HomeMy WebLinkAbout05 - Newport Elementary School Field Renovation — Memorandum of Understanding with Newport -Mesa Unified School DistrictTO:
FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
October 25, 2016
Agenda Item No. 5
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Patrick Arciniega, Senior Civil Engineer
PHONE: 949-644-3347, parciniega(a)-newportbeachca.gov
TITLE: Newport Elementary School Field Renovation — Memorandum of
Understanding with Newport -Mesa Unified School District
ABSTRACT:
The City of Newport Beach and the Newport -Mesa Unified School District (NMUSD) are
entering into a Memorandum of Understanding (MOU) to fund the field renovations for
the Newport Elementary School District. Per the agreement the NMUSD will contribute
$250,000.00 to fund improvements and the City will contribute the remaining funds up to
a 50% match ($250,000).
RECOMMENDATION:
a) Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301(H) maintenance of existing landscaping, of the CEQA
Guidelines, because it has no potential to have a significant effect on the
environment; and
b) Approve the MOU between the City of Newport Beach and NMUSD for the Newport
Elementary Field Renovation, and authorize the City Manager to sign.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for the City's portion of the
proposed project. It will be expensed to the Tidelands Maintenance CIP account 10001-
980000 in the Public Works Department budget.
DISCUSSION:
The Newport Elementary School field is a moderately sized field that lies west of the
school between the boardwalk and the ocean. The field is heavily used year-round. It
is the students' primary play field during the school year and when school is not in
session, the field is used by the public as a park. Due to the fields close proximity to the
ocean and exposure sea breezes, sand is continually blown onto the field. Over time,
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Newport Elementary School Field Renovation — Memorandum of Understanding with
Newport Mesa Unified School District
October 25, 2016
Page 2
this nuisance sand retards grass growth and creates uneven berms in the field. The
NMUSD maintenance staff works to keep the field green and remove excess windblown
sand and the associated saline buildup.
In the FY 2016-2017 budget, Council appropriated $250,000 to match a $250,000
contribution from NMUSD to re -grade the field and replant the surface with sand tolerant
and low water use sod turf. In addition, protective measures will be constructed that will
minimize sand intrusion onto the play field thereby lowering the cost of on-going
maintenance and extending the life of the grass and playability of the field.
NMUSD has reviewed the attached MOU and is prepared to sign it after Council's
approval. Project plans and specifications are currently being finalized now in
coordination with the NMUSD and Newport Elementary administration staff. At their
request, construction is scheduled to take place over next summer break to avoid
construction with school children present on campus.
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Staff recommends the City Council find this project exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15301 (H) maintenance of
existing landscaping of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential to have a significant effect on the environment.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — MOU with NMUSD for Field Improvements
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ATTACHMENT A
MEMORANDUM OF UNDERSTANDING
WITH NEWPORT -MESA UNIFIED SCHOOL DISTRICT
FOR FIELD IMPROVEMENTS AT NEWPORT ELEMENTARY SCHOOL
THIS MEMORANDUM OF UNDERSTANDING ("MOU") is made and entered
into as of this day of , 2016 ("Effective Date") by and
between the CITY OF NEWPORT BEACH, a California municipal corporation and
charter city ("City"), and NEWPORT -MESA UNIFIED SCHOOL DISTRICT, a political
subdivision of the State California ("District"), whose address is 2985 Bear Street, Costa
Mesa, CA 92626 and is made with reference to the following:
RECITALS
A. The District operates the Newport Elementary School, a public elementary
school located at 1327 W. Balboa Blvd., Newport Beach, CA 92661 ("School").
B. On February 10, 2015, City and District entered into that certain "Lease
Agreement with Newport -Mesa Unified School District for Newport Elementary
School Playground" ("Lease"), whereby the District leased an area consisting of
grass playfields, blacktop playgrounds and said playgrounds located adjacent to
the School for playground purposes (collectively, the "Fields"). The leased area
("Leased Premises") is legally described and depicted in Exhibit "A" attached
hereto and incorporated herein by this reference.
C. City and District have determined that the condition of the Fields is such that it is
necessary to improve the playing areas by removing existing turf and a portion of
blacktop, re -grading soil, replanting turf, including irrigation and construction of a
low berm wall (collectively, the "Improvements").
