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Home My WebLink About13 - Big Canyon Restoration (Phase 3) Project — Award of Contract and Approve PSAQ �EwPpRT CITY OF s NEWPORT BEACH q \P City Council Staff Report August 26, 2025 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 - 949-644-3322, rstein@newportbeachca.gov TITLE: Big Canyon Restoration (Phase 3) Project — Award of Contract to Superb Engineering, Inc. (Contract No. 9532-1) and Approve Professional Services Agreement with Horrocks LLC (Contract No. 9532-2) (Project No. 25X11) /_1 1"t I:7_T" 6 The City of Newport Beach received construction bids for the Big Canyon Restoration (Phase 3) Project (also referred to as the Big Canyon Coastal Habitat Restoration and Adaptation Project — Phase 3). Staff recommends that the City Council award the construction contract to Superb Engineering, Inc. Staff also recommends Council approval of a professional services agreement (PSA) with Horrocks LLC to provide construction management services for this project. City funds for construction and related construction management services would be reimbursed from State grants per the attached agreement with the Newport Bay Conservancy (NBC) as approved by the City Council. The final State grant is to be awarded on August 28, 2025, therefore the documents listed for recommended approvals will be signed after confirmation that the grant funding has been authorized. RECOMMENDATIONS: a) Find the requirement for environmental review under the California Environmental Quality Act (CEQA) for the Big Canyon Restoration (Phase 3) Project qualifies as statutorily exempt under CEQA per Public Resources Code, § 21080.56, subdivisions (a) to (d), inclusive, with the attached concurrence by the Director of Fish and Wildlife; b) Approve the project drawings and specifications; c) Authorize the City Manager to execute the Right of Entry Permit between the State of California, acting by and through the California Department of Fish and Wildlife, and the City of Newport Beach for permission to access those portions of Big Canyon Nature Park for purposes of carrying out the Project; d) Authorize the City Manager to execute the Agreement between Newport Bay Naturalists and Friends (DBA Newport Bay Conservancy) and the City of Newport Beach to designate 13-1 Big Canyon Restoration (Phase 3) Project — Award of Contract to Superb Engineering, Inc. (Contract No. 9532-1) and Approve Professional Services Agreement with Horrocks LLC (Contract No. 9532-2) (Project No. 25X11) Big Canyon Restoration (Phase 3) Project August 26, 2025 Page 2 $6,594,000 in grant funds to the City of Newport Beach for restoration work in the Project area; e) Award Contract No. 9532-1 to Superb Engineering, Inc. for the total bid price of $5,242,833.25, and authorize the City Manager and City Clerk to execute the contract; f) Establish a contingency of $786,000 (approximately 15% of total bid) to cover the cost of unforeseen work not included in the original contract; and g) Approve a professional services agreement with Horrocks LLC of San Diego, California, for the Project at a not -to -exceed price of $487,040 and authorize the City Manager and City Clerk to execute the Agreement. DISCUSSION: The Big Canyon Nature Park Restoration Program is one of the City's largest restoration programs, extending from Jamboree Road to Back Bay Drive. Program implementation has been split into three phases. o The FY 2016-17 Phase 1 Project restored 6 acres just west of Jamboree Road and included measures to remove selenium in the creek and to capture and infiltrate pollutants washed down in storm flows from Jamboree Road. State grants covered 90% of the $1.6 million in construction contractor costs. o The FY 2020-21 Phase 2 Project restored 11 acres in the center portion of the nature park. The forest of invasive Brazilian Pepper trees was removed and replaced with a healthy mosaic of native plant habitats. A state grant paid 93% of $1.3 million construction contractor's costs. o The proposed FY 2025-26 Phase 3 Project (final phase) will restore 13.8 acres of the nature park just east of Back Bay Drive. State grants will cover 100% of the construction contractor's costs. About 75% of the 13.8-acre Phase 3 project area (see Attachment E for Location Map) occurs on land owned by the California Department of Fish and Wildlife (CDFW), with the remainder owned by the City. CDFW has asked the City to manage the construction of the Phase 3 project and approved a Right of Entry Permit (Attachment B) for the City to perform the work. NBC has been acting on behalf of CDFW and the City to secure over $7 million in grant funds for the planning, design and construction of the Phase 3 restoration project. The final State grant is to be awarded on August 28, 2025, therefore the documents for recommended approvals will be signed after confirmation that the grant funding has been authorized. 