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HomeMy WebLinkAboutC-5709 - Agreement Re: Low-Flow Diversion System at Pelican Hill Golf ClubM Agreement Re: Low -Flow Diversion System at Pelican Rill Golf Club This Agreement Re: Low -Flow Diversion System at Pelican Hill Golf Club ("Agreement') is made and entered into as of , 2007 (the "Effective Date"), by and between the City of Newport Beach, California, a municipal corporation organized and existing under and by virtue of its Charter and the Constitution and the laws of the State of California ("City"), and The Irvine Company LLC, a Delaware limited liability company C T7C'). City and TIC are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. WHEREAS, TIC is the owner of the Pelican Hill Golf Club (the "Golf Club') in Newport Beach, California. A portion of one of the golf courses operated by the Golf Club (the "Golf Course') surrounds the residential community known as Pelican Point ("Pelican Poing. The homeowners association for Pelican Point is known as the Pelican Point Community Association (the "PPCA"). The PPCA is the owner of the storm drain system within Pelican Point that discharges to the beach adjacent to Pelican Point. Pelican Point and the Golf Course are depicted on Exhibit A attached hereto. B. WHEREAS, in order to enhance maintenance of water quality management practices for Pelican Point, the Golf Club and a portion of the Cameo Highlands residential community, as well as portions of Pacific Coast Highway and adjacent City'streets (collectively, the "Drainage Sources") that drain urban runoff onto the Golf Course, TIC desires to design and construct a low -flow diversion system ("Project Improvements"} within the Golf Course in the -approximate location depicted on Exhibit A. TIC's proposed plan to design and construct the Project Improvements is voluntary on its part and is not a condition to any of TIC's developments in Newport Beach. C. The Project improvements are intended to divert dry weather flows from the Drainage Sources into a vault structure within the Golf Course, from which such flows will be pumped through a new force main located within the Golf Course to an existing Irvine Ranch Water District ("IRWD") manhole. The flows will continue through existing IRWD sewer facilities and City's sewer facilities and pump system that routes the flows through City sewer lines. The construction of the Project Improvements is intended to eliminate dry -weather drainage from the existing storm drain discharge at Pelican Point and reduce impacts from such drainage on off -shore Areas of Special Biological Significance. D. WHEREAS, because of the benefits to be derived by the Golf Club, the City, the State of California, Pelican Point and surrounding communities from construction of the Project Improvements, TIC and City desire to enter this Agreement regarding their respective obligations with respect to implementation of the Project Improvements. E. WHEREAS, the ultimate, long-term goal is to divert dry weather flows from the Drainage Sources by including a diversion in a future sewer upgrade project to be constructed by the State of. California, the City or parties other than TIC at Crystal Cove State Park, or, absent that, to assure improved best management practices and the use of best available technology to eliminate pollutants from dry weather flows. 30209.00781362700.4 514/77 NOW, THEREFORE, in consideration of the above recitals and the mutual promises contained herein, TIC and City hereby agree as follows: 1. Term. The term of this Agreement shall commence on the Effective Date, and, unless otherwise terminated as provided in Sections 7 and 15 below, shall remain in effect for so long as TIC chooses to operate the Project Improvements. Time is of the essence in the performance of the obligations of each Party under this Agreement. 2. Description ofProject Improvements. The Project Improvements will consist of the vault structure, outlets, pump station, storm drain and other improvements described in more detail on Exhibit B attached to this Agreement. The maximum flow of water diverted pursuant to this Agreement shall not exceed fifteen (15) gallons per minute at any time. 3. Pxoject Location: Permits. The Project Improvements will be located within the Golf Course property owned by TIC. TIC shall be responsible for obtaining all permits for construction from City prior to commencement of construction. City's approval of TIC's permit application(s) for the Project Improvements shall not be unreasonably withheld or delayed. 4. Design of Proiect Improvements. TIC shall, at its sole cost and expense, cause the design of the Project improvements. The design shall include, but not be limited to, a shut off system satisfactory to City that allows the City to stop diversion of flow at .any time. City shall notify TIC if City stops diversion of flow at any time within twenty-four (24) hours of such stoppage. The plans for such improvements will be subject to the approval of City's Public Works Department (the approved plans are hereinafter referred to as the "Approved Plans'). City's approval of any plan submittals from TIC regarding the Project Improvements shall not be unreasonably withheld or delayed. 