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HomeMy WebLinkAboutC-3688 - Memorandum of Understanding; Alley Pavement Reimbursement• 0 C -�(OW MEMORANDUM OF UNDERSTANDING AND INDEMNIFICATION AGREEMENT WITH BAYSHORES COMMUNITY ASSOCIATION THIS MEMORANDUM OF UNDERSTANDING AND INDEMNIFICATION AGREEMENT is made and entered into as of this a`i day of to r% , 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and BAYSHORES COMMUNITY ASSOCIATION, an unincorporated homeowners association with offices at 17300 Redhill Avenue, Suite 210, Irvine, California, 92614 ( "Bayshores "), 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 City. B. The Bayshores Community Association is a homeowners association that represents a total of 249 homeowners who live in the Bayshores Community, located along Bayshores Drive in the City of Newport Beach. Alleys in the community are privately owned and are not subject to City paving requirements. C, After an affirmative vote of the affected residents in Bayshores, the City Council approved Assessment District No. 70 - Bayshores on January 28, 2003 and authorized contracts with Southern California Edison (SCE) and Southern Bell Companies (SBC) for the undergrounding of power and phone utilities. D. On May 13, 2003, the City awarded Contract No. 3512, Bayshores Water Main Replacement Project to Cody Engineering ( "Cody "). E. During the construction of the water main replacement, Bayshores requested that the City's contractor, Cody, make the trench repaving narrower within the alley areas of the community and pass any cost savings onto Bayshores so that the money could be used by it to perform its own subsequent alley repaving project. Bayshores also requested that SCE and SBC not finalize the trench paving within the alley and pass the cost savings to it for use in its alley repaving project. F. Bayshores has agreed to maintain the alleys (as described in the diagram attached hereto as Exhibit A) in their current condition until such time as its repaving project can be completed. Bayshores has agreed to complete the alley repaving project within six months after the power poles are removed by SCE and SBC. 0 NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. City shall pay to Bayshores the amount of Forty-Five Thousand Seven Hundred and Sixty-Seven Dollars ($45,767), which represents the cost savings the City realized related to Contract No. 3512, Bayshores Water Main Replacement Project as a result of the changes to the resurfacing project approved by Bayshores. (Trench resurfacing was allowed to be narrower than City standards at the request of Bayshores, provided that the savings could be passed onto Bayshores.) 2. SCE shall pay to City the amount of Ten Thousand Nine Hundred Eleven Dollars and Forty-Two Cents ($10,911.42), which represents the savings it realized for not completing SCE's portion of the final trench resurfacing within the Bayshores alleys. 3. SBC shall pay to City the amount of Sixty -Six Thousand Six Hundred Forty-Eight Dollars and Sixty Cents ($66,648.60), which represents the savings it realized for not completing its portion of the final trench resurfacing within the Bayshores alleys. 4. City shall authorize disbursement of construction contingency funds in Assessment District No. 70 in the amount of Twenty-Two Thousand Two Hundred and Ninety -Seven Dollars and Eight -Four Cents ($22,297.84) to go towards the amount owed by City to Bayshores pursuant to this Agreement. 5. Bayshores hereby declares that the work performed by the City, SCE and SBC is final and complete and Bayshores hereby accepts the condition of the alleys "as -is." Bayshores also hereby agrees that it will have no further claims whatsoever against the City, SCE and SBC related to resurfacing of the alleys described in Exhibit A. 6. Reimbursements from SCE and SBC to the City shall be made within sixty (60) days from the date of this MOU. Payments by the City to Bayshores shall be made within ninety (90) days from the date of this MOU. 7. Bayshores shall indemnify, defend, save and hold harmless City, its City Council, its officers and employees, SCE and SBC, its officers, employees and agents from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from the subject of this Agreement or the alley resurfacing project, excepting only the sole negligence or willful misconduct of City, SCE, SBC, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this MOU. 2 • IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Mayor for the City of Ne ort Beac BAYSHORES: B� Rick Bathen President, Bayshores Community Association SOUTHERN CALIFORNIA EDISON: SBC: B �� By f: \usem\pbw\shared \agreements \fy 03 -04 \bayshores ca - alley paving mout.doc 3 in L-� N O R T H KERB 478 I f SX 467 a� � I/ J I d O 9 m F£AB 869 WEST C/1, -y IV IV -4�1l BAYSHORES COMMUNITY - ALLEYS 0 EXHIBIT A IXSrr E B u.an HWY > 9 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. a C i February 24, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: Public Works Department Michael J. Sinacori, P.E. f ErS z. 4 204 949 - 644 -3311 msinacod @city.newport- beach.ca.us APPROMEE SUBJECT: MEMORANDUM OF UNDERSTANDING WITH BAYSHORES COMMUNITY, SOUTHERN CALIFORNIA EDISON, AND SBC- REGARDING ALLEY PAVING RECOMMENDATION: Approve a Memorandum of Understanding (MOU) with Bayshores Community Association Regarding Alley Paving. 