13-2 Big Canyon Restoration (Phase 3) Project — Award of Contract to Superb Engineering, Inc. (Contract No. 9532-1) and Approve Professional Services Agreement with Horrocks LLC (Contract No. 9532-2) (Project No. 25X11) Big Canyon Restoration (Phase 3) Project August 26, 2025 Page 3 Final construction documents have been completed. The Phase 3 project consists of several restoration components: • Clearing non-native Brazilian pepper tree stands and other non-native plants. • Clearing cattails from the existing freshwater pond, modifying Big Canyon Creek's alignment to maintain positive drainage during low flows to reduce the accumulation of selenium in the soil and vegetation and reduce water ponding that can foster mosquito breeding; and establishing a riparian corridor within the pond area to integrate with the upstream restored corridor in Phase 2. • Excavating and grading over a 13.8-acre area to create a historically similar estuary surrounded by salt marsh on the east side of Back Bay Drive and establish transitional wetlands that will allow for upslope migration and resiliency to long-term sea level rise. This includes removing some sediment within the bays' tidal channel to increase tidal flows into the newly created estuary and salt marsh. • Enhancing habitat within the seven designated areas by selective clearing of non-native trees and plants. • Removing native vegetation infested by the Polygamous Shothole Borer and other borers, lerpes and beetles. • Maintaining the habitat pursuant to the permit requirements for the first year of the Project's approved five-year Habitat Restoration and Adaption Plan. Years two through five will be performed through a separate contract. Construction Contractor At 4 p.m. on May 20, 2025, the following sealed bids submitted via PlanetBids were opened and publicly released: BIDDER TOTAL BID AMOUNT Low Superb Engineering, Inc. $ 5,242,833.25 2nd Legion Contractors, Inc. $ 5,884,042.00 3rd Environmental Construction, Inc. $ 7,455,789.78 The City received three bids for this project. The low bidder, Superb Engineering, Inc., possesses a California State Contractor's License Classification "A", as required by the project specifications. As approved, this would be the first project Superb Engineering has performed for the City. City staff reviewed the list of projects Superb Engineering provided and concluded that Superb Engineering and its subcontractors have demonstrated success with all the tasks required for the Project. Specific examples include: o Superb Engineering's three references provided good reviews of its performance. 13-3 Big Canyon Restoration (Phase 3) Project — Award of Contract to Superb Engineering, Inc. (Contract No. 9532-1) and Approve Professional Services Agreement with Horrocks LLC (Contract No. 9532-2) (Project No. 25X11) Big Canyon Restoration (Phase 3) Project August 26, 2025 Page 4 o Superb Engineering's dredging subcontractor, Pacific Dredging & Construction, successfully dredged the Grand Canal under City contract. This subcontractor reports recent dredging work at the Agua Hedionda Lagoon in the City of Carlsbad, and the Napa River Maintenance Dredging in the City of Napa. o Superb Engineering's aquatic vegetation removal subcontractor, McNabb Construction, has recent similar experience working for the Cities of Los Angeles, Santa Cruz and Sunnyvale, and the Orange County Water District. The low bid by Superb Engineering is 12% below the Engineer's Estimate of $5,950,000. The three bids show a good spread with one bid below, one bid near, and one bid above the Engineer's Estimate. Because this project involves extensive excavation and grading in the Big Canyon flood plain during the possible wet season, project progress may be impacted by the timing, number and intensity of storm events. Therefore, a 15% contingency is recommended to cover potential additional costs associated with storm flow management, erosion prevention, and other related, unforeseen site conditions beyond what would be expected within the contract scope. Contingency costs for grant -approved construction tasks would be paid with grant funds. Pursuant to the contract specifications, the contractor shall adhere to the following schedule milestones: 1. Superb Engineering has 90 consecutive working days, starting on the date of the Notice to Proceed, to complete all heavy construction work that could be disruptive to birds during nesting season. (Bird nesting season starts on March 1 and ends on August 30.) 2. Superb Engineering has an additional 70 days to complete all remaining tasks. 