HomeMy WebLinkAboutC-7889-2 - Concept 052820 Coopertative Agreement for Mission Bay Drive Improvement ProjectCONCEPT 052820
COOPERATIVE AGREEMENT BETWEEN THE
CITY OF NEWPORT BEACH AND
SPYGLASS HILL COMMUNITY ASSOCIATION
FOR MISSION BAY DRIVE IMPROVEMENT PROJECT
THIS COOPERATIVE AGREEMENT ("Agreement") is made and entered into
as of this 13th day of October, 2020 ("Effective Date"), by and between the CITY OF
NEWPORT BEACH, a California municipal corporation and charter City ("City"), and
the SPYGLASS HILL COMMUNITY ASSOCIATION, a California nonprofit
corporation ("Association"), whose address is 26072 Merit Circle #121, Laguna Hills,
CA 92653, and is made with reference to the following:
RECITALS
A. City is a municipal corporation 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. The Spyglass Hill Community Association is an association of
homeowners as defined under Civil Code section 4080.
C. Excessive amounts of groundwater is exiting from the slope adjacent
to Mission Bay Drive onto the street and into the structural base of the street.
D. Excessive groundwater is causing the street to fail.
E. The Parties wish to cooperatively work to construct a subdrain system
along and in Mission Bay Drive to safely convey drainage into an existing catch basin
located downstream on Mission Bay Drive, as well as reconstructing a portion of the
roadway, as depicted in Exhibit A ("Project").
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
ARTICLE 1. ELEMENTS OF AGREEMENT
City and Association (which are sometimes individually referred to as "Party"
or collectively referred to as "Parties") will work cooperatively together on tasks to
reduce groundwater under and onto Mission Bay Drive in a manner so as to minimize
costs and impacts to the public. The specific terms and conditions governing the
elements of this Agreement are set forth hereinafter.
ARTICLE 2. RESPONSIBILITIES OF ASSOCATION
The Association agrees to the following responsibilities:
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2.1 Association agrees to contribute to City One Hundred Thousand
Dollars and 00/100 ($100,000) within 45 days of execution of this agreement
toward the construction of the Project (the "Contribution").
2.2 Association agrees to provide City the hardcopy drawings and drawing
electronic files, geotechnical report, potholing information and other project
information.
2.3 Association shall grant, if needed, construction or permanent
easements to City for construction of Project. No fees for the easements will
be charged by either Party.
2.4 Association agrees to continue to actively monitor the amount of
irrigation water being used and to work with City staff to reduce overwatering
of landscape areas.
2.5 Association agrees to work cooperatively with City in the preparation
of all construction documents for the Project and implementation of the
Project.
ARTICLE 3. RESPONSIBILITIES OF CITY
City agrees to the following responsibilities:
3.1 City will manage the Project including the design, preparation of the
construction documents and cost estimate, and securing easements from the
Association if needed.
3.2 City will accept the Contribution and declare that additional
contributions from the Association will not be requested or needed from the
Association to allow for City's completion of the Project and the performance
of City's responsibilities contemplated by this Agreement.
3.3 City will supervise the construction of the Project within the established
budget and time frame, as required by the construction documents. City will
follow all public bid and contract procedures. City will conduct the construction
activities to meet the stringent requirements normally conditioned on its
contractors including any repairs of property damaged during construction.
3.4 City shall require that all consultants and the construction contractors
hired by City for the Project (collectively the "Project Contractors") shall
provide the required insurance coverage for design and construction of the
Project. The Association shall be named as additionally insured parties in the
Construction Special Provisions for the Project, and shall be afforded the
same defense and indemnity protections afforded to City by the Project
Contractors in connection with the Project. Such insurance, defense and
indemnity protections afforded to Association by Project Contractors shall
survive the termination of this Agreement and completion of the Project.
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3.5 If needed, City will prepare and secure temporary -entry and
construction easements for any work on
Association property.
3.6 Once construction of the Project is completed, City shall, at City's
expense, maintain the subdrain system. The term "maintain" as used in this
Paragraph 3.6 includes all maintenance, repairs and, if necessary,
improvements to the subdrain system to ensure proper performance of the
subdrain system and to achieve the goals for which the Project was
constructed. As needed, City will prepare permanent easement documents
necessary for maintenance of the subdrain system for Association's approval.
City will record the easements. Association shall not bear any costs or
expenses in connection with any actions required of City in upholding its
responsibilities under Article 3 of this Agreement. City shall not be responsible
for maintenance of the existing hillside subdrain system, as depicted in Exhibit
A.
ARTICLE 4. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on July 1, 2021, unless the specified responsibilities of the Parties have
been fulfilled or terminated earlier as set forth herein, whichever is sooner.
Notwithstanding the foregoing, City's maintenance obligations specified in
Paragraph 3.6 of Article 3 of this Agreement shall survive the termination of this
Agreement.
