HomeMy WebLinkAboutC-6065 - Reimbursement Agreement for Water Main Reconstruction1
Q) REIMBURSEMENT AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND
�JlLIDO GROUP RETAIL, LLC
FOR WATER MAIN RECONSTRUCTION
THIS AGREEMENT is made and entered into on this � (B 11-1 day of
� V N G , 2015, by and between the CITY OF NEWPORT BEACH, a California
municipal corporation, hereinafter referred to as "CITY," and LIDO GROUP RETAIL, LLC, a
California limited liability company hereinafter referred to as "DEVELOPER."
WHEREAS, DEVELOPER , at its own cost and expense, agreed to reconstruct
approximately 283 feet of an existing CITY -owned water main along Via Oporto (hereafter,
referred to as the "Lido Marina Village Renovation Project" or "Project"); and
WHEREAS, DEVELOPER owns certain fee and leasehold parcels that are served by the
water main; and
WHEREAS, the CITY water main along Via Oporto was installed in 1930 and, due to its
age, the CITY desires to have an additional 412 feet of water main replaced concurrently with
the Lido Marina Village Renovation Project. CITY acknowledges that the 412 feet of
reconstructed water main is supplemental to the Lido Marina Village Renovation Project; and
WHEREAS, the parties have determined that it would be more expedient for
DEVELOPER to construct the supplemental 412 feet of water main (hereafter referred to as the
"Supplemental Portion") rather than to have the CITY do so; and
WHEREAS, the 283 feet of water main to be reconstructed as part of the Lido Marina
Village Renovation Project and the Supplemental Portion shall be herein collectively referred to
as the "FACILITIES." A map depicting the FACILITIES and the area thereby served is attached
hereto, marked Exhibit A, and by this reference made a part hereof as though set out in full
herein; and
WHEREAS, the CITY is amenable to have DEVELOPER construct the Supplemental
Portion with the DEVELOPER agreeing to advance certain costs; and
WHEREAS, the CITY agrees to reimburse DEVELOPER through payments billed by
DEVELOPER and approved by the CITY for the entire cost of the Supplemental Portion; and
WHEREAS, the FACILITIES will be constructed in conformance with Plans and
Specifications as defined herein and, upon completion, the FACILITIES shall be duly dedicated
to CITY and become the property of the CITY in accordance with the terms and conditions
hereinafter set forth. "Plans and Specifications" means the plans and specifications listed on the
attached Exhibit "B", which have been approved and permitted by the CITY as they may be
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Reimbursement Agreement
Lido Marina Village Renovation Project
6.3.15
amended, changed or modified from time to time upon the written consent of CITY and
DEVELOPER.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto agree as follows:
SECTION 1. CONSTRUCTION. In conjunction with the Lido Marina Village
Renovation Project, DEVELOPER agrees to initiate and pursue completion of the design and
construction of the FACILITIES.
SECTION 2. DEDICATION. Upon completion, DEVELOPER will dedicate the
FACILITIES to City.
SECTION 3. COSTS.
(a) CITY agrees to pay DEVELOPER the total sum of One Hundred Forty -Four
Thousand Eight Hundred Fifty Four Dollars ($144,854.00) for the design, construction, testing,
inspection and management oversight to install the Supplemental Portion of the FACILITIES.
The proportional share of the costs to be paid by the City pursuant to this Section, based on
percentage complete, shall be invoiced monthly to CITY and shall be reviewed and paid within
thirty (30) days of CITY's receipt of an invoice from DEVELOPER.
(b) The parties agree that in the event of unforeseen circumstances or conditions beyond
those that would be reasonably expected with the work associated with construction of the
Supplemental Portion; that arise after this Agreement is executed; and, which increase the cost of
the Supplemental Portion, the parties shall use good faith to meet and confer in order to agree on
the appropriate and reasonable amount of any increase to the costs to be paid by CITY. In no
event shall the CITY's total payment under this Section exceed One Hundred Fifty Thousand
Dollars ($150,000.00) without a written amendment to this Agreement.
SECTION 4. LAWS, ORDINANCES, RULES AND REGULATIONS. DEVELOPER
shall require in its contract for the construction of the SUPPLEMENTAL FACILITIES that its
contractor be fully informed of and comply with all laws, ordinances, rules and regulations,
including, but not limited to, all applicable requirements of the California Labor Code, prevailing
wage laws, and the Rules and Regulations of CITY, in connection with the construction of the
FACILITIES.