3. Once staff has determined the work is complete, Superb Engineering shall perform the Maintenance and Plant Establishment period task for 120 consecutive calendar days. 4. After successful completion of the Maintenance and Plant Establishment task, Superb Engineering will perform a full year of site maintenance per agency permit requirements. Agency permits restrict the commencement of work until after the bird -breeding season that ends on August 30. Construction Manager To assist City staff in management of the project, a Request for Proposals (RFP) for construction management services was advertised. Four consultant proposals were received. The proposals were reviewed by a three -person technical panel and scored as follows. PROPOSER TOTALSCORE (out of 300) RANK Horrocks LLC 280 1 Dudek 254 2 Interwest Consulting 240 3 13-4 Big Canyon Restoration (Phase 3) Project — Award of Contract to Superb Engineering, Inc. (Contract No. 9532-1) and Approve Professional Services Agreement with Horrocks LLC (Contract No. 9532-2) (Project No. 25X11) Big Canyon Restoration (Phase 3) Project August 26, 2025 Page 5 The fourth bidder, Ally Construction Services, did not meet the minimum qualifications for this RFP. As the highest ranked consultant, Horrocks' staff was interviewed by City staff. Horrocks' staff described similar projects the firm has managed for other local agencies. Based on its proposal and interview, Horrocks LLC has demonstrated the expertise and experience needed to successfully complete the scope of work identified in the RFP. Therefore, staff recommends City Council approval of a PSA with Horrocks LLC to provide construction management services for the Big Canyon Restoration (Phase 3) project. (Attachment D) Horrocks' construction management services will include providing technical and administrative construction management and engineering services; coordinating and overseeing all construction activities; reviewing submittals; responding to Requests for Information; performing inspections; preparing daily and weekly inspection reports; maintaining project records and documentation; and providing community outreach. All expenditures for these construction management tasks will be reimbursed pursuant to the NBC/City agreement (Attachment C). On -Call Geotechnical and Survev Consultants City staff will use Guida Surveying and Harrington Geotechnical Engineering, Inc. for on -call surveying and geotechnical support, respectively. These City costs will also be reimbursed pursuant to the NBC/City agreement. FISCAL IMPACT: NBC has summitted three grant applications to State funding agencies totaling $7,501,084 for the Phase 3 project as follows: Funding Agency Funding Request Grant Award Status State Coastal Conservancy $ 1,575,409 Grant award executed. Ocean Protection Council $ 2,684,675 Grant award executed. Wildlife Conservation Board (WCB) $ 3,241,000 Recommended by WCB staff for award at its August 28, 2025 Board Meeting. TOTAL $ 7,501,084 Pursuant to the pending agreement between the City and NBC, NBC will use these grant funds to reimburse the City for payments to the construction contractor, construction manager and inspector, and the City's on -call geotechnical and survey consultants. Grant funds will also be used to pay for the first year of the permit -required, five-year habitat maintenance and monitoring program per the requirements of the Habitat Restoration and Adaption Plan. 13-5 Big Canyon Restoration (Phase 3) Project — Award of Contract to Superb Engineering, Inc. (Contract No. 9532-1) and Approve Professional Services Agreement with Horrocks LLC (Contract No. 9532-2) (Project No. 25X11) Big Canyon Restoration (Phase 3) Project August 26, 2025 Page 6 The adopted Capital Improvement Program budget includes sufficient funding for the award of the construction contract and the approval of the construction management agreement. The following funds will be expended: Account Description Environmental Contribution (Ocean Protection Council) Environmental Contribution (State Coastal Conservancy) Environmental Contribution (Wildlife Conservation Board) Proposed fund uses are: Vendor Superb Engineering Superb Engineering Horrocks Guida Surveying Harrington Geotechnical Various Account Number Amount 13801-980000-25X11 $ 2,684,675 13801-980000-25X11 $ 668,325 13801-980000-25X11 $ 3,241,000 Total: $ 6,594,000 Purpose Amount Construction Contract $ 5,242,833.25 Construction Contingency $ 786,000.00 Construction Management $ 487,040.00 Surveying Services $ 31,760.00 Material Testing Services $ 44,000.00 Printing and Incidentals $ 2,366.75 Total: $ 6,594,000.00 Staff recommends establishing $786,000 (approximately 15% of bid) for contingency purposes and unforeseen conditions associated with construction. ENVIRONMENTAL REVIEW: Staff recommends City Council find the requirement for environmental review under the California Environmental Quality Act (CEQA) for the Big Canyon Restoration (Phase 3) Project qualifies as statutorily exempt under CEQA per Public Resources Code, § 21080.56, subdivisions (a) to (d), inclusive, as concurred to by the Director of Fish and Wildlife. (Attachment A) 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). 