HomeMy WebLinkAboutC-5018(A) - Cooperative Agreement for the Funding of Maintenance Dredging of Lower Newport BayAgreement No. OCP12 -001
Lower Newport Bay
(Maintenance Dredging)
COOPERATIVE AGREEMENT
FOR THE FUNDING OF
MAINTENANCE DREDGING
OF LOUVER NEWPORT BAY
THIS COOPERATIVE AGREEMENT FOR THE FUN ING OF MAINTENANCE DREDGING OF
LOWER NEWPORT BAY ( "Agreement') is made , 2012, by and between
the COUNTY OF ORANGE, a political subdivision of the St to of California ( "County'), and the
CITY OF NEWPORT BEACH, a municipal corporation ( "City ").. The County and City may be
referred to herein individually as a "Party," or collectively as the "Parties."
RECITALS
WHEREAS, the City and the US Army Corps of Engineers ( "Corps ") have entered into a
Memorandum of Agreement to facilitate maintenance dredging of the Lower Newport Bay
( "Maintenance Dredging Areas ") as shown on "Exhibit A," attached hereto; and
WHEREAS, the tidelands in Lower Newport Bay are owned by or under the jurisdiction
of either the County ( "County Tidelands ") or the City ( "City Tidelands "), as shown on "Exhibit
B," attached hereto; and
WHEREAS, the Corps is only funding a portion of the dredging costs with additional
financial assistance being provided by the City; and
WHEREAS, the City has requested a financial contribution from the County to cover the
cost of dredging the Maintenance Dredging Areas within County Tidelands areas; and
WHEREAS, the City and County also desire to take advantage of a mobilized dredging
contractor to dredge additional areas both included and not included in the Maintenance
Dredging Areas; and
WHEREAS, the additional dredge areas within the County Tidelands are the "Upper
Newport Channel," an area south of the Pacific Coast Highway Bridge and already included in
the Maintenance Dredging Areas, and the "Linda Isle /Harbor Island Channel," an area
between Linda Isle and Harbor Island: and
WHEREAS, the Maintenance Dredging Areas, the Upper Newport Channel and the
Linda Isle /Harbor Island Channel shall collectively be known as the "Project ;" and
WHEREAS, dredging permits are already secured for the Maintenance Dredging Areas
which includes the Upper Newport Channel; and
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WHEREAS, the City will be responsible for the processing of the necessary permits for
dredging the Linda Isle /Harbor Island Channel Areas; and
!WHEREAS, the County will reimburse the City a prorata share of the cost of dredging
the Maintenance Dredging Areas within County Tidelands and a prorata share of the cost of
permitting, dredging and mitigating the Linda Isle /Harbor Island Channel Areas in an amount not
to exceed One Million Five Hundred. Thirty Eight Thousand Dollars and 00/100
($1,538,000.00); and
WHEREAS, this Agreement will define how the County funds are to be allocated and
disbursed to the City for the Project.
NOW, THEREFORE, it is agreed by the Parties hereto as follows:
PROJECT
The Project shall consist of dredging those areas as specified in "Exhibit C" — County
Dredge Areas and Cost Estimates, attached hereto.
COUNTY MAXIMUM FINANCIAL OBLIGATION
A. County shall provide funding assistance from OC Parks funds in an amount not
to exceed One Million Five Hundred Thirty Eight Thousand Dollars and
00/100 ($1,538,000.00).
B. Such financial assistance shall be used by City solely for actual dredging costs,
necessary permitting costs including consulting services to obtain permits, and
mitigation costs; County's contribution shall not be used for City's staff salaries,
ongoing operations and maintenance, the purchase of equipment, office
supplies, or other administrative expenses or overhead.
3. COUNTY RESPONSIBILITIES
A. The County shall allocate OC Parks funds for dredging of those County
Tidelands areas as specified in Exhibit C.
B. Upon completion of dredging in the County Tidelands areas, City shall invoice
County for those portions of the Project. County shall pay City within thirty (30)
calendar days of receipt of invoices for approved project areas as specified in
Exhibit C. All invoices shall be subject to the routine processing requirements of
County's Auditor- Controller. County may withhold payment for any unapproved
Project expenses. Should there be a dispute regarding unapproved Project
charges, County shall immediately contact the City for resolution.