D. City and District desire to enter this MOU to set forth the responsibilities of each
party regarding the Improvements.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1940.%T►
The term of this MOU shall commence on the Effective Date and shall terminate on
December 31, 2017, unless terminated with or without cause by providing sixty (60)
days written notice to the other party.
2. DUTIES OF CITY
City hereby agrees to the following activities pursuant to this MOU:
2.1 City shall cause the Improvements to be installed and constructed as
detailed in the Description of Improvements, attached hereto as Exhibit B,
which are incorporated herein by reference.
Newport -Mesa Unified School District
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2.2 City shall design, bid and construct the Improvements including but not
limited to, all plans, specifications, permits, drawings, public notices, and
permits.
2.3 City shall contribute an amount not to exceed Two Hundred Fifty
Thousand Dollars and 001100 ($250,000.00), with the express
understanding that District shall provide a one-time matching contribution
payment in the amount of $250,000.00.
3. DUTIES OF DISTRICT
District hereby agrees to the following activities pursuant to this MOU:
3.1 District shall cooperate with City in designing and constructing the
Improvements.
3.2 District shall provide a one-time payment in the amount of Two Hundred
Fifty Thousand Dollars and 001100 ($250,000.00). District shall pay City
within thirty (30) days of receipt of an invoice from the City.
3.3 District shall cooperate to develop a student safety plan for implementation
during the completion of the Improvements.
3.4 Upon completion of the Improvements, and the expiration of (1) a 45 -day
plant establishment period, and (2) a 45 -day plant maintenance period,
which shall run consecutively, the District will assume full responsibility for
the operation, maintenance and repair of the Improvements throughout the
term of the Lease at its sole cost and without expense to City.
4. INSURANCE
Without limiting District's indemnification of City, District shall obtain, provide and maintain
at its own expense during the term of this MOU or for other periods as specified in this
MOU, policies of insurance of the type, amounts, terms and conditions described in the
Insurance Requirements attached hereto as Exhibit C, and incorporated herein by
reference.
5. HOLD HARMLESS
To the fullest extent permitted by law and in addition to District's obligations under the
Lease, District shall indemnify, defend and hold harmless City, its City Council, boards
and commissions, officers, agents, volunteers, employees, and any person or entity
owning or otherwise in legal control of the sports fields, athletic facilities, and other
property not owned by City upon which District uses such sports fields, athletic facilities,
and other property as contemplated herein (collectively, the "Indemnified Parties") from
and against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes of
action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses
(including, without limitation, attorney's fees, disbursements and court costs) of every
Newport -Mesa Unified School District Page 2
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kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may
arise from or in any manner relate (directly or indirectly) to any breach of the terms and
conditions of this MOU, District's presence or activities conducted on sports fields
and/or athletic facilities (including, but not limited to, the negligent and/or willful acts,
errors and/or omissions of District, its principals, officers, agents, players, employees,
vendors volunteers, suppliers, consultants, contractors, anyone employed directly or
indirectly by or associated in any way with any of them or for whose acts they may be
liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require District to
indemnify the Indemnified Parties from any Claim arising from the sole negligence or
willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be
construed as authorizing any award of attorney's fees in any action on or to enforce the
terms of this MOU. This indemnity shall apply to all claims and liability regardless of
whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by the District.
6. NOTICES
All notices, demands, requests or approvals to be given under the terms of this MOU shall
be given in writing, and conclusively shall be deemed served when delivered personally,
or on the third business day after the deposit thereof in the United States mail, postage
prepaid, first-class mail, addressed as hereinafter provided. All notices, demands,
requests or approvals from District to City shall be addressed to City at:
City: Director of Public Works
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
With a copy to: City Manager
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
With a copy to: Real Property Administrator
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
Ail notices, demands, requests or approvals from City to District shall be addressed to
District at:
Newport -Mesa Unified School District Page 3
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District: Newport -Mesa Unified School District Business Office
Attn: Superintendent of Schools
2985 Bear Street, Building A
Costa Mesa, CA 92626
7. LEASE TERMS
This MOU is intended to further the Lease provisions by providing Improvements for the
benefit of District. The parties intend and agree that all of the terms and conditions of
the Lease apply to the Improvements. Should any of the provisions herein conflict with
the Lease, the Lease provisions shall prevail.