13-6 Big Canyon Restoration (Phase 3) Project — Award of Contract to Superb Engineering, Inc. (Contract No. 9532-1) and Approve Professional Services Agreement with Horrocks LLC (Contract No. 9532-2) (Project No. 25X11) Big Canyon Restoration (Phase 3) Project August 26, 2025 Page 7 ATTACHMENTS: Attachment A — CEQA Exception Concurrence by CDFW Attachment B — CDFW/City Right of Entry Attachment C — NBC/City Agreement Attachment D — Horrocks' Professional Services Agreement Attachment E —Location Map 13-7 Attachment A " ,, of State of California — Natural Resources Agency GAVIN NEWSOM, Governor Hp DEPARTMENT OF FISH AND WILDLIFE CHARLTONH. BONHAM, Director �� m Director's Office Post Office Box 944209 C,�1 rp µHSp Sacramento, CA 94244-2090 www.wildlife.ca.gov May 4, 2022 Makana Nova, Senior Planner Planning Division Community Development Department City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 California Environmental Quality Act Statutory Exemption for Restoration Projects, Big Canyon Coastal Habitat Restoration and Resiliency Project — Phase 3 (Request No. 21080.56-2022-003-R5) Dear Ms. Nova: I am pleased to inform you as the Director of the California Department of Fish and Wildlife (CDFW) that I concur with the Lead Agency determination by the City of Newport Beach that the Big Canyon Coastal Habitat Restoration and Resiliency Project — Phase 3 (Project) qualifies as a statutorily exempt restoration project under the California Environmental Quality Act (CEQA). (Pub. Resources Code, § 21080.56, subd. (e).) My concurrence as the CDFW Director is based on CDFW's independent review of the City of Newport Beach's request for concurrence, which CDFW received on March 24, 2022. In my opinion, informed by the best available science and described in the separate CDFW Concurrence, the Project meets all the qualifying criteria in Public Resources Code section 21080.56, subdivisions (a) to (d), inclusive. This concurrence signifies the continued commitment by CDFW and its partners in advancing the "Cutting the Green Tape" initiative, which is a collaborative effort to increase the pace and scale of restoration projects in California in a way that protects the environment and results in long-term net benefits to climate resiliency, biodiversity, and sensitive species recovery. CDFW stands ready to continue this effort in coordination with the City of Newport Beach. CDFW's Concurrence will be posted on our website as provided by Public Resources Code section 21080.56. If you have any related questions, please contact Brad Henderson, Cutting the Green Tape Program Manager, at (530) 351-5948, or by email at Brad. Henderson(o-)_wildlife.ca.yov. Sincerely, Charlton H. Bonham Director Conserving Calfornia's Wifdffe Since 1870 13-8 Makana Nova, Senior Planner City of Newport Beach May 4, 2022 Page 2 ec: Valerie Termini Chief Deputy Director California Department of Fish and Wildlife Wendy Bogdan General Counsel Office of the General Counsel California Department of Fish and Wildlife Julie Vance Acting Deputy Director Ecosystem Conservation Division California Department of Fish and Wildlife Ed Pert Regional Manager South Coast Region (Region 5) California Department of Fish and Wildlife Christian Romberger Senior Environmental Scientist South Coast Region (Region 5) California Department of Fish and Wildlife Brad Henderson Environmental Program Manager Watershed Restoration Grants Branch California Department of Fish and Wildlife Alys Arenas Restoration Manager Newport Bay Conservancy 13-9 Attachment B State of California - Natural Resources Agency GAVIN NEWSOM, Governor DEPARTMENT OF FISH AND WILDLIFE CHARLTONH. BONHAM, Director P.O. Box 944209 r w Sacramento, CA 94244-2090 http://www.wildlife.ca.gov April 4, 2025 Re: P2450008 Big Canyon Coastal Habitat Restoration and Adaptation Project Enclosed is one (1) complete set of the Agreement. Please sign and return the STD 213 Standard Agreement and Acknowledgement of Work Commencement Authorization Disclaimer to: Jillian.Harris(a,wildlife.ca.gov. Questions concerning the services to be performed under this Agreement should be directed to the CDFW Contract Manager, Alys Arenas, at Alys.Arenas(a),wildlife.ca.gov or (949) 402- 4339. Sincerely, Jillian Harris, Contract Analyst Business Management Branch California Department of Fish and Wildlife Conserving Caffornia's Wifdlife Since 1870 13-10 �S" pF H State of California - Natural Resources Agency GAVIN NEWSOM, Governor DEPARTMENT OF FISH AND WILDLIFE CHARLTONH. BONHAM, Director "r } P.O. Box 944209 Sacramento, CA 94244-2090 rii�Ry P http://www.wildlife.ca.gov April 4, 2025 Re: P2450008 Big Canyon Coastal Habitat Restoration and Adaptation Project ACKNOWLEDGEMENT OF WORK COMMENCEMENT AUTHORIZATION DISCLAIMER Where approval from the California Department of Fish and Wildlife (CDFW) and the Department of General Services (DGS) applies, the attached contract shall be of no force or effect until it is signed by both parties (CDFW and Contractor) and/or approved by the DGS. The signing of this contract by your organization does not authorize the commencement of work. By signing this letter, your organization acknowledges and agrees not to begin work until all approvals have been obtained, the contract has been fully executed, and the contractor has been given authorization to begin work. Should any work begin before all approvals are obtained or authorization is given, services will be considered voluntary. Please be advised that failure to sign and return this letter will delay approval of your contract. Authorized Signature Printed Name and Title of Person Signing Date Conserving Cal fornia's WildCfe Since 1870 13-11 STATE OF CALIFORNIA - DEPARTMENT OF GENERAL SERVICES STANDARD AGREEMENT AGREEMENT NUMBER PURCHASING AUTHORITY NUMBER (If