pier reinforcement.
D. Construction of the Equipment Building which will be an air conditioned,
concrete block building (approximately 600 square feet) and the installation
of an emergency 50 KW generator, a 600 gallon diesel fuel storage tank,
and an automatic transfer switch. All elements shall be provided in
accordance with the COUNTY approved Plans and Specifications as set
forth in Section 5 of this Agreement.
E. COUNTY's removal from the Tower of the existing radio equipment that is
no longer in use, as denoted by the CITY.
F. COUNTY's installation of the 800 MHz System and ancillary equipment.
G. COUNTY's installation of utilities connections and separately metered
services.
2. COST SHARING
The CITY and COUNTY hereby agree as follows:
A. The COUNTY will reimburse the CITY in the amount of Two Hundred •
Twenty-One Thousand Five Hundred Dollars and No Cents
($221,500.00) for its share of the costs and expense of those portions of
the Project identified in Section 1(A) through Section 1(D) hereunder.
The CITY shall be liable for all other costs associated with completing the
work identified in Section 1(A) through Section 1(D).
B. The financial expenditures by COUNTY that relate in any way to the work
set forth in Section 1(E) through Section 1(G), shall not count towards the
COUNTY's financial obligations under this Agreement (i.e. costs and
expenses associated with COUNTY's performance of the work described
in Sections 1(E) through 1(G) shall not count towards the COUNTY's
obligations set forth in Section 2 (A).
3. TERM
This Agreement shall be in full force and effect until the specified obligations of both
Parties have been fulfilled or the Agreement is terminated as set forth herein.
4. TERMINATION
Except as otherwise provided herein, in the event that either party fails or refuses to
perform any of the provisions of this Agreement at the time and in the manner required,
that party shall be deemed in default in the performance of this Agreement. If such
default is not cured within a period of thirty (30) calendar days, or if more than thirty (30) •
calendar days are reasonably required to cure the default and the defaulting party fails to
give adequate assurance of due performance within thirty (30) calendar days after
2
• receipt of written notice of default, specifying the nature of such default and the steps
necessary to cure such default, and thereafter diligently take steps to cure the default,
the non - defaulting party may terminate the Agreement forthwith by giving to the
defaulting party written notice thereof, and that party shall have no further obligations
under this Agreement.
5. PLANS & SPECIFICATIONS
The CITY and COUNTY agree that the CITY shall prepare plans & specifications for the
Tower upgrade and Equipment Building ( "Plans and Specifications ") and the CITY shall
submit the Plans and Specifications to the COUNTY's Director, Sheriff/Communications
(`Communications Directors) for review and approval. The Plans and Specifications
shall meet the COUNTY's standards and technical requirements. The Communications
Director's approval does not apply to the engineering adequacy of the Project
specifications, plans and drawings.
6. CITY OBLIGATIONS
CITY and COUNTY shall work cooperatively together so the Project can be constructed
in a manner that minimizes the Project costs.
A. CITY shall enter into and administer contracts for the design services
necessary for those portions of the Project identified in Section 1(A)
through (D), which includes contracting with the necessary engineering
consulting services to accomplish the design efforts.
B. CITY shall be responsible for compliance with the California
Environmental Quality Act ( "CEQK) (Pub. Resources Code, Section
21000 et seq.) for all activities associated with the Project, except for the
portion of the Project identified in Section 1(F), and CITY shall be the
Lead Agency for purposes of the CEQA and, in such capacity, shall
conduct such environmental review (whether by Environmental Impact
Report, Mitigated Negative Declaration, Negative Declaration, or Notice of
Exemption) as CEQA may require. CITY shall supply to COUNTY a copy
of the CITY approved environmental review document.
C. CITY shall prepare and issue public works bid packages and administer
the construction contracts for those portions of the Project identified in
Section 1(C) through Section 1(D) of this Agreement.
D. Upon opening of bids for those portions of the Project identified in Section
1(C) through Section 1(D), CITY shall submit results for review and
approval by COUNTY. COUNTY shall have a period of ten (10) calendar
days for review of bid results and approval or rejection of the successful
bidder. If the COUNTY fails to respond within ten (10) calendar days, the
COUNTY shall be deemed to have approved the bid. In the event the
COUNTY rejects the successful bidder, the CITY shall reject all bids or
shall proceed with the work at its sole cost and expense, and without
• reimbursement from the COUNTY. If the CITY proceeds with the work at
its sole cost and expense and without reimbursement from the COUNTY,
this Agreement shall be terminated and of no further force and effect.
The CITY and COUNTY agree that the CITY reserves the right to reject •
all bids. If the CITY rejects all bids, and the CITY and COUNTY agree to
not re -bid the project, this Agreement shall be terminated and of no
further force and effect and the COUNTY shall be refunded all funds
advanced to the CITY, less half of the design cost actually incurred by the
City for the work set forth in Section 1(A) through 1(B) above.
E. CITY shall, at its sole expense, obtain all necessary permits for
construction of those portions of the Project identified in Section 1(C)
through Section 1(D), above, from federal, state and local governmental
agencies. CITY shall, at its sole expense, fully comply with all laws,
standards, statutes, restrictions, ordinances, requirements and
regulations (collectively "laws ") of all governmental agencies with
jurisdiction over the Project.
F. Provided the COUNTY or CITY does not reject the successful bidder,
CITY shall enter into a contract for construction of the Project in
accordance with the approved Plans and Specifications ( "Construction
Contract').
G. CITY shall require a one -year warranty on those portions of the Project
identified in Section 1(C) through Section 1(D) from its construction
contractors.
H. CITY shall promptly inform the COUNTY during the course of •
construction of any proposed change orders to the construction contract
that substantially impacts the COUNTY's interest. Copies of proposed
change orders that substantially impact the COUNTY's interest will be
provided to the COUNTY within five (5) working days of submission to
CITY. All change orders that substantially impact the COUNTY's interest
shall be subject to the prior written approval at the sole discretion of the
Communications Director, which approval shall not be unreasonably
withheld
I. CITY shall furnish and deliver to COUNTY all record drawings of the
those portions of the Project identified in Section 1(C) through Section
1(D) and any additional project- related documents requested by
COUNTY at no cost to COUNTY.
7. COUNTY'S OBLIGATIONS
A. COUNTY shall perform any and all work related in any way to those
portions of the Project identified in Section 1(E) through Section 1(G) of
this Agreement and be liable for all costs and expenses related thereto
without reimbursement from CITY.
B. COUNTY shall obtain all necessary permits for construction of those
portions of the Project identified in Section 1(E) through Section 1(G) from
federal, state and local governmental agencies and fully comply with all •
laws of all governmental agencies with jurisdiction over the Project.
0
• C. COUNTY shall furnish and deliver to CITY all record. drawings of those .
portions of the Project identified in Section 1(F) through Section 1(G) and
any additional project related documents requested by CITY at no cost to
CITY.
D. COUNTY shall require any contractor, subcontractor, person or entity
performing any portion of the work set forth in Sections 1(E) through 1(G)
to: (1) comply with Section 11, Tower Work, and Section 16; Insurance,
Contractors Liability Insurance of the Lease which is attached hereto; and
(2) enter into an indemnity agreement, which is approved as to form by
the City Attorney, indemnifying the City, its officials, officers, employees,
agents and volunteers from all liability, to the maximum extent permitted
by law.
8. CONSTRUCTION (N)
Unless this agreement is terminated as otherwise provided herein, the CITY and
COUNTY agree to complete all elements of the Project within three hundred and sixty
five (365) days following the execution of this Agreement, or such other date a may be
mutually agreed to by the parties hereto in writing, in accordance with the Scope of
Work and Plans and Specifications.
Subsequent to the completion of the Project, and prior to occupancy by COUNTY, CITY
shall request in writing the Communications Director's written approval and acceptance
• of the Project. Said acceptance shall be manifested by letter from the Communications
Director and may be subject to completion of "punch list" items. Said punch list will be
generated by the Communications Director. In the event the Communications Director
does not respond within ten (10) calendar days to the written request by the CITY, the
COUNTY shall be deemed to have accepted the Project.
9. TIMING AND REIMBURSEMENT (N)
Within sixty (60) days of the execution of this Agreement, COUNTY shall pay the CITY
One Hundred and Twenty Thousand Dollars and No Cents.($120,000.00) as partial
payment for services and direct costs previously or presently expended by the CITY
towards the Project. Within sixty (60) days of the COUNTY's inspection and acceptance
of the Equipment Building shell, the COUNTY shall .pay the CITY Sixty Thousand
Dollars and No Cents ($60,000:00). Within sixty (60) days of completion of the entire
Project including punch list items, the COUNTY shall pay the CITY Forty-One
Thousand Five Hundred Dollars and No Cents ($41,500.00).
The City shall provide the COUNTY with any documentation related to the Project that it
requires including, but not limited to, invoices.
10. LEASE
Unless this Agreement is terminated as provided herein, all parties hereto agree to
execute the Lease within ten (10) working days of the Communications Director's
• acceptance of the Project as provided in Section 8.
11. RECORDS
For a period of three (3) years after final payment hereunder or until all claims related to
this Agreement are finally settled, whichever is later, CITY shall preserve and maintain
all documents, papers and records relevant to the work performed or property or
equipment acquired in accordance with this Agreement. For the same time period, CITY
shall make said documents, papers and records available to COUNTY or their duly
authorized representatives for examination, copying, or mechanical reproduction on or
off the premises of CITY upon request by COUNTY during normal working hours.
12. AMENDMENT
No alteration or variation of the terms and conditions of this Agreement shall be valid
unless made in writing and signed by duly authorized representatives of the parties
hereto, and no oral understandings or agreement not incorporated herein shall be
binding on the parties hereto.
13. ASSIGNMENT
CITY shall not assign this Agreement in whole or in part without the express written
consent of COUNTY.
14. RECITALS
The Recitals paragraphs above are hereby incorporated in this Agreement by this •
reference.
15. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be, a waiver of any subsequent breach of the same or any.
other term, covenant or condition contained herein, whether of the same or a different
character.
16. INTERPRETATION
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
17. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters relating to
it and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
18. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise •
unenforceable by a court of competent jurisdiction, the remaining provisions of this
G'.
• Agreement shall continue in full force and effect.
19. INTEGRATED AGREEMENT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the parties hereto, and all preliminary negotiations and agreements
of whatsoever kind or nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions herein.
20. ATTACHMENTS
This Agreement includes the following, which are attached hereto and made a part
hereof.
Exhibit 1 Depiction of Property
Exhibit 2 Lease
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IN WITNESS WHEREOF, the parties have executed this Reimbursement Agreement the •
day and year first above written.
COUNTY
APPROVED AS TO FORM:
County Counsel
By: 1Y1TMIw H • LkL-
TDeputy
Date: ��l 'iOT
CITY
APPROVED AS TO FORM:
City Attorney
0
A,., C a,
Assistant City Attorney
Dater s-:-- L I
SIGNED AND CERTIFIED THAT A CITY OF NEWPORT BEACH •
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
BOARD OF SUPERVISORS
ATTEST:
�4
%ARLENE J. BLOOM
Clerk of the Board of Supervisors
of Orange County, California
COUNTY OF ORANGE
Chairman, Board of Supe ors
an
Mayor
ATTEST:
By:
City Clerk
•
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t
v.
Project No: GA 055 -485- 2200 -20 -2 •
2 Project Name: 800 MHz Communications Site
Project Location: City of Newport Beach — 949 West 16`h Street
4 City Utilities Department Yard
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EXHIBIT 2
LEASE
THIS LEASE ( "Lease ") is made this ^ day of 200_, by and between
the COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter
referred to as "COUNTY," and the CITY OF NEWPORT BEACH, a municipal corporation,
hereinafter referred to as "LESSOR."
RECITALS
A. LESSOR is the owner of that certain real property ( "Property') located at 949 West 16th
Street in the City of Newport Beach, County of Orange, State of California. A depiction of
the Property is attached hereto as Exhibit Awhich is incorporated herein by this reference.
B. The Property's primary purpose is for use by LESSOR as its Utilities Department
operations yard.
C. On ' 2007, LESSOR and COUNTY entered into a Reimbursement
Agreement, which this Lease is an Exhibit to, whereby LESSOR agreed to upgrade an
existing LESSOR owned communications tower ( "Tower") and construct a new equipment
building ( "Equipment Building ") on the Property at shared expense with COUNTY. The
Reimbursement Agreement is incorporated herein by this reference.
