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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. Page 1 of 12 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: Page 2 of 12 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' Page 3 of 12 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)