HomeMy WebLinkAboutC-4947(G) - Agreement for Dredging Work in the Rhine ChannelAGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND CURCI-TURNER COMPANY, LLC
FOR DREDGING WORK IN THE RHINE CHANNEL
THIS RHINE CHANNEL DREDGING AGREEMENT ("Agreement") is made and
entered into as of July 11, 2011, by and between the City of Newport Beach, a
California municipal corporation and charter city ("City"), and Curci-Turner Company,
LLC, a California limited liability company ("Owner") whose mailing address is 717 Lido
Park Drive, Newport Beach, CA 92663. City and Owner are at times individually
referred to as "Party" and collectively as "Parties" herein.
RECITALS:
A. Owner is the owner of that certain real property and related structures
located at 710 Lido Park Drive Newport Beach, California, Assessor Parcel Numbers
047-010-09 and 047-010-06 ("Property").
B. City is undertaking a comprehensive dredging project within the Rhine
Channel and adjacent harbor areas to remove contaminated sediment and deposit said
sediment within the Port of Long Beach's Middle Harbor Redevelopment Project
("POLB").
C. As part of the City's dredging project the City, at its cost, will: (1) dredge
under the Owner's pier/slip/finger/float/dock/gangway and remove sediment at a level to
be determined in City's sole discretion; (2) transport and deposit the dredged sediment
at the POLB; (3) remove and discard dock pile(s) selected by the City; (4) replace any
removed dock pile(s) with new City -selected dock pile(s); and (5) if required, alter the
existing pier/slip/finger/float/dock/gangway to accommodate the new dock pile(s)
(collectively "Improvements").
D. Contemporaneous with the Improvements, Owner desires City to perform,
at Owner's expense, limited dredging and disposal of additional sediments adjoining
approximately six hundred (600) linear feet of the Property's seawall along two strips to
create a pair of benches in front of and parallel to the seawall: (1) one bench will be
dredged four (4) feet offshore of the seawall to a depth of negative five (-5) mean lower
low water ("MLLW"); and (2) the other bench will be dredged twenty-five (25) feet
offshore of the seawall to a depth of negative eight (-8) feet MLLW (collectively, "Extra
Work"). The Extra Work is depicted in the attached Exhibit "A", which is incorporated
herein by reference.
E. City desires to perform the Improvements and Extra Work in order to have
a more comprehensive project and to improve the Tidelands for the public's use and
enjoyment.
F. Owner desires to have City perform the Improvements and Extra Work on
its Property and grants City and its contractors permission to enter the Property and
perform the Improvements and Extra Work.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, City and Owner agree as follows:
1. Recitals. The recitals contained within this Agreement are true and
correct and are incorporated into the operative part of this Agreement.
2. License. Owner hereby grants City and its employees, contractors,
subcontractors, and agents (collectively included within the defined term "City") the right
to enter the Owner's Property for the purpose of working on the Improvements and
Extra Work. This license to enter the Owner's Property shall automatically expire when
the Improvements and Extra Work on Owner's Property are deemed complete by City
in its sole and absolute discretion.
2.1. Insurance. All City contractors, agents, and subcontractors
entering upon Owner's Property pursuant to this Agreement shall be licensed
and insured.
3. Installation of Improvements. Owner grants City permission to remove
and replace Owner's dock pile(s) as deemed necessary by City, in its sole discretion,
and replace with new dock pile(s) selected by City in its sole discretion. The removed
dock pile(s) will be disposed of by City without any compensation to Owner. Owner
grants City permission to alter the Owner's pier/slip/finger/float/dock/gangway to
accommodate the new dock pile(s). This alteration will be permanent and may include,
but not be limited to, widening the pile(s) opening to accommodate a greater diameter
pile or replacing parts of the pier/slip/finger/float/dock/gangway to maintain their
structural integrity. In the event Owner's pier/slip/finger/float/dock/gangway is deemed
to be structurally unable to accept new dock pile(s) the City reserves the right to elect
not to perform the Improvements unless Owner takes immediate action to bring their
pier/slip/finger/float/dock/gangway to a City -approved condition that will allow the
Improvements to occur as determined by City in its sole and absolute discretion.
4. Performance of Extra Work. Owner grants City permission to temporarily
remove and relocate Owner's piers/slips/fingers/floats/docks/gangways, or portions
thereof, in City's sole discretion, to facilitate access to the dredging areas as required to
achieve the desired bench geometries. The Extra Work will occur between and below
the existing piers/slips/fingers/floats/docks/gangways. In the event Owner's
pier/slip/finger/float/dock/gangway is deemed to be structurally unable to accommodate
the Extra Work the City reserves the right to elect not to perform the Extra Work unless
Owner takes immediate action to bring its pier/slip/finger/float/dock/gangway to a City -
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approved condition that will allow the Extra Work to occur as determined by City in its
sole and absolute discretion.
4.1 Reimbursement for Extra Work. City agrees to perform the Extra
Work on the condition that Owner reimburse City for any and all costs
associated with the Extra Work. The Extra Work is currently anticipated to
result in the removal and disposal of three thousand (3,000) cubic yards at
the cost of twenty-six dollars and ninety-five cents ($26.95) per cubic yard for
a total estimated cost of eighty thousand eight hundred and fifty dollars
($80,850). Owner acknowledges the dollar amounts contained in this
Agreement are a best estimate and agrees to pay any additional costs
associated with the Extra Work as determined by City in its sole and absolute
discretion.
Owner shall give City a check in the amount of $80,850 at the time of
execution of this Agreement. The City will draw down against the check to
fund the Extra Work. In the event additional costs arise during the
performance of the Extra Work or if the $80,850 is exhausted prior to the
Extra Work's completion, Owner shall remit payment to the City upon written
notice from the City of the need for additional funds. City shall refund any
unexpended funds deposited by Owner existing at the completion of the Extra
Work to Owner. City may immediately terminate this Agreement without
notice in the event Owner fails to timely remit payment for Extra Work.
