HomeMy WebLinkAboutC-5577 - Reimbursement Agreement for the Selenium Mitigation Project in the City of Newport BeachIN
REIMBURSEMENT AGREEMENT
WITH BIG CANYON COUNTRY CLUB
FOR THE SELENIUM MITIGATION PROJECT IN THE CITY OF NEWPORT BEACH
THIS REIMBURSEMENT AGREEMENT ( "Agreement') is made and entered into as of
this 28th day of June, 2013 ( "Effective Date "), by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ( "CITY "), and BIG CANYON
COUNTRY CLUB, a California non - profit mutual benefit corporation ( "BCCC "), whose address
is One Big Canyon Drive, Newport Beach, CA 92660, 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. BCCC owns a golf course, driving range, clubhouse and related site, recreational and
maintenance facilities located at One Big Canyon Drive in the City of Newport Beach,
California ( "Club Property').
C. Lakes on the Club Property known as Lake 3, Lake 4 and Lake 5 are in the Big Canyon
Wash Watershed ( "Watershed ") and accept runoff from upstream which contains
selenium, a naturally occurring element found in the Watershed. Lake 3, Lake 4 and
Lake 5 are depicted in Exhibit "A ", which is attached and incorporated herein by
reference.
D. CITY desires to implement a work plan to reduce selenium exposure to animal species
within the Watershed ( "Selenium Mitigation Workplan ").
E. Lake 4 is being impacted by sediment that is slowly reducing the depth of Lake 4,
creating aesthetic qualities that are less than optimal for BCCC.
F. BCCC researched the dredging of Lake 4 and discovered a dredging technique that
allows sediment to be "vacuumed" out of Lake 4 and routed to and stored in a geotube
located on Club Property and such a dredging process costs considerably less than
draining or dredging Lake 4 and excavating and hauling the sediment off Club Property.
G. BCCC analyzed the costs of a dredging project for Lake 4 for aesthetic purposes but
found the costs of a vacuuming dredging project exceed what BCCC is willing to expend
for an aesthetics project even though it is considerably less expensive than a traditional
dredging and sediment disposition project.
H. To encourage BCCC to dredge Lake 4 and remove existing selenium, CITY desires to
supplement the amount BCCC is willing to spend for an aesthetics dredging project
since removal of selenium -laden sediment from the Watershed will implement a portion
of CITY's Selenium Mitigation Workplan.
BCCC is willing to proceed with a dredging project in Lake 4 ( "Project ") if the cost to
BCCC does not exceed Fifty Thousand Dollars ($50,000.00), which amount BCCC is
willing to expend in pursuit of an aesthetic improvement to Lake 4.
J. CITY is willing to match BCCC's contributions up to Fifty Thousand Dollars
($50,000.00), and is willing to contribute an additional Twenty Thousand Dollars
($20,000.00), for a total maximum CITY contribution of up to Seventy Thousand Dollars
($70,000.00) of Project costs in the manner and subject to the conditions set forth
below.
K. CITY recognizes that BCCC desires to oversee the Project and CITY and BCCC agree
that the Project is not CITY's Project. Implementing the Project will be the sole
responsibility of BCCC.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the Effective Date and shall terminate
on April 30, 2015, unless extended or terminated earlier as set forth herein. BCCC and CITY
agree to work cooperatively so the Project can be implemented as soon as possible to remove
the sediment in Lake 4 with the least impact to operations at the golf course.
2. SERVICES TO BE PERFORMED
2.1 CITY's Specific Obligations and Rights.
2.1.1 CITY shall assist BCCC in selecting a Project contractor pursuant to a
competitive process. CITY shall have the right to approve the terms of the contract between
BCCC and the contractor for the Project prior to execution of the contract by BCCC, which
approval shall not be unreasonably withheld or delayed.
2.1.2 CITY shall pay fifty percent (50 %) of the cost of the Project contract, not to
exceed Fifty Thousand Dollars ($50,000.00) for Project costs up to One Hundred Thousand
Dollars ($100,000.00). For Project costs in excess of One Hundred Thousand Dollars
($100,000.00), CITY shall pay one hundred per cent (100 %) of these additional costs up to a
maximum of Twenty Thousand Dollars ($20,000.00). CITY's total maximum obligation for
Project contract costs shall not exceed Seventy Thousand Dollars ($70,000.00)
( "Reimbursement Amount "). Payment shall be made by CITY to BCCC within thirty (30)
calendar days after the completion of the Project.