SECTION 5. INSPECTION. CITY shall be entitled to inspect the construction of the
FACILITIES as it deems necessary to assure compliance with the Plans and Specifications,
including shop drawing review and material inspection thereof. CITY shall have access to all
phases of the work to be performed by DEVELOPER for the purpose of such inspection;
provided, however, all questions regarding the work being performed will be directed to
DEVELOPER'S engineer of record. CITY will promptly notify DEVELOPER of any portion of
the work on the FACILITIES which appears not to conform to the Plans and Specifications. The
determination of CITY as to conformity of the FACILITIES with the Plans and Specifications
shall be made by CITY. CITY agrees not to unreasonably withhold its approval as to such
conformity of the FACILITIES with the Plans and Specifications. DEVELOPER shall require
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Lido Marina Village Renovation Project
6.3.15
its contractor to construct the FACILITIES so that the FACILITIES conform to the Plans and
Specifications. DEVELOPER agrees to assume full responsibility for certifying or obtaining
certification of the compaction of backfill material over the FACILITIES.
SECTION 6. ACCEPTANCE. CITY agrees to accept the FACILITIES when the
FACILITIES have been completed by DEVELOPER in accordance with all requirements of the
Plans and Specifications. At the time of completion and acceptance of the FACILITIES,
DEVELOPER agrees to furnish CITY with one (1) copy of the contractor's redlined set of
blueline "record" drawings (showing all revisions, manufacturer and type of valves, pipe and
fittings as required by CITY) and one (1) copy of the compaction reports and certificate, survey
notes and cut sheets.
SECTION 7. OWNERSHIP. It is mutually agreed between the parties hereto that
notwithstanding the fact that DEVELOPER shall accomplish the construction of the
FACILITIES and the Supplemental Portion that is subject to the reimbursement provided by this
Agreement, the FACILITIES to be completed hereunder, shall at all times be subject to the
applicable rates, rules and regulations of CITY, as modified or amended from time to time.
DEVELOPER hereby disclaims any interest in the FACILITIES and does hereby transfer and
assign to CITY any and all right, title, and interest it may have in the FACILITIES. CITY shall
own, operate and maintain the FACILITIES following acceptance thereof.
SECTION 8. GUARANTEES. DEVELOPER will, pursuant to the requirement(s) of the
Plans and Specifications, guarantee the FACILITIES against defects in workmanship and
materials for a period of one (1) year from the date of acceptance by CITY pursuant to Section.6.
It is further agreed that DEVELOPER shall cause the FACILITIES to be brought or restored to
full compliance with the requirements of the Plans and Specifications, including any test
requirements, for any portions of the FACILITIES which during said one (1) year period are
found not to be in conformance with the provisions of the Plans and Specifications. This
guarantee is in addition to any and all other warranties, express or implied, from DEVELOPER's
contractors or material manufacturers, with respect to the FACILITIES. The guarantee and
obligations under this section shall in no way be relieved by CITY's inspection and/or
acceptance of the FACILITIES. This section sets forth the entire guarantee and warranty of
DEVELOPER with respect to the FACILITIES. The express or implied warranties of other
persons with respect to FACILITIES shall in no way be limited by the guarantee and warranty of
DEVELOPER contained in this section. If requested by CITY, DEVELOPER agrees to assign
to CITY the contractor's guarantee and/or any other guarantees or warranties relating to the
FACILITIES.
SECTION 9. INDEMNIFICATION. DEVELOPER shall indemnify, defend and hold
CITY, its officers, agents, employees, and engineers harmless from any expense, liability or
claim for death, injury, loss, damage or expense to persons or property which may arise or is
claimed to have arisen during construction of the FACILITIES as a result of any work or action
performed by DEVELOPER or on behalf of DEVELOPER, save and except to the extent such
expense, liability or claim is proximately caused in whole or in part by any act, omission, or
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negligence of CITY, its officers, agents, employees or engineers or by any act or omission for
which CITY, its officers, agents, employees or engineers are liable without fault.
CITY shall indemnify, defend and hold DEVELOPER, its officers, agents, and
employees, harmless from any expense, liability or claim for death, injury, loss, damage or
expense to persons or property which may arise or is claimed to have arisen either (i) as a result
of any acts performed by CITIY, its officers, agents, or employees, with respect to the
FACILITIES construction; or (ii) following CITY acceptance of the FACILITIES, with respect
to maintenance and operation of the FACILITIES, save and except to the extent such expense,
liability or claim is proximately caused in whole or in part by any negligence of DEVELOPER,
its officers, agents, employees or engineers, or by any act or omission for which DEVELOPER,
its officers, agents, employees or engineers are liable without fault.
