HomeMy WebLinkAboutC-6171 - Cooperative Agreement for Mesa Drive Drainage Improvements Project �-- COOPERATIVE AGREEMENT AMONG
THE CITY OF NEWPORT BEACH,
THE COUNTY OF ORANGE,
U THE JOHNS LIVING TRUST, THE MANLY FAMILY TRUST, AND
THE MESA IRREVOCABLE TRUST FOR
MESA DRIVE DRAINAGE IMPROVEMENTS PROJECT
This Cooperative Agreement ("Agreement") is entered into the -24 5'7-day of
; 2015, by and among the City of Newport Beach, a California
muni ipal corporation and charter City ("City"), the County of Orange, a political
subdivision of the State of California ("County'), William Buck Johns and
Elizabeth Colleen Johns, as Co-Trustees of the Johns Living Trust established
August 13, 2007, and John Clinton Manly, IV and Jill Apperson Manly as Go-
Trustees of the Manly Family Trust established May 12, 2008, (collectively,
"Owners"), which are sometimes individually referred to as "Party" or collectively
referred to as "Parties."
RECITALS
A. The City is a municipal corporation 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 the City.
B. The County is a political subdivision of the State of California
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.
C. The Owners are: 1) William Buck Johns and Elizabeth Colleen
Johns, as Co-Trustees of the Johns Living Trust established August 13, 2007, as
owners of the property located at 2600 Mesa Drive in the City of Newport Beach,
Orange County Assessor's Parcel Number 439-051-05, and 2) John Clinton
Manly, IV and Jill Apperson Manly, as Co-Trustees of the Manly Family Trust
established May 12, 2008, as owners of the property located at 2612 Mesa Drive
in the City of Newport Beach, Orange County Assessor's Parcel Number 439-051-
06, respectively.
D. Some of the drainage on Mesa Drive and properties north of Mesa
Drive have historically flowed across the properties of 2600 and 2612 Mesa Drive.
E. The natural drainage course that runs along the privately-owned
properties of 2600 and 2612 Mesa Drive have progressively eroded material
over many decades.
F. Erosion is progressively headcutting toward Mesa Drive and, if left
uncontrolled, could eventually undercut the roadway.
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G. The eroded sediment has been carried into and deposited in
Upper Newport Bay ("Bay').
H. If left uncontrolled, storm flows could begin to disturb native riparian
plants growing along the Bay.
I. The Parties wish to construct a storm drain and catch basins on
Mesa Drive to safely convey drainage across the private properties, and construct
a wetlands at the downstream end of the storm drain system as a good water
quality management practice to buffer negative impacts of urban runoff to the Bay
("Project').
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the Parties hereto agree as follows:
ARTICLE 1. ELEMENTS OF AGREEMENT
The Parties shall work cooperatively together to minimize costs and
impacts to the public from the Project. The specific terms and conditions
governing the elements of this Agreement are set forth below.
ARTICLE 2. RESPONSIBILITIES OF OWNERS
Owners agree to the following responsibilities:
2.1 Owners agree to pay the City the sum of Fifty Thousand Dollars and
00/100 ($50,000.00) after the City receives notification of Measure M funding for
the Project and prior to initiation of the design phase of the Project.
2.2 Owners agree, at no cost to City, to provide temporary construction
and right of entry easements to the City for the design and construction of the
Project. Owners agree, at no cost to City, to convey permanent easements to the
City for maintenance, repair, and replacement of the Project improvements.
2.3 Owners agree, at no cost to City, to provide a location on their
properties for the temporary storage of equipment and material used for the
Project.
2.4 Owners agree to remove any and all movable facilities from their
properties that will interfere with the performance of the design or construction
phase activities of the Project.
2.5 Owners agree to cooperate with the City in the preparation of all
contract, application and environmental documents for the Project.
ARTICLE 3. RESPONSIBILITIES OF COUNTY
County agrees to the following responsibilities:
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3.1 The County shall pay to the City the sum of Fifty Thousand Dollars
and 00/100 ($50,000.00) after the City receives notification of Measure M funding
for the Project and prior to initiation of the design phase of the Project.
3.2 The County shall prepare an Operations and Maintenance ("O&M")
manual during the design phase of the Project and provide the draft to the City for
distribution to resource agencies for review and comment. The County will finalize
the O&M manual to address comments, if any, submitted by the resource agencies.
3.3 The County shall review construction documents prepared by the City
and sign the approved drawings within fifteen (15) working days of receipt. The
construction documents shall include the construction drawings, contract
specifications and engineer's construction cost estimate, prior to advertising the
Project for construction.
3.4 The County shall provide construction easements to the City for
construction of the Project. No fees for the easements will be charged by either
Party.
3.5 After completion of the Project, the County agrees to maintain the
constructed wetlands at its sole cost and expense.
ARTICLE 4. RESPONSIBILITIES OF CITY
City agrees to the following responsibilities:
4.1 The City shall manage the Project including the design, preparation
of the construction documents, obtaining the environmental clearance, permits and
approval, acquiring all necessary easements and administering the Measure M2
grant.