C. Notwithstanding the above, in the event there are changes or modifications to the
dredging areas within the County Tidelands, the County's Director of OC Parks
may reallocate or redirect the OC Parks funds to other County Tidelands areas
provided the County's maximum financial obligation is not exceeded as stated in
Section 2.A above.
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4. CITY RESPONSIBILITIES
A. The City shall fully utilize the County funding provided under this Agreement for
dredging of the County Tidelands areas and for County's prorata share of the
permitting, dredging and mitigation costs associated with the Project Areas.
B. The City shall obtain the necessary permits for dredging of the Project Areas.
C. Within sixty (60) calendar days after filing of the final Notice of Completion for the
Project, City shall submit an accounting report to County: The report shall
include full, true and correct copies of documents, certificates, and itemized bills
reflecting the actual cost of the Project that is within the County Tidelands. City
shall permit County to review records relating to project expenditures. Records
shall be retained and made available to County for review for a minimum of three
(3) years after completion of the Project.
5. Availability of Funds. The obligation of County is subject to the availability of funds
appropriated for this purpose, and nothing herein shall be construed as obligating the
County to expend or as involving the County in any contract or other obligation for future
payment of money in excess of appropriations authorized pursuant to this Agreement.
Indemnification.
A. County. Neither City nor any officer or employee thereof shall be responsible for
any damage or liability occurring by reason of anything done or omitted to be
done by County under or in connection with any work or activity under this
Agreement. It is understood and agreed that, pursuant to Government Code
Section 895.4, County shall fully indemnify and hold City harmless from any
liability imposed injury (as defined by Government Code Section 810.8) occurring
by reason of anything done or omitted to be done by County under or in
connection with any work or activity under this Agreement.
B. City. Neither County nor any officer or employee thereof shall be responsible for
any damage or liability occurring by reason of anything done or omitted to be
done by City under or in connection with any work or activity under this
Agreement. It is understood and agreed that, pursuant to Government Code
Section 895.4, City shall fully indemnify and hold County harmless from any
liability imposed injury (as defined by Government Code Section 810.8) occurring
by reason of anything done or omitted to be done by City under or in connection
with any work or activity under this Agreement.
7. Governing Law. The City and County understand and agree that the laws of the State of
California shall govern the rights, obligations, duties and liabilities of the Parties to this
Agreement and also govern the interpretation of this Agreement. In the event of any
legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be
a court of competent jurisdiction located in Orange County, California, and the Parties
hereto agree to and to hereby submit to the jurisdiction of such court, notwithstanding
Code of Civil Procedure Section 394. Furthermore, the Parties specifically agree to
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waive any and all rights to request that an action be transferred for trial to another
County.
8. Assignment. This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of the Parties. No assignment of City's interest in this
Agreement shall be made without the written consent of the County. Furthermore, City
agrees that any County funds received under this Agreement shall not be expended on,
given to, shared with, or otherwise provided to any other city, local agency or other entity
not contemplated under this Agreement.
9. Amendments. This Agreement is the sole and only agreement between the parties
regarding the subject matter hereof, and other agreements on this subject matter either
oral or written are void. Any amendments to this Agreement shall be in writing and shall
be properly executed by both Parties and approved as to form by County's County
Counsel and City's City Attorney.
10. Integration. This Agreement constitutes the entire agreement of the Parties. No other
agreement, oral or written, pertaining to the work to be performed under this Agreement
shall be of any force or effect unless it is in writing and signed by both Parties.
11. Severability. If any part of this Agreement is held, determined, or adjudicated to be
illegal, void, or unenforceable by a court of competent jurisdiction, the remainder of this
Agreement shall be given effect to the fullest extent reasonably possible.
12. Termination. County may terminate this Agreement for any reason provided that the
City has not awarded any project on which its allocation will be expended. However,
County shall reimburse City within thirty (30) calendar days of termination for all costs
incurred by City on County's behalf under this Agreement. After the City has awarded a
project on which its allocation will be expended, County may terminate this Agreement if
the City is in breach of this Agreement. Any such termination shall be accomplished by
delivery to City a Notice of Termination, which notice shall become effective not less
than thirty (30) calendar days after receipt, specifying the reason for the termination, the
extent to which funding is terminated, and the date upon which the termination is
effective.