BIG CANYON COUNTRY CLUB REIMBURSEMENT AGREEMENT Page 2
2.2 BCCC's Specific Obligations and Rights.
2.2.1 BCCC shall be responsible for executing a contract for the design and
implementation of the Project. BCCC shall be responsible for administering said contract.
BCCC shall provide a location on Club Property for disposal of the dredged sediment. BCCC
may, at any time before the contract commences elect not to proceed with the Project. If
BCCC elects not to proceed with the Project, this Agreement shall automatically terminate
without any further action of the parties. In the event of termination under this Section, CITY
shall owe no Reimbursement Amount to BCCC.
2.2.2 BCCC shall obtain, at its own expense and without reimbursement from
CITY, all necessary permits and approvals for implementing the Project. BCCC shall perform
all necessary California Environmental Quality Act ( "CEQA ") review for the Project.
2.2.3 BCCC shall pay fifty percent (50 %) of the cost of the Project contract up to
a maximum of Fifty Thousand Dollars ($50,000.00).
2.2.4 BCCC shall allow the CITY to observe the Project work on -site at any time
during the Project.
2.2.5 BCCC shall allow the County of Orange to perform monitoring tasks
provided the monitoring activities are performed in a manner minimizing disruption to BCCC
golf course operations.
3. REIMBURSEMENT
3.1 Within thirty (30) calendar days after completion of the Project, CITY shall pay to
BCCC the approved Reimbursement Amount in a lump sum payment, not to exceed Seventy
Thousand Dollars ($70,000.00), or such lesser amount expended on the Project and owed by
CITY.
3.2 CITY may withhold payment to BCCC of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to constitute
a failure to pay according to the terms of this Agreement. BCCC shall have an immediate right
to appeal to the City Manager with respect to such disputed sums. BCCC shall be entitled to
receive interest on any withheld sums at the rate of return that CITY earned on its investments
during the time period, from the date of withholding of any amounts found to have been
improperly withheld.
4. PROJECT CONTACTS
4.1 BCCC shall designate a Project Manager, who shall coordinate all phases of the
Project. This Project Manager shall be available to CITY at all reasonable times during the
Agreement term. BCCC has designated David Voorhees to be its Project Manager. BCCC
shall not remove or reassign the Project Manager without prior written notice to CITY.
BIG CANYON COUNTRY CLUB REIMBURSEMENT AGREEMENT Page 3
4.2 CITY designates CITY's Assistant City Engineer to be the Project Administrator
on behalf of the CITY. The Project Administrator shall represent CITY in all matters pertaining
to the Project.
5. RELATIONSHIP BETWEEN THE PARTIES
It is understood that CITY and BCCC have neither an independent contractor nor an
agency nor an employer - employee relationship. The manner and means of conducting the
Project are under the control of BCCC, except to the extent it is limited by statute, rule or
regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be
deemed to constitute approval for BCCC or any of BCCC's employees or agents, to be the
agents or employees of CITY. Nothing in this Agreement shall create any contractual
relationship between CITY and any subcontractor nor shall it create any obligation on the part
of CITY to pay or to see to the payment of any monies due to any such subcontractor other
than as otherwise required by law. BCCC shall have the responsibility for and control over the
means of performing the Project, provided that BCCC is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give CITY the right to direct BCCC
as to the details of the performance of the Project or to exercise a measure of control over
BCCC shall mean only that BCCC shall follow the desires of CITY with respect to the results of
the Project.
6. RESERVED
7. RECORDS
BCCC shall keep complete and accurate records and invoices in connection with the
Project and any costs charged to CITY for a minimum period of three (3) years, or for any
longer period required by law, from the date of final payment to BCCC under this Agreement.
All such records and invoices shall be clearly identifiable. BCCC shall allow a representative
of CITY to examine, audit and make transcripts or copies of such records and invoices during
regular business hours. BCCC shall allow inspection of all work, data, documents,
proceedings and activities related to the Agreement for a period of three (3) years from the
date of final payment to BCCC under this Agreement.