Applicable) STD 213 (Rev. 04/2020) P2450008 1. This Agreement is entered into between the Contracting Agency and the Contractor named below: CONTRACTING AGENCY NAME California Department of Fish and Wildlife (CDFW) CONTRACTOR NAME City of Newport Beach 2. The term of this Agreement is: START DATE Upon California Department of General Services Approval THROUGH END DATE December 31, 2027 3. The maximum amount of this Agreement is: $0.00 1 Zero Dollars and Zero Cents 4. The parties agree to comply with the terms and conditions of the following exhibits, which are by this reference made a part of the Agreement. Exhibits Title Pages Exhibit A Scope of Work 5 Exhibit A Right of Entry Permit 9 ATTCH 1 Exhibit A ATTCH 2 Project Map 1 Exhibit B Budget Detail and Payment Provisions 1 Exhibit C Modified General Terms and Conditions (GTC 02/2025) 5 Exhibit D Modified Additional Provisions 9 ❑ irems snown wirn an asrensK (-I, are nereoy incorporarea oy reference ana mace parr of rnis agreemenr as it arrocnea nerero. These documents can be viewed at https.11www.dgs.co.govIOLS/Resources IN WITNESS WHEREOF, THIS AGREEMENT HAS BEEN EXECUTED BYTHE PARTIES HERETO. CONTRACTOR CONTRACTOR NAME (if other than an individual, state whether a corporation, partnership, etc.) City of Newport Beach CONTRACTOR BUSINESS ADDRESS PRINTED NAME OF PERSON SIGNING ITITLE CONTRACTOR AUTHORIZED SIGNATURE I DATE SIGNED ZIP Page 1 b1-12 STATE OF CALIFORNIA - DEPARTMENT OF GENERAL SERVICES STANDARD AGREEMENT STD 213 (Rev. 04/2020) CONTRACTING AGENCY NAME California Department of Fish and Wildlife SCO ID: 3600-P2450008 AGREEMENT NUMBER P2450008 STATE OF CALIFORNIA PURCHASING AUTHORITY NUMBER (If Applicable) CONTRACTING AGENCY ADDRESS CITY STATE ZIP P.O. Box 944209 Sacramento CA 94244 PRINTED NAME OF PERSON SIGNING TITLE Amy Mowrer Branch Chief - Business Management Branch CONTRACTING AGENCY AUTHORIZED SIGNATURE CALIFORNIA DEPARTMENT OF GENERAL SERVICES APPROVAL DATE SIGNED EXEMPTION (If Applicable) Page 2 of 2 13-13 California Department of Fish and Wildlife Agreement Number: P2450008 Exhibit A — Scope of Work City of Newport Beach Page 1 of 5 1. Introduction of Services The City of Newport Beach herein after referred to as "The City" agrees to provide to the California Department of Fish and Wildlife ("CDFW"): services, as summarized below, in accordance with the specifications, terms, and conditions contained herein. The City will be project manager for the Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 3 ("Project"), the approved plans for which are on file with the City and incorporated herein by this reference. 2. Location of Services The services will be performed at the following location: The Project will be located at 1950 Back Bay Drive, Assessor's Parcel Numbers ("APN") 440-092-76, 440-092-77, 440-092-79, and 440-132-53 ("City Area"), and a portion of which is owned by CDFW, APN 440-092-75, and 440-132-27 ("CDFW Area"). See Exhibit A, Attachment 1 Right of Entry Permit and Exhibit A, Attachment 2 Project Map for additional information. 3. Service Schedule Activities on State lands are restricted to daytime hours, between sunrise and sunset. The City will be required to obtain an agreement, in writing, from the CDFW Contract Manager for any changes to the service schedule. 4. Project Officials CDFW Proiect Officials Contract Manager Name: Alys Arenas Orange County Reserve Manager Phone: (949) 402-4339 Email: AIys.Arenas(a_)_Wildlife.ca.gov Address: 600 Shell Maker Road, Newport Beach, CA 92660 Direct all inquiries to: CDFW — Name: Alicia Sanchez Address: 3883 Ruffin Road The Citv Proiect Officials Project Director Name: Jim Houlihan Deputy Public Works Director/City Engineer City of Newport Beach Phone: (949) 644-3319 Email: JHoulihan(a)_newportbeachca.gov Address: 100 Civic Center Drive, Newport Beach, CA 92658 Direct all inquiries to: Name: Same as above Address: San Diego, CA 92123 Phone: (858) 285-7518 Phone: Email: Alicia.Sanchez(aD-wildlife.ca.gov Email: (Version 05/2024) 13-14 California Department of Fish and Wildlife Exhibit A — Scope of Work Agreement Number: P2450008 City of Newport Beach Page 2 of 5 Either party may make changes to the Project Officials by giving written notice to the other party. Said changes will not require an amendment to this Agreement. 5. Scope of Work A. Background and Objectives In summary, the Project will restore historic salt marsh and riparian habitat to the 13- acre area of Big Canyon adjacent to Back Bay Drive. The Project will address selenium accumulation and impacts from dry weather flows, eliminate invasive plants, regrade the site to extend saltwater influence from the back bay, replant with native plants to restore riparian and upland habitats, restore historical salt marsh and establish transitional wetlands that will allow for upslope migration and resiliency to long term sea level rise, restore tidal marsh to further reduce selenium bioavailability found naturally within marine deposits in the watershed, maintain positive drainage during low flows, address mosquito breeding habitat, and incorporate fuel modification on surrounding sloping parcels to