5. Construction of Project Improvements. TIC shall, at its sole cost and expense, cause the construction of the Project Improvements in accordance with the Approved Plans. If, prior to construction of such improvements, TIC desires to materially change the design of the improvements from that shown on the Approved Plans, such changes must be approved by City in advance of construction thereof. After completion of such improvements, TIC shall not materially alter the constructed improvements from their original condition as installed per the Approved Plans without the prior written approval of City. City's approval of any proposed alterations to the improvements shall not be unreasonably withheld or delayed. 6. IRWD Approval. TIC shall be responsible for obtaining IRWD approval, if iRWD's approval is needed, for the diversion of flow through IRWD's sewer lines and all costs and expense associated therewith. Operation and Maintenance of Completed provements. TIC shall be responsible for all costs for the operation and maintenance of the completed Project Improvements within the Golf Course. City and TIC will cooperate with each other to establish, prior to the completion of construction of the Project Improvements, operational procedures in compliance with Orange County Sanitation District #5 ("OCSD') requirements for the completed Project Improvements. Among other things, the operational procedures shall require TIC to comply with any rule or 30209-0078/362700.4 5/4/07 2 regulation related to the operation of the Project Improvements; to stop diverting water if the flow being diverted exceeds fifteen (15) gallons per minute or is comprised, in whole or in part, of non -dry weather flow or pollutants that could cause treatment and disposal problems (as determined by any regulatory agency) at the OCSD treatment plant ("Pollutants of Concern'); and to allow City to stop temporarily the diversion of water if City determines that stopping the flow is necessary due to downstream capacity or Pollutants of Concern problems or to allow maintenance and repairs of the downstream City sewer system Further, in the event that OCSD notifies City that the capacity of the OCSD treatment facilities is insufficient to handle the flows or that OCSD is being adversely affected by Pollutants of Concern from the Drainage Sources, or if OCSD elects to impose charges for acceptance of flows into the OCSD facilities, then City and TIC shall meet to determine alternate methods of handling the excess flows or cost-effective changes to the Project Improvements so that the OCSD sewer capacity is not exceeded or Pollutants of Concern problems aer addressed or whether the payment of charges to OCSD is acceptable. If the Parties are unable to determine alternative methods or changes mutually acceptable to the Parties, or if either Party determines that the charges imposed by OCSD are unacceptable, then this Agreement may be terminated at the option of TIC or City by providing thirty (30) days to the other Party. 8. Utilities. TIC shall be responsible for all utility costs and expenses related to the Project Improvements. City shall only be responsible for any utility costs and expenses associated with City's Cameo Shores Pump Station. City shall cooperate with TIC and the applicable utility companies in allowing electrical and telephone connections in the Cameo Shores Road right-of-way. City as Project Sponsor. City agrees to act as the sponsor of the Project Improvements before any wastewater treatment agency with jurisdiction over the Project Improvements. 10. City Coordination with Neighboring Communities. City shall use best efforts to institute education programs, mailers and otherwise coordinate with homeowner associations for Cameo Highlands and Pelican Point to minimize drainage from such communities into the Project Improvements. At a minimum, City will provide a mailer to the property management companies of such communities to be distributed annually to residents of each community regarding proper irrigation practices and control of overwatering in connection with their landscape maintenance. 11. Project Coordination. City designates Robert Stein, telephone (949) 644-3322, fax (949) 644-3308, to act as its representative with respect to all matters under this Agreement. TIC designates Scot Scialpi, telephone (949) 720-2817, fax (949) 720- 2448, to act as its representative. Either Party may change its designated representative by providing written notice of same to the other Party. 12. Indemnification. TIC shall defend, indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees when outside attorneys are used (collectively, the "Claims") arising from or related to (a) TIC's design, installation, operation and maintenance of the Project Improvements, and (b) TIC's performance of its 30209-00781362700.4 5/4/07 3 obligations hereunder, provided, however, that TIC's obligations under this Section shall not apply to the extent that any Claim is caused by the negligence or willful misconduct of City or its contractors. 13. Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given upon delivery, if personally delivered, or within 48 hours of deposit in the United States mail, if sent by prepaid first-class mail, addressed as follows: If to City: City of Newport Beach Public Works Department 3300 Newport Boulevard (P.O. Box 1768) Newport Beach, CA 92658-8915 Attn: Robert Stein If to TIC: The Irvine Company LLC 550 Newport Center Drive Newport Beach, CA 92660 Attn: Eric Prevette Either Party may change its address for notice 'by providing written notice of such changed address to the other. 