8. INDEMNIFICATION AND HOLD HARMLESS
8.1 For purposes of this Section, the following terms are defined as follows:
8.1.1 Environmental Law. "Environmental Law" shall include all federal, state,
and local environmental, health, and safety laws, statutes, ordinances, regulations, rules,
judgments, orders, and notice requirements, which were in effect as of the Effective Date,
which regulate or relate to (a) the protection or clean -up of the environment; (b) the use,
treatment, storage, transportation, handling or disposal of hazardous, toxic or otherwise
dangerous substances, wastes or materials; (c) the quality of the air and the discharge of
airborne wastes, gases, particles, or other emissions; (d) the preservation or protection of
waterways, groundwater, or drinking water; (e) the health and safety of persons or property; or
(f) impose liability with respect to any of the foregoing, including without limitation, the
BIG CANYON COUNTRY CLUB REIMBURSEMENT AGREEMENT Page 4
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA)
[42 USC §§ 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (RCRA) [42
USC §§ 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control
Act (FWPCA) [33 USC §§ 1251 et seq.]; the Toxic Substances Control Act (TSCA) [15 USC §§
2601 et seq.]; the Hazardous Materials Transportation Act (HMTA) [49 USC §§ 1801 et seq.];
the Insecticide, Fungicide, Rodenticide Act [7 USC §§ 136 et seq.]; the Superfund
Amendments and Reauthorization Act [42 USC §§ 6901 et seq.]; the Clean Air Act [42 USC §§
7401 et seq.]; the Safe Drinking Water Act [42 USC §§ 300f et seq.]; the Solid Waste Disposal
Act [42 USC §§ 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC §§
1201 et seq.]; the Emergency Planning and Community Right to Know Act [42 USC §§ 11001
et seq.]; the Occupational Safety and Health Act [29 USC §§ 655 and 657]; the California
Underground Storage of Hazardous Substances Act [H &S §§ 25280 et seq.]; the California
Hazardous Substances Account Act [H &S §§ 25300 et seq.]; the California Hazardous Waste
Control Act [H &S §§ 25100 et seq.]; the California Safe Drinking Water and Toxic Enforcement
Act [H &S §§ 24249.5 et seq.]; the Porter - Cologne Water Quality Act [Water §§ 13000 et seq.]
together with any amendments of or regulations promulgated under the statutes cited above.
8.1.2 Hazardous Materials. "Hazardous Materials' shall include any substance
which falls within the definition of hazardous substance, hazardous waste, hazardous material,
toxic substance, solid waste, or pollutant or contaminant, under any Environmental Law.
8.1.3 BCCC's Obligations. BCCC will not conduct the Project in violation of any
Environmental Law.
8.2 Environmental Indemnity and Hold Harmless. BCCC shall indemnify, defend,
and hold CITY and its City Council, officers, appointees, volunteers, employees, agents,
successors and assigns free and harmless from and against all Damages (as defined below)
that may at any time be imposed upon, incurred by, or asserted or awarded against CITY or
any of them in connection with or arising from any breach of BCCC's obligations hereunder or
out of any violation by BCCC of any Environmental Law; or resulting in the imposition of any
lien or claim for the recovery of any costs for environmental cleanup or other response costs
relating to the release or threatened release of Hazardous Materials due to the Project on the
Club Property or the use or misuse of the Club Property by BCCC. The term "Damages" shall
mean all liabilities, demands, claims, actions or causes of action, regulatory, legislative or
judicial proceedings, assessments, levies, losses, fines, penalties, damages, costs and
expenses, in each case as awarded by a court or arbitrator, including, without limitation: (i)
reasonable attorney's, accountant's, investigator's, and expert's fees and expenses sustained
or incurred in connection with the defense or investigation of any such liability; and (ii) costs
and expenses incurred to bring the Club Property into compliance with Environmental Laws.
The term "Damages" also includes, expressly, those Damages that arise as a result of strict
liability, whether arising under Environmental Laws and regulations or otherwise. BCCC's
obligations hereunder will survive the expiration or sooner termination of this Agreement.
8.3 General Indemnity and Hold Harmless.
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8.3.1 To the fullest extent permitted by law, BCCC shall indemnify, defend and
hold harmless CITY, its City Council, boards and commissions, officers, agents, volunteers
and employees (collectively, the "Indemnified Parties ") from and against any and all claims
(including, without limitation, claims for bodily injury, death 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 and
court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "),
which may arise from or in any manner relate (directly or indirectly) to any breach of the terms
and conditions of this Agreement, any work performed or services provided under this
Agreement including, without limitation, defects in workmanship or materials or BCCC's
presence or activities conducted on the Project (including the negligent, reckless, and /or willful
acts, errors and /or omissions of BCCC, its principals, officers, agents, employees, vendors,
suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them
or for whose acts they may be liable, or any or all of them.)