D. COUNTY desires and LESSOR agrees to provide COUNTY with a long -term Lease of a
portion of the Property for the purpose of constructing, installing, operating, maintaining,
repairing and altering COUNTY's 800 MHz radio mobile/wireless communications system
and appurtenant equipment ( °800 MHZ System").
In consideration of which, and the other considerations hereinafter set forth, the parties hereto
mutually agree as follows:
1. DEFINITIONS (1.2 S)
"Board of Supervisors" means the Board of Supervisors of the County of Orange, a political
subdivision of the State of California.
"Sheriff" means the Sheriff of the County of Orange, or designee, or upon written notice to
LESSOR, such person or entity as shall be designated by the Board of Supervisors.
"Communications Director" means the Director, Sheriff /Communications, County of Orange, or
designee, or upon written notice to LESSOR, such other person or entity as shall be
designated by the Sheriff - Coroner.
"County Counsel" means the County Counsel, County of Orange, ordesignee, or upon written
Pile: GA 055-485- 2200 -20-2 .
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notice to LESSOR, such other person or entity as shall be designated by the County
Executive Officer or the Board of Supervisors.
4 "Corporate Real Estate" means the Resources Development and Management Department,
Internal Services, Real Estate Division, Corporate Real Estate for the County of Orange, or
6 upon written notice to LESSOR, such entity as shall be designated by the County Executive
8 Officer or the Director, Resources Development and Management Department.
2. PREMISES (1.3 N)
10
As provided in this section, LESSOR leases to COUNTY that certain real property hereinafter
12 referred to as "Premises," composed of an exclusive right to use a portion of the Tower (as
designated on Exhibit B, page 2), one -half of the interior area of the Equipment Building (as
14 designated on Exhibit B, page 1) and the exterior area of the Equipment Building where the
COUNTY's diesel generator and diesel fuel storage tank are located (as designated on Exhibit
16 B, page 1). Exhibit B is attached hereto and incorporated herein by this reference. The
parties hereto agree that: (i) sidewalk areas depicted on Exhibit B, page 1, shall be jointly
18 used by the parties, the COUNTY shall have exclusive and unencumbered use of space, as
described above and identified on Exhibit B, on the Towerforthe installation, operation, repair
20 and maintenance of its 800 MHz System communications equipment. COUNTY and
LESSOR agree that the LESSOR shall have the right to: (i) use all other areas of the Tower
22 not specifically designated for COUNTY use; (ii) run cable and material over the COUNTY's
portion of the Tower as necessary to connect to equipment installed on the Tower provided
24 that these items do not disturb, alteror interfere with COUNTY's 800 MHz System equipment
installed on the Tower; and (iii) the right to ingress and egress over the portion of the Tower
designated for COUNTY use provided that the LESSOR does not disturb, alter or interfere
with COUNTY's 800 MHz System equipment installed on the Tower.
28
COUNTY, at its sole cost and expense, shall be responsible forthe installation, operation and
30 maintenance of its 800 MHz system and Facility, as defined in Clause 4 of this Lease.
COUNTY shall not be responsible for costs, expenses or other sums related to LESSOR's
32 activities on or within its occupied portion of the Property.
34 3. ACCESS (N)
36 The parties acknowledge that the Property is a secured facility and that LESSOR has a right
to impose as a condition of this Lease reasonable security measures. COUNTY shall comply
38 with any reasonable security measures required by LESSOR, COUNTY shall have the non-
exclusive right of ingress and egress to and from the Premises on, within, over and across the
40 Property, an access way to and from the nearest. public street and driveway, and parking
areas for COUNTY's personnel, vehicles and equipment, as necessary on and within the
42 Property for the installation, operation, maintenance and alteration of COUNTY's 800 MHZ
System, Facility, equipment and otheritems located on the Premises, and,to electrical power
44 facilities, connections and other utilities as needed to service COUNTY's 800 MHz System
and Facility.
46
LESSOR agrees that COUNTY shall have access to the Property and Premises on a twenty -
48 four (24) hour per day basis on every day of each year of the term of this Lease and any
reasonable security measures imposed by LESSOR shall not prohibit said access. LESSOR
shall provide COUNTY, at no charge or deposit, with as many keys and /or access cards as
needed for gates or other secured entries to the Property and the Premises.
COUNTY shall provide, at its sole expense, all security provisions it deems necessary to
54 protect its Facility and the Premises.
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COUNTY shall comply with all fire and safety codes and shall not obstruct access of
emergency vehicles to and within the Property.
4. USE (2.1 N)
COUNTY Use:
The Premises shall only be used by COUNTY during the term of this Lease for a
governmental use (i.e. non - commercial use) and lawful activities related to the construction,
installation, alteration, operation, repair, and maintenance of its 800 MHz System and
appurtenant structures including, without limitation, the installation of an exclusive use
communications equipment room, emergency diesel generator, diesel fuel storage tank, auto
transfer switch, air conditioning unit, and Tower mounted microwave dishes and antennas
CFacility "). The microwave dishes and antennas shall be used for the transmission and the
reception of radio communication signals on various frequencies. COUNTYshall not cause or
allow Premises to be used for any purpose otherthan forthose uses described in this Clause.
Permits, Licenses, Approvals:
LESSOR agrees to reasonably cooperate with COUNTY, at COUNTY's sole cost and
expense, in making application for and obtaining all licenses, permits, and any and all other
necessary approvals that may be required for COUNTY's use of the Premises.
Representatives:
LESSOR and COUNTY shall each identify to the other party a representative as a point of
contact for this Lease, and at all times during the term of this Lease shall maintain a viable
point of contact to ensure LESSOR and COUNTY have reasonable access to LESSOR and
COUNTY personnel knowledgeable about the Property and the Premises and the operation
and maintenance of the respective communications systems.
Use By Third Parties:
Prior to the authorization by LESSOR to any third -party to install any communications
equipment on the Tower, within LESSOR's portion of the Equipment Building or at any other
location within the Property or Premises, LESSOR shall first submit the proposed use in
writing to COUNTY. Said proposed use shall be subject to the written approval of the
Communications Director based on and consistent with the provisions of Clause 5, Mutual
Non - Interference, herein and said approval shall not be unreasonably withheld. COUNTY
shall respond within thirty (30) days from the date of receiving written notice of the proposed
use from LESSOR to LESSOR with its approval, rejection or required reasonable mitigations
for the proposed use. Failure of the COUNTY to respond within thirty (30) days shall be
deemed to be approval by the COUNTY.
Alteration By LESSOR/COUNTY:
LESSOR shall not substantially alter or modify any improvement within the Premises without
the prior written approval of COUNTY. Likewise, COUNTY shall not substantially alter or
modify any improvement within the Premises without the priorwritten approval of LESSOR.
5. MUTUAL NON - INTERFERENCE (N)
Upon activation of the COUNTY communications equipment, COUNTY shall confirm, at
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COUNTY's sole cost and expense, that COUNTY's radio equipment is not interfering with
existing systems operating on the Tower and at the Property. Any modification necessary_to
LESSOR's communications equipment, operating on the Tower or at the Property, to
4 accommodate COUNTY's operation of its Facility and 800 MHz System, shall be at
COUNTY's sole cost and expense and shall be completed prorto the COUNTY's operation of
6 the Facility and 800 MHz System.
8 COUNTY shall operate its Facility in such a manner so as notto interfere with LESSOR's use
of the Property or use of the Property by other LESSOR authorized parties, and LESSOR
10 shall operate its radio communications system and otheractivities on the Property in a manner
so as not to interfere with COUNTY's use of the Premises and its Facility. All operations by
12 LESSOR and COUNTY shall be lawful and in compliance with all Federal Communications
Commission ( "FCC ") requirements and State and local codes and ordinances.
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LESSOR and COUNTY agree to reasonably cooperate with each other to prevent and
16 mitigate any interference with each other's facilities and equipment and use of the Premises
and Property.
18
Notwithstanding the provisions of Clause 4, Use, herein, LESSOR shall not permit any third
20 party user of the Tower or any other portion of the Property to interfere with, or in any other
circumstance cause interference with, the transmission of signals to orfrom COUNTY's radio
22 communications facilities. In the event any such interference occurs, COUNTY shall have the
right to bring action to enjoin such interference. Priorto authorizing any third party to operate
24 equipment from the Property, LESSOR shall require said third partyto test its transmissions to
determine if any interference exists with COUNTY's radio signals. COUNTY shall have the
right to attend such test. In the event that interference does exist, LESSOR agrees to require
the third party to modify and/or eliminate equipment found to be the cause of interference to
28 the satisfaction of the Communications Director.
30 6. TERM (2.2A S)
32 The term of this Lease shall be twenty (20) years, commencing the first day of the first full
calendar month following the date of execution by COUNTY and LESSOR ( "Commencement
34 Date "). Parties agree that the Commencement Date of this Lease will be confirmed in writing
by either party upon demand by the other. Following the initial 20-year term of this Lease, the
36 term may be renewed and extended by mutual agreement of LESSOR and COUNTY subject
to Clause 5, Amendment, of the General Conditions of this Lease.
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7. OPTION TO TERMINATE LEASE (2.4 N)
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COUNTY shall have the option, at its sole discretion, to terminate this Lease at any time and
42 for any reason upon giving LESSOR written notice at least sixty (60) days prior to said
termination date.
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LESSOR shall have the option, at its sole discretion, to terminate this Lease by providing the
46 COUNTY with sixty (60) days written notice of the termination date if: (i) the 800 MHz System,
and or an approved successor or assign, fail to operate the 800 MHz System for twelve (12)
48 consecutive months; or (2) any federal, state, or local law, statute, ordinance, rule, or
regulation prohibits the Facility or 800 MHZ System from operating at the Property or
Premises.
52 In the event of early termination of this Lease pursuant to this paragraph 7, and in addition to
any other obligations of COUNTY herein, COUNTY is obligated to remove the Facility
54 including all personal property, and repair the Premises pursuant to Clause 9, Construction
4 File: GA 055.485- 2200.20 -2
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and Alterations, of this Lease.
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8. RENT (N)
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This Lease shall be rent -free to the COUNTY for the duration of the Lease term and any
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extension thereof.
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9. CONSTRUCTION AND ALTERATIONS (4.4 N)
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At its own expense, in a good and workmanlike manner, and in compliance with all code and
permit requirements of all local, county, state, and federal laws, ordinances, rules and
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regulations, and subject tothe provisions of Clause 5, Mutual Non - Interference, of this Lease,
COUNTY may, at any time during the term of the Lease, make improvements and
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modifications to its 800 MHz System and Facility located on the Premises, including but not
limited to the installation of communications equipment, appurtenant structures, autotransfer
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switch, air conditioning, emergency diesel generator, diesel fuel tank, fixtures, partitions,
counters, shelving, and other ancillary equipment as deemed necessary or appropriate. Prior
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to initial construction or any major renovation of the 800 MHz System and Facility located on
the Premises, COUNTY shall obtain LESSOR's written approval of COUNTY's plans and
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specifications for COUNTY s work, which approval shall not be unreasonably withheld or
conditioned. LESSOR shall give such approval or provide COUNTY with its requests for
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changes within twenty (20) working days of LESSOR's receipt of COUNTY's plans and
specifications. COUNTY shall have the right to improve existing utilities and bring any new
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utilities across the property needed to service the 800 MHz System and Facility, subject to
reasonable conditions and provided that the existing conditions are repaired to their original
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condition in a timely manner.
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It is agreed that any such communications equipment, appurtenant structures, auto transfer
switch, air conditioning, emergency diesel generator, diesel fuel tank, fixtures, partitions,
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counters, shelving, or other ancillary equipment attached to or placed upon or within the
Premises or Property by COUNTY shall be the personal property of COUNTY. COUNTY
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shall remove, at COUNTY's sole expense, the 800 MHz System, Facility and all personal
property by the last day of the Lease term (or extended Lease term), or if earlier terminated,
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within sixty (60) days after termination. COUNTY agrees that the Premises shall be left in as
good condition as when received, reasonable wear and tear excepted.