8. STANDARD PROVISIONS
8.1 Recitals. City and District acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
8.2 Compliance with all Laws. District shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all
governmental entities, including federal, state, county or municipal,
whether now in force or hereinafter enacted.
8.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant or condition
contained herein, whether of the same or a different character.
8.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties
hereto, and all preliminary negotiations and agreements of whatsoever
kind or nature are merged herein. No verbal agreement or implied
covenant shall be held to vary the provisions herein.
8.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this MOU and any attachments attached hereto,
the terms of this Agreement shall govern.
8.6 Interpretation. The terms of this MOU shall be construed in accordance
with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the MOU or any other
rule of construction which might otherwise apply.
8.7 Amendments. This MOU may be modified or amended only by a written
document executed by both District and City and approved as to form by
the City Attorney.
8.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this MOU shall continue in full force and effect.
Newport -Mesa Unified School District Page 4
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8.9 Controlling Law and Venue. The laws of the State of California shall
govern this MOU and all matters relating to it and any action brought
relating to this MOU shall be adjudicated in a court of competent
jurisdiction in the County of Orange, State of California.
8.10 Equal Opportunity Employ. District represents that it is an equa[
opportunity employer and it shall not discriminate against any
subcontractor, employee or applicant for employment because of race,
religious creed, color, national origin, ancestry, physical handicap, medical
condition, marital status, sex, sexual orientation, age or any other
impermissible basis under law.
8.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to
attorneys' fees.
8.12 Counterparts. This MOU may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Memorandum of
Understanding to be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: `i-12 • I L(
By: vL
Aaron C. Harp
City Attorney
REVIEWED AND RECOMMENDED
PUBLIC WORKS DEPARTMENT
Date:
By:
David Webb
Director
ATTEST:
Date:
By:
Leilani Brown
City Clerk
CITY OF NEWPORT BEACH,
a California Municipal Corporation
Date:
By:
Diane B. Dixon
Mayor
DISTRICT: Newport -Mesa Unified
School District, a political subdivision of
the State of California
Date:
By:
Paul H. Reed
Deputy Superintendent & CBO
Date:
Patricia L. Dreher
Notary Public
[END OF SIGNATURES]
Attachments: Exhibit A — Leased Area
Exhibit B — Description of Improvements
Exhibit C — Insurance Requirements
Newport -Mesa Unified School District Page 6
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EXHIBIT A
LEASED AREA
PLAYGROUND AREA AT NEWPORT ELEMENTARY SCHOOL
Those portions of West Ocean Front, formerly known as "Ocean Avenue", 65
feet in width, Lot 13A, and Lot 12A of Section B, Newport Beach, as per map recorded
in Book 4, Page 27 of Miscellaneous Maps, Records of Orange County, California, lying
south of the West Ocean Front public sidewalk, described as follows:
Beginning at the southwesterly corner of Lot 13, Block 12 of said Section B;
thence along the prolongation of the westerly line of said Lot 13, S 160 43' 26"W 357.00
feet; thence N741 29' 31"W 429.28 feet to the southwesterly prolongation of the
centerline of 14th Street as shown on said map; thence along said centerline
prolongation N111 41' 17"E 109.16 feet; thence N781 18' 43"W 32.00 feet; thence N110
41' 17"E 92.00 feet; thence S780 18' 43"E 32.00 feet to said centerline prolongation;
thence along said centerline prolongation N11 ° 41' 17"E 147.00 feet to point on a curve,
concave southerly and having a radius of 5454.65 feet, said curve containing the
northerly right-of-way of Ocean Avenue as shown on said map; thence easterly 460.29
feet along said curve and along the southerly line of Block 13 of said map through a
central angle of 40 50' 06" to the point of beginning.
Containing 3.697 acres (gross)
Playground Area: 3.482 acres (net)
Basis of Bearings: the westerly line of said Lot 13, Block 12, of Section B, being
N 160 43' 26"E.
