HomeMy WebLinkAbout13 - Back Bay Landing Development - Reimbursement Agreement for Environmental Review, Permitting and Design ServicesQ �EwPpRT
CITY OF
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z NEWPORT BEACH
<,FORN'P City Council Staff Report
August 25, 2020
Agenda Item No. 13
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Andy Tran, Senior Civil Engineer, atran@newportbeachca.gov
PHONE: 949-644-3315
TITLE: Back Bay Landing Development - Reimbursement Agreement with
Bayside Village Marina LLC for Environmental Review, Permitting
and Design Services
ABSTRACT:
Bayside Village Marina LLC desires to redevelop their property located at 100 Bayside
Drive. The primary cross-city/bay water transmission main and a City easement traverses
across the property and has been in place since 1930. The property owner is requesting
to relocate this City water transmission main and easement prior to their planned
redevelopment on the property. The City and Bayside Village Marina LLC desire to
execute a Reimbursement Agreement to identify roles and responsibilities of each party
to pursue the relocation of this water main.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15262 (Feasibility and Planning) of the CEQA Guidelines because
this action involves executing a Reimbursement Agreement to undertake future
environmental review, permitting and design services;
b) Approve a Reimbursement Agreement with Bayside Village Marina LLC and authorize
the Mayor and City Clerk to execute the Agreement; and
c) Approve Budget Amendment No. 21-005 recognizing $450,000 in increased
contributions in Account No. 13501-561005-16W12; recognizing $22,500 in increased
revenue in account 01080801-521380; and appropriating $450,000 in increased
expenditures in Account No. 13501-980000-16W12 for the Bay/Channel Crossings
Water Main Replacement (16W12) project.
FUNDING REQUIREMENTS:
Upon approval of the proposed budget amendment, sufficient funding is available within
the Bay/Channel Crossings Water Main Replacement project in the adopted FY 2020-21
Capital Improvement Program budget to complete design of this water main relocation
project.
13-1
Back Bay Landing Development - Reimbursement Agreement with Bayside Village
Marina LLC for Environmental Review, Permitting and Design Services
August 25, 2020
Page 2
The proposed budget amendment recognizes a total of $472,500 in increased
contributions from Bayside Village Marina LLC, consisting of $450,000 for professional
services in Account No. 13501-561005-16W12 and $22,500 (five percent) administrative
fee in Account No. 01080801-521380 and appropriates $450,000 in increased
contributions expenditures to Account No. 13501-980000-16W12.
Staff will return to City Council with a recommendation to enter into a Professional
Services agreement upon completion of the Request for Proposals (RFP) process.
DISCUSSION:
The owner of the real property located at 100 Bayside Drive desires to redevelop the site.
City Council previously approved various planning documents, including a Planned
Community Development Plan, allowing for a future mixed-use development of the bay
front site located at 100 Bayside Drive. The real property is owned by Bayside Village
Marina LLC and the redevelopment project is known as Back Bay Landing.
Staff has been coordinating with Bayside Village Marina LLC for the past several years
regarding the development of Back Bay Landing. The City owns and operates a 30 -inch
water transmission main that traverses across 100 Bayside Drive within a utility easement
established in 1930. The 30 -inch water transmission main is reduced to a 24 -inch water
transmission main at the bay, which then crosses under the upper Back Bay Channel and
connects to the City's water system at Lower Castaways Park. Both the 30 -inch and
24 -inch transmission mains allow the City to move a significant amount of water from one
side of the bay to the other and are critical to the City's water infrastructure system. The
replacement of these two water transmission mains are forecast in the City's Water
Master Plan and tentatively scheduled for Fiscal Year 2045-46. Bayside Village Marina
LLC is requesting the relocation of the water transmission mains and easement to allow
better use of their property site. The relocated water main will allow the City to operate
and maintain this critical water system infrastructure upon completion of the Back Bay
Landing development, though the relocation results in a longer crossing under the Bay,
which may prove difficult to maintain.
