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
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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
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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:
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