4.2 The City shall supervise the construction of the Project within the
established budget and time frame, as required by the construction documents and
permits. The City shall follow all public bid and contract procedures. The City shall
conduct the construction activities to meet the stringent requirements normally
conditioned on its contractors including any repairs of property damaged during
construction.
4.3 The City shall require that all consultants and the construction
contractors hired by the City for the Project shall provide the required insurance
coverage for design and construction of the Project. The County and Owners shall
be named as additionally insured parties in the Construction Special Provisions for
the Project.
4.4 The City shall prepare and secure temporary entry and construction
easements for work on County and private property.
4.5 The City shall maintain the storm drain system once the construction
is completed. The City shall prepare permanent easement documents necessary
for maintenance, repair, and replacement of the storm drain system for the Owners'
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approvals. The City will own the storm drain system following its installation. The
City will record the easements from the Owners.
4.6 The City shall pay not less than the general prevailing rate of per diem
wages including legal holidays and overtime work for each craft or type of workman
needed to execute the work contemplated under this Agreement to all workmen
employed on the work to be done according to this Agreement by City and any
subcontractor. In accordance with Sections 1770, et seq. of the California Labor
Code, the Director of Industrial Relations has ascertained the general prevailing
rate of per diem wages in the locality in which the work is to be performed for each
craft, classification, or type of workmen or mechanic needed to execute the
Agreement. A copy of the said determination is available by calling the prevailing
wage hotline number (415) 703-4774, and requesting one from the Department of
Industrial Relations. The City is required to obtain the wage determinations from the
Department of Industrial Relations and post at the Project site the prevailing rate or
per diem wages. It shall be the obligation of City and all of its subcontractors to
comply with all State of California labor laws, rules and regulations.
ARTICLE 5. TERM
The term of this Agreement shall be in full force and effect until the
specified responsibilities of the Parties have been fulfilled or rescinded by the
Parties, or until July 1 , 2018, whichever is sooner.
ARTICLE 6. NOTICES
Any notice or other written instrument required or permitted by this
Agreement to be given to any Party shall be deemed received when personally
served or transmitted by facsimile, or forty-eight (48) hours after being deposited
in the U.S. Mail, postage prepaid, First Class or certified, and addressed as
follows:
To Owners:
John Clinton Manly, IV and Jill Apperson Manly
Co-Trustees of the Manly Family Trust Established May 12, 2008
2612 Mesa Drive
Newport Beach, CA 92660
and
William Buck Johns and Elizabeth Colleen Johns
Co-Trustees of the Johns Living Trust Established August 13, 2007
2600 Mesa Drive
Newport Beach, CA 92660
Page 4 of 12
To County:
OC Parks
Attn: Stacy Blackwood
13042 Old Myford Road
Irvine, CA 92602
To City:
City of Newport Beach
Attn: Bob Stein, Assistant City Engineer
100 Civic Center Drive
Newport Beach, CA 92660
ARTICLE 7. ATTORNEYS' FEES
In the event suit is brought by any Party to enforce the terms and provisions
of this Agreement, or to secure the performance hereof, each Party shall bear its
own attorneys' fees.
ARTICLE 8. FORCE MAJEURE
Except for the payment of money, no Party shall 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 not within City's
or County's reasonable control or any law, order or requirement of any
governmental agency or authority.
ARTICLE 9. GOVERNING LAW & VENUE
This Agreement shall be governed by and construed under the laws of the
State of California. 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 do
hereby submit to the jurisdiction of such court, notwithstanding the provisions of
Code of Civil Procedure Section 394. The Parties agree to waive any and all
rights to request that an action be transferred for trial to another County.
ARTICLE 10. ENTIRE AGREEMENT & RESOLUTION OF CLAIMS
This Agreement constitutes the entire understanding and agreement
between the Parties and supersedes all previous negotiations between them
pertaining to the subject matter thereof. The Parties hereby agree, on their own
behalf, and on behalf of their heirs and assigns to release and discharge each
Party from any and all liability, claims and causes of action, obligations, liabilities,
losses, debts, contracts, covenants, duties, damages, expenses, costs, costs on
appeal and charges of whatever kind, whether known or unknown, suspected or
unsuspected, which exists or may exists as of the effective date of this Agreement
regarding and/or arising out of or in any manner related to the natural drainage
Page 5 of 12
course that runs along the privately-owned properties of 2600 and 2612 Mesa
Drive and empties into the Bay and/or the items covered in this Agreement.
ARTICLE 11. WAIVER
A waiver of a breach of the covenants, conditions or obligations under this
Agreement by either Party shall not be construed as a waiver of any succeeding
breach of the same or other covenants, conditions or obligations of this
Agreement.
ARTICLE 12. MODIFICATION
Alteration, change or modification of this Agreement shall be in the form of
a written amendment, which shall be signed by each Party.
ARTICLE 13. ASSIGNMENT
No Party shall assign its performance of this Agreement, nor any part
thereof, without the prior written consent of the non-assigning parties. Any
assignment made in violation of this section shall be null and void.
