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FROM:
CITY OF
NEWPORT BEACH
City Council Staff Report
January 28, 2020
Agenda Item No. 12
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
parciniega@newportbeachca.gov
PHONE: 949-644-3347
TITLE: Approval of Landscape Maintenance Agreement with the California
Department of Transportation for West Coast Highway
Improvements
ABSTRACT:
The current Phase 2 of the West Coast Highway Median Landscaping project installs new
and enhanced water friendly landscaping and irrigation system within the medians of
West Coast Highway (State Route 1) between Newport Boulevard and the City Oil Field
(just East of Cappy's Cafe). As a condition of the California Department of Transportation
(Caltrans) permit to perform the work, Caltrans requires the execution of a Landscape
Maintenance Agreement to outline the City's responsibilities relative to ongoing
maintenance of this landscaping and irrigation system.
RECOMMENDATION:
a) Find this project exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301 (c) (minor alterations of existing facility involving negligible
or no expansion of capacity) of the CEQA Guidelines, because this project has no
potential to have a significant effect on the environment-, and
b) Approve the Landscape Maintenance Agreement within State Highway Right of Way
on Route 1, and authorize the Mayor and City Clerk to execute the Agreement.
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for this agreement. Upon
completion of the improvements, on-going maintenance costs will be expensed to the
Contract Services Medians account 0109031-811018 in the Public Works Department.
12-1
Approval of Landscape Maintenance Agreement with the California Department of
Transportation for West Coast Highway Improvements
January 28, 2020
Page 2
DISCUSSION:
On November 19, 2019, Council awarded a contract to KASA Construction, Inc. for the
West Coast Highway Median Landscaping Phase 2 on West Coast Highway (WCH). This
construction project focuses on the second and third phases, together now referred to as
Phase 2, of four proposed landscaping phases on West Coast Highway, which extends
from the City Oil Field property entrance on the western end to Newport Boulevard on the
eastern end.
Caltrans issued the permit for construction of this Phase 2 project within State Route 1,
which included removing existing vegetation and hardscape on two center medians to
accommodate new landscaping, replacing existing outdated irrigation systems, replacing
missing and degraded parkway landscaping on the southerly side of the road, and
providing a staining restoration treatment for the existing colored/stamped concrete
located within the median.
As a condition of permitting, Caltrans also requires the execution of a Landscape
Maintenance Agreement (LMA) to establish maintenance guidelines and responsibilities
for the new landscaping within the State Highway. With the approved permit and
installation of this new landscaping and irrigation system, the City also agreed to maintain
the new landscaping and irrigation. Staff recommends approval of the Landscape
Maintenance Agreement with Caltrans.
ENVIRONMENTAL REVIEW:
Find this project exempt from the California Environmental Quality Act (CEQA) pursuant
to Section 15301 (c) (minor alterations of existing facility involving negligible or no
expansion of capacity) of the CEQA Guidelines, because this project 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).
ATTACHMENT:
Attachment A — Landscape Maintenance Agreement between Caltrans and City of
Newport Beach
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ATTACHMENT A
LANDSCAPE MAINTENANCE AGREEMENT
WITHIN STATE HIGHWAY RIGHT OF WAY
ON ROUTE 1 WITHIN THE CITY OF NEWPORT BEACH
THIS AGREEMENT is made effective this 28th day of January 2020, by and between the State of
California, acting by and through the Department of Transportation, hereinafter referred to as
"STATE" and the City of Newport Beach; hereinafter referred to as "CITY" and collectively
referred to as "PARTIES".
SECTION I
RECITALS
1. PARTIES desire to work together to allocate their respective obligations relative to newly
constructed or revised improvements within STATE's right of way by Permit Number(s)
12 -19 -N -LC -0815.
2. This Agreement addresses CITY responsibilities which can include but are not limited to
planting, irrigation systems, mulches, litter and weed removal (collectively hereinafter
"LANDSCAPING") placed within State Highway right of way on State Route 1, as shown
on Exhibit A, attached to and made a part of this Agreement.
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
SECTION II
AGREEMENT
I. Inconsideration of the mutual covenants and promises herein contained, CITY and STATE
agree as follows:
1.1. PARTIES have agreed to an allocation of maintenance responsibilities that includes,
but is not limited to, inspection, providing emergency repair, replacement, and
maintenance, (collectively hereinafter "MAINTAIN/MAINTENANCE") of
LANDSCAPING as shown on said Exhibit "A."
1.2. When a planned future improvement is constructed and/or a minor revision has been
effected with STATE's consent or initiation within the limits of the STATE's right of
way herein described which affects PARTIES' division of maintenance responsibility
as described herein, PARTIES will agree upon and execute a new dated and revised
Exhibit "A" which will be made a part hereof and will thereafter supersede the attached
original Exhibit "A" to thereafter become a part of this Agreement. The new exhibit
can be executed only upon written consent of the PARTIES hereto acting by and
through their authorized representatives. No formal amendment to this Agreement
will be required.
