HomeMy WebLinkAbout13 - Approval of PSA for the Maintenance and Monitoring of the Big Canyon Phase 2 Restoration (Project No. 23X11)Q �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
November 15, 2022
Agenda Item No. 13
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Bob Stein, Assistant City Engineer, rstein@newportbeachca.gov
PHONE: 949-644-3322
TITLE: Approval of Professional Services Agreement with Newport Bay
Conservancy for the Maintenance and Monitoring of the Big Canyon
Phase 2 Restoration (Project No. 23X11)
/_1 163I Z7_T91 6
Per the terms of the Coastal Development Permit, the Big Canyon Phase 2 Restoration
project, completed in Spring 2020, must be actively maintained and monitored for five
years to meet specific success criteria. Staff requests City Council approval to enter into
a two and a half year maintenance and monitoring Professional Services Agreement with
Newport Bay Conservancy for a not -to -exceed fee of $264,500.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Section 15301(h) of the CEQA Guidelines because the maintenance and
monitoring of existing restoration landscaping involves no expansion of use;
b) Approve Budget Amendment No. 23-033 appropriating $39,500 in increased
expenditures in Account No. 10001940-980000-23X11 from the Upper Newport Bay
reserve; and
c) Approve Professional Services Agreement with Newport Bay Conservancy of Newport
Beach, California, for maintenance and monitoring of the Big Canyon Phase 2
Restoration Project for a total not -to -exceed amount of $264,500, and authorize the
Mayor and City Clerk to execute the Agreement.
DISCUSSION:
Newport Bay Conservancy (Conservancy) secured grant funding and a Coastal
Development Permit from the California Coastal Commission for the construction of the
Big Canyon Phase 2 Restoration Project within the City of Newport Beach's (City's) Big
Canyon park property (a location map is included as Attachment A). As a condition of the
project's Coastal Development Permit, the project's restored areas must be maintained
and monitored for five years and meet specific restoration success criteria.
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Approval of Professional Services Agreement with Newport Bay Conservancy for the
Maintenance and Monitoring of the Big Canyon
Phase 2 Restoration (Project No. 23X11)
November 15, 2022
Page 2
The Conservancy agreed to perform and pay for the maintenance and monitoring for the
first half of this required five-year restoration maintenance and monitoring period: from
July 1, 2020 to December 31, 2022, and the City agreed to pay for the second half of the
maintenance and monitoring period: from January 1, 2023 to June 30, 2025.
Since July 1, 2020, the Conservancy has successfully grown the native plants, removed
weeds and other non-native plants from the site, controlled pests within the Big Canyon
Phase 2 restoration area, and performed plant establishment monitoring with required
reports to the California Coastal Commission. Many areas are already well established
and only limited irrigation is now needed in these areas. The Conservancy maintains an
excellent relationship with the California Coastal Commission and the California
Department of Fish & Wildlife.
Based on this success, City staff asked the Conservancy to prepare a scope of work and
fee to complete the required maintenance and monitoring for the remaining period, from
January 1, 2023 to June 30, 2025. A summary of the Conservancy's costs is shown in
the following table.
Table: Proposed costs each fiscal year.
Maintenance and
Duration
Maintenance
Monitoring
Period
Monitoring Period
Cost
January 1, 2023 to
6 months
$52,200
$4,000
$56,200
June 30, 2023
July 1, 2023 to
12 months
$96,600
$8,000
$104,600
June 30, 2024
July 1, 2024 to
12 months
$95,700
$8,000
$103,700
June 30, 2025
TOTAL
30 months
$244,500
$20,000
$264,500
The Conservancy has been performing monitoring of vegetation health in the Big Canyon
Phase 2 restoration area for the past two and a half years. Its proposed monitoring fee is
cost effective at $8,000 per year for the Phase 2 project as compared to $27,500 per year
paid to another consultant monitoring the smaller Big Canyon Phase 1 project.
Staff believes the Conservancy's proposed maintenance fee is well below market and is
cost effective. As experts in native and invasive plants, Conservancy staff directly
supervises its volunteers and landscape contractor in the protection of native plants and
the removal of invasive plants. As a comparison, for the Big Canyon Phase 1 project, the
City has hired a biologist to meet with the landscape contractor to direct protection and
removal measures.