reduce fire risks to nearby homes. B. Work to be Performed The Project will be managed by the City on behalf of CDFW, by and through contracts led by the City through competitive bid processes and/or with its own forces. CDFW will provide some oversight of the selection process and must be notified of the selected Contractor. This oversight will be an advisory role as the local wildlife, biological and wetland experts. The City and CDFW agree that the City will serve as the lead agency for the Project under the California Environmental Quality Act ("CEQA"), and that the City will assist with the application for a Coastal Development Permit from the California Coastal Commission either by serving as the applicant, co -applicant, or otherwise as may be necessary or desirable. City will undertake and diligently pursue to completion the Project in substantial conformance with the plans approved by City, which are on file with the City and incorporated herein by this reference. City must comply will all applicable federal and state laws regarding public works projects, including but not limited to, competitive bidding, bonding, and prevailing wages. The City must comply with all applicable federal and state contracting requirements. All expenditures made with federal award money, if any, including subcontracts, will be subject to the Uniform Guidance, Title 2 in the Code of Federal Regulations, Subtitle A, Chapter II, part 200 (2 CFR 200). Additionally, non- federal entities are subject to 2 CFR 200.317, General Procurement Standards, through 2 CFR 200.327, Contract Provisions, when expending funds under a federal award. Project tasks include: Task 1 — Site Preparation 1. Implementing erosion and sediment control measures and perimeter fencing. 2. Creating access roads along the periphery of the Project site. 3. Diverting flows in Big Canyon Creek to the northern perimeter. (Version 05/2024) 13-15 California Department of Fish and Wildlife Exhibit A — Scope of Work Agreement Number: P2450008 City of Newport Beach Page 3 of 5 Task 2 — Clearing and Grubbing 1. Dewatering the freshwater pond by opening up the existing levee and allowing gravity to draw out the ponded water. After dewatering, remove cattails within the pond disposed of off -site. 2. Removing vegetation from the Project site in areas that will be excavated for the estuary or graded and restored with native marsh, alkali meadow, southern willow scrub or coastal sage scrub vegetation. 3. Removing trees infested with polyphagous shot hole borer (PSHB) and haul offsite to an approved landfill. 4. Chipping woody material to be used as mulch and spread as wood chips on trails. Task 3 - Excavation, Grading, On -site Filling in, Upland Areas & Fine Site Grading 1. Installing a new culvert with backfill cover across the Back Bay Drive northern access road entrance. 2. Diverting flows in Big Canyon Creek to the northern perimeter. 3. Installing a low berm diversion between the salt marsh in Newport Bay and the freshwater Creek to prevent freshwater flows and tidal flows from entering the Project site. 4. Dredging of the tidal channel in Newport Bay leading into the Creek from Back Bay Drive to remove accumulated sediment and increase the tidal range to the restored salt marsh. The dredged material will be stockpiled and used for the salt marsh restoration area. Task 4 — Install Temporary Irrigation, Soil Amendments, Planting & Seeding 1. Installing a temporary irrigation system and revegetating the Project site using native -species container plants and hydroseeding methods. Task 5 — Maintenance & Monitoring 1. Performing the 5-year maintenance and monitoring period after all plantings and seedings have been installed. C. Reports The Newport Bay Naturalists and Friends, a California non-profit public benefit corporation doing business as Newport Bay Conservancy ("Conservancy"), is the recipient of grants from, including but not necessarily limited to, the Ocean Protection Council and private corporate donor(s), which provides funds for the restoration of Big Canyon ("Grant"). The Conservancy has led an ongoing restoration project within Big Canyon, commonly known as the Big Canyon Coastal Habitat Restoration and Adaptation Project, with the cooperation of the City and CDFW, with the restoration being conducted in phases, Phase 1 completed in July 2017, and Phase 2 completed in June of 2021. The City and CDFW will collectively be responsible for cooperating with the Conservancy to ensure the Project is conducted in full compliance with the terms and conditions of the Grant, including but not limited to, bookkeeping, reporting, deliverables, deadlines, management, operations, and all other aspects of the Grant (Grant Agreement No. C0875017). A copy of the executed grant agreement will be (Version 05/2024) 13-16 California Department of Fish and Wildlife Agreement Number: P2450008 Exhibit A — Scope of Work City of Newport Beach Page 4 of 5 provided by the Conservancy once the agreement is executed with the Ocean Protection Council (OPC). D. Schedule of Completion Dates (See Ocean Protection Grant for Task Details) Activity Task 1 — Site Preparation Task 2 — Clearing and Grubbing Task 3 - Excavation, Grading, On -site Filling in Upland Areas & Fine Site Grading Task 4 — Install Temporary Irrigation, Soil Amendments, Planting & Seeding Task 5 — Maintenance & Monitoring Draft Report Due Final Report Due Anticipated Due Date* September 2025 September/October 2025 November 2025 December 2025/January 2026 120 days after plants are installed March 2026 July 2027 *Changes to due dates must be agreed upon in writing by the City and CDFW Contract Manager. Due dates must fall within the term of the contract. 