11 Breach. The failure of the City to comply with any of the terms and conditions of this
Agreement shall be a material breach of this Agreement.
14. Binding Obligation. The Parties to this Agreement represent and warrant that this
Agreement has been duly authorized and executed and constitutes the legally binding
obligation of their respective organization or entity enforceable in accordance with its
terms.
15. Attorneys' Fees. In any action or proceeding to enforce or interpret any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, each Party
shall bear its own attorney's fees, costs and expenses.
16. Reserved.
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17. Counterparts. This Agreement may be executed in two or more counterpart, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument
18. Notices. Except as otherwise provided herein, all notices required under this Agreement
shall be in writing and delivered personally or by first class mail, postage prepaid, to
each Party at the address listed below. Either Party may change the notice address by
notifying the other Party in writing. Notices may be sent by either facsimile or U.S. Mail.
Notices shall be deemed received upon receipt of same or within 3 days of deposit in the
U.S. Mail, whichever is earlier. Notices sent by facsimile shall be deemed received on
the date of the facsimile transmission.
To County: County of Orange
OC Parks
13042 Old Myford Road
Irvine, CA 92602 -2304
Attn: Director OC Parks
Fax: (714) 667 -6511
To City: City of Newport Beach
Attn: City Manager
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658
Fax: (949) 644 -.3020
With a copy to:
City of Newport Beach
Attn: Harbor Resources Manager
829 Harbor Island Dr.
Newport Beach, CA 92660
Fax: (949) 723 -0589
19. Attachments. This Agreement includes the following, which are attached hereto and
made a part hereof.
I. Exhibit A — Lower Newport Bay Maintenance Dredging Areas
II. Exhibit B — Lower Newport Bay Tidelands Map
III, Exhibit C — County Dredge Areas and Cost Estimates
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IN WITNESS of this Agreement, the Parties have entered into this Agreement as of the dates
written below.
APPROVED AS TO FORM
CITY ATTORNEY'S OFFICE
Date:
-X/
Aaron Har
City Attorney
For the City of Newport Beach
Attest:
na+P- 7
rown, City Clerk
Signed and certified that a copy of this
document has been delivered to the
Chair of the Board per G.C. Sec. 25103,
Resolution 79 -1535
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Attest, > o
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S4san Novak
Clerk of the Board of Supervisors
Orange County, California
APPROVED AS TO FORM
County Counsel
Orange County, California
By: 1 099wr- rT jr V uw
Date: - Ai --
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City of Newport Beach, a California
municipa Corp ration
Date: '),U
By :Z2, '
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Mayor
County
County of Orange, a political subdivision of
the State of California
By:��
Chair, Board of SupeIrvisors
Date: ,3/ f /a
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Exhibit C
Lower Newport Bay Dredging Project
County Dredge Areas and Costs Estimates
County
Share
Estimated Dredging
Area Quantity (cy) Unit Price Costs
1. High Priority Federal Channel Areas (Permitted)
Main Channel - Lido Reach North 42,000
Collins Isle Reach 6,780
Coast Guard Area 961
2. Additional Optional Federal Channel Areas (Permitted)
Upper Newport Channel (Near PCH Bridge)
Sub Area 1 - Near Harbor Island 17,000
Sub Area 2 - Near Linda Isle 1,400
Sub Area 3 - Near Newport Marina 4,000
Sub Area 4 - Near Bayshores. 3,600
3. Additional City /County Channel Areas (Non- Permitted)
Harbor Island /Linda Isle Channel
Permitting
Dredging 14,000
Eelgrass Mitigation
4. Additional Areas Project Administration and Mobilization
1. Base Bid items per Corps of Engineers (COE) contract with R.EStain, Engineering
2. Estimate items will be done through change orders with COE contract or separate City contract
$12.60 $529,200 Base Bid
$14.05 $95,259 Base. Bid
$15.60 $14,992 Base Bid
Subtotal $639,451
$12.95
$220,150 Estimate
$12.95
$18,130 Estimate
$12.95
$51,800 Estimate
$12.95
$46,620 Estimate
Subtotal
$336,700
$39,033 Estimate
$15.87 $222,180 Estimate
$103,388 Estimate
Subtotal $364,601
$57,020 Estimate
Total $1,397,772
10% contingency $139,777
Total Dredging Costs $1,537,549
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O R A N G E C O U N T Y
(u C Comrn.upity resources
Our Community. Our Commitment.
