Loading...
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 mwh:7/2/2012 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. mwh'7/2/12 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 mwh:7 /2/12 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. mwh:7/2/12 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 mwh:7/2/12 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 �aNrr c Attest, > o r Mp � 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 -- mwh:712/12 Citv City of Newport Beach, a California municipa Corp ration Date: '),U By :Z2, ' ncy Gar r Mayor County County of Orange, a political subdivision of the State of California By:�� Chair, Board of SupeIrvisors Date: ,3/ f /a ■ It iRX �� /� � m It 0,600fire, -.� t MAN AM, I A' \� \� � 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 Page 1 of 1 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 �- � S ���YFOS�CC O C-1C 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 gae.roA O U1 u Q „OqC /FO4�+ 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 Page 1 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). Page 2 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 Page 3