6. Minimum Qualifications/Requirements In the request for bid documents, City must require the applicable minimum qualifications and other requirements for prospective contractors to be eligible for award of the Project. 7. Insurance Requirements The City will require each contractor working on the Project to maintain the following insurance coverage throughout the duration of this agreement and must supply proof of coverage upon request by CDFW. Insurance must be in accordance with the Exhibit D CDFW Additional Provisions. A. Commercial General Liability (limits not less than $1,000,000 per occurrence with a $2,000,000 annual policy aggregate). B. Automobile Liability (limits not less than $1,000,000 combined single limit per accident) C. Pollution Liability (limits not less than $1,000,000 each occurrence and $2,000,000 aggregate which may include Pesticide/Herbicide Applicator Coverage if applicable, or its equivalent). (Version 05/2024) 13-17 California Department of Fish and Wildlife Exhibit A — Scope of Work Agreement Number: P2450008 City of Newport Beach Page 5 of 5 D. Workers Compensation and Employers Liability (limits of $1,000,000 are required. The waiver of subrogation endorsement must also be provided). The above policies must each be endorsed to include "the State of California, its officers, agents and employees as additional insured but only with respect to work performed under the Contract". (Version 05/2024) 13-18 RIGHT OF ENTRY PERMIT Agency: California Department of Fish and Wildlife Project: Big Canyon Coastal Habitat Restoration and Adaptation Project, Phase 3 This Right of Entry Permit ("Permit") is made and entered into as of April 1 , 2025 between the State of California, acting by and through the California Department of Fish and Wildlife ("State" or "CDFW"), and the City of Newport Beach ("City"), a California municipal corporation and charter city, acting on behalf of itself and its officers and employees("Permittee"). RECITALS A. The State owns, operates, and maintains portions of the Big Canyon Nature Park in the County of Orange, State of California; and B. Permittee has applied to State for permission to access those portions of Big Canyon Nature Park for purposes of carrying out The Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 3 (the "Project") utilizing the Permittee's Parties as defined in paragraph 6 below. C. The State desires to accommodate Permittee's application for permission to enter those portions of Big Canyon Nature Park for purposes of the Project, as and to the extent such project permitted, approved and conditioned by the California Coastal Commission (the "Environmental Document") and as may be conditioned by any other regulatory agency having jurisdiction. TERMS AND CONDITIONS This Permit is made upon and subject to the following terms and conditions: 1. Project Description: By this Permit, State gives permission to Permittee to enter upon those lands legally described and depicted on the attached Exhibit A (the "Property") solely for the purpose of the Project, the limits of which are shown on Exhibit A. 2. Permit Subject to Laws and Permits: Permittee shall, at Permittee's sole cost and expense, comply with the permit issued by the California Coastal Commission, and all municipal, state, and federal authorities now in force or which may hereafter be in force pertaining to the Project and use of the Property as provided by this Permit. This Permit is expressly made subject to any and all applicable laws, statutes, codes, regulations, ordinances, orders, requirements, and regulatory permits or approvals, including any conditions of such permits and approvals issued or required to be issued by such regulatory agencies for or in connection with the Project. All such conditions shall be subject to the prior written approval of the State. Prior to entering or commencing any work on the Property, Permittee shall obtain all such legally required permits or approvals and submit to the State full and complete copies of the same, including documentation related to or referenced in such permits and approvals, along with the corresponding agency contact and telephone numbers, and related California Environmental Quality Act ("CEQA") and/or National Environmental Policy Act documentation, if applicable. 3. Term of Permit: This Permit shall only be for the period beginning upon commencement of the work for the Project and ending upon completion of the work for the Project, unless revoked or terminated according to its terms or reasonably extended by written mutual agreement. 