9 DISCUSSION: During the course of the recent water main replacement project and the undergrounding of utilities, Assessment District No. 70 (AD -70), Bayshores Community Association (Bayshores) developed plans to reconstruct their alleys upon completion of the construction contracts. The streets and alleys are private within this community and are under the control of the Bayshores Community Association. The construction cost for their alley replacement is estimated between $800,000.00 and $900,000.00. In an effort to reduce impacts to residents and avoid duplication of efforts, it was determined that the City could provide temporary trench paving and save the cost of finished trench paving for both the waterline project and AD -70. These pavement savings could then be applied to the Bayshores Community Association project to reduce costs and avoid additional disruption to the residents. The City's water main replacement contractor, Cody Engineering, was able to reduce the impacts to the streets and alleys during the water replacement project, which resulted in $45,767.00 in trench resurfacing savings. Essentially, a reduced trench resurfacing was allowed (both width and thickness) by Bayshores, since they were planning on reconstructing the alleys upon completion of the undergrounding. Though this reduced paving width and depth is less than City standards and less than what would normally be allowed, it will hold up long enough until the alleys are replaced. Additionally, the undergrounding contractor, Herman Weisieker, was asked to leave their temporary asphalt paving which also saved the cost of trench resurfacing. Staff SUBJECT: Memorandum of U0tanding with Bayshores Homeowners Associationlethem California Edison, and SBC - Regarding Nley Paving February 24, 2004 Page 2 negotiated with Southern California Edison (SCE) and SBC to determine the amount of trench resurfacing savings that could be realized from the assessment district work and determined that amount to be $99,857.86. In accordance with our assessment district process, both utilities were paid the full estimated costs (less changes and contingency items) at the start of the work. Therefore, it was necessary for SCE to refund $10,911.42 and SBC to refund $66,648.60. The remaining balance, $22,297.84, will be paid from the remaining contingency balance within the Assessment District No. 70 account. Bayshores Community Association has submitted the attached letter, dated December 4, 2003, requesting the reimbursement of construction funds and the execution of the proposed MOU related to the alley repaving for Council consideration. Upon approval of the MOU by City Council, a total of $145,624.86 will be paid to Bayshores. The City, SCE, and SBC will be relieved from all responsibility and liability to complete the paving within the Bayshores community. City staff recommends executing the MOU because it provides a win -win approach to completing the community project while minimizing construction impacts and allowing the community to reconstruct the alleys with the construction materials of their choice in the most efficient manner. If the MOU is not approved, the City, SCE, and SBC would be forced to mobilize construction crews again to remove the temporary trenches and restore the alley to City standards. Environmental Review: The related waterline replacement and assessment district projects were determined to be exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15302 of the CEQA Implementing Guidelines at the time each project was authorized by the City Council. This exemption covers the maintenance and alteration of existing facilities with negligible expansion of the facilities in areas that are not environmentally sensitive. Prepared by: J. Sina'dori, P.E. 1 Civil Engineer Submitted by: aaum Director Attachment: Letter from Bayshores Community Association dated December 4, 2003 Memorandum of Understanding regarding Alley Repaving 0 �J Bayshores Community Association 17300 Redhill Avenue, Suite 210, Irvine, CA 92614 December 4, 2003 City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Attention: Michael J. Sinacori, Principal Civil Engineer Patrick Arciniega, Associate Engineer ..fit 111 -7, 200.? RE: Reimbursement for Alley Reconstruction Related to the City Water Main Replacement and the SCE Undergrounding Utility} Projects Dear Mssrs. Sinacori and Arcineiga, As you requested, this letter is written on behalf of the Board of Directors of the Bayshores Community Association (BCA) to notify the City that BCA will accept the alleys in our community in their current condition so long as the City agrees to pay