ARTICLE 5. NOTICES
5.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in
writing, and conclusively shall be deemed served when delivered personally, or on
the third business day after the deposit thereof in the United States mail, postage
prepaid, first-class mail, addressed as hereinafter provided.
5.2 All notices, demands, requests or approvals from City to Association
shall be addressed to Association at:
Spyglass Hill Community Association
Attn: Laura Doresak
Regent Association Services
26072 Merit Circle #121
Laguna Hills, CA 92653
5.3 All notices, demands, requests or approvals from Association to City
shall be addressed to City at.-
Cooperative
t:
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City of Newport Beach
Attn: Bob Stein, Assistant City Engineer
100 Civic Center Dr.
Newport Beach, CA 92660
ARTICLE 6. HOLD HARMLESS INDEMNIFICATION
6.1 City agrees to indemnify, defend with counsel approved in writing by
Association and hold Association, its elected and appointed directors, officers,
agents, attorneys, and property owners within the Association's development
(collectively "Association Indemnitees") harmless from any claims, demands or
liability of any kind or nature, including but not limited to personal injury or property
damage, arising from or related to the services, products or other performance
provided by City pursuant to this Agreement. If judgment is entered against City and
Association by a court of competent jurisdiction because of the concurrent active
negligence of Association or Association Indemnitees, City and Association agree
that liability will be apportioned as determined by the court. Neither party shall
request a jury apportionment.
6.2 Association agrees to indemnify, defend and hold the City, its officers,
agents and employees (collectively "City Indemnitees"), harmless from any expense,
liability or claim for death, injury, loss, damage or expense to persons or property
which may arise or is claimed to have arisen as a result of any acts performed by
the Association Indemnitees pursuant to this Agreement except to the extent such
expense, liability or claim is proximately caused in whole or in part by any negligence
of the City, or City Indemnitees, or by any act or omission for which the City, or City
Indemnitees are liable without fault.
ARTICLE 7. TERMINATION
Any Party may at any time prior to the City's award of the construction
contract to any Project Contractors, without cause, terminate this Agreement, upon
not less than seven (7) calendar days' written notice to the other Party. In the event
of such termination, City shall refund the above -referenced $100,000 contribution
payment to Association within five (5) business days of receipt of written termination
notice.
ARTICLE 8. AVAILABILITY OF FUNDS
This Agreement is subject to the availability of funds appropriated for this
purpose, and nothing herein shall be construed as obligating the Parties to expend
or as involving the Parties in any contract or other obligation for future payment of
money in excess of appropriations authorized by law.
ARTICLE 9. STANDARD PROVISIONS
9.1 Recitals. City and Consultant acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
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9.2 Compliance with all Laws. Consultant shall, at its own cost and
expense, comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county or municipal, whether now in
force or hereinafter enacted. In addition, all Work prepared by Consultant shall
conform to applicable City, county, state and federal laws, rules, regulations and
permit requirements and be subject to approval of the Project Administrator and City.
9.3 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.
9.4 Integrated Contract. 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.
9.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
9.6 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.
9.7 Amendments. This Agreement may be modified or amended only by
a written document executed by both Consultant and City and approved as to form
by the City Attorney.
9.8 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 Agreement shall continue in full force and effect.
9.9 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, State of California.
9.10 Equal Opportunity Employment. Consultant represents that it is an
equal opportunity employer and it shall not discriminate against any subcontractor,
employee or applicant for employment because race, religious creed, color, national
origin, ancestry, physical handicap, medical condition, marital status, sex, sexual
orientation, age or any other impermissible basis under law.
9.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not. be entitled to attorneys' fees.
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9.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together
shall constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement be
executed on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a California municipal corporation
Date: gzz,WZoZ.. Date: �b/is`r2a�o
00
By: �?� By:
Aaron C. Harp of •'ko Will O'Neill
City Attorney Mayor
ATTEST: /ASSOCIATION: SPYGLASS HILL
Date: &t olzoz COMMUNITY ASSOCIATION, a
California nonprofit corporation
Date:
Brown -WY'— 4 a�o
Leilani 1.
City Clerk
By: Signed in Counterpart
Bruce A. Horn
President
Date:
By:
Signed in Counterpart
Pamela Munro
Secretary
[END OF SIGNATURES]
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date.
By: dz, 2--, -Pc
Aaron C. Harp PAV q • 2 Y
City Attorney
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Will O'Neill
Mayor
ATTEST:
ASSOCIATION: SPYGLASS HILL
Date:
COMMUNITY ASSOCIATION, a
Californiaon rofit corporation
Date: g12S�ao2o
By:
By: l �-
Leilani I. Brown
Bruce A. Horn
City Clerk
President
Date: 1-7- 8'-2,e20
By:
Pamela Munro
Secretary
[END OF SIGNATURES]
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