HomeMy WebLinkAboutC-8487-4 - Reimbursement Agreement for Environmental Review, Permitting and Design Costs for the Bayside Water Transmission Main Replacement ProjectREIMBURSEMENT 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
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 00/100 ($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 Village Marina LLC Reimbursement Agreement Page 2
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
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.
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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
TO BAYSIDE:
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
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 parts 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
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.
SIGNATORIES
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
IN WITNESS WHEREOF, the parties are signing this Agreement as of the Effective
Date.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
CITY OF NEWPORT BEACH,
a California m9ni�ipal corporation
Date-.�-ZSAta=v
By: By:
-Aaron rp Will O'Neill
City A rney Mayor
ATTEST--
Date:
TTEST:Date: 4-30 -Zom
Lei ani I. Brown
City Clerk
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:
Signed in Counterpart
Herbert Gelfand
Chief Executive Officer
Date:
Signed in Counterpart
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
IN WITNESS WHEREOF, the parties are signing this Agreement as of the Effective
Date.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: _
By: - --
1--Aaro. Harp
City7rney
ATTEST:
Date:
-31
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California munici al corporation
Date: &/�'z0z0
By: 4
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;
ma
Chief Executive Offi
Date:
By: � . .,o- n.
hael Gelfan
Chief Financial gljc
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
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Bayside Village Marina LLC Reimbursement Agreement Page A-1
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Bayside Village Marina LLC Reimbursement Agreement Page B-1
Penninsula Point
-Water Transmission Main
Replacement (BC -01)