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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. EMENIff 4-0. u 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 =FA:11=3kr_1 Bayside Village Marina LLC Reimbursement Agreement Page A-1 I*:/:II-]Iii Bayside Village Marina LLC Reimbursement Agreement Page B-1 Penninsula Point -Water Transmission Main Replacement (BC -01)