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10. REPAIR AND MAINTENANCE (5.1 N)
38
LESSOR Obligations:
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LESSOR shall maintain, in good condition and repair and at its sole expense, the Tower and
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the foundation, all structural components, "roof, exterior walls and drainage systems of the
Equipment Building. LESSOR shall ensure COUNTY's access to its Premises is
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unobstructed. LESSOR shall keep the area immediately surrounding the Tower and
Equipment Building unobstructed, and free and clear of rubbish and litter.
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LESSOR shall, at all times during the term of this Lease and at its sole expense, maintain in
48
good operating condition all Federal Aviation Administration ( "FAA ") required Tower lighting
and markings. LESSOR shall additionally be responsible for providing any FAA required
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lighting outage notifications and complying with all current and future FAA requirements
relating to the Tower. .
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5 File_ GA 055 -485- 2200 -20 -2
�. COUNTY Obliqations:
COUNTY expressly agrees to maintain the Premises in a safe, clean, wholesome, sanitary
4 condition and in compliance with all applicable laws. COUNTY, at its sole cost and expense,
shall maintain in good condition and repair the Premises, the 800 MHz System, its Facility,
6 and its portion of the Equipment Building including interior walls, floor, ceiling, all wiring,
plumbing and utility connections, the diesel generator, auto transfer switch, fuel tank and fuel
8 storage area. COUNTY also agrees to install any necessary materials or devices to protect its
equipment and facilities installed in the Equipment Building from temporary leaks in the roof
10 that may occur so that the COUNTYs equipment and facilities are not damaged. The
COUNTY agrees to immediately notify the LESSOR of any condition caused by the LESSOR
12 or that LESSOR is responsible for that COUNTY believes may cause damage to the
COUNTY's Facility and /or equipment installed in the Equipment Building so that the LESSOR
14 can take any required action.
16 Air Conditioning Maintenance:
18 LESSOR and COUNTY shall each be responsible forthe maintenance, servicing and repair of
their respective separate air conditioning systems and the cost and expense thereof.
20
11. TOWER WORK (N)
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Any contractor or other party performing work on the Tower shall comply with all safety and
24 hourly requirements for employees, in accordance with Federal, State and local govemmental
safety and health regulations, and laws as well as reasonable security measures required by
LESSOR.
28 Contractors shall assure that all Tower workers and supervisors are trained and currently
certified tower climbers, using all required climbing safety equipment. The contractor shall
30 utilize a program of regular climbing apparatus testing. Proof of current certification and
documentation of compliance and testing for each employee shall be submitted to the
32 COUNTY and LESSOR.
34 Contactors shall assure that all Tower workers and supervisors are trained in EME Safety
compliance and possess RF Safety dosimeter monitoring devices. These devices shall be
36 operated when working on the Tower. No Tower work shall be performed without the
presence of a contractor provided safety person on the Premises. Where necessary,
38 COUNTY and LESSOR operated transmitters shall be turned off to meet FCC EME Safety
and occupational regulations for tower workers.
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Contractor's on -site safety person shall be trained and currently certified in first aid and Cardio
42 Pulmonary Resuscitation (CPR), and maintain an industrial first aid kit in their vehicles at all
times.
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COUNTY and LESSOR agree that all Tower work contractors, climbers and others involved
46 in Tower work shall be required to have insurance coverage in a form and amount as is
deemed necessary by the COUNTY and LESSORS Risk Managers to adequately protect
48 COUNTY and LESSOR, and who shall be named as additional insureds. COUNTY and
LESSOR Risk Managers approval shall be required priorto any work being performed on the
Tower.
52 12. ACCESS BY LESSOR (N)
54 Upon 24 -hours prior written notice to COUNTY (voice -mail, or other form of voice - recorded
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messages are not considered prior notice), LESSOR and LESSOR's agents shall have the
right to enter the Premises and the Facility during reasonable business hours forthe purpose
of inspecting the same to ensure compliance with this Lease, so long as such entry does not
unreasonably interfere with the COUNTY's operation of its Facility. Access to the Premises
shall not be permitted without proper escort designated by the Communications Director.
Except in the event of a life or property threatening emergency, LESSOR shall not access the
Premises without prior written notice to the COUNTY.
13. LIENS (N)
COUNTY shall not cause liens of any kind to be filed or placed against the Premises or
Property, including without limitation, mechanics liens, liens for materials, wages, labor or
services. If any liens are filed, and such liens are the result of any act, directive or action of
COUNTY, its agents or employees, COUNTY shall upon receipt of written notice from
LESSOR, at COUNTY's sole cost and expense, take whatever action(s) necessary to cause
such lien to be satisfied and discharged or to cause any such lien to be removed of record.
14. UTILITIES (5.2 N)
COUNTY shall be responsible for and pay all charges for all utilities supplied to the Premises
and the initial utilities connection from the nearest available access pointwithin the Property to
its portion of the Equipment Building for the support of its 800 MHz System and Facility as
shown in Exhibit B. Such charges for utility service shall be determined by a separate meter
installed by COUNTY to monitor COUNTY's utility usage.
15. SIGNS (N)
COUNTY agrees not to construct, maintain, or allow any signs, banners, flags, etc., upon the
Property or Premises except as approved in writing by LESSOR, or as required by any
governmental agency with jurisdiction for regulatory purposes.
16. INSURANCE (5.3 N)
LESSOR Insurance: COUNTY recognizes that LESSOR is self - insured and provides
coverage through its self - insurance program. LESSOR will provide COUNTY with a letter of
self insurance to verify liability coverage. COUNTY and LESSOR AGREE THAT LESSOR
does not carry public liability or property damage insurance to compensate COUNTY or any
other person from any loss, damage or injury except those resulting from situations where
LESSOR would be legally liable for such loss, damage or injury. LESSOR agrees it shall self
insure for a combined coverage of bodily injury and property damage in the amount of not less
than One Million Dollars ($1,000,000). Phorto the Commencement Date of this Lease and
upon renewal of such policies, LESSOR. shall submit to COUNTY a suitable letter of self -
insurance.
Contractors Liability Insurance: All contractors, subcontractors and others performing work on
behalf of LESSOR and /or COUNTY pursuant to this Lease shall obtain insurance in the form
and amounts approved by the COUNTY and LESSOR Risk Managers, COUNTYs
requirements for contractor's insurance are set forth in "Exhibit C" County Contractors
Insurance Requirements, is attached . hereto and incorporated herein by this reference.
LESSOR and COUNTY shall not allow contractors or subcontractors to work if contractors or
subcontractors have less than the level of coverage required by the COUNTY and LESSOR
Risk Managers. It is the obligation of LESSOR and COUNTY to provide notice of insurance
requirements to every contractor and to receive proof of liability insurance coverage prior to
7 File: GA 055485 -2200 -20-2
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allowing any contractor to begin work within the Premises. Such proof of insurance must be
maintained by LESSOR and COUNTY through the entire term of this Lease and be available
for inspection by LESSOR and COUNTY representatives at any reasonable time. The
4 COUNTY and LESSOR shall be named as additional insureds on said poilicies.
6 COUNTY Insurance LESSOR recognizes that the COUNTY is self-insured forgeneral liability
including bodily injury and property damage, and provides coveragethrough its self- insurance
8 program. COUNTY will provide LESSOR with a letter of self insurance to verify coverage in
the amount of not less than One Million Dollars ($1,000,000).
10
17. LIMITATION OF LESSOR'S LIABILITY FOR COUNTY PERSONAL PROPERTY
12
EXCEPT FOR THE SOLE OR WILLFUL MISCONDUCT OF THE LESSOR, ITS CITY
14 COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS,
EMPLOYEES, AGENTS, AND ASSIGNS, AND AS A FURTHER CONSIDERATION FOR
16 THE USE AND OCCUPANCY OFTHE PREMISES, COUNTYAGREES THAT LESSOR, ITS
CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS,
18 EMPLOYEES, AGENTS, AND ASSIGNS SHALL NOT BE LIABLE TO COUNTY, ITS
CONTRACTORS, SUBCONTRACTORS, LICENSEES OR INVITEES FORANY LOSS OR
20 DAMAGE TO COUNTY PROPERTY, AS THE RESULT OF THE USE AND OCCUPANCY
OF THE PREMISES. IT IS FURTHERAGREED THATANY STORED PROPERTY, PLACED
22 ON OR IN THE PREMISES IS DONE SO AT COUNTY'S SOLE RISK, AND LESSOR, ITS
CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS, OFFICIALS,
24 EMPLOYEES, AGENTS, AND ASSIGNS SHALL HAVE NO RESPONSIBILITY OR
Is LIABILITY FOR ANY LOSS OR DAMAGE TO SAID PROPERTY FROM ANY CAUSE
WHATSOEVER, EXCEPT FORTHE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF
THE CITY, ITS CITY COUNCIL, BOARDS, COMMISSIONS, DIRECTORS, OFFICERS,
28 OFFICIALS, EMPLOYEES, AGENTS. COUNTY ACKNOWLEDGES THAT LESSOR DOES
NOT WARRANT OR REPRESENT THAT STORED PROPERTY AT THE PREMISES WILL
30 BE SAFELY KEPT, NOR THAT IT WILL BE SECURE AGAINST THEFT NOR THAT THE
PREMISES ARE SECURE AGAINST HAZARDS CAUSED BY THEFT, MYSTERIOUS
32 DISAPPEARANCE, PESTS, WATER, FIRE, FLOOD OR THE ELEMENTS OF WEATHER
OR EARTHQUAKE. IT IS AGREED BY COUNTY THAT THIS RELEASE OF LESSOR'S
34 LIABILITY IS A BARGAINED FOR CONDITION OF THIS AGREEMENT, AND THAT WERE
LESSOR NOT RELEASED FROM LIABILITY AS SET FORTH HERE, THE
36 REIMBURSEMENT AGREEMENT WOULD HAVE REQUIRED ADDITIONAL
CONTRIBUTION BY THE COUNTY AND /OR RENT WOULD HAVE BEEN REQUIRED
38 UNDER THIS AGREEMENT. BY SIGNING THIS AGREEMENT, COUNTY
ACKNOWLEDGES THAT COUNTY HAS READ, UNDERSTANDS AND AGREES TO THE
40 TERMS OF PARAGRAPH 17.
42 18. INDEMNIFICATION (5.5 S)
44 COUNTY shall defend, indemnify and save harmless LESSOR, its officers, agents, and
employees, from and against any and all claims, demands, losses, or liabilities of any kind or
46 nature which LESSOR, its officers, agents, and employees maysustain or incur orwhich may
be imposed upon them for injury to or death of persons, or damage to property as a result of,
48 or arising out of, the sole negligence of COUNTY, its officers, agents, employees, subtenants,
invitees, or licensees, in connection with the occupancy and use of the Premises by COUNTY.
Likewise, LESSOR shall defend, indemnify and save harmless COUNTY, its officers, agents,
52 and employees from and against any and all claims, demands, losses, or liabilities of any kind
or nature which COUNTY, its officers, agents, and employees may sustain or incur or which
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maybe imposed upon them for injury to or death of persons, or damage to property as a result
of, or arising out of, the sole negligence of LESSOR, its officers, agents, employees, invitees,
or licensees, in connection with the ownership, maintenance, or use of the Premises.
19. TAXES AND ASSESSMENTS (5.6 N)
All taxes and assessments which become due and payable upon and which are directly
attributable to the COUNTY's Facility upon the Premises shall be the full responsibility of
COUNTY, and COUNTY shall cause said taxes and assessments to be paid priorto the due
date. COUNTY shall pay all real property taxes and all other taxes, fees and assessments
attributable to the Premises and this Lease. COUNTY, when possible, shall cause the Facility
and any other personal property, fixtures, and /or equipment of.COUNTYto be assessed and
billed separately from the real property of LESSOR.
20. ASSIGNMENT AND SUBLEASE (N)
COUNTY shall not assign this Lease or sublet the Premises or any part thereof without the
prior written consent of LESSOR, which consent shall not be unreasonably withheld.
COUNTY AND LESSOR agree that COUNTY shall not assign this Lease or sublet the
Premises or any part thereof for a non - governmental use (i.e. commercial use).
In the event COUNTY desires to assign this Lease or sublet the Premises or any partthereof,
COUNTY shall deliver all documents relating to such assignment orsublease to LESSOR and
LESSOR shall respond in writing within thirty (30) days after receipt of all documents relating
to such assignment or sublease that it consents or does not consent to such assignment or
sublease on the same terms as those proposed. Said consent by LESSOR shall not be
unreasonably withheld. LESSOR's failure to respond within said time period shall be deemed
an approval by LESSOR.