Staff is currently in the process of requesting for engineering proposals to complete
environmental review, permitting and design for four other City pipelines that cross under
the Newport Bay. This type of construction activity will require extensive amounts of
permitting with various state and federal agencies. Due to the similar type of work effort
needed for replacement and relocation of the City water transmission main associated
with the Back Bay Landing project, and due to the potential time and cost saving derived
by the economies of scale, the property owner is requesting, and will fund, adding the
30 -inch and 24 -inch water transmission main relocation design and permitting work to the
City's pending bay -crossing pipeline replacement project as a fifth bay -crossing pipeline.
As described in the attached Reimbursement Agreement, the City is agreeing to initiate
the RFP to include all five bay -crossing pipelines. In return, Bayside Village Marina LLC
is agreeing to pay for the environmental review, permitting and final design efforts for the
30 -inch and 24 -inch water transmission mains relocation.
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Back Bay Landing Development - Reimbursement Agreement with Bayside Village
Marina LLC for Environmental Review, Permitting and Design Services
August 25, 2020
Page 3
The estimated cost for the scope of work is $450,000, which will be paid by Bayside
Village Marina LLC upon execution of the Reimbursement Agreement. Upon successful
design and permitting of these bay -crossing pipelines, the developer is interested in
possibly entering into a similar reimbursement arrangement for the construction of the
new relocated water line.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Section 15262 (Feasibility and Planning
Studies) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3,
which exempts projects involving only feasibility or planning studies for possible future
actions. This action involves executing a Reimbursement Agreement to undertake a
future environmental review, permitting and design services.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Reimbursement Agreement
Attachment B — Budget Amendment
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ATTACHMENT A
REIMBURSEMENT AGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
BAYSIDE VILLAGE MARINA LLC TO CONTRACT FOR
ENVIRONMENTAL REVIEW, PERMITTING AND
DESIGN COSTS FOR THE BAYSIDE WATER
TRANSMISSION MAIN REPLACEMENT PROJECT
This Reimbursement Agreement Between the City of Newport Beach and Bayside
Village Marina LLC to Contract for Environmental Review, Permitting and Design Costs for
the Bayside Water Transmission Main Replacement Project ("Agreement") is made and
entered into as of this 25th day of August, 2020 ("Effective Date"), by and between the City
of Newport Beach, a California municipal corporation and charter city ("CITY"), and Bayside
Village Marina LLC, a California limited liability company ("BAYSIDE") and is made with
reference to the following:
RECITALS
A. CITY is a municipal corporation duly organized and validly existing under the
laws of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of the CITY.
B. BAYSIDE is a California limited liability company and the fee simple owner of
the property located at 300 East Coast Highway ("Property").
C. On April 12, 2016 and April 26, 2016, the City of Newport Beach City Council
approved Project No. PA2011-216 which included the following land use entitlements:
Addendum to the Bay Back Landing Certified Environmental Impact Report (State Clearing
House No. SCH 2012101003) ("FEIR"), Coastal Land Use Plan Amendment No. LC2011-
007 including modifications made by the California Coastal Commission, General Plan
Amendment No. GP2011-001, Lot Line Adjustment No. LA2013-003, Zoning Code
Amendment No. CA2013-009 and Planned Community Development Plan No. PC2011-
001 authorizing a mixed-use bay front project ("Bayside Village Project") at the Property.
D. BAYSIDE will be proceeding with Site Development Review and Coastal
Development Permit applications for the Bayside Village Project which will require
replacement and relocation of the 30 -inch water transmission main, replacement of the
existing valve vault located at the northwest bayfront edge of the Property's parking lot, and
replacement of the existing 24 -inch water transmission main beneath Upper Newport Bay
Channel ("Bayside Water Transmission Main Replacement Project") which is depicted in
Exhibit "A" attached hereto and incorporated by reference.
E. The CITY's 2019 Water Master Plan calls for the replacement of three (3)
Newport Harbor water transmission main crossings ("CITY Project") as depicted in Exhibit
"B" attached hereto and incorporated by reference. The CITY is issuing a Request for
Proposal ("RFP") for completion of plans, obtaining any permits, licenses or regulatory
approvals and compliance with CEQA for the CITY Project.
Bayside Village Marina LLC Reimbursement Agreement Page 1
13-4
F. It is mutually beneficial to include the environmental review, permitting and
design of the Bayside Water Transmission Main Replacement Project with the CITY Project
as a fourth water transmission main crossing within the scope of the CITY's RFP (Bayside
Water Transmission Main Replacement Project and CITY Project may be collectively
referred to herein as "Project"), subject to an appropriate reimbursement agreement
whereby BAYSIDE will fund the cost of such environmental review, permitting and design
for the Bayside Water Transmission Main Replacement Project.