CEI`IEU
STEVE FRANKS 2012 AUG 10 Wa 0.5
DIRECTOR
OC COMMUNITY RESOURCES
RYAN DRABEK
DIRECTOR
OC ANIMAL CARE
KAREN ROPER
DIRECTOR
OC COMMUNITY SERVICES
MARK DENNY
DIRECTOR
OC PARKS
August 7, 2012
I
Leilani I. Brown, City Clerk
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
OFF TOE OF
TH: CITY CLERK
CITY OF ^i r'- T BEACH
Subject: Cooperative Agreement — Lower Newport Bay Dredging
' Dear Ms. Brown:
HELEN FRIED Enclosed for our records is a full executed original co of the
COUNTY LIBRARIAN Y Y PY
OC PUBLIC LIBRARIES Cooperative Agreement for the Funding of Maintenance Dredging of
Lower Newport Bay [your Contract No. 5018(A)] between the County of
Orange and the City of Newport Beach and a copy of Orange County
Board of Supervisors Minute Order dated July 31, 2012.
If you have any questions, please call me at (949) 923 -3753.
Sincerellly, ,(��
ham4 / ° �--(/
Michael Hentzen
OC Parks Lease Manager
Enclosures
cc: Chris Miller, City of Newport Beach
Susan Brodeur. OC Parks
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13042 OLD MYFORD ROAD
IRVINE, CA 92602
PHONE: 866.00PARKS
FAX: 714 - 667 -6511
ORANGE COUNTY BOARD OF SUPERVISORS
MINUTE ORDER
July 31, 2012
SubmittingAgencv /Department: OC COMMUNITY RESOURCES
Approve cooperative agreement OCP12 -001 with City of Newport Beach for funding of maintenance dredging of Lower
Newport Bay; and make California Environmental Quality Act findings - District 2
The following is action taken by the Board of Supervisors:
APPROVED AS RECOMMENDED 0 OTHER ❑
Unanimous 0 (1) NGUYEN: Y (2) MOORLACH: Y (3) CAMPBELL: Y (4) NELSON: Y (5) BATES: Y
Vote Key: Y= Yes, N =No; A= Abstain; X= Excused; B. 0. =Board Order
Documents accompanying this matter:
0 Resolution(s)
❑ Ordinances(s)
® Contract(s)
Item No. 15
Special Notes:
Copies sent to:
OCCR/OC Parks- Mike Hentzen - I orig. agree.
8/6/12
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I certify that the foregoing is a true and correct copy of the Minute Order adopted
by the Board of �uVeegisors , Orange County, State of California.
Si an
. Novak, Jerk ofithe Board
By: I _
Deputy )
AGENDA STAFF REPORT
MEETING DATE: :.
LEGAL ENTITY TAILING ACTION:
BOARD OF SUPERVISORS DISTRICT(S):
SUBMITTING AGENCY/DEPARTMENT:
DEPARTMENT CONTACT PERSON(S):
Agenda Item
ASR Control 12- 000974
07/31/12
Board of Supervisors
2
OC Community Resources (Approved)
Mike Hentzen (949) 923 -3753
Rich Adler (949) 923 -3752
SUBJECT: Cooperative Agreement - Lower Newport Bay Dredging
CEO CONCUR COUNTY COUNSEL REVIEW CLERK OF THE BOARD
Concur Approved Agreement to Form Discussion
3 Votes Board Majority
Budgeted: No Current Year Cost: $1,538,000 Annual Cost: N/A
Staffing Impact: No # of Positions: Sole Source: N/A
Current (Fiscal Year Revenue: N/A
Funding Source: OC Parks Fund 405: 84 %, Newport Tidelands Fund 106: 16%
Prior Board Action: N/A
RECOMMENDED ACTION(S):
1. Find that the recommended action is not a project as defined by CEQA pursuant to CEQA
Guidelines Section 15378(6)(5).