ARTICLE 14. INDEMNIFICATION
City shall indemnify, defend and hold the Owners and County, 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 as a result of any acts performed by the Owners or County,
its officers, agents, or employees, with respect to the Project, save and except to
the extent such expense, liability or claim is proximately caused in whole or in part
by any negligence of the Owners or County, its officers, agents or employees, or
by any act or omission for which the Owners or County, its officers, agents or
employees are liable without fault.
Owners shall indemnify, defend and hold the City and County, 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 as a result of any acts performed by the City or County, its
officers, agents, or employees, with respect to the Project, save and except to the
extent such expense, liability or claim is proximately caused in whole or in part by
any negligence of the City, its officers, agents or employees, or by any act or
omission for which the City, its officers, agents or employees or County, its officers,
agents or employees are liable without fault.
County shall indemnify, defend and hold the Owners and City, 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 as a result of any acts performed by the Owners or City, its
officers, agents, or employees, with respect to the Project, save and except to the
extent such expense, liability or claim is proximately caused in whole or in part by
any negligence of the Owners or City, its officers, agents or employees, or by any
Page 6 of 12
act or omission for which the Owners or City, its officers, agents or employees are
liable without fault.
ARTICLE 15. TERMINATION
Any Party may at any time prior to the commencement of the design phase
of the Project, and without cause, terminate this Agreement, upon not less than
thirty (30) calendar days' written notice to the other Parties. The design phase
commences once contracts are entered into by the City with consultants for the
design work. Such termination shall be effected by delivery to the other Parties of
a notice of termination specifying the effective date of the termination and the
extent of the work to be terminated.
ARTICLE 16. COUNTERPARTS
This Agreement may be executed in two (2) or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute but
one (1) and the same instrument.
ARTICLE 17. AVAILABILITY OF FUNDS
This Agreement is subject to the availability of funds appropriated for this
purpose, and nothing herein shall be construed as obligating the Parties to expend
or as involving the Parties in any contract or other obligation for future payment of
money in excess of appropriations authorized by law.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement
be executed on the dates written below.
CITY OF NEWPORT BEACH,
a California Municipal Corporation
Dave Kiff, City Manager
Date:
ATTEST:
�nf'
V • I W
mc=--
Leilani I. Brown, City Clerk
Date: LIV)5-
Page
7 of 12
�ORNIII-
APPROVED AS TO FORM:
City Attorney' 0'ffi
By:
Aaron C. Harp City Attorney CW vwoJ S -
Date:
COUNTY OF ORANGE,
A political subdivision of the State of California
Date: q 1�1 //-S-'
By
Ch
Signed and certified that a copy of this document has been delivered to the
Chairman of the Board of Supervisors
Date: q12-1
�-1
4� tai
-rr41--JN\- Clerk of the Board of Supervisors of
Orange County CA
APPROVED AS TO FORM:
COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
Date:
By:
Page 8 of 12
OWNERS:
2600 Mesa Drive, Newport Beach:
Date: �— s
IZ
By:
Willia uck Johns, Co -Trus
oft e Johns Living Trust ablished August 13, 2007
Date: Aa'e� % 2,, ZD/S—
Elizabet olleen Johns, Co -Trustee
of the Johns Living Trust established August 13, 2007
2612 Mesa Drive, Newport Beach:
Date:i�� ;
B�
Johrrr'61inton Manly, IV, Co -Trustee
of the Manly Family Trust established May 12, 2008
J
Date:
h
B
Jill Apperson NPahl , Co -Trustee
of the Manly Family Trust established ay 12, 2008
[END OF SIGNATURES]
Page 9 of 12
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of(�Ircrv>!��e- } ss.
On Nla►. of S , 20 before me,
r.Nas C. Ro zo' Notary Public, personally appeared
a", %? . :5'- n $- , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Ignature
THOMAS CHARLES BOZARTH
Commission #E 2045766
a : Notary Public - California i
Z Orange County
My Comm. Ex ires Oct 17, 2017
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
(seal)
County of e ss.
On /y%w v 1 2015 before me,
0-VAs G'- 6'oz�-�' Notary Public, personally appeared
E La aA C. `moo h s , proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
THOMAS commission
#CHARLES 45766 H
"�+' Commission 2045766
'm Notary Public - California i
\' Orange County
My Comm. Expires Oct 17, 2017
Signat (seal)
Page 10 of 12
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California n
County of V V_AA ss.
On G\ 20before me,
Notary Public, personally appeared
D r\ CA i VINA A L 1 V , who proved to me on the basis of
satisfactory evidence to the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
KATHLEEN A. FREDERIKSEN
WlTrf SS my hand and official seal. Commission #E 2048481
qPOrange
Notary Public - California County
M Comm. Ex irss Oec 6, 2017
Signature (seal)
ACKNOWLEDGMENT
A notary public or other officer completing this certificate
verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of QV ss.
On 20 before me,
��'h4kA A.v^ Notary Public, personally appeared
2 , proved to me on the basis of
satisfactor vidence to be the erson(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signatures(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal
Signature
KATHLEEN A. FREDERIKSEN
Commission # 2048481
Z .'� - Notary Public - California i
I Orange County
Page 11 of 12
(seal)