In the event LESSOR consents to any proposed assignment contemplated hereunder,
COUNTY shall have no further liability under this Lease from and after the effective date of
such assignment.
21. SUBORDINATION, ATTORNMENT AND NON - DISTURBANCE (6.4 N)
This Lease and all rights of the COUNTY hereunder are subject and subordinate to any
indebtedness secured by the Property or the Premises including but not limited to a mortgage
or deed of trust ('Indebtedness") which does now or may hereafter coverthe Premises or any
interest of LESSOR therein, and to any and all advances made on the security thereof, and to
any and all increases, renewals, modifications, consolidations, replacements and extensions
of any such Indebtedness except, insofar as COUNTY is meeting its obligations under this
Lease, any foreclosure of any Indebtedness shall not result in the termination of this Lease or
the displacement of COUNTY.
In the event of transfer of title of the Premises, including any proceedings brought for
foreclosure or in the event of the exercise of the power of sale under any instrument securing
an Indebtedness, or by any othertransfer of title covering the Premises, COUNTY shall attom
to and recognize any subsequent title holder as the LESSOR under all terms, covenants and
conditions of this Lease. COUNTY's possession of the Premises shall not be disturbed by the
LESSOR, or its successors in interest, and this Lease shall remain in full force and effect.
Said attornment shall be effective and self- operative immediately upon succession of the
current titleholder, or its successors in interest, to the interest of LESSOR under this Lease.
Notwithstanding the above, this Lease is contingent upon LESSOR obtaining a Subordination,
9 File: GA 0554852200 -20 -2
0
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Attomment and Non - Disturbance Agreementfrom any current lenders on the Premises, within
thirty (30) days of LESSOR's execution of this Lease. LESSOR shall.require all future lenders
on the Premises, upon initiation of their interest in the Premises, to enter into a Subordination,
4 Attomment and Non - Disturbance Agreement with COUNTY, thereby insuring COUNTY of its
leasehold interests in the Premises. Said Subordination, Attomment and Non - Disturbance
6 Agreement shall be in the form of COUNTY s standard form Subordination, Attomment and
Non - Disturbance Agreement or in a form approved by the Communications Director, or
8 designee, Corporate Real Estate and County Counsel.
10 Foreclosure shall not extinguish this Lease, and any lender or any third party purchasing the
Premises at foreclosure sale shall do so subject to this Lease and shall thereafter perform all
12 obligations and be responsible forall liabilities of the LESSOR under the terms of this Lease.
14 22. ESTOPPEL CERTIFICATE (6.5 S)
16 COUNTY agrees that its Communications Director, ordesignee, shall furnish from time to time
upon receipt of a written request from LESSOR orthe holder of any deed of trust or mortgage
18 covering the Premises or any interest of LESSOR therein, COUNTY s standard form Estoppel
Certificate containing information as to the current status of the Lease. The Estoppel
20 Certificate shall be approved by the Communications Director, or designee, Corporate Real
Estate, and County Counsel.
22
23. TOXIC MATERIALS (5.9 5)
2<4
COUNTY hereby warrants and represents that COUNTY will comply with all laws and
regulations relating to the storage, use and disposal of hydrocarbon substances and
hazardous, toxic or radioactive matter, including, but not limited to, those materials identified in
28 Title 26.of the California Code of Regulations (collectively "Toxic Materials "). COUNTY shall
be responsible for and shall defend, indemnify and hold LESSOR, its officers, directors,
30 employees, agents, and representatives, harmless from and against all claims, costs and
liabilities, including attomeys' fees and costs arising out of or in connection with the storage,
32 use, and disposal of Toxic Materials on the Premises by COUNTY. If the storage, use, and
disposal of Toxic Materials on the Premises by COUNTY results in contamination or
34 deterioration of water or soil resulting in a level of contamination greater than maximum
allowable levels established by any governmental agency having jurisdiction over such
36 contamination, COUNTY shall promptly take any and all action necessary to clean up such
contamination.
38
Likewise, LESSOR hereby warrants and represents that LESSOR has in the past and will
40 hereafter comply with all laws and regulations relating to the storage, use and disposal of
hydrocarbon substances and hazardous, toxic or radioactive matter, including, but not limited
42 to, those materials identified in Title 26 of the California Code of Regulations (collectively
"Toxic Materials "). LESSOR shall be responsible for and shall defend, indemnify and hold
44 COUNTY, its officers, directors, employees, agents, and representatives, harmless from and
against all claims, costs and liabilities, including attomeys' fees and costs arising out of or in
46 connection with the previous, current and future storage, use and disposal of Toxic Materials
on the Premises (or building if the premises comprises only a portion of said building) by
48 LESSOR. If the previous, current and future storage, use, and disposal of Toxic Materials on
the Premises by LESSOR results in contamination or deterioration of water or soil resulting in
a level of contamination greater than maximum allowable levels established by any
governmental agency having jurisdiction over such contamination, LESSOR shall promptly
52 take any and all action necessary to clean up such contamination.
54
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24. DEFAULTS AND REMEDIES (6.8 N)
The occurrence of a failure to perform any obligation, agreement or covenant under this
Lease shall constitute an event of default.
In the event of any breach of this Lease by COUNTY, LESSOR shall notify COUNTY in writing
of such breach and COUNTY shall have thirty (30) days in which to initiate action to cure said
breach. COUNTY understands that time is of the essence and will work diligently.to cure any
breach.
In the event of any breach of this Lease by LESSOR, COUNTY shall notify LESSOR in writing
of such breach and LESSOR shall have thirty (30) days in which to initiate action to cure said
breach. LESSOR understands that time is of the essence and will work diligently to cure any
breach.
COUNTY and LESSOR shall have the right to pursue all remedies available under the law.
25. DISPUTES (N)
In the event a dispute relating to this Lease shall arise between the parties to this Lease, the
COUNTY and LESSOR shall first attempt to resolve the dispute informally through good faith
negotiation. If the dispute is not resolved by negotiation within a reasonable period of time, it
is hereby.agreed that the dispute shall be referred to a neutral unbiased party agreed to in
writing by COUNTY and LESSOR for mediation. The COUNTY and LESSOR further agree
that their participation in mediation is a condition precedent to any party pursuing any.other
available remedy in relation to the dispute.
Either party to the dispute may give written notice to the other party of its desire to commence
the mediation process, and a mediation session shall take place within thirty (30) days after
the date that such notice is given, or at such othertime as mutually agreed upon in writing by
COUNTY and LESSOR.
The mediator shall determine the mediation process. The parties further agree to share
equally the costs of the mediation, which costs shall not include costs.incurred by either party
for representation by counsel in the mediation process.
26. AUTHORITY (N)
LESSOR and LESSOR's signatories represent that the signatories to this Lease hold the
positions set forth below their signatures and that the signatories are authorized to execute
this Lease on behalf of LESSOR and to bind LESSOR hereto.
27. RECITALS (N)
The Recitals paragraphs above are hereby incorporated in this Lease by this reference.
28. NOTICES (8.1 S)
All notices pursuant to this Lease shall be addressed as set forth below or as either party may
hereafter designate by written notice and shall be deemed delivered upon personal delivery,
delivery via fax machine, or seventy -two (72) hours after deposit in the United States Mail.
11 File: GA 055485 -2200 -20.2
•
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12 File: GA 055.485- 2200 -20 -2
TO: LESSOR TO:
COUNTY
City of Newport Beach
Sheriff- Coroner Department
4
3300 Newport Blvd.
Communications Division
Newport Beach, CA 92658
840 N. Eckhoff St., Suite 104
6
Attn: Utility Services Director
Orange, CA 92868 -1021
Attn: Communications Director
8
and
and
10
City of Newport Beach
Sheriff Real Property Services
12
3300 Newport Blvd.
320 N. Flower Street, Ste. 108
Newport Beach, CA 92658
Santa Ana, Ca. 92703
14
Attn: City Attorney
Attn: Real Property Agent
16
29. ATTACHMENTS (9.2 S)
18
This Lease includes the following, which are attached hereto and made a part hereof:
20
I. GENERAL CONDITIONS
II. EXHIBITS
22
A. Description — Property
B. Site Plan — Premises
24
C. County Contractor's Insurance Requirements
•
12 File: GA 055.485- 2200 -20 -2
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?A
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IN WITNESS WHEREOF, the parties have executed this Lease the day and year first
above written.
COUNTY
APPROVED AS TO FORM:
County Counsel
L-A
Deputy
Date:
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
BOARD OF SUPERVISORS
ATTEST:
DARLENE J. BLOOM
Clerk of the Board of Supervisors
of Orange County, California
COUNTY OF ORANGE
Chairman, Board of Supervisors
13
LESSOR
APPROVED AS TO FORM:
City Attorney
By:
Assistant City Attorney
Date:
CITY OF NEWPORT BEACH
Bv:
Mayor
ATTEST:
-
City Clerk
File: GA 055- 485 - 2700 -20-2
0
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Project No.: GA 055 -485- 2200 -20 -2
2 Project Name: 800 MHZ Communications Site (Lease)
Project Location: City of Newport Beach
4 City Utilities Department Yard
6 GENERAL CONDITIONS
8
1. LEASE ORGANIZATION (9.1 S)
10
The various headings in this Lease, the numbers thereof, and the organization of the
12 Lease into separate sections and paragraphs are for purposes of convenience only and
shall not be considered otherwise.
14
2. INSPECTION (9.2 S)
16
LESSOR or his authorized representative shall have the right at all reasonable times and
18 upon reasonable advance notice to COUNTY to inspect the Premises to determine, if
COUNTY is complying with all the provisions of this Lease.
20
3. SUCCESSORS IN INTEREST (9.3 S)
22
Unless otherwise provided in this Lease, the terms, covenants, and conditions contained
24 herein shall apply to and bind the heirs, successors, executors, administrators, and
assigns of all the parties hereto, all of whom shall be jointly and severally liable
26 hereunder.
28 4. DESTRUCTION OR DAMAGE TO PREMISES (9.4 N)
30 "Partial Destruction" of the Premises shall mean damage or destruction to the
Premises or Tower, for which the repair cost is less than twenty -five percent (25 %) of the
32 then replacement cost of the Premises or Tower, excluding the value of the land.
34 "Total Destruction" of the Premises shall mean damage or destruction to the Premises
or Tower, for which the repair cost is twenty -five percent (25 %) or more of the then
36 replacement cost of the Premises or Tower, excluding the value of the land.
38 Partial Destruction
40 In the event of a Partial Destruction of the Premises or Tower, LESSOR shall
immediately pursue completion of all repairs necessary to restore the Premises
42 or Tower to the condition which existed immediately prior to said Partial
Destruction. Said restoration work (including any demolition required) shall be
44 completed by LESSOR, at LESSOR's sole cost and expense, unless the Partial
Destruction of the Premises or Tower was caused by COUNTY in which event
46 the COUNTY shall be solely liable for said cost and expense, within ninety (90)
days of the occurrence .of said Partial Destruction or within an extended time
48 frame as may be authorized, in writing, by COUNTY. The Partial Destruction of
•the Premises or Tower shall in no way render this Lease null and void. Should
50 LESSOR fail to complete necessary repairs, for any reason, within ninety (90)
Page 1 of 3
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days, or other time frame as may be authorized by COUNTY, COUNTY may, at
COUNTY's sole option, terminate the Lease or complete necessary repair work.
Total Destruction
A. In the event of Total Destruction of the Equipment Building or the Premises
(excluding the Tower) being legally declared unsafe or unfit for use or
occupancy, this Lease shall in no way be rendered null and void and LESSOR
shall immediately instigate action to rebuild or make repairs, as necessary, to
restore the Premises (including replacement of all tenant improvements) to the
condition which existed immediately prior to the destruction. In the event
LESSOR refuses to diligently pursue or is unable to restore the Premises to an
useable and occupiable condition (including replacement of all tenant
improvements) within 180 days of the occurrence of said destruction or within an
extended time frame as may be authorized, in writing, by COUNTY, COUNTY
may, at COUNTY's sole option, terminate this Lease or complete the restoration.