NOW, THEREFORE, in consideration of the promises and agreements hereinafter
made and exchanged, the parties agree as follows:
CITY'S OBLIGATIONS AND RIGHTS
CITY agrees to initiate an RFP and contract for environmental review, permitting and
final design for the Project.
2. BAYSIDE'S RIGHTS AND OBLIGATIONS
A. Within sixty (60) days following execution of this Agreement by CITY,
BAYSIDE will make one full payment to CITY in the amount of Four Hundred Fifty
Thousand Dollars and 001100 ($450,000) to cover environmental review, permitting and
design costs of the Bayside Water Transmission Main Replacement Project. BAYSIDE
also agrees to pay the CITY a five percent (5%) administrative fee at the time of the initial
payment.
B. BAYSIDE acknowledges that the amount referenced in this Agreement is the
CITY's estimate of the costs for the services described herein, and that the actual cost of
said services may be higher. In the event that the actual cost of said services is anticipated
to exceed the estimated costs, CITY shall provide BAYSIDE notice and a memorandum
sixty (60) days in advance of exceeding the estimated costs, summarizing the primary
reasons for exceeding the initial estimate and provide an updated, final budget to complete
the environmental review, permitting and design costs for the Bayside Water Transmission
Main Replacement Project. BAYSIDE agrees to pay the actual cost within ten (10) days
after receiving CITY's invoice for same. In the event the actual costs are less than the
estimated costs, CITY will refund the difference between the actual and estimated costs.
The parties acknowledge that the cost of constructing the Bayside Water
Transmission Main Replacement Project are in addition to the amounts set forth in Sections
3(A) and 3(B) above. In the event the CITY and BAYSIDE agree to joint construction of
the Bayside Water Transmission Main Replacement Project and the CITY Project, a future
agreement will identify the cost sharing amounts and other terms and conditions between
BAYSIDE and the CITY.
3. EXCLUSIVE CONTROL BY CITY
CITY will maintain exclusive control over the work described herein. Nothing in this
Agreement.-
Bayside
greement:
Bayside Village Marina LLC Reimbursement Agreement Page 2
13-5
A_ Shall be deemed to require or commit CITY to approve any development
project -related CEQA document, Site Development Review, Coastal Development Permit
or any other application or request submitted by BAYSIDE.
B. Shall be deemed to limit, in any respect whatsoever, CITY's sole and
independent authority to direct and control the professional firm(s) retained by CITY to
prepare and process the referenced environmental review, permitting and design services
for the Project.
C. Shall be deemed a guarantee by CITY to obtain permits or approvals required
for the Project from the California Coastal Commission, Army Corp of Engineers, U.S.
Department of Fish and Wildlife or other governmental entity nor impose any liability on
CITY for completion of the Project. BAYSIDE acknowledges that CITY would not enter into
this Agreement if it were liable for damages (including, but not limited to, actual damages,
economic damages, consequential damages, lost profits, loss of rents or other revenues,
loss of business opportunity, loss of goodwill or loss of use) under, or relating to this
Agreement or any matters related to the Project including without limitation, completion of
plans, obtaining any permits, licenses or regulatory approvals and CEQA compliance.
Accordingly, BAYSIDE covenants and agrees on behalf of itself and its successors and
assigns, not to sue CITY for damages (including, but not limited to, actual damages,
economic damages, consequential damages, lost profits, loss of rents or other revenues,
loss of business opportunity, loss of goodwill or loss of use), nor seek monetary relief or
equitable relief for any alleged breach of this Agreement by CITY or for any dispute,
controversy, or issue between CITY and BAYSIDE arising out of or connected with this
Agreement.
4. CITY EMPLOYEES AND OFFICIALS
BAYSIDE shall employ no CITY official nor any regular CITY employee in the work
performed pursuant to this Agreement. No officer or employee of CITY shall have any
financial interest in the Bayside Water Transmission Main Replacement Project.