5. Vessel and Personal Property Removal. In order to allow the
Improvements and Extra Work to be completed on schedule, it is necessary for all
vessels and personal property on Owner's pier/slip/finger/float/dock/gangway to be
temporarily re -located off-site. City shall provide at least ten (10) calendar days written
notice to Owner prior to the date personal property (e.g., satellite dish, kayak, dock box,
etc.), and vessels must be removed from Owner's pier/slip/finger/float/dock/gangway.
Owner agrees to remove his/her personal property and vessel(s) or his/her tenant's or
guest's personal property and vessel(s) from the Owner's
pier/slip/finger/float/dock/gangway within the time period provided in the City's written
notice and to keep the Owner's pier/slip/finger/float/dock/gangway free and clear of all
personal property or vessel(s) until City authorizes the personal property or vessel(s)
return. In the event personal property or a vessel, either owned by Owner, Owner's
guest, or a tenant, is not removed within the provided time period, Owner hereby grants
City and its agents (e.g., Sea Tow, OC Sheriff's Department, etc.) permission to remove
the personal property or vessel(s) without notice and charge Owner the full cost for
removal and storage. Except as otherwise provided by state law, Owner agrees to hold
City and its agents harmless for any damage that may occur to the personal property
and/or vessel(s) during removal or storage.
5.1. Notice to Tenants. Within five (5) days prior to relocation, Owner
shall provide written notice to his/her tenants and/or guests, if any, regarding
the Improvements and Extra Work and the associated personal property and
vessel(s) removal schedule. City shall not owe any compensation to Owner,
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tenant, guest, or any third party for any expenses associated with the
personal property and/or vessel(s) removal or storage.
6. Ownership and Maintenance. Owner accepts and acknowledges
ownership to the dock pile(s) including any alterations, Improvements and Extra Work
installed by the City and agrees to maintain the installed dock pile(s), alterations,
Improvements and Extra Work at its sole cost. City has no ownership interest or
maintenance responsibility in the dock pile(s), alterations, or other Improvements and
Extra Work provided under this Agreement. City's dredging under the Owner's
pier/slip/finger/float/dock/gangway is a one-time event and does not obligate the City to
perform any future dredging or maintenance for Owner.
7. Indemnity. To the fullest extent permitted by law, Owner and its
successors or assigns, agrees to indemnify, defend and hold harmless the City and its
employees, City Council, agents, consultants and contractors ("Indemnified Parties")
from and against any and all claims (including, without limitation, claims for bodily injury,
death, mechanics liens, or damage to property), demands, obligations, damages,
actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorneys' fees, disbursements, costs of
litigation, investigation, appeal, expert witness fees and court costs) of every kind and
nature whatsoever (individually, a "Claim"; collectively, "Claims"), which arise from the
Indemnified Parties, its contractors', agents', employees', invitees', and their respective
employees use of and/or presence on all or any of the Owner's property, including but
not limited to the Owner's pier/slip/finger/float/dock/gangway to perform the
Improvements and Extra Work provided under this Agreement. The foregoing shall not
serve as authority for Owner or its counsel to settle any Claim without the prior written
consent of the City.
Notwithstanding the foregoing, nothing herein shall be construed to require
Owner to indemnify the Indemnified Parties from any Claim arising from the negligence
or willful misconduct of the Indemnified Parties. 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 Agreement.
8. Termination. City may terminate this Agreement with or without cause
upon seven (7) calendar days written notice to Owner. Owner may terminate this
Agreement only for cause in the event of City's breach or default under this Agreement.
9. Notices. Any notice required under this Agreement shall be delivered to
Owner at the address listed within this Agreement and to the City at 3300 Newport
Blvd., Newport Beach, CA 92658, Attention: Harbor Resources Manager.
10. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the Parties and their respective successors and assigns.
11. Interpretation. All section headings are inserted for convenience only and
shall have no effect on the construction or interpretation of this Agreement. Each Party
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acknowledges that such Party had access to counsel and thoroughly reviewed this
Agreement. As such, the terms of this Agreement shall be fairly construed and the
usual rule of construction, to the effect that any ambiguities herein should be resolved
against the drafting Party, shall not be employed in the interpretation of this Agreement.
12. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement, with venue in Orange County.
13. Modifications. All modifications of, or amendments to, this Agreement
shall be in writing and signed by the Parties, approved as to form by the City Attorney.
14. Prior Agreements. This Agreement contains all of the agreements of the
Parties with respect to the transaction contemplated hereby, and no prior agreements
or understandings pertaining to any such transaction shall be effective for any purpose
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.
15. Authority to Enter into Agreement. Both City and Owner acknowledge
they have the power and authority to enter into this Agreement and be bound by the
terms and conditions contained herein.
16. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be deemed to be an
original, and all of which, taken together, shall be deemed to be one and the same
instrument.
17. No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement the prevailing Party shall not be entitled to legal fees.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
Date:
LD`ullvVihill
Assistant City Attorney
ATTEST: 7 2�-]
Date:
By:
Nwr---
Leilani I. Brown
City Clerk
44,
FORri
CITY OF NEWPORT BEACH,
A California municipal corporation
Date: 77 j 2 / D tjN
By: ILA A
David ' f
City Manager
CURCI-TURNER COMPANY LLC,
A California limited liability company
Date:
By: '
John L. i
General Manager
Date:
By:
Michael T. Curci
Assistant General Manager
Attachment—Exhibit "A" Depiction of Extra Work
[END OF SIGNATURES]
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