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Approval of Professional Services Agreement with Newport Bay Conservancy for the
Maintenance and Monitoring of the Big Canyon
Phase 2 Restoration (Project No. 23X11)
November 15, 2022
Page 3
City staff recommends that the Conservancy continue with the maintenance and
monitoring of the Big Canyon Phase 2 restoration area based on its ongoing, successful
restoration maintenance efforts in the Phase 2 area. As the Conservancy utilizes its large
volunteer base to assist in maintaining and monitoring the site, its operation is cost
effective.
FISCAL IMPACT:
With approval of the budget amendment (Attachment B), funding for this project is
included in the adopted Capital Improvement Program budget. It will be expensed to the
Tidelands Upper Newport Reserve account in the Public Works Department,
1000 1 940-980000-23X11.
Tidelands revenue is generated from the activities and uses within the state tideland
managed by the City of Newport Beach including rents from moorings, piers, and leases,
as well as income from parking lots. Within these tideland revenue sources, the Beacon
Bay residential lease revenue are split 80 percent to the Tidelands Operating fund,
10 percent are restricted to Upper Newport Bay restoration, and 10 percent are deposited
in the Land Bank fund held and administered by the State Lands Commission. Funds
from the tidelands Upper Newport Bay restoration are being used for this project.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Section 15301(h) of the CEQA Guidelines
because the maintenance and monitoring of existing native growth involves no expansion
of use.
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 — Location Map
Attachment B — Budget Amendment 23-033
Attachment C — Professional Services Agreement
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ATTACHMENT A
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Attachment B
Budget Amendment 23-033
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CW PO
City of Newport Beach
BUDGET AMENDMENT
2022-23 BA#: 23-033
Department: Public Works
ONETIME: ❑ Yes []No
Requestor: Theresa Schweitzer
Approvals
❑ CITY MANAGER'S APPROVAL ONLY
Finance Director: Date
Fal COUNCIL APPROVAL REQUIRED City Clerk: Date
EXPLANATION FOR REQUEST:
To increase appropriation expenditures for the Big Canyon Phase 2 Restoration Project (23X11) from the Upper Newport ❑ from existing budget appropriations
Bay Reserve fund. ❑ from additional estimated revenues
❑✓ from unappropriated fund balance
W �a
Fund # Org Object Project Description Increase or (Decrease) $
Subtotal $
IDITURES
Fund # Org Object Project Description Increase or (Decrease) $
100 10001940 980000 23X11 UPPER NEWPORT RESERVE - CIP EXPENDITURES FOR GL 39,500.00
Subtotal $ 39,500.00
Fund # Object Description Increase or (Decrease) 5
100 330021 TIDE & SUBMERGED LANDS FUND - RES/UPPER BAY RESTORATION (39,500.00)
Subtotal, $ (39,500.00)'
Fund Balance Change Required
13-6
ATTACHMENT C
SERVICES AGREEMENT
WITH NEWPORT BAY NATURALISTS & FRIENDS DBA
NEWPORT BAY CONSERVANCY FOR
MAINTENANCE AND MONITORING OF THE BIG CANYON PHASE 2
RESTORATION PROJECT
THIS SERVICES AGREEMENT ("Agreement") is made and entered into as of this
1st day of January, 2023 ("Effective Date"), by and between the CITY OF NEWPORT
BEACH, a California municipal corporation and charter city ("City"), and NEWPORT BAY
NATURALISTS AND FRIENDS doing business as ("DBA") NEWPORT BAY
CONSERVANCY, a California nonprofit corporation ("Consultant'), whose address is
600C Shellmaker Road, Newport Beach, CA 92660, and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly 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 City.
B. City desires to engage Consultant to provide Maintenance and Monitoring of the
Big Canyon Phase 2 Restoration Project ("Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render services under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2025, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
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3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Two Hundred Sixty Four
Thousand Five Hundred Dollars and 00/100 ($264,500.00), without prior written
authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page 2
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4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Heather Cieslak to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. City's
Director of Public Works or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community standards and with the
ordinary degree of skill and care that would be used by other reasonably competent
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page 3
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practitioners of the same discipline under similar circumstances. All Services shall be
performed by qualified and experienced personnel who are not employed by City. By
delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (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,
attorneys' fees, disbursements and court costs) of every 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 Agreement, any
Work performed or Services provided under this Agreement including, without limitation,
defects in workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions
of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants,
subcontractors, anyone employed directly or indirectly by any of them or for whose acts
they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant 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 attorneys' fees in any action on or to enforce
the terms of this Agreement. 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 Consultant.