2. Approve the Cooperative Agreement for the Funding of Maintenance Dredging of Lower Newport
Bay between the County and the City of Newport Beach.
3. Authorize the Chair to execute the Cooperative Agreement between the County and the City of
Newport Beach.
SUMMARY:
Approval of the Cooperative Agreement for the Funding of Maintenance Dredging of Lower Newport
Bay with the City of Newport Beach will enhance navigation in Newport Harbor and benefit all harbor
users.
BACKGROUND INFORMATION:
Ownership of the tidelands in Lower Newport Bay is divided between the City of Newport Beach and the
County of Orange (see Exhibit A). While the County share of the Lower Bay tidelands is small, it
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includes the waters adjacent to the Harbor Patrol Headquarters, Harbor Island and several commercial
marinas.
Dredging of the main navigation channels in the Lower Bay is the responsibility of the U.S. Army Corps
of Engineers (Corps). For several years the City of Newport Beach (City) has been working with the
Corps to facilitate a project to dredge the entire Lower Bay. Because the cost of that project would exceed
$25 million, the Corps and City have developed, through a Memorandum of Agreement, a more limited
project to dredge several high priority environmental and critical navigation areas (shown in green on
Exhibit B).
The Corps recently awarded a dredging contract to R.E. Staite Engineering for these high priority areas.
The contract is for $6.39 million, with the City contributing $2.5 million toward the work. Because a
portion of the work is on County tidelands, the City has requested reimbursement from the County for the
cost of the actual dredging being done on the County tidelands areas; the amount is approximately
$640,000 (see Exhibit C).
Separately, the City has negotiated with the contractor to do additional dredging work within Lower Bay
(areas shown in brown on Exhibit B), including on County tidelands. This is a very cost effective
approach because, with the contractor already in place, the mobilization costs are minimized. The cost for
the additional dredging work on County tidelands is approximately $758,000 (see Exhibit Q. Most
notable of the County tideland area to be dredged is the Upper Newport Channel seaward of the Pacific
Coast Highway bridge. This channel is experiencing shoaling at low tide, which significantly impacts the
County's adjacent lessee, Newport Manna.
A Cooperative Agreement (Exhibit D) with the City has been prepared to fund the dredging work within
the County tidelands. The total cost, including a 10% contingency, is $1,538,000. The Agreement
provides for the County to reimburse the City as the dredging work is being completed.
OC Parks has identified $1,538,000 in funding that can be allocated to the dredging project and believes
this is a beneficial use of OC Parks funds for the following reasons:
a. The project will enhance navigation in Newport Harbor and benefit all harbor users.
b. OC Parks receives $770,000 annually from County tideland leases within the Lower Bay that are
adjacent to or adjoin the dredging areas and will benefit from the project.
c. OC Parks is only paying for actual, direct dredging costs within the high priority areas and is
potentially saving over $1,000,000 by not having to independently pay for dredging mobilization and
permitting costs.
d. All permits to perform the dredging in the high priority areas have been obtained, at no cost to OC
Parks. The City is currently obtaining permits for the additional dredging, the cost for which will be
shared between the City and OC Parks.
OC Parks Commission: The Commission considered this item at its meeting on January 5, 2012 and
recommends approval by your Board.
Compliance with CEQA: The recommended action is not a project as defined by CEQA pursuant to
CEQA Guidelines Section 15378(b)(5).
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FINANCIAL, IMPACT:
R " ,
OC Parks has budgeted $225,000 for the dredging work in the FY 2012 -1.3 Budget for Newport Tidelands
Fund 106. To provide the additional funding, OC Parks will be requesting in the First Quarter Budget
Adjustment Report the transfer of $1,313,000 from OC Parks Fund 405 as a loan to Newport Tidelands
Fund 106. The Newport Tidelands Fund 106 will repay the loan over time from the revenues received
from the leases on the County tidelands.
STAFFING IMPACT:
N/A
>EXIIIBIT(S):
Exhibit A: Newport Bay Dredging Areas
Exhibit B: Newport Bay Tidelands Ownership Map
Exhibit C: County Dredge Areas and Cost Estimates
Exhibit D: Cooperative Agreement
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