SECTION 10. INSURANCE AND BONDING. DEVELOPER shall cause its
contractor(s) to provide performance and payment bonds for the construction of the
Supplemental Portion of the FACILITIES to obtain insurance coverage sufficiently broad to
insure the matters set forth in this Agreement and to include CITY, its officers, agents,
employees and engineers, as additional insureds on all insurance policies that DEVELOPER
requires its contractor(s) to provide with respect to the Supplemental Portion of the Facilities. As
evidence of such insurance coverage, DEVELOPER shall, prior to commencement of
construction of the FACILITIES, provide CITY with certificates of insurance and insurance
endorsements from DEVELOPER's contractor(s) in a form acceptable to CITY.
SECTION 11. TERMINATION. CITY shall have the right to terminate this Agreement
at any time, subject to the provisions of this section, by providing five (5) business days' prior
written notice to DEVELOPER. Unless DEVELOPER terminates this Agreement,
DEVELOPER, CITY shall remain obligated for the actual amount of the Costs incurred by, or
accrued on behalf of, DEVELOPER up to the date of termination by DEVELOPER.
If DEVELOPER's Project is canceled or modified so as to eliminate the necessity of the
construction of the FACILITIES, DEVELOPER shall have the right to terminate this Agreement
and thereby terminate its obligation to construct the FACILITIES, by providing five (5) business
days' prior written notice to CITY. In such case, CITY will not be obligated for any design or
any other Costs incurred by DEVELOPER. If CITY elects to construct the FACILITIES, CITY
may, but shall not be obligated to, acquire the design or other work from DEVELOPER by
separate agreement, subject to any offset or credit due to the City for Costs already paid to
DEVELOPER relating to actual design costs.
SECTION 12. NOTICE. Any notice or other written instrument required or permitted
by this Agreement to be given to either party shall be deemed received when personally served
or twenty-four (24) hours after being deposited in the U.S. Mail, postage prepaid, registered or
certified and addressed as follows:
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Reimbursement Agreement
Lido Marina Village Renovation Project
6.3.15
DEVELOPER: Lido Group Retail, LLC
922 Laguna Street
Santa Barbara, CA 93101
Attn: Lindsay Parton
CITY: City of Newport Beach
100 Civic Center Drive
P.O. Box 1768
Newport Beach, CA 92658
Attn: Director of Public Works
SECTION 13. CITY AUTHORIZATION. The City Manager or his/her designee is
hereby authorized, on behalf of the City, to sign all documents necessary and appropriate to carry
out and implement this Agreement and to administer the City's obligations, responsibilities and
duties to be performed under this Agreement.
SECTION 14. SUCCESSORS AND ASSIGNS; INTEGRATION; AMENDMENT.
This Agreement shall be binding upon and inure to the benefit of the successor and assigns of
CITY and DEVELOPER. This Agreement constitutes the entire Agreement between CITY and
DEVELOPER and supersedes all prior understandings and agreements between the parties with
respect to the subjects hereof. This Agreement may be modified only in writing signed by both
parties hereto.
SECTION 15. ATTORNEY'S FEES AND COSTS. In the event suit is brought to
enforce the terms and provisions of this Agreement, the prevailing party shall be entitled to
recover its attorney's fees and costs from the non -prevailing party.
SECTION 16. SEVERABILITY. If any term, provision, covenant or condition of this
Agreement is held to be invalid, void or other unenforceable, to any extent, by any court of
competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each
term provision, covenant or condition of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
SECTION 17. APPLICABLE LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of California.
SECTION 18. WAIVER. The waiver of any provision of this Agreement by either party
shall not be deemed to be a waiver of any other provision or of any preceding or subsequent
breach hereunder.
SECTION 19. ENTIRETY. This writing contains the entire Agreement between the
parties hereto.
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Reimbursement Agreement
Lido Marina Village Renovation Project
6.3.15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by and through their authorized officers on the day, month and year first above written.
OWNER: CITY:
Lido Group Retail, LL City of Newport Beach
A California limited ability m a y A California municipal corporation
�-'/l I I, "�
C'
By: By: ave Kiff
Its: Its: City Manager
APPROVED AS TO FORM
CITY OF NEWPORT BEACH:
U11011M
I,5
Aaron Harp
City Attorney for City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH
Al a-- Dated
Leilani Brown
City Clerk for City of Newport Beach
INITIATED AND APPROVED:
0V 'I60
41 Directo of Public Works
��►�^ORS®
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Lido Marina Village Renovation Project
6.3.15
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TA I T
LIDO MARINA VILLAGE
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