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2. CITY agrees, at CITY expense, to do the following:
2.1. CITY may install, or contract, authorizing a licensed contractor with appropriate class
of license in the State of California, to install and thereafter will MAINTAIN
LANDSCAPING conforming to those Plans, Specifications, and Estimate
(collectively "PS&E") pre -approved by STATE.
2.2. The degree or extent of maintenance work to be performed, and the standards
therefore, shall be in accordance with the provisions of Section 27 of the Streets and
Highways Code and the then current edition of the State Maintenance Manual.
2.3. CITY will submit the final form of the PS&E, prepared, stamped and signed by a
licensed landscape architect, for LANDSCAPING to STATE's District Permit
Engineer for review and approval and will obtain and have in place a valid necessary
encroachment permit prior to the start of any work within STATE'S right of way. All
proposed LANDSCAPING must meet STATE's applicable standards.
2.4. CITY shall ensure that LANDSCAPED areas designated on Exhibit "A" are provided
with adequate scheduled routine MAINTENANCE necessary to MAINTAIN a neat
and attractive appearance.
2.5. An Encroachment Permit rider may be required for any changes to the scope of work
allowed by this Agreement prior to the start of any work within STATE's right of way.
2.6. CITY contractors will be required to obtain an Encroachment Permit prior to the start
of any work within STATE's right of way.
2.7. To furnish electricity for irrigation system controls, water, and fertilizer necessary to
sustain healthy plant growth during the entire life of this Agreement.
2.8. To replace unhealthy or dead plantings when observed or within 30 days when notified
in writing by STATE that plant replacement is required.
2.9. To prune shrubs, tree plantings, and trees to control extraneous growth and ensure
STATE standard lines of sight to signs and corner sight distances are always
maintained for the safety of the public.
2.10. To MAINTAIN, repair and operate the irrigation systems in a manner that prevents
water from flooding or spraying onto STATE highway, spraying parked and moving
automobiles, spraying pedestrians on public sidewalks/bike paths, or leaving surface
water that becomes a hazard to vehicular or pedestrian/bicyclist travel.
2.11. To control weeds at a level acceptable to the STATE. Any weed control performed
by chemical weed sprays (herbicides) shall comply with all laws, rules, and regulations
established by the California Department of Food and Agriculture. All chemical spray
operations shall be reported quarterly (Form LA 17) to the STATE to:
2
12-4
Department of Transportation
District 12, Maintenance
Maintenance Manager
1750 East Fourth Street, Suite 100
Santa Ana, CA 92705
2.12. To remove LANDSCAPING, and appurtenances and restore STATE owned areas
to a safe and attractive condition acceptable to STATE in the event this Agreement is
terminated as set forth herein.
2.13. To furnish electricity and MAINTAIN lighting system and controls for all street
lighting systems installed by and for CITY.
2.14. To inspect LANDSCAPING on a regular basis to ensure the safe operation and
condition of the LANDSCAPING. STATE shall provide 48 hours notice to City to
ensure STATE's inspection activities do not disrupt CITY's maintenance operations.
2.15. To use its reasonably best efforts to MAINTAIN, replace, repair or remove from
service any LANDSCAPING, component that has become unsafe or unsightly.
2.16. To MAINTAIN all sidewalksibike paths within the Agreement limits of the STATE
highway right of way, as shown on Exhibit A, at CITY expense. MAINTENANCE
includes, but is not limited to, concrete repair, replacement and to grind or patch
vertical variations in elevation of sidewalks/bike paths for an acceptable walking and
riding surface, and the removal of dirt, debris, graffiti, weeds, and any deleterious item
or material on or about sidewalks/bike paths or the LANDSCAPING, in an
expeditious manner.
2.17. To MAINTAIN all parking or use restrictions signs encompassed within the area
of the LANDSCAPING.
2.18. To allow random inspection of LANDSCAPING street lighting systems,
sidewalks/bike paths and signs by a STATE representative.
2.19. To use reasonable efforts to keep the entire landscaped area policed and free of
litter and deleterious material.
2.20. All work by or on behalf of CITY will be done at no cost to STATE.
3. STATE agrees to do the following:
3.1. Provide CITY with timely written notice of unsatisfactory conditions that require
correction by the CITY. However, the non -receipt of notice does not excuse CITY
from maintenance responsibilities assumed under this Agreement.
12-5
3.2. Issue encroachment permits to CITY and CITY contractors at no cost to them.
4. LEGAL RELATIONS AND RESPONSIBILITIES:
4.1. Nothing within the provisions of this Agreement is intended to create duties or
obligations to or rights in third parties not party to this Agreement, or affect the legal
liability of either PARTY to this Agreement by imposing any standard of care
respecting the design, construction and maintenance of these STATE highway
improvements or CITY facilities different from the standard of care imposed by law.