14. Assignment TIC may assign its rights and obligations under this Agreement to a subsequent owner of the property on which the Project Improvements are located, any affiliate of TIC (that is, any entity controlling, controlled by or under common control of TIC), or any person or entity that has, in City's reasonable opinion, the financial and administrative capacity and is otherwise capable of performing TIC's construction and maintenance obligations hereunder (each, a "Successor"). Any such assignment must be in writing, must contain the Successor's agreement to be fully bound by the terms and provisions of this Agreement, and a copy of such assignment must be delivered to City. After the effective date of any such assignment by TIC, TIC shall have no further rights or obligations hereunder. 15. Termination. A. In the event TIC fails or refuses to timely perform any of its obligations under this Agreement in the manner required or if TIC violates any provisions of this Agreement, TIC shall be deemed in default. If such default is not cured within a period of ten (10) working days, or if more than ten (10) working days are reasonably required to cure the default and TIC fails to commence to cure its default or provide City with adequate assurance of due performance within ten (10) working days after TIC receives written notice of default from City, City may terminate the Agreement forthwith by giving written notice. City may, in addition to the other remedies provided in this or authorized by law, terminate this agreement by giving written notice of termination. B. This Agreement may be terminated by either Party upon thirty (30) days prior written notice as provided in Section 7 above. 30209-00781362700.4 5/4/07 4 C. This Agreement shall automatically terminate if IRWD refuses to allow the diversion of water through IKWD sewer lines, if OCSD refuses to accept the flows to be diverted under this Agreement; or if any rule, regulation, law, statute or ordinance prohibits the diversion contemplated by this Agreement. 16. Costs and Expenses. TIC shall be responsible for any and all costs and expenses that are related in any way to the Project Improvements not expressly attributable to City. 17. Authority The Parties to this Agreement represent and warrant 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. 18. Amendment. This Agreement may be amended only by a written instrument approved and executed by the Parties. 19. Controlling` Law and Venue. The laws of the State of California shall govern this Agreement, and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 20. Successors. This Agreement shall be binding upon and inure to the benefit of TIC and City and the successors and assigns of each Party. 21. Entire Agreement. This Agreement, together with the Exhibits attached hereto, constitutes the entire agreement between City and TIC pertaining to the subject matter hereof, and all prior and contemporaneous agreements, representations, negotiations and understandings of the Parties, whether written or oral, are hereby superseded and merged herein. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first above written. «TJC» The Irvine Company LLC a Delaware limit d 1' ity company By: I L. K.V�Prevette Executive Vice President, Resort Properties By. ojb iA , Mary K. W stbrook Assistant Secretary 30209-0078/362700.4 5/4107 5 CiWl City of Newport Beach, a California municipal corporation By: Homer Bludau I City Manager ATTEST: LaVonne Harkless City Clerk 30209-007MG2700.4 5/4/07 APPROVED -" TO FORM: By: -It.,, (- � 4)(CityAttomey Exhibit B Description of Project improvements The lift station will have the following equipment and appurtenances: a. Pre=cast concrete wet well Eft diameter, 18 ft deep with a concrete top and 3.5' x 4.5' aluminum access hatch door. b. Duplex submersible pumps with capacity and total dynamic head 15 gpm at 68 ft each. The pumps will be equipped with 230 volt (single phase) 1.5 HP motor with 3500 RPM speed each. c. Pump discharge piping and force main, 1 Y2" size. The piping will be PVC pipe from the pumps through flow meter and schedule 40 PVC pipe from the meter box to the connection at the City of Newport Beach sewer manhole near the cul-de-sac of Pelican Point Drive d. Alternate 1 Y2" line from the pump station to the Crystal Cove State Park side' of the Golf Course e. Check valve and isolation valves on the pump discharge riser in the wet well. f. Package pump control system including pump control panel, water level float switches. g. Magnetic flow meter in the force main near the wet well. h. Variable frequency drives (VFD), 240V (single phase), 2 HP, one for each pump. The VFD will be installed at the pump control panel. i. A pump shutoff system accessible to City on a 24-hour basis. j. Power Service meter cabinet located in Cameo Shores Road. k. Power cable and telephone cables in conduits will be connected from the points of connection in Cameo Shores Road through the service teeter cabinet to the pump control panel. The conduits will be installed along the force main in the common trench. 30209.0078/362700.4 5/4/07