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page 4
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10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, 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.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page 5 13.11
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner orjoint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
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18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
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23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
24.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
25. NOTICES
25.1 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.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Director of Public Works
Public Works
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Heather Cieslak
Newport Bay Naturalists & Friends dba Newport Bay Conservancy
600C Shellmaker Road
Newport Beach, CA 92660
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26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in writing,
all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for payment.
Consultant and City expressly agree that in addition to any claims filing requirements set
forth in the Agreement, Consultant shall be required to file any claim Consultant may have
against City in strict conformance with the Government Claims Act (Government Code
sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant 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. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
28.3 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
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of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
28.4 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.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement 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 Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 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 Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 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.
28.12 Counterparts. This Agreement 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]
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page 10
13-16
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTOR EY'S OFFICE
Date:6
�f
By:
F� A n C. ar
City Attorne GSM
ATTEST:
Date:
M
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Kevin Muldoon
Mayor
CONSULTANT:
NEWPORT BAY NATURALISTS AND
FRIENDS doing business as ("dba")
NEWPORT BAY CONSERVANCY, a
California nonprofit corporation
Date:
By:
Kimberly Bick
Chief Executive Officer
Date:
By:
Ramraghi Fuller
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page 11
13-17
EXHIBIT A
SCOPE OF SERVICES
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page A-1 13-18
EXHIBIT A
SCOPE OF SERVICES
BIG CANYON HABITAT RESTORATION AND ADAPTATION PROJECT, PHASE 2A
JANUARY 1, 2023 TO JUNE 30, 2025
The Newport Bay Conservancy (Conservancy) will provide the monitoring, technical advisory, coordination
for invasive species management, and analysis services for the tasks below:
1. Contract Administration and Project Management
a. Conservancy will Administer the contract with City and administer contracts with Conservancy's
contractors.
b. Conservancy will oversee management of the restoration area.
2. Vegetation Management —Volunteer Program
Conservancy will:
a. Monitor plant health
b. Monitor soil moisture and rates of evapotranspiration.
c. Adjust irrigation schedules as needed.
d. Inspect irrigation systems.
e. Conduct regular invasive species surveys.
f. Host volunteer events (weekly to start) focused on weed removal, infill planting and spot
watering.
3. Vegetation Management — Subcontractor Services
a. Conservancy will hire a contractor to perform regular weed removal. Typical non-native plants
trying to establish in the restoration area include:
o Brazilian Peppertree (Schinus terbinthifolius)
o Fennel (Foeniculum vulgore)
o Lollypop tree (Myoporum loetum)
o Tree tobacco (Nicotiona glauco)
o Shamel ash (Fraxinus udei)
o Mexican Fan Palm (Woshingtonio robusta)
o Pampas grass (Cortaderia selloana)
o Tamarisk (Tomarix ramosissimo)
o Bermuda grass (Cynodon doctylon)
o Castor bean (Ricinus communis)
o Spanish false fleabane (Pulicorio poludoso)
The Conservancy will work directly with the maintenance contractor to thin out/remove cattails
in Big Canyon Creek that may be causing blocks in water flow.
b. For plant species that require herbicide treatment, Conservancy will hire and manage a California
State licensed contractor for chemical control.
13-19
c. Conservancy will hire a contractor to perform surveys of the Invasive Polyphagous Shothole Borer
(PSHB) Surveys and apply chemical treatments. PSHB will be monitored on an annual basis by a
certified biologist with experience surveying for PSHB. Signs of PSHB will be reported to the
maintenance contractor to coordinate removal of infected trees and transfer of plant material
off -site. Best practices and protocols for removal of trees affected with PSHB can be found using
the following link: https://ucanr.edu/sites/eskalenlab/
d. Conservancy will hire a contractor to perform irrigation repairs.