4.2. If during the term of this Agreement, CITY should cease to MAINTAIN the
LANDSCAPING to the satisfaction of STATE as provided by this Agreement,
STATE may either undertake to perform that MAINTENANCE on behalf of CITY at
CITY's expense or direct CITY to remove or itself remove LANDSCAPING, at
CITY's sole expense and restore STATE's right of way to its prior or a safe operable
condition. CITY hereby agrees to pay said STATE expenses, within thirty (30) days
of receipt of billing by STATE. However, prior to STATE performing any
MAINTENANCE or removing LANDSCAPING, STATE will provide written notice
to CITY to cure the default and CITY will have thirty (30) days within which to affect
that cure.
4.3. Neither CITY nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by
STATE under or in connection with any work, authority or jurisdiction arising under
this Agreement. It is understood and agreed that STATE shall fully defend, indemnify
and save harmless CITY and all of its officers and employees from all claims, suits or
actions of every name, kind and description brought forth under, including, but not
limited to, tortious, contractual, inverse condemnation and other theories or assertions
of liability occurring by reason of anything done or omitted to be done by STATE
under this Agreement with the exception of those actions of STATE necessary to cure
a noticed default on the part of CITY.
4.4. Neither STATE nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by
CITY under or in connection with any work, authority or jurisdiction arising under
this Agreement. It is understood and agreed that CITY shall fully defend, indemnify
and save harmless STATE and all of its officers and employees from all claims, suits
or actions of every name, kind and description brought forth under, including, but not
limited to, tortious, contractual, inverse condemnation or other theories or assertions
of liability occurring by reason of anything done or omitted to be done by CITY under
this Agreement.
5. PREVAILING WAGES:
5.1. Labor Code Compliance- If the work performed under this agreement is done under
contract and falls within the Labor Code section 1720(a)(1) definition of a "public
works" in that it is construction, alteration, demolition, installation, or repair; or
4
12-6
maintenance work under Labor Code section 1771. CITY must conform to the
provisions of Labor Code sections 1720 through 1815, and all applicable provisions
of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles
1-7. CITY agrees to include prevailing wage requirements in its contracts for public
work. Work performed by CITY'S own forces is exempt from the Labor Code's
Prevailing Wage requirements.
5.2. Requirements in Subcontracts - CITY shall require its contractors to include prevailing
wage requirements in all subcontracts when the work to be performed by the
subcontractor under this Agreement, is a "public works" as defined in Labor Code
Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall include all
prevailing wage requirements set forth in CITY's contracts.
6. INSURANCE - SELF-INSURED - CITY is self insured. CITY agrees to deliver evidence
of self-insured coverage providing general liability insurance, coverage of bodily injury
liability and property damage liability, naming the STATE, its officers, agents and
employees as the additional insured in an amount of $1 million per occurrence and $2
million in aggregate and $5 million in excess. Coverage shall be evidenced by a certificate
of insurance in a form satisfactory to the STATE that shall be delivered to the STATE with
a signed copy of this Agreement in a form satisfactory to STATE, along with a signed copy
of the Agreement.
6.1. SELF-INSURED using Contractor - If the work performed on this Project is done
under contract CITY shall require its contractors to maintain in force, during the term
of this agreement, a policy of general liability insurance, including coverage of bodily
injury liability and property damage liability, naming the STATE, its officers, agents
and employees as the additional insured in an amount of $1 million per occurrence and
$2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a
certificate of insurance in a form satisfactory to the STATE that shall be delivered to
the STATE with a signed copy of this Agreement.
7. TERMINATION - This Agreement may be terminated by either party without cause by
providing ninety (90) days written notice. CITY's failure to comply with the provisions of
this Agreement may be grounds for a Notice of Termination by STATE.
8. TERM OF AGREEMENT -This Agreement shall become effective on the date first shown
on its face sheet and shall remain in full force and effect until amended or terminated
pursuant to Section 7.
9. NOTICES
9.1 All notices, demands, requests or approvals, including any change in mailing
address, to be given under the terms of this Agreement 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.
12-7
9.2 All notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
Attn: Deputy Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
9.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
10. 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.
PARTIES are empowered by Streets and Highways Code Section 114 & 130 to enter into this
Agreement and have delegated to the undersigned the authority to execute this Agreement on
behalf of the respective agencies and covenants to have followed all the necessary legal
requirements to validly execute this Agreement.
[SIGNATURES ON THE FOLLOWING PAGE]
6
12-8
IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and
year first above written.
THE CITY OF NEWPORT BEACH, a
California municipal corporation
By:
Will O'Neill
Mayor
Initiated and Approved
By:
Grace K. Leung
City Manager
ATTEST:
By:
Leilani I. Brown
City Clerk
Approved as to Form:
CITY ATTORNEY'S OFFICE
By:
Aaron C. Harp
City Attorney
7
STATE OF CALIFORNIA
DEPARTMENT OF TRANSPORTATION
TOKS OMISHAKIN
Director of Transportation
Monica Kress
Deputy District Director
Operations and Maintenance
District 12
As to Form and Procedure:
IN
Attorney
Department of Transportation
12-9
EXHIBIT "A"
(Plan map identifying the applicable STATE Routes (Freeway proper) and CITY road(s) and
facilities)
12-10
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12-21