B. In the event of Total Destruction of the Tower to the extent that COUNTY's
operation of its 800 MHz System is not reasonably possible, or the Tower being
legally declared unsafe or unfit for its use as provided in this Lease, this Lease
shall be terminated and of no further force and effect.
5. AMENDMENT (9.5 S)
The Reimbursement Agreement and this Lease sets forth the entire agreement between
LESSOR and COUNTY and any modification must be in the form of a written
amendment.
6. PARTIAL INVALIDITY (9.6 S)
If any term, covenant, condition, or provision of this Lease 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.
1 7. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE (9.7 S)
If either party hereto shall be delayed or prevented from the performance of any act
required hereunder by reason of acts of God, 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. Financial inability shall not
be considered a circumstance excusing performance under this Lease.
8. WAIVER OF RIGHTS (9.9 S)
The failure of LESSOR or COUNTY to insist upon strict performance of any of the terms,
conditions, and covenants in this Lease shall not be deemed a waiver of any right or
remedy that LESSOR or COUNTY may have, and shall not be deemed a waiver of any
right or remedy for a subsequent breach or default of the terms, conditions, and
covenants herein contained.
Page 2 of 3
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•
•9. HOLDING OVER (9.10 S)
2
In the event COUNTY shall continue in possession of the Premises after the term of this
4 Lease, such possession shall not be considered a renewal of this Lease but a tenancy
from month to month and shall be governed by the conditions and covenants contained
6 in this Lease.
8 10. QUIET ENJOYMENT (9.13 S)
10 LESSOR agrees that, subject to the terms, covenants and conditions of this Lease,
COUNTY may, upon observing and complying with all terms, covenants and conditions
12 of this Lease, peaceably and quietly occupy the Premises.
14 11. GOVERNING LAW AND VENUE (9.16S)
16 This agreement has been negotiated and executed in the State of California and shall be
governed by and construed under the laws of the State of California. In the event of any
18 legal action to enforce or interpret this agreement, the sole and exclusive venue shall be
a court of competent jurisdiction located in Orange County, California, and the parties
20 hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding
Code of Civil Procedure section 394.
22
12. TIME (9.17 S)
24
• Time is of the essence of this Lease.
•
Page 3 of 3
y
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f rojecl I 10. "A
CCCS 800 MHZ Communications Site
EXHIBIT A
�1 County of Orange & City of Newport Beach
Newport Beach City Utilities Yard Lease
949 W
16'h Street Depiction of Property 1t
EQUIPMENT EQUIPMENT
ROOM #R -2 ROOM #R -1
PARKING
TEN
TR NS.
G NERAT R
SIDEWALK
BUILDING #4
ELECT. DIST: ROOM
Project No. GA 055 - 4852200 -20 -2
CCCS 800 MHZ Communications Site
County of Orange & City of Newport Beach EXHIBIT B (page 1 of 2)
Newport Beach City Utilities Yard Lease — Site Plan
949 W. 16 `h Street Premises
4
0
i I■° IMIC
fi7
320'
300'
280'
260'
240'
180'
0411
70'
60'
40
ANTENNA DATA
A
COUNTY
800 MHz CCCS
Rx
B
COUNTY
800 MHz CCCS
Tx
C
COUNTY
800 MHz CCCS
Tx
D
COUNTY
800 MHz CCCS
6' HP
MICROWAVE
ANTENNA 104
DEG, AZIMUTH
NOTE #1
40' -70'
COUNTY OF
INDICATED BY
ORANGE
HIGHLIGHTED
EXCLUSIVE
AREA
USE AREA
NOTE #2
260' -320'
COUNTY OF
INDICATED BY
ORANGE
HIGHLIGHTED
EXCLUSIEVE
AREA
USE AREA
Project No. GA 055- 485 - 2200 -20 -2
CCCS 800 N11-IZ Communications Site
County of Orange & City of Newport Beach EXHIBIT B (page 2 of 2)
Newport Beach City Utilities Yard - Tower Lease – Tower Plan
949 W. 16 th Street Premises —
• Project No.: GA 055 -485- 2200 -20 -2
Project Name: 800MHz Communications Site (Lease)
Project Location: City of Newport Beach
City Utilities Yard
Contractor's Insurance Requirements
Exhibit C
Prior to the provision of services under this contract or payment therefore, the
contractor agrees to purchase all required insurance at contractor's expense and
to deposit with the COUNTY certificates of insurance, including all endorsements
required herein, necessary to satisfy the COUNTY that the insurance provisions
of this contract have been complied with and to keep such insurance coverage
and the certificates and endorsements therefore on deposit with the COUNTY
during the entire term of this contract. In addition, all subcontractors performing
work on behalf of contractor pursuant to this contract shall obtain insurance
subject to the same terms and conditions as set forth herein for contractor.
Contractor shall not allow subcontractors to work if subcontractors have less than
the level of coverage required by the COUNTY from the contractor under this
contract. It is the obligation of the contractor to provide notice of the insurance
• requirements to every subcontractor, and to receive proof of insurance prior to
allowing any subcontractor to begin work. Such proof of insurance must be
maintained by contractor through the entirety of the project for inspection by
COUNTY representative at any reasonable time.
All insurance policies required by this contract shall declare any deductible or
self - insured retention (SIR). The maximum deductible or SIR amount shall be
$25,000 for general liability and $5,000 for automobile liability. The contractor
shall be responsible for reimbursement of any deductible to the insurer. Any self -
insured retentions (SIRS) or deductibles shall be clearly stated on the Certificate
of Insurance.
If the contractor fails to maintain insurance acceptable to the COUNTY for the full
term of this contract, the COUNTY may terminate this contract.
Qualified Insurer
The policy or policies of insurance must be issued by an insurer licensed
to do business in the state of California (California Admitted Carrier).
Minimum insurance company ratings as determined by the most current edition
of the Best's Key Rating Guide /Property - Casualty /United States or
ambest.com shall be A- (Secure Best's Rating) and VIII (Financial Size
• Category).
If the carrier is a non - admitted carrier in the state of California, CEO /Office of
Risk Management retains the right to approve or reject carder after a review of
the company's performance and financial ratings.
The policy or policies of insurance maintained by the Contractor shall provide the
minimum limits and coverage as set forth below:
Coverage Minimum Limits
Commercial General Liability including broad $1,000,000 combined
single form property damage, operations, products, limit per occurrence
completed operations, contractual liability, $2,000,000 aggregate
and XCU (explosion, collapse and underground
property damage hazards)
Automobile Liability including coverage $1,000,000 combined
for owned, non -owned and hired vehicles single limit per
occurrence
Workers' Compensation Statutory
Employers' Liability Insurance $1,000,000 per
occurence
Builder's Risk Policy •
When required, as
specified below
All liability insurance required by this contract shall be at least $11000,000
combined.single limit per occurrence. The minimum General Aggregate limit for
the Commercial General Liability policy shall be $2,000,000. The minimum
aggregate limit for the completed operations shall be $1,000,000.
The City of Newport Beach and County of Orange shall be added as an
additional insured on all insurance policies required by this contract with respect
to work done by the contractor under the terms of this contract (except Workers'
Compensation /Employers' Liability). An additional insured endorsement
evidencing that the City of Newport Beach and County of Orange are an
additional insured shall accompany the Certificate of Insurance. The inclusion of
the City of Newport Beach and County of Orange as an additional insured shall'
not affect any right which such organizations would have as a claimant if not so
included.
All insurance policies required by this contract shall be primary insurance, and
any insurance maintained by the City of Newport Beach and County of Orange
shall be excess and non - contributing with insurance provided by these policies. •
An endorsement evidencing that the contractor's insurance is primary and non-
2
• contributing shall specifically accompany the Certificate of Insurance for the
Commercial General Liability.
All insurance policies required by this contract shall give the County of Orange 30
days notice in the event of cancellation. This shall be evidenced by an
endorsement separate from the Certificate of Insurance. In addition, the
cancellation clause must include language as follows, which edits the pre- printed
ACORD certificate:
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE
CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE
ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS
WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO
THE LEFT. BUT FAILURE TO MAIL SWCH NOTICE SHALL IMPOSE
NO w OBLIGATION OR LIABILITY OF I ANY KIND UPON THE
NY ITS GENT OR REPRFSENTATIV ,
All insurance policies required by this contract shall waive all rights of
subrogation against the CITY and County of Orange and members of the Board
of Supervisors, its elected and appointed officials, officers, agents and
employees when acting within the scope of their appointment or employment.
• The Commercial General Liability policy shall contain a severability of interests
clause.
The Contractor is aware of the provisions of Section 3700 of the California Labor
Code which requires every employer to be insured against liability for Workers'
Compensation or be self - insured in accordance with provisions of that code. The
contractor will comply with such provisions and shall fumish the COUNTY
satisfactory evidence that the contractor has secured, for the period of this
contract, statutory Workers' Compensation insurance and Employers' Liability
insurance with minimum limits of $1,000,000 per occurrence.
The Contractor shall secure and maintain a Builder's Risk policy upon the entire
work for new construction amounting to 100 percent of the insurable value of the
work. A Builder's Risk policy shall also be required for additions to existing
buildings /structures, or major alterations to existing buildings /structures. A Loss
Payee endorsement must name the County of Orange as the Loss Payee.
The contractor shall be responsible for securing and maintaining appropriate
insurance on any tool, equipment or supply which is expected to remain his
property.
Insurance certificates and endorsements should be forwarded to the
agency /department address listed on the contract documents.
IV
CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
Newport Theatre Arts Center Lobby Addition, Retrofit of Guyed Tower, BID LOCATION:
TITLE: Utilties Yard Radio Building and Building 3 Remodel _City Clerk's Office - City Hall
CONTRACT NO.: 3742 DATE: 17- Apr -07 TIME: 11:00 AM
ENGINEER'S ESTIMATE: $950,000.00 BY TS CHECKED: Ld
PROJECT MANAGER: Lloyd Dalton
as -read Total Bid Price (uncorrected)
LS
of (E) 320' Guyed Tower
Yard Radio Building
Yard Building 3 Remodel
f: users'oared \contract\00-01 \\BID SUMMARY .xis
918,000.00
En gineers Estimate
Engineers Estimate
MACERICH CONSTRUCTION
BIG WEST CONSTRUCTION
GENERAL CONSOLIDATED
CONSTRUCTORS INC
ITEM
DESCRIPTION
QUANTITY
UNIT
AMOUNT
UNIT
AMOUNT
UNIT
AMOUNT
UNIT
AMOUNT
1
Mobilization
1
LS
25,000.00
25,000.00
65,000.00
65,000.00
80,000.00
80,000.00
75,000.00
75,000.00
2
Newport Theatre Arts Center Lobby Addition
1
LS
300,000.00
300,000.00
265,000.00
265,000.00
288,373.00
288,373.00
300,000.00
300,000.00
3
Retrofit of E 320' Gu ed Tower
1.
LS
30,000.00
30,000.00
80,000.00
80,000.00
26,665.00
26,665.00
80,000.00
80,000.00
4
Utilities Yard Radio Building
1
LS
310,000.00
310,000.00
424,000.00
424,000.00
303,530.00
303,530.00
300,000.00
300,000.00
5
Utilities Yard Building 3 Remodel
1
LS
285,000.00
285,000.00
89,000.00
89,000.00
310,907.00
310,907.00
280,000.00
280,000.00
Total Bid Price
EE
950,000.00
LOW
923,000.00
2ND
1,009,475.00
3RD
1,035,000.00
as -read Total Bid Price (uncorrected)
LS
of (E) 320' Guyed Tower
Yard Radio Building
Yard Building 3 Remodel
f: users'oared \contract\00-01 \\BID SUMMARY .xis
918,000.00
En gineers Estimate
HORIZONS CCI SERVICES
KLASSIC INC.
UNITED CONTRACTORS CO. INC.