5. ADMINISTRATION
This Agreement will be administered by the Public Works Director. CITY's Public
Works Director or designee shall be the Project Administrator and shall have the authority
to act for CITY under this Agreement. The Project Administrator shall represent CITY in all
matters pertaining to the services to be rendered pursuant to this Agreement.
6. TIMING
CITY agrees to provide BAYSIDE, following execution of this Agreement, a schedule
for the selection of consultants for professional services, commencement of services, and
completion of same.
Bayside Village Marina LLC Reimbursement Agreement Page 3
13-6
7. TERMINATION OF AGREEMENT
CITY shall have the right, at its sole and absolute discretion and without cause, of
terminating this Agreement at any time by giving no less than thirty (30) days' prior written
notice to BAYSIDE. In the event of termination by CITY, CITY shall return to BAYSIDE any
unused proportion of the actual costs advanced by BAYSIDE. On the effective date of
termination, CITY shall deliver to BAYSIDE all reports, documents, studies and other
information developed or accumulated in the performance of this Agreement related to the
Bayside Water Transmission Main Replacement Project, whether in draft or final form.
8. TERM
This Agreement shall commence on the Effective Date, and shall terminate upon
completion of the Project unless terminated earlier as set forth herein.
9. STANDARD PROVISIONS
A. NOTICES
Any notices, certificates, or other communications hereunder shall be given by either
party by personal delivery or by enclosing the same in a sealed envelope, postage prepaid,
and depositing the same in the United States Postal Service, to the addresses specified
below:
TO CITY:
City of Newport Beach
Attn: Public Works Director
100 Civic Center Drive
Newport Beach, CA 92660
With a copy to:
City of Newport Beach
Attn: City Attorney
100 Civic Center Drive
Newport Beach, CA 92660
Ir0l:�'6yIoil I
Bayside Village Marina LLC
Attn: R. Gordon Craig
39 Agia
Laguna Niguel, CA 92677
With copy to:
John P. Erskine, Esq. Nossaman LLP
18101 Von Karman Avenue, Suite 1800
Irvine, CA 92612
Bayside Village Marina LLC Reimbursement Agreement Page 4
13-7
B. MODIFICATION
No waiver or modification of any language in this Agreement shall be valid unless in
writing and duly executed by both parties.
C. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive
phrases at the beginning of the various sections in this Agreement are merely descriptive
and are included solely for convenience of reference only and are not representative of
matters included or excluded from such provisions, and do not interpret, define, limit or
describe, or construe the intent of the parties or affect the construction or interpretation of
any provision of this Agreement.
D. INTERPRETATION OF THIS AGREEMENT
The language of all parks of this Agreement shall in all cases be construed as a
whole, according to its fair meaning, and not strictly for or against any of the parties. If any
provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be
unenforceable, void, illegal or invalid, such holding shall not invalidate or affect the
remaining covenants and provisions of this Agreement. No covenant or provision shall be
deemed dependent upon any other unless so expressly provided here. As used in this
Agreement, the masculine or neuter gender and singular or plural number shall be deemed
to include the other whenever the context so indicates or requires. Nothing contained herein
shall be construed so as to require the commission of any act contrary to law, and wherever
there is any conflict between any provision contained herein and any present or future
statute, law, ordinance or regulation contrary to which the parties have no right to contract,
then the latter shall prevail, and the provision of this Agreement which is hereby affected
shall be curtailed and limited only to the extent necessary to bring it within the requirements
of the law.
E. COUNTERPARTS
The Agreement may be signed in counterparts as duplicate originals, each of which
so executed shall, irrespective of the date of its execution and delivery, be deemed an
original. Each duplicate original shall be deemed an original instrument as against any party
who has signed it.
F. ATTORNEY'S FEES AND COSTS
Each party shall bear its own attorney's fees and costs with respect to the execution,
performance and enforcement with the terms and/or provisions of this Agreement.
G. SEVERABILITY
If any term, provision, covenant or condition of this Agreement is held to be invalid,
void or other unenforceable, to any extent, by any court of competent jurisdiction, the
Bayside Village Marina LLC Reimbursement Agreement Page 5
13-8
remainder of this Agreement shall not be affected thereby, and each term provision,
covenant or condition of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
H. GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of the
State of California and any action brought relating to this Agreement shall be adjudicated
in a court of competent jurisdiction in the County of Orange.