Newport -Mesa Unified School District
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EXHIBIT B
DESCRIPTION OF IMPROVEMENTS
1. Re -grade and level an existing approximately 0.8 acre (approximately 292
feet by 128 feet) grass Field and expand it seaward by approximately 0.2
acres (approximately 292 feet by 48 feet) onto an existing asphalt -paved
play area;
2. Install new drought -tolerant sod; and
3. Replace irrigation system.
The project includes the re -grading and leveling of the Field, and the extension of the
Field seaward; the re -grading and enlargement will result in an approximately 0.2 acre
addition to the landscaped area and approximately 501 cubic yards of cut and 491
cubic yards of fill needed to level the Field. The current ground surface elevation of the
grass Field varies from about 1 0 to a maximum of 16 feet Mean Sea Level (MSL) at
various points, and the ground surface elevation of the boardwalk is about 10 feet MSL.
City shall re -grade and level the turf area to create a uniform, gradually sloping Field.
The finished elevations will generally range approximately from 13 to 15 feet MSL.
Seaward of the Oceanfront boardwalk edge abutting the grass Field, there will be an
upward incline forming an approximately 292 -foot by 11 -foot grassy slope, changing in
elevation from approximately 10 MSL to 13 MSL. The finished elevation of the rest of
the grass Field, not including the narrow slope, will range from approximately 13 to 15
feet MSL, or 3 to 5 feet above the boardwalk, and will gradually slope upward as the
Field extends seaward.
Following the leveling and re -grading of the existing grass Field, City shall install
Paspalum vaginafum (Seashore Paspalum), a drought -tolerant turf grass. The
landscape plan will comply with the water efficient landscape ordinance and City of
Newport Beach standards.
In addition, the City shall remove the existing irrigation system and install a new
irrigation system with water conserving emitters and other water conservative
technology such as irrigation controllers adjusting irrigation schedules using
evapotranspiration data, drip irrigation, and moisture sensing device. All landscape
areas will be irrigated with a low -flow drip system. The irrigation will comply with the
local and statewide applicable water conservation measures standards.
Newport -Mesa Unified School District Page B-1
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Newport -Mesa Unified School District Page B-2
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EXHIBIT C
INSURANCE REQUIREMENTS
1. Provision of Insurance. Without limiting District's indemnification of City, and
prior to use of City's sports fields or athletic facilities, District shall obtain, provide
and maintain at its own expense during the term of this Agreement, policies of
insurance of the type and amounts described below and in a form satisfactory to
City. District agrees to provide insurance in accordance with requirements set
forth here. If District uses existing coverage to comply and that coverage does
not meet these requirements, District agrees to amend, supplement or endorse
the existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' --- Compensation Insurance. District shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
District shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
B. General Liability Insurance. District shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, include participants and liability assumed under an
insured contract (including the tort liability of another assumed in a
business contract) with no endorsement or modification limiting the scope
of coverage for liability assumed under a contract.
C. Automobile Liability Insurance. District shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of District
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
Newport -Mesa Unified School District Page C-1
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vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in
legal control of the sports fields, athletic facilities, and other property not
owned by City upon which District uses such sports fields, athletic
facilities, and other property as contemplated by Agreement or shall
specifically allow District or others providing insurance evidence in
compliance with these requirements to waive their right of recovery prior
to a loss. District hereby waives its own right of recovery against City, and
shall require similar written express waivers from each of its
subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City, its City Council, boards and commissions, officers, agents,
volunteers, employees and any person or entity owning or otherwise in
legal control of the sports fields, athletic facilities, and other property not
owned by City upon which District uses such sports fields, athletic
facilities, and other property as contemplated by Agreement shall be
included as insureds under such policies.
C. Primary_ and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(40) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. District shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
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Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at anytime.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving District sixty (60) calendar days advance
written notice of such change.
C. Enforcement of Agreement Provisions. District acknowledges and agrees
that any actual or alleged failure on the part of City to inform District of
non-compliance with any requirement imposes no additional obligations
on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If District or any subcontractor fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate
this MOU, or to suspend District's right to proceed until proper evidence of
insurance is provided. Any amounts paid by City shall, at City's sole
option, be deducted from amounts payable to District or reimbursed by
District upon demand.
G. Timely Notice of Claims. District shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from District's
performance under this MOU, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
H. District's Insurance. District shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection.
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