8.3.2 Notwithstanding the foregoing, nothing herein shall be construed to
require BCCC to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the terms
of this Agreement. This indemnity shall apply to all claims and liability regardless of whether
any insurance policies are applicable. The policy limits do not act as a limitation upon the
amount of indemnification to be provided by BCCC.
9. NOTICES
9.1 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.
9.2 All notices, demands, requests or approvals from BCCC to CITY shall be
addressed to CITY at:
To CITY: City of Newport Beach
P.O. Box 1768
100 Civic Center Drive
Newport Beach, CA 92658
Attention: Assistant City Engineer
Facsimile: (949) 644 -3318
9.3 All notices, demands, requests or approvals from CITY to BCCC shall be
addressed to BCCC at:
To BCCC: Attn: David Voorhees
General Manager
BIG CANYON COUNTRY CLUB REIMBURSEMENT AGREEMENT Page 6
Big Canyon Country Club
One Big Canyon Drive
Newport Beach, CA 92660
Phone: (949) 644 -5404
Facsmile (949) 720 -9338
10. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its final
request for payment under this Agreement, BCCC shall submit to CITY, in writing, all claims for
compensation under or arising out of this Agreement. BCCC's acceptance of the final
payment shall constitute a waiver of all claims for compensation under or arising out of this
Agreement except those previously made in writing and identified by BCCC in writing as
unsettled at the time of its final request for payment. BCCC and CITY expressly agree that in
addition to any claims filing requirements set forth in the Agreement, BCCC shall be required
to file any claim BCCC may have against CITY in strict conformance with the Government
Claims Act (Government Code sections 900 et seq.).
11. STANDARD PROVISIONS
11.1 Recitals. CITY and BCCC acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
11.2 Compliance with all Laws. BCCC 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 BCCC 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.
11.3 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.
11.4 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. In the event
there are any conflicts or inconsistencies between this Agreement and any other
communication between the parties, the terms of this Agreement shall govern.
11.5 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.
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11.6 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.
11.7 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.
11.8 Equal Opportunity Employment. BCCC represents that it is an equal opportunity
employer and it shall not discriminate against any subcontractor, employee or applicant for
employment because of race, religion, color, national origin, handicap, ancestry, sex, age or
any other impermissible basis under law.
11.9 No Attorney's Fees. In the event of any dispute or legal action arising under this
Agreement, the prevailing party shall not be entitled to attorney's fees.
11.10 Counterpart s. 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 and
the same instrument.
11.11 No Third Party Beneficiaries. This Agreement is entered into by and for BCCC
and the CITY, and nothing herein is intended to establish rights or interests in individuals or
entities not a party hereto.
11.12 Force Maieure. Except for the payment of money, neither party will be liable for
any delays or other non - performance resulting from circumstances or causes beyond its
reasonable control, including without limitation, fire or other casualty, Act of God, strike or labor
dispute, war or other violence, acts of third parties, or any law, order, or requirement of any
governmental agency or authority other than that of the parties.
11.13 Modification. Alteration, change, or modification of this Agreement shall be in the
form of a written amendment signed by both parties and approved as to form by the City
Attorney.
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BIG CANYON COUNTRY CLUB REIMBURSEMENT AGREEMENT Page 8
IN WITNESS WHEREOF, the parties are signing this Agreement as of the Effective
Date.
APPROVED AS TO FORM:
CITY ATTORNEY'S PFFICE
Date: /t 13
By: ��_ Ct 3r-
Aaron C. Farp
City Attorney
ATTEST: a
Date:
.. :...
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: ��yS1T
By: A"�
Dave Kiff ti N
City Manager
BIG CANYON COUNTRY CLUB: a
California non - profit mutual benefit
corporation
Date: 7 . / 7 • / 3
By:
Darrald J. Why ne
President
Date:
By:
David Voorhees
Assistant Secretary
Attachment: Exhibit A — Depiction of Lake 3, Lake 4 and Lake 5
BIG CANYON COUNTRY CLUB REIMBURSEMENT AGREEMENT Page 9