4. Restoration Monitoring and Reporting
Conservancy will perform quantitative and qualitative assessments and prepare annual reports with
findings and recommendations.
a. Conservancy will perform Quantitative Assessments within the 11.32 acres of restoration habitat that
will include the following:
• Conducting quarterly quantitative vegetation surveys annually. Vegetation will be monitored
using eight, 20-meter long transects. There will be two transects positioned within each
established habitat area (Riparian Corridor, Coastal Sage Scrub/transitional, High Alkali Meadow,
Wet Alkali Meadow) for a total of 8 transects in Phase 2A. Plant monitoring will be performed
along transects using the point intercept method.
Estimating species composition and percent cover within each habitat area, all plant species will
be recorded at one -meter intervals along each transect.
Estimating species richness within each habitat area, percent cover of native and percent cover
of non-native plant species observed will be recorded quarterly in each habitat area.
Based on the following plant responses, assessing if success criteria are being met and to help
identify the need for potential remedial actions:
o Relative and absolute cover of both native and exotic specie
o Species richness — the number of species in the sample area
o Structural diversity —the number of vegetative strata present
o General health, growth rate, and mortality of plant species along each transect
Summarizing plant response data in table and graphical form.
Conducting annual CRAM assessments and upload results online to eCRAM and provide results in
annual report to the City.
b. Conservancy will perform Qualitative Assessments and will include:
• Conducting site walks to record general habitat characterization.
• Photographing the site from several fixed, georeferenced locations and angles to visually
document site conditions and change in condition over time.
Recording evidence of wildlife use and native plant recruitment.
Recommending remedial measures to facilitate compliance with performance standards. Provide
recommendations to the maintenance contractor and City after each monitoring visit, as
necessary, to address and correct problems in a timely manner. Remedial measures undertaken
will be summarized in the annual monitoring reports.
Reporting on specific high priority invasive species requiring action for immediate removal.
13-20
Conservancy will prepare annual reports addressing progress toward meeting success criteria and
providing remedial maintenance actions (i.e. performance requirements) for the Project, stated in
Table 1 of the Habitat Management and Monitoring Plan.
13-21
EXHIBIT B
SCHEDULE OF BILLING RATES
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page B-1 13-22
EXHIBIT B
BILLING RATES
Task
No.
Task Description
January 1,
2023 to
June 30,
2023
July 1,
2023 to
June 30,
2024
July 1,
2024 to
June 30,
2025
Totals
1
Contract Administration and Project
Management
$4,000
$8,000
$8,000
$20,000
2
Vegetation Management - Volunteer
Program
Field Supplies (tools for volunteers,
monitoring, etc
$800
$800
$400
Dumpster (20 @ $600 each)
$2,400
$4,800
$4,800
Plant Materials (infill planting & Seed)
$1,000
$1,000
$500
Subtotal
$4,200
$6,600
$5,700
$16,500
3
Vegetation Management -
Subcontractor Services
Invasive Vegetation Control
$37,000
$74,000
$74,000
Chemical Treatments (Sweet Clover)
$5,000
$5,000
$5,000
IPSHB Surveys & Treatments
$1,000
$2,000
$2,000
Irrigation Repairs
$1,000
$1,000
$1,000
Subtotal
$44,000
$82,000
$82,000
$208,000
4
Restoration Monitoring and Reporting
$4,000
$8,000
$8,000
$20,000
TOTAL
$56,200
$104,600
$103,700
$264,500
13-23
EXHIBIT C
INSURANCE REQUIREMENTS —SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant 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. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant 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. Consultant 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.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant 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, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant 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 Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page C-1 13-24
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
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
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
and employees 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
(10) 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. Consultant 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 Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page C-2 13-25
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 Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20380413.
D. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
E. 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. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
F. 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.
G. City Remedies for Non -Compliance. If Consultant or any subconsultant 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
Agreement, or to suspend Consultant'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 Consultant or reimbursed
by Consultant upon demand.
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page C-3 13-26
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, 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.
Consultant's Insurance. Consultant 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 and prosecution of the
Work.
Newport Bay Naturalists and Friends dba Newport Bay Conservancy Page C-4 13-27