to BCA no less than $50,000, based on the savings to the City's water main replacement project in not returning the alleys to their pre - construction condition. A further condition to the acceptance is that Southern California Edison and/or the contractor Herman Weiskker diligently work towards reimbursement to BCA, or the homeowners directly, the savings in not having to return the alleys to pre - construction condition, which is estimated at $95,000. These payments will be made following the final accounting for the utility projects now underway in Bayshores. We would appreciate payment prior to April 30, 2004, made payable to BCA, for use in replacing all alleys in BCA_ pursuant to a contract to be approved by the Board for BCA. Thank you for your cooperation. If you have any questions please contact Bob Searles, who is the Board's representative in this matter. ON BEHALF OF THE BOARD OF DIRECTORS B L% OIL OMMUNIT ASSOCIATION Ric Bathen Board President Cc: The Emmons Company, Debbie Boyd The Emmons Company P.O. Box 19530, Irvine, California 92623 - (949) 752 -2225 • Fax (949) 798 -0367 0 0 MEMORANDUM OF UNDERSTANDING WITH BAYSHORES COMMUNITY ASSOCIATION FOR ALLEY PAVEMENT REIMBURSEMENT THIS MEMORANDUM OF UNDERSTANDING (MOU) is made and entered into as of this 2411' day of February, 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and Bayshores Community Association a Homeowners Association whose address is 17300 Redhill Avenue, Suite 210, Irvine, California, 92614 ( "Bayshores "), 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 City. B. The City Council approved Assessment District No. 70 - Bayshores, after an affirmative vote of the affected residents, on January 28, 2003 and authorized the contracts with Southern California Edison (SCE) and SBC for the undergrounding of power and phone utilities. C. The City awarded Contract No. 3512, Bayshores Water Main Replacement Project on May 13, 2003 to Cody Engineering (CODY). D. During the construction of the water main replacement, BAYSHORES requested that the City's contractor, CODY, minimize the trench repaving within the alley areas and pass any savings onto BAYSHORES for use in their alley paving project. BAYSHORES also requested that SCE and SBC not finalize the trench paving within the alley and pass the cost savings to them for use in their alley repaving project. E. BAYSHORES has agreed to maintain the alleys in their current condition until such time as their paving project can be completed. / 1 0 o • • 9 NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. CITY shall pay Forty -Five Thousand Seven Hundred and Sixty -Seven dollars ($45,767) to BAYSHORES for trench resurfacings cost savings related to Contract No. 3512, Bayshores Water Main Replacement Project. Trench resurfacing was allowed to be narrower than City standards at the request of BAYSHORES if these savings could be passed onto then. 2. SCE shall pay Ten Thousand Nine Hundred Eleven Dollars and Forty-Two Cents ($10,911.42) representing the savings for not completing their portion of the final trench resurfacing within the BAYSHORES alleys. 3. SBC shall pay Sixty -Six Thousand Six Hundred Forty-Eight Dollars and Sixty Cents ($66,648.60) representing the savings for not completing their portion of the final trench resurfacing within the BAYSHORES alleys. 4. CITY shall authorize disbursement of construction contingency funds in Assessment District No. 70 in the amount of Twenty -Two Thousand Two Hundred and Ninety -Seven dollars and Eight -Four Cents ($22,297.84). 5. BAYSHORES declares the CITY, SCE AND SBC complete and will accept the condition of the alleys "as -is" and have no further claims related to alley resurfacing. 6. Reimbursements from SCE and SBC to the CITY shall be made within sixty (60) days from the date of this MOU. Payments by the CITY to BAYSHORES shall be made within ninety (90) days from date of this MOU. 7. BAYSHORES shall indemnify, defend, save and hold harmless City, its City Council, its officers and employees, SCE and SBC, its officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from alley resurfacing pursuant to this MOU, excepting only the sole negligence or willful misconduct of CITY, SCE, SBC, its officers or employees, and shall 2 r include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing any • award of attorneys' fees in any action on or to enforce the terms of this MOu. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation By: City Attorney Mayor for the City of Newport Beach for the City of Newport Beach ATTEST: BAYSHORES: In City Clerk Rick Bathen • President, Bayshores Community Association SOUTHERN CALIFORNIA EDISON: SBC: By: By: 0 R? MEMORANDUM OF UNDERSTANDING AND INDEMNIFICATION AGREEMENT WITH BAYSHORES COMMUNITY ASSOCIATION THIS MEMORANDUM OF UNDERSTANDING AND JNPEMNIFICATION AGREEMENT is made and entered into as of this R Wh day of V--elpragril 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporati n ( "City "), and BAYSHORES COMMUNITY ASSOCIATION, an unincorporated homeowners association with offices at 17300 Redhill Avenue, Suite 210, Irvine, California, 92614 ( "Bayshores "), 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 City. B. The Bayshores Community Association is a homeowners association that represents a total of 249 homeowners who live in the Bayshores Community, located to the south of Coast Highway in the City of Newport Beach. Alleys in the community are privately owned and are not subject to City paving requirements. C, After an affirmative vote of the affected residents in Bayshores, the City Council approved Assessment District No. 70 - Bayshores on January 28, 2003 and authorized contracts with Southern California Edison (SCE) and Southern Bell Companies (SBC) for the undergrounding of power and phone utilities. D. On May 13, 2003, the City awarded Contract No. 3512, Bayshores Water Main Replacement Project to Cody Engineering ( "Cody "). E. During the construction of the water main replacement, Bayshores requested that the City's contractor, Cody, make the trench repaving narrower within the alley areas of the community and pass any cost savings onto Bayshores so that the money could be used by it to perform its own subsequent alley repaving project. Bayshores also requested that SCE and SBC not finalize the trench paving within the alley and pass the cost savings to it for use in its alley repaving project. F. Bayshores has agreed to maintain the alleys (as described in the diagram attached hereto as Exhibit A) in their current condition until such time as its repaving project can be completed. Bayshores has agreed to complete the alley repaving project within six months after the power poles are removed by SCE and SBC. 0 0 NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. City shall pay to Bayshores the amount of Forty -Five Thousand Seven Hundred and Sixty-Seven Dollars ($45,767), which represents the cost savings the City realized related to Contract No. 3512, Bayshores Water Main Replacement Project as a result of the changes to the resurfacing project approved by Bayshores. (Trench resurfacing was allowed to be narrower than City standards at the request of Bayshores, provided that the savings could be passed onto Bayshores.) 2. SCE shall pay to City the amount of Ten Thousand Nine Hundred Eleven Dollars and Forty -Two Cents ($10,911.42), which represents the savings it realized for not completing SCE's portion of the final trench resurfacing within the Bayshores alleys. 3. SBC shall pay to City the amount of Sixty-Six Thousand Six Hundred Forty -Eight Dollars and Sixty, Cents ($66,648.60), which represents the savings it realized for not completing its portion of the final trench resurfacing within the Bayshores alleys. 4. City shall authorize disbursement of construction contingency funds in Assessment District No. 70 in the amount of Twenty-Two Thousand Two Hundred and Ninety-Seven Dollars and Eight -Four Cents ($22,297.84) to go towards the amount owed by City to Bayshores pursuant to this Agreement. 5. Bayshores hereby declares that the work performed by the City, SCE and SBC is final and complete and Bayshores hereby accepts the condition of the alleys "as -is." Bayshores also hereby agrees that it will have no further claims whatsoever against the City, SCE and SBC related to resurfacing of the alleys described in Exhibit A. 6. Reimbursements from SCE and SBC to the City shall be made within sixty (60) days from the date of this MOU. Payments by the City to Bayshores shall be made within ninety (90) days from the date of this MOU. 7. Bayshores shall indemnify, defend, save and hold harmless City, its City Council, its officers and employees, SCE and SBC, its officers, employees and agents from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from the subject of this Agreement or the alley resurfacing project, excepting only the sole negligence or willful misconduct of City, SCE, SBC, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this MOU. 'r: 9 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: r icy 7a. Z4 City Attorney for the City of Newport Beach ATTEST: City Clerk SOUTHERN CALIFORNIA EDISON: g OL-k)-C, CITY OF NEWPORT BEACH, A Municipal Corporation M Mayor for the City of Newport Beach BAYSHO S: By: Rick Bathen President, Bayshores Community Association SBC: By: f\ users \pbw\shared\agreements \fy 03- 04 \bayshores ca - alley paving moul.doc Q N O R T H m tr D rum. 1 i X51.6 478 REME 457 ' FEA.B 659 Rr � VEST K =r 8 fIFlY6 r� m '� � 5) y ]9 q {I {2 l3 M {5 ♦a l] ♦a {9 m r W ,b ]l „'b 3$ 3♦ b J3 ]I b A 2] m. ` qR]�.,,.n 7 rtdTi nr. • 1 Dxrra }d al ED n d �� D • C/ l44, Aj ^, j tY tv �L 0 EXHIBIT A 6 A E v \/ rn r zs 4cr II.pi.m* COAST HAY IE9b y55♦m ma w w m as ea a] aew>o n n CRY9Trfd} (rrr rel URtYB �f 4 b 55 � {BSA 51 b v x e x G v ,, �v 1•'r t 19 p m 1a � �B ` ♦a 46 �..� y � b w ,, 2♦ a q � a q ]5 1 )2 2 >Z Jtl ♦S p rf a y q n ] ♦1 Q T ' e D a n } n + o n 4 qTa gd 7� Ze'e �e a � BAYSHORES COMMUNITY - ALLEYS u .gin mee..