01110I04►." Ito] :11: 61
Each undersigned represents and warrants that its signature herein below has the
power, authority and right to bind their respective parties to each of the terms of this
Agreement, and shall indemnify CITY fully for any injuries or damages to CITY in the event
that such authority or power is not, in fact, held by the signatory or is withdrawn.
J. ENTIRETY
This Agreement, and the attached exhibits, contains the entire agreement between
the parties respecting the subject matter of this Agreement and supersedes all prior
understanding and agreements whether oral or in writing between the parties respecting the
subject matter hereof.
[Signatures on following page]
Bayside Village Marina LLC Reimbursement Agreement Page 6
13-9
IN WITNESS WHEREOF, the parties are signing this Agreement as of the Effective
Date.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
*7�—Aaro . Harp
City �ktAorney
ATTEST:
Date:
Bv:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Will O'Neill
Mayor
BAYSIDE VILLAGE MARINA LLC, a
California limited liability company
By its Manager Gelfand Properties
Bayside, LLC, a California limited liability
company
By its Manager De Anza Corporation, a
California corporation
Date:
By:
Herbert Gelfand
Chief Executive Officer
Date:
By:
Michael Gelfand
Chief Financial Officer
Attachments:
Exhibit A - Bayside Water Transmission Main Replacement Project Depiction
Exhibit B — Bay Crossing Water and Sewer Main Replacements
Bayside Village Marina LLC Reimbursement Agreement
Page 7
13-10
WA:u=3`r-1
Bayside Village Marina LLC Reimbursement Agreement
Page A-1
13-11
`/
CITY OF NEWPORT BEACH AND BAYSIDE VILLAGE MARINA, LLC
EXHIBIT "A" FOR BAYSIDE WATER TRANSMISSION MAIN REPLACEMENT PROJECT
13-12
EXHIBIT B
Bayside Village Marina LLC Reimbursement Agreement
Page B-1
13-13
�y Bayside Water Transmission
y Main Replacement Project (BC -09)
O�
�P
COAST
Harbor Island/Linda Isle
Water Main Replacement (BC -06)
Sewer Force Main
Replacement
8'4('90Washington 5t
q Water Transmission Main Penninsula Point
PAC/p/c O lacement (BC -02) _ Water Transmission Main
CEgN p Replacement (BC -01)
CITY OF NEWPORT BEACH AND BAYSIDE VILLAGE MARINA, LLC.
a EXHIBIT B - BAY CROSSING WATER AND SEWER MAIN REPLACEMENTS
13-14
�EvvPoRT ATTACHMENT B
0" City of Newport Beach
BUDGET AMENDMENT
c,,l go R, 2020-21 BA#: 21-005
Department: Public Works
Requestor: Angela Crespi
❑ CITY MANAGER'S APPROVAL ONLY
ONETIME: ❑� Yes ❑ No
Approvals
Finance Director:( �G�.1//v/ y Date 1 -S-
FA COUNCIL APPROVAL REQUIRED ICity Clerk:
EXPLANATION FOR REQUEST:
To increase revenue estimates and expenditure appropriations for the Bay/Channel Crossings Water Main ❑ from existing budget appropriations
Replacement project from contributions from Bayside Village Marina LLC. P1 from additional estimated revenues
❑ from unappropriated fund balance
REVENUES
Fund # Org
Object Project
Description
Increase or Decrease $
135 13501
561005 16W12
CONTRIBUTIONS FUND CIP - PRVT DONATION/CONTRIBUTNI 450,000.00
010 01080801
_
521380
ENGINEERING SERVICES - CITY STAFF SERVICE
FEE 22,500.00
} --
- T— — - --
—
—1
SubtotalL $ — 472,500.00
EXPENDITURES
Fund # Org
i 135 13501
ObjectProject
Ob
980000 16W12
Description _ Increase or (Decrease) $
CONTRIBUTIONS FUND CIP - CIP EXPENDITURES FOR GL 450,000.00
I
i
Subtotal $ 450,000.00
FUND BALANCE
Fund # Object
Description -
Increase or Decrease)_$
0101300000
General Fund FUND BALANCE CONTROL
22,500.00 !.
Subtotal'; $ 22,500.00
Fund Balance Change Required
13-15