UNIT
AMOUNT
UNIT
AMOUNT
UNIT
AMOUNT
UNIT
AMOUNT
25,000.00
25,000.00
113,000.00
113,000.00
80,000.00
80,000.00
75,000.00
75,000.00
300,000.00
300,000.00
279,500.00
279,500.00
605,000.00
605,000.00
556,800.00
556;800.00
30,000.00
30,000.00
72,000.00
72,000.00
38,000.00
38,000.00
485,000.00
485,000.00
310,000.00
310,000.00
311.,900.00
311,900.00
375,858.00
375,858.00
459,600.00
459,600.00
285,000.00
285,000.00
273,000.00
273,000.00
227,000.00
227,000.00
608,400.00
608,400.00
EE
950,000.00
4TH
1,049,400.00
1 5TH
1.325.858.00.1
6TH
2,184,800.00
0 0 Page
CITY OF NEWPORT BEACH
• PUBLIC WORKS DEPARTMENT
PROPOSAL
(1) NEWPORT THEATRE ARTS CENTER LOBBY ADDITION,
(2) RETROFIT OF (E) 320' GUYED TOWER,
(3) UTILITIES YARD RADIO BUILDING, AND
(4) UTILITIES YARD BUILDING 3 REMODEL
CONTRACT NO. 3742
To the Honorable City Council
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92663
Gentlemen:
The undersigned declares that he has carefully examined the location of the work, has read
the Instructions to the Bidders, has examined the Plans and Special Provisions, and hereby
proposes to furnish all materials except. that material supplied by the City and shall perform
•all work required to complete Contract No. 3742 in accordance with the Plans and Special
Provisions, and will take in full payment therefore the following unit prices for the work,
complete in place, to wit:
ITEM QUANTITY ITEM DESCRIPTION AND LUMP TOTAL
AND UNIT SUM PRICE WRITTEN IN WORDS PRICE
Lump Sum
2. Lump Sum
3. Lump Sum
•
Mobilization
---- --- ._ - @�+� y 7�Y taus.., - Dollars..__._ ...... _....._
and
s�o Cents $ ",000.-
Per Lump Sum
Newport Theatre Arts Center Lobby Addition
Stxl-! 6-Ya%sosa.4 D0IIars
and 6
.✓v Cents $ .2Z5. 02D- —
Per Lump Sum
Retrofit of (E) 320' Guyed Tower
@ Tl�ufa. Dollars
and
o Cents $ So. rn
Per Lump Sum
PR2of2
ITEM QUANTITY ITEM DESCRIPTION AND LUMP TOTAL •
AND UNIT SUM PRICE WRITTEN IN WORDS PRICE
4. Lump Sum Utilities Yard Radio Building Z�
f'oug do /uDdLItD -rtve � FdUR 7//a�5aab 9 S
@ Dollars Zy'�0�.oa
an y
d
�/-> Cents $ Be
Per Lump Sum
5. Lump Sum Utilities Yard Building 3 Remodel LGS•
Hi� ,vinea�Saw9
@ �16' Mars and `x,19 0 0
Cents $
Per Lump Sum
$ 9/9, aoo. —
TOTAL PRICE (Figures)
TOTAL PRICE (Words)
/�6rae�%/Is�.✓ ✓each �'�ilee.r %lousa.�/o Dollars •
and .14�47 /Cents
/7- X ea7
Date
71q -777- 7937 4%-e 7 19'- 777 -dW?
Bidder's Telephone and Fax Numbers
7Vda/ 19
Bidder's License No. and Classification
Bidder's a -Mail Address
Bidder
Bidder's Authorized .Signature and Title
190'tE. C.reo %.Avg R 337
Bidder's Address
Ave- e4q 0"1'45
Within two calendar days after bids are opened, the Contractor shall submit to the •
Engineer a "Schedule of Values" for the four lump sum construction items listed in his
proposal. The Engineer will use said schedule to calculate monthly progress payments
during the term of construction. The Lump Sum for Mobilization will be divided in half for
payment at the two sites.
EVE macedch constmCuen, Inc.
M M National General Contractor
April 17,200 7 �k-J:IVEI)
Lloyd Dalton APR 2`O 2007
Project Manager Public Works Department
City of Newport Beach City of Newport 3300 Newport Boulevard wp t Beach
Newport Beach, CA 92663
VIA FACSIMILE & REGULAR MAIL
Re. Newport Theatre Arts Center Lobby Addition
Retrofit of (E) 320' Guyed Tower
Utilities Yard Radio Building And
Utilities Yard Building & Remodel
Contract Number 3742
Subiect: Bid Withdraw
• Dear Mr. Dalton,
•
This letter is to inform you that we are withdrawing our bids today, due to the fact that
there was an error in adding the amounts that was transmitted to our field employee who
deliver the bid today, because of some difficulties with the Nextel Radio.
If the amount were added correctly the total bid amount would have be $ 1249,000.
Z9a310DD
I appreciate your time and consideration to this matter and I hope that we w1"1u .
service in the future.
Sincerely,
George Nemeh
(Project Manager).
CC: Robert L. Bachman Esq.
1442 E. Lincoln Ave # 337 Orange, CA 92865 Phone (714) 777 -7837 Fax. (714) 777 -6639 Lic 791601
MEMORY TRANSMISSION REPORT
TINE APR -17 -2007 11:03AM
TEL NUMER : +714 777 6639
NAME MACERICH CONSTRUCTION INC
FILE NU65ER 558
DATE APR -17 11:02AM
TO "19496443308
DOCUN €NT PAGES 002
START TIME APR -17 11:02AM
END TINE APR -17 11:03AM
"SENT - PAGES "002 "
STATUS " OK -
'FILE NUMBER - ":558 * ** SUCCESSFUL TX NOTICE * **
" �� Macrlrid� Co�truction: �n�
FacslmilaMemorandum-
ONLY FOILSFIE V9E OF TFIIi tNDNII]VAL OR: bT IT3'Y TO WFIOM lT �9 ADDRC99E0. IP THE REwDFP- OF
T13I5 M£95AQE IS NOT TFI£.INTE+NDEDRECIPIFiNS, yOV I.RE I- IER'CHY NOT)PRD THAT ANY - "
DI95EMINATLON. COPYIIVG ORDI3T'RIHU'C10N OP 11II9 COMMVNICATION 19 $TA -ICILY PROHIHITSO.
... ...... ...... ... .. .. .. .... __ ____ - ..._.__. .......
- To6 Loyd Dalioa -
City of Ncwpoxl Beach - "
F/\X NO_ 949�4q -3806 - "
" FROM.. Oeorps N�mbh' "
oour: 04!97(2007 -
BUBJECT:
Ml a w thdrnw "Laltor Aesacnod . "
'REEFERNCE: Oontnact No_ 3742 "Newport Theatre Arta Ounlar
PAGES: 02 "
Dwwr Mr. oaMen_" -
" "" Atia"shed yeuw111 And tlin lo![ir for the bId wiMdraw in re0ard m fho. above "
rafarance:p Jett - - -
Should you have any quaalions plea¢O "s!o net hesitate eo concoct our ofFCV, -
1x42 E. Llnmin Ave A 337 O Gm. Cs H2666 Phone (71a) 777 -7837 Fax (71a) 7»-6639 Lla 799691
0
•
0
:N macelich construction, In
M M National General Contractor
Facsimile Memorandum
THE INFORMATION CONTAINED IN THIS TRANSMISSION IS CONFIDENTIAL AND INTENED
ONLY FOR THE USE OF THE INDIVIDUAL OREN'fPfY TO WHOM IT IS ADDRESSED. IF THE READER OF
THIS MESSAGE IS NOT THE INTENDEDRECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY
DISSEMINATION, COPYING OR DISTRIBUTION OF THIS COMMUNICATION IS STRICTLY PROHIBITED.
To: Lloyd Dalton
City of Newport Beach
FAX NO: 949 - 644 -3308
FROM: George Nemeh
Date: 0411712007
SUBJECT: Bid Withdraw Letter Attached
REEFERNCE: Contract No. 3742 Newport Theatre Arts Center
PAGES: 02
•
----Dear Mr. Dalton.
Attached you will find the letter for the bid withdraw in regard to the above
reference project
Should you have any questions please do not hesitate to contact our office,
thanks.
•
1442 E. Lincoln Ave # 337 Orange, CA 92865 Phone (714) 777 -7837 Fax (714) 777 -6639 Uc 791601
FROM :LRNRK AND HANNA FAX N0. :7145500734 Apr. 27 2006 02:40PM P1
LANAK & HANNA, P.C.
Attorneys at Law •
400N. Tustin Avenue, Suite 120
Santa Ana, CA 92705-3815
Telephone: (714) 550 -0418 • Fxt. No.: 324 • .Facsimile: (714) 550 -7603
Direct Email Address: wehoggard@lanak- hanna.com
William C. Roggard Our File No.: 13878
Via facsin2ile (949) 644 -3308
April 27, 2007
Lloyd Dalton
Project Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Re: Contractor: Macerich Construction, Inc.
Project: Contract No. 3742 - Newport Theatre Arts Center
Dear Mr. Dalton:
•
Our office represents Macerich Construction, Inc., with regard to its bid on the above - referenced Project.
On April 17, 2007, Macerich gave you written notice of its intent to withdraw its bid as a result of a clerical
mistake in transmitting its intended bid numbers onto the bid form. Enclosed is a declaration that
supplements the April 17, 2007 letter.
Public Contract Code section 5103 requires the City to relieve Macerich of its bid, as that section states that
bidders are entitled to relief if.
(a) a mistake was made.
(b) He or she gave the public entity written notice within five days after the openitig of the bids
of the mistake, bpccifying in the notice in detail how the mistake omurred.
(c) The mistake made the bid materially different than he or she intended it to be.
(d) The mistake was made in filling out the bid and not due to error in judgment or to
carelessness in inspecting the site ofthe work, or in reading the plans or specifications.
Macerich gave the City written notice of the mistake in filling out its bid within hours of the bids being
opened. In the written notice, Macerich explained that there was mis- communication between the estimator
and field employee who prepared and delivered the bid form, restdting in Macerich submitting a bid number
that was materially different than it intended. This is the exact type of situation that Public Contract Code
section 5103 was intended to address.
i-1
L J
LUG w-nd, COhelnO.il ZMW70427 MN Oi.Mw
FROM :LANAK AND HANNA FAX NO. :7145500734 Apr. 27 2006 02:40PM P2
0
•
LANAK & HANNA, P.C.
Lloyd Dalton
City of Newport Beach
April 27, 2007
Page 2
With this letter, Macericb requests relief from its bid on the Project.
Very truly yours,
WILLIAM C. HOCIiYJ L.
Attorney at Law for the Firni
Wcll:mfs
Enclosures
cc: Client
Aaron Harp (via facsimile (949) 644 -3131)
1. UA- 'L% Cw9IM0l"M79W7M7 C+l 01.wp0
FROM :LANAK AND HANNA FRX NO. :7145500734 Apr. 27 2006 02:40PM P3
DECLARATION
1, GeorgeNemeh, declare as follows:
1 am employed by Macerich Constriction, Inc., ( "Macerich ") as a Project Manager. As a.
Project Manager, one of my responsibilities is to estimate and prepare hids for various projects. 1 have
personal knowledge of the following facts, and if called as a witness to testify, I could and would
competently testify to each fact contained in this declaration.
2. i was responsible for and did estimate and prepare the bid on Macerich's hehalf for the work
of improvement known as Newport Theatre Arts Center Lobby Addition/Retrofit of (E) 320' Guyed
Power /Utilities Yard Radio Building and/Utihtics Yard Building 3 Remodel (the "Project ").
3. The estimate and bid that I prepared fbr the Project was for a total price of $1,249,000.00, A
true and correct copyof my estimate and bid sheet showhig how 1 arrived at the total bid number is attached •
hereto as Exhibit "A" and incorporated herein.
4. On the day of the bid, I called a field employee to advise him of the bid numbers so that lie could
insert the numbers on the bid form and timely deliver the bid to the City. Unfortunately, then; were some
difficulties in our phone connection through our Nextel Radio. As a result of these difficulties, the field
employee wrote down the incorrect numbers on the hid form, causing the bid number that was submitted
to the City to be materially different than what Macerich intended the bid number to he.
S. I did not learn of the mistakes in Macerich's bid until after the bids were opened. When the
mistakes were discovered, I immediately sent a fax to the City, advising them of the mistake and Macerich's
intent to withdraw its bid. •
L; V&rs eh r"ftkxJ W7a27 DedaF*q .wpa
FROM :LRNAK AND HANNA FAX NO.
APR -27 -1007 10:42AM FROM-MACERICH CONSTRUCTION INC
6. With this declaration,Macarichreq
•
ConLTart Code section 5103.
:7145500734 Rpr. 27 2006 02:40PM P4
+ "14 777 6639 T -896 P.002 /008 F -190
oaststhatthc City reliavcMaperic *omitg bid under Public
I dcolara jMdar panaity of perJprytwdw the laws of the State,o£Calitbrnia that the Yoregaingis LTun
atd abnvc% and that this deelmadi rn was eiroopted on the 27m 4ay of April, 2007, in OraAgs. C'.alifrnmia.
�''�aorge Ntulaeh
FROM :LRNW AND HANNA
FRX NO. :7145500734
IBI
Apr. 27 2006 02:41PM PS
•
•
CL
CL
Cm
CL
4/1712007
c
Cost Sreakdo=Warksheet
N a..
m \
NevrportQ ®cEi Theatci-Afs Cenlar Lobiv7Addifion
m o
Denmlifun
$
71,6°10.101
L ility YardBuilding ,# 3 Remodel
mN a
Framing & Crysvall
$
22,1130.00
Radio Building
Concrete
$
45,1987.00
Trenching & Excavation
$ 14,822.00
N m
Insulafwn
'$
7460-00
Foundation &Stab
$ 65 =1.00
AluminumSt'meffanl &glazing
$
15,452.00
6lackYt'211
$ 88,652D0
o.
Doors &.Hardware
F
1,423.00
Asphalt Paving
$ 23,586-00
cc
ToiletParti5ons &Accessarles
$
4,850.00
Forming
$ 28,991-00
Counter top MiDwork
$
2,3e4.00
Roofing
$ 18,461.09
Alrcondliogias.
$
22,750.43
insdation
$ 8,04kil
m.
Plumbing-
$
1.184.00
Doom &Hardware
$ 8,721.00
m
I3ectdcal
'.$
45264.00
.Plastering
$ 23,679.60.
.-
8
179,334.00
Air Canciftning
$ 38,971.00
Electrical
$ 230,19 1100
v =
$ 580,336.00
m
Retrofit oltEE32D' Guyed Taster
Radio E$rllclng
N
Trenching .& Excavating
$
1,875.00
Denolgion
$ 1$,500.06
v
Concrate Foundation
$
56,410.00
Franiing
$ 26,000.00
r-
Anchor Vibe
$
5,871-00
135-Nall
$ 14,689.E
5
84,156-00
Insul29oc.
$ 9,a25,00
C3
Doors & Hardware
$ 196,671.00
Z
Cpuntenap
$ 6,529 -00
_
Air Conditioning
$ 32, -51-00
LL o
Hi:culCal
$ 6419308 -00
x
c�
$ 789,974-00
F
$
178,334.08
T
$
60,156.60
v
$
590,338.06
U
$
169,174:]0
Overhead
€
240,000.010
Total Cost
€
1,249,600.00
Z
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FROM :LANAK AND HANNA FAX NO. :7145500734 Apr. 27 2006 O2:41PM P7
APR -27 -2007 IDc12AM FW*CERICR CONSTRUCTION INC 414 777 6620 5-690 P.002l002 F-T49
---- -- !J_,_` 'l S-_ iy�e<YCN�y]i —
- -� �16i: ✓Yy'°'CCFr3•SrJ ✓_r -sA.
-
-- -' ..._ / ✓.y�%Jn _ r �- F�car�. .y.. _L71. u "+?'. %J2u• -du /.o% %B- . Lf,Si'1
...._._. _ ._._.
104.5 �a,�✓5 :2�rtw<. e 74 6'!4
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April 30, 2007
VIA FACSIMILE (714) 550 -7603
& U.S. FIRST CLASS MAIL
William C. Hoggard, Attorney at Law
Lanak & Hanna, P.C.
400 N. Tustin Avenue, Suite 120
Santa Ana, CA 92705 -3$05
CITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
Robin Clauson, City Attorney
RE: Contractor: Macerich Construction, Inc.
Project: Contract No. 3742- Newport Theatre Arts Center
Dear Mr. Hoggard:
We are in receipt of your correspondence dated April 27, 2007, regarding the above - referenced
project. After reviewing all of the documentation submitted in regards to the bid for the project, we
• are unable to determine what precise mistake your client is claiming to have made in the bid
submittal. To determine whether the request to withdraw the bid is appropriate, the City will need
to have your client submit a declaration setting forth what the amounts in the bid submittal should
have been and provide all relevant documentation.
•
The City would like to resolve this matter as soon as possible and requests that you submit this
information as soon as possible. Please feel free to contact me with any questions. I can be reached
at 949-644-313 1.
Very truly yours,
/ "2t� C.(
Aaron C. Harp
Assistant City Attorney for the
City of Newport Beach
ACH:ksp
cc: Lloyd Dalton, Acting City Engineer
3300 Newport Boulevard • Post Office Box 1768 • Newport Beach, California 92658 -8915
Telephone: (949) 644 -3131 • Fax: (949) 644 -3139 • www.clty.newport- beach.ca.us
FROM :LANAK AND HANNA FAX N0. :7145500734 May. 02 2006 02:54PM P1
LANAK & HANNA, P.C.
Attorneys at Law
400 N. Tustin Avenue, Suite 120
Santa Ana, CA 92705 -3815
Telephone: (714) 550 -0418 • Ext. No.: 302 • Facsimile: (714) 550 -7603
Direct Email Address: flanak(irJ,lanak- hanna.cont
F'rancie9 J Lanak
Via facsimile (949) 644 -3139
May 2, 2007
Aaron C. Harp
Assistant City Attorney
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
Re: Contractor: Macerich Construction, Inc.
Project: Contract No. 3742 - Newport Theatre Arts Center
Dear Mr. Harp:
Our File No.: 13878
We enclose a Supplemental Declaration by Mr. Nemeh, that further details which of the line items on the
bid were in error and how the correct amounts of the line items were determined.
We hope the City will agree with our client that there was a material mistake in the bid submitted and the
mistake was not due to an error of judgment but to a clerical error in not putting down the amount that was
intended on line item 5.
Very truly yours,
I
Frr.:ydp
Lnclusurc
of the Firm
cc: Client (w /o encl.)
Lloyd Dalton (via facsimile 949.644.3308)
I. WA den r,Xy 02. Hgry,wpd
0
•
•
FROM :LANAK AND HANNR FAX N0. :7145500734 May. 02 2006 02:54PM P2
MAY -02 -2007 12:03PN FROti*CERICN CONSTRUCTION INC +14 77T 0089 T -922 P- 002/008 F -894
- neon . uamn rnYV rn��nn � w•..<... .. - �............. ., -- -
i Gem* Nettteh, declare as follows:
1, I an employed by macorleh Connttuetian, Lac., C%lacerich'l as a Project Manager. 'As s
Project Manager, one of my responsibilities is to estimate and prepare bids for vsdouii projects. i have
personal knowlodge of thu following tilats, and if called ap a witness to testify, 1 could and would
competently testiJiyto each fact contained m this Declaration and I submit thip S"plemental DMIaration•itt
support ofMacerich's request to be allowed to witbdmw its bid on the hareiriaiter described pmjcct.
2. 1 was responsible for and did estimate and prepare the bid on Maoorich's behalf far the work
of ittiptovemorit known as Newport Theatre. Arts C:cntor lobby Addition/Retrotit of (13) 320' Guyed
Tower/Utilities Yard Radio Building and/t.itilitimYard Millding.3 Remodel (thc "Project'j.
• 1 On the dayofftbid, I called a field cgtployeelo advise him, ofthe bid numbers so that he could
insert the members on the bid form andiimely d iverthe WA to the CJty. Unforturimly, there were some
dilYoultles in out phone connection throu*i Our Nvael 11 adio..As a result of these diificalties, the field
employee wratc.down the incormatnurnbors on the bid form, causing the bid number that was submitted to
the City to be materift different than *haf Uscerich inttmdod th6 bid•mpnber to be.
4.. Specifically, the amrs brithe bid dettt*u submitted were with regard to the bid for Ene-itetn
five. -Utilities Yard Building 3 Remodel"' On thwhid the line item was $124,000.00. It should have been
$450,000.00. tf ttto correct number had been•put in to Esau item-five and all the line it= amounts had been
added up currently witb that correct lh>,: item tivc.rtttmber, then & totslbid should have boon $1,249,11110,00
which is ttte amount of the bid that I calculated, in thei *Moo, as re£teeted in the hand written worksheet and
• the type written transcription of.ssi.d;worksboat iWok, are attagbed to t1uB'DCClerati4a and nwkW
rvspoctivoly Exhibits "A" and "B" acid incorporated for all purposcs. .
A wloft Wriff"MSup 0mana'."4 1
FROM :LANAK AND HANNA FAX NO. :7145500734 May. 02 2006 02:54PM P3
MAY -02 -2007 12;0EPM FRO"CERICN CONSTRUCTION INC +'"14 777 0089 T -92Z P.003 /003 F -014
t KU'1 .LF71'VN\ 1•tlV,/ fF1`N'A'f i. m.i�,. .,y +..-.e+r -.,w Hwy M. ___.. _� ... .. .
S. The Way 1 a<Tive4 at the hital amount efthe h id, na, is more fullydetailcd itt Exhibits A" sod
"EV was to ealaulate the cost for each bid.:itetrt sgmwtelq and then total all .those costa and then add a
markup of approximately 24 pa cat for pro!~l, and overheat!. This can readily he aeon by totaling the
swounts ofthe individual bid item on the type wdimn:ttuaeriptlon. The total cost came to $1,009,000.00.
To that 1 added the markup of $240,000.00 to arrive at the 114rap gum bid of $1,249,000.00.
d. In exaneining Rxhtittl "A:," my haatd'm ttw! worksheet, ii can be seen that i was changing
some of my estimates ae 1 worked the bid up 14. arrve at tine final number thlat appears, on the bottom left
hand corner nfExhihit "A," of $1,249,000.00.
7. After arriving at that numbero I allocated the $1,2491'000.00 la the individiml- line itenss,
allocating most ofthe profit and ovprttead to the IFmIt threailoms as is mote fully shown on oeopyof lhehid
item VA ich is attached to this Deelsrrtion, tafted. 8xhihir"C" and ine"oraod, for all purposes.
B. Besides the mistake in adding up'the llna.item. a munta.on the bid as submitted so as to
undontusa tho bid by 55,000,00, the mistake well in the atnotlttt of'$124,000.00 sat down f6t item nusitbor
ftvc whioh should have been 5450,000.00, I can only asariha the causo of that mistake to cotmnunicatiorm .
prablcma with the call phone and the haetic things that owut at bid timo,
9. 1 did not leant ofthe mistakes in Mmuftch's bid'061 after' the bids were opened. Whon the
mistakes were diecovcmd, we imrnediately seat a '.fbx -t,) the City, advieing thom'of the mistake and
Maccrich's intent to withdraw the bid.
10. With this decl%rotion, Mac=ich re[luttttts that the City relieve Maaerleb from its bid under
Public Contract Coda seodon 5103.
I doelam under_pcoaityofperl ury under the laws of tho State of Caiffarnia that the thregaing is true
and ewract; and that this declaration -was executed on the i:nd day of May, 2007, in Oningd, California.
- �_Jeinth
a�Mro, mn� ,woanorrwvmsarnmw.xhiwarr...�a %!
FROM :LANAK AND HANNA FAX N0. :7145500734 May. 02 2006 02:55PM P4
•
•
•EXHIBIT "A"
FROM : LRNf*C AND HANNA FAX NO.
hm-V -4007 10lm i10W111C88IC' "AT8UC O M
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7145580734 May. 02 2006 O2 :5-PM P5
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FROM :LRNRK RND HRNNR FRX N0. :7145500734 May. 02 2006 02:55PM P6
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N
m
�n
m
N
N
m
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F
v
M
6
V
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Cost Smakdmm 9Yakstmet
Newport Beach Theahs Axis Cef4r LcbiPf Adddian
DEMOINon
$
11 A06.00
Franung &D*mR
$
22,000.00
Comate
S
45;187.00
IresWafroa
$
7,46'¢.00
Mumium Sbrefiant &Qh3;dng
$
19,4.' -2M
Doors &Hagware
$
1,423.00
To1MI Pwtfi s & AcLesscees
S
4,8w.ac
Counter top M
S
2,3e4.0o
AhcmWWoning
9
22.150.00
Kummng -
S
1,154.00
S
38,971.60
45,262.00
$
8
179,33d..06
C
Overhead
Tats Cost
$ 1.875.06
S 68,410.00
$ 1,971.00
S 69,1&6.06
S '179,934.00.
$ 80,t56.00
$ 5x0.339.00
S W74.00
$ 240,000.00
S t,za9(M(Lo6
Unity Yard BWldf V ii 3 RemadW
Radio Bwidim
lemn.00
Tren4&W & Em r4M S
14922.CD
Foundation & Stab
$
55,321i.OD
Blo&Waff
$
9a.652A0
AsphM Paving
S
23,565M
Frcning
S
28.1.00
Rang
S
15,461.06
fn n
S
$964.00
O ms & Hafdvmm
S
9,721.00
Flaste trQ
S
23,676.00
AirConrffi wjQ
S
38,971.60
t7echfIcal
$
230,198AQ
S
680,335.0c
-:� r'.TZ9."1
Dermfi6an
$
lemn.00
DTiW[
9
14,694.0
Ire Wftn
S
SAMOO
OCUM & Etardw2&
$
16,A71.00
ComfertoP
$
5,529.00
PiCmrdffix"
S
32,451.06
$
64,3WDO
$
189,17430
•
FROM :LRNRK AND HANNA FAX NO. :7145500734 May. 02 2006 02:55PM P8
l J
•
• EXHIBIT "C"
FROM :LANAK AND HANNA FAX NO. :7145500734
APR - 26-2067 894911 FR%HACERICH CDNSTR ON INC +714 771 6658
CITY OF NEWPORT BEACH
NOTICE INVITING BIDS
May. 02 2006 02:55PM P9
T -8112 P.808 /009 F -732
Sealed bids may be received at the office of the City Clerk,
3500 Newport Boulevard, Newport 13each. CA 92663
until 11:00AM on the 17'h day of April, 2007,
at which time such bids shall be opened and read for:
374Z
Contract Number
$950,000 .
BIDDERS I:1$T AVAXABEE ON
CITY WEBSIfE:
htln;/ www,dty&newoort
bagels.N.0 -gptA ldllsVdebWLam
Cllak: online Services — Pubric
Works Bid L1st
Prospective bidders may purchase a set of bid documents for $75
at the office of the Public Works Department,
3300 Newport Boulevard, Newport Beach, CA 92663
Contractorllcense classiffcatlon required. "B"
For taohnioml Information on project (1), call Jason Briscoe, Arcb1toM at [W) 566 -0080
For techriloai informatfon on project (2), call David Adams, Struettind Engineer, at (558) 683-'5z& 3
For (ethnical information on projects (3) and (4), call Paul Ruffino, Architect, at (949) 8608062
For general Information on the contract, call Lloyd Dalton, Project Manager, at (Us) 644 -3328
•
0
•
FROM :LANAK AND HANNA FAX NO. :7145500734
APR -28 -2007 08.01PM FROMWMACERICH CONITI. AN INC +T14 TTT 8880
• 'f CITY OF NEWPORT BEACH
Pt713LIC WOWS DEPARTMENT
PROPOSAL
('1)
May. 02 2006 02:56PM P10
T402 P1007/008 FT32
CONTRACT NO. 3742
To'the Honorable City Goundl
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92663
Gentlemen.
The undersigned declares that he has carefully examined the location of the wprk, has read
the Instructions to the Bldders, hag examined the Plans and Special Provisions, and her6by
•proposes to furnish all materials except• that material supplied by the City and shall perform
an work required to complete Contraa No. 3742 in accordance with the Plans and Special
'pFrovisciiis; chid -Volt aka in Ball payffi,§ t tfisfefinre !h6 f606whg uriR prfloes for 5 'woi%
complete in place, to wit.
ITEM QUANTITY ITEM DESCRIPTION AND LUMP TOTAL
ANb UNIT SUM PRICE WRITTEN IN WORM PRICE
i. Lump Sum 1nobilization
._ . .. ..... - ---(�� . . Tls erEsw-,.. �a... �.--.....^ �•oNa�sm--- �- '-...,.m•_.__._... __.�
and
Gents $ d.S,,v
Per Lump Sum
2. Lump Sum Newport Theatre Arts Center Lobby Addition
� a /1 we ia.ia Bixby 9;ya:Z rg.ADollars
and 6
_ _.✓y Cents $ 2z f Ezv• - A-2 S
Per Lump Sum
3. Lump Sum Retrofit of (E) 320' Guyed Tower
• @iSs�d Dollars
and
.r/ v Cents $ _ 40 ,tea �a, kr?'
Per Lump Sbm
FROM :LRNRK AND HRNNR FRX NO. :7145500734 May. 02 2006 02:56PM P11
APR -26 -2007 03;02PV FROM- MCERICH CONSTI. SON INC +T14 777 8830 T-012 P.008 %000 F -732
i
r "fr PR2of2 •
1EM
a
QUANTITY
AND UNIT
ITEM DESCRIPTION AND LUMP
SUM PRICE WRITTEN IN WORDS
TOTAL
PRICE
` 4.
Lump Sum
U6iities Yard Radio Building
�p ee ff /I/ 7a�ab
Dollars
aKd
Cents
Per Lump Sum
5.
Lump Sum
Utilities Yard BLI[Iding 3 Remodel
rib T �am�
Dollars
and
. r.� Cents
Per Lump Sum
TOTAL PRICE (Figures)
TOTAL PRICE (Words)
•
/!!
� ,/�lio-.� ✓ea6
�% � c.� �Isrus
Dollars
and
,�fv
_Cents
Date Bidder
Try - Z?- 73T1 7 ifs 797 -ar ✓3
Bidders Telephone and Fax Numbers 9ldder's Authorized Signature and Title
7?/41 49 1w4c. /MCO %.Area 337
Bidders License No. and Class cation Bidders Address
Bidder's e-Mail Address
* Wlthln two calendar days after bids are opened, the Contractor shah submit to the
Engineer a "Schedule of values" for the four lump sum conanction items listed in his
proposal. The Engineer will use said schedule to calculate monthly progress payments -
during the term of construction. The Lump Sum far Mobilization Will be divided in half for
payment at the two sites. —
I
I
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF.REPORT
1�la qil •.F� �:
RIM
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Lloyd Dalton, PE
949 - 644 -3328 or Idalton @city.newport- beach.ca.us
SUBJECT: NEWPORT THEATER ARTS CENTER LOBBY ADDITION — REJECT
ALL BIDS FOR CONTRACT NO. 3742
RECOMMENDATIONS:
1. Reject all bids.
2. Direct staff to combine this project with future building work and rebid at a later
date.
DISCUSSION:
• At 2:00 pm on May 11, 2006, the City Clerk opened and read the following Total Bid
Prices for this project:
Bidder Total Bid Price
Low Klassic Engineering & Construction, Inc. $374,400
2 Big West Construction Corp. $442,000
3 Newman Midland Corp. $458,000
r 4I4 aV
The low bidder, Klassic Engineering & Constructon, Inc - ,'possesses a Genera Building
Contractor Class B License as specified in the contract documents. Klassic is a seven
year -old firm that has satisfactorily completed building projects for other agencies.
Work at Newport Theater Arts Center (NTAC) includes demolishing certain portions of
the lobby, constructing a 445 square foot lobby addition, and making accessibility
modifications to the public's path of travel and lobby restrooms.
Plans and specifications for the remodeling work at NTAC were prepared by Jorgensen
Architects, working hand -in -hand with the Friends of NTAC: Jorgensen's construction
estimate for the work was $250,000. Knowing full -well that construction projects are
being bid much higher than estimated, staff increased the architects' estimate by 20%
and advertised the project at $300,000. The low Total Bid Price is 50% above
Jorgensen's estimate and 25% above staffs adjusted estimate.
•
Newport Theater Arts Center Lobby Addi' Reject Bids for Contract No. 3742
May 23, 2006
Page 2
Staff feels that the bid prices are much too high and that the low bid, at $840/sq. ft., is not
apprQpfl f the project. In addition, only $180,000 is budgeted for construction,
Or U
whereas more than $400,000 would be required to award the contract and provide a
contingency amount. Accordingly, staff recommends that the bids be rejected and the
project be rebid with other City.building work at some future date.
Prepared by: Submitted by-
Lloyd ton, P.E. ep e G. Baclum
Pu W i
DesigYi Engineer Pu Works Director
a
0
•
LJ
•
City of Newport Beach
BUDGET AMENDMENT
2006 -07
ECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriation: AND
X Transfer Budget Appropriations PX
SOURCE:
X from existing budget appropriations
X from additional estimated revenues
X from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
NO. BA- 07BA -076
AMOUNT: $515,060.00
Increase in Budgetary Fund Balance
Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
To increase revenue estimates and increase and transfer expenditure appropriations for multiple projects including: Newport
Theatre Arts Center Lobby Addition, County Radio Tower and Buildin , and the Utilities Yard Building 3 Remodel.
[Recommendation A]
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
010 3605
REVENUE ESTIMATES (3601)
• Fund/Division Account
250 4913
EXPENDITURE APPROPRIATIONS (3603)
Description
General Fund - Fund Balance
Description
County Radio Tower
Description
Division
Number
7011
General Fund - Facilities CIP
Account
Number
C5100809
Npt Theatre Arts Center Lobby Addition
Division
Number
7251
Contributions Fund - Capital
Account
Number
C5100976
County Radio Tower
Division
Number
7017
General Fund - Automation & Communication CIP
Account
Number
C5100976
County Radio Tower
Division
Number
7501
Water Fund - Distribution & Piping
Account
Number
C5100277
Alley Replacement Program
Account
Number
C5500074
Water Main Master Plan Improvements
Account
Number
C5100976
County Radio Tower
Account
Number
C5500074
Water Main Master Plan Improvements
Account
Number
C5500930
Utilities Yard Building 3 Remodel
Signed: ^ ( It/l!/!Y� t—�--
Financial Approval: Administrative rvi es Director
Signed: �
Administrative Approv : City Manager
SO
City Council Approval: City Clerk
Amount
Debit Credit
$71,446.25 *
$221,500.00
$35,639.00
$32,677.25
$153,817.50
$3,130.00
$221,500.00
$68,316.25
$68,316.25
$153,817.50
,; -/,? - ,g,7
Date
IQ l'
Date
City of Newport Beach
BUDGET AMENDMENT
2006 -07
EFFECT ON BUDGETARY FUND BALANCE:
MX Increase Revenue Estimates
Increase Expenditure Appropriation: AND
Transfer Budget Appropriations NX
SOURCE:
X from existing budget appropriations
X from additional estimated revenues
X from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
NO. BA- 07BA -076 r
AMOUNT: $610,202.00
Increase in Budgetary Fund Balance
Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
To increase revenue estimates and increase and transfer expenditure appropriations for multiple projects including: Newport
Theatre Arts Center Lobby Addition County Radio Tower and Building and the Utilities Yard Building 3 Remodel.
[Recommendation BI
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE Amount
Fund Account Description Debit Credit
010 3605 General Fund - Fund Balance $118,178.50
REVENUE ESTIMATES (3601)
Fund /Division Account Description •
250 4913 County Radio Tower $221,500.00
EXPENDITURE APPROPRIATIONS (3603)
Description
Division Number 7011 General Fund - Facilities CIP
Account Number C5100809 Npt Theatre Arts Center Lobby Addition $35,990.00
Division Number 7251 Contributions Fund - Capital
Account Number C5100976 County Radio Tower $221,500.00
Division Number 7017 General Fund - Automation & Communication CIP
Account Number C5100976 County Radio Tower $82,188.50
Division Number 7501 Water Fund - Distribution & Piping
Account Number C5100277 Alley Replacement Program $35,639.00
Account Number C5500074 Water Main Master Plan Improvements $24,725.00
Account Number C5100768 West Newport Pavement Rehabilitation $21,824.50
Account Number C5100976 County Radio Tower $82,188.50
Account Number C5500074 Water Main Master Plan Improvements $188,335.00
Account Number C5500930 Utilities Yard Building 3 Remodel $188,335.00
Automatic System Entry.
Signed:
Financial Approval: Administrativ ervices Director Date
Signed: %4 t <: b d
Administrative Appro I: City Manager Date
Signed: •
City Council Approval: City Clerk Date