13-19 4. Consideration: CDFW has agreed to grant this Permit for no cost, in exchange for Permittee performing the Project. 5. Permit Subject to Existing Claims: This Permit is subject to existing contracts, permits, leases, licenses, encumbrances, and claims, as well as all matters of record which may affect the Property. 6. Waiver of Claims and Indemnity: This Permit is made on the express condition that the State is to be free from any and all liability by reason of injury or death to persons or loss or damage to property, from whatever cause, arising out of the use by Permittee, its directors, officers, employees, agents, representatives or contractors ("Permittee's Parties") of the Property or any part of it. Permittee, on behalf of itself and each of Permittee's Parties, waives all claims against the State, its directors, officers, employees, agents, representatives and contractors, for injury (including death), loss or damage caused by, arising out of, or in any way connected with the exercise of this Permit or use of the Property. Permittee covenants and agrees to protect, save harmless, indemnify, and defend the State, its directors, officers, employees, agents, representatives and contractors from and against any and all claims, losses, costs, expenses, damages or liability (collectively, "Claims") made during the performance of the Project which allege that they are caused by, arising out of, or in any way connected with the Project, including any CEQA lawsuits against CDFW, any failure on the part of Permittee to fulfill its obligations under this Permit, and any exercise by Permittee of the rights granted by this Permit, except to the extent of Claims resulting solely from the negligent, willful or grossly negligent acts of the State. Permittee will further cause such indemnification and waiver of claims in favor of the State to be inserted in each contract and agreement that Permittee executes for the provision of equipment, materials or services in connection with the Project, except that such indemnification and waiver shall apply to all Claims regardless of when such Claim are made. Additionally, the Permittee has agreed to perform the Project on behalf of the State on the express condition that the Permittee, its officials, and its employees, are to be free from any and all liability by reason of injury or death to persons or loss or damage to property, from whatever cause, arising out of the Project after it has been completed. The State, on behalf of itself and its directors, officers, employees, agents, representatives or contractors ("State Parties"), waives all claims against the Permittee, its officials, and its employees, for injury (including death), loss or damage caused by, arising out of, or in any way connected with the use of the Property or the Project which are made after the Project has been completed, except to the extent of Permittee's gross negligence or willful misconduct. The State covenants and agrees to protect, save harmless, indemnify, and defend the Permittee from and against any and all Claims made after the Project has been completed which allege that they are caused by, arising out of, or in any way connected with the use of the Property or the Project, and additionally, for any failure on the part of the State to fulfill its obligations under this Permit, except to the extent resulting solely from the willful or grossly negligent acts of the City. The Permittee shall require the Permittee's contractor retained to perform the Project to execute a contract wherein the contractor agrees to indemnify, defend and hold harmless the Permittee and CDFW against any and all Claims which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided in connection with the Project including, without limitation, defects in workmanship or materials or its presence or activities conducted on the Property (including the negligent, reckless, and/or willful acts, errors and/or omissions of itself, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable for any or all of them). Nothing herein shall be construed to require the Permittee's contractor to indemnify the Permittee or CDFW from any Claims arising from the sole negligence or willful misconduct of the Permittee or the State Parties. 7. Damage to Lands and Property: During performance of the Project, Permittee shall be responsible for any damage to lands of the State or third parties resulting from Permittee's negligent installation, operation, and maintenance of the Project, including, but not limited to soil erosion, collapse or 2of9 13-20 subsidence and damage resulting from it, and Permittee shall promptly repair and restore to its original condition any such property of the State or any third party, including, but not limited to, levees, roads, bridges, ditches, pipelines, water developments, utilities, buildings, and fences. 8. Hazardous Materials: Without limiting the obligations of Permittee under Paragraph 6 of this Permit, Permittee hereby releases and agrees to indemnify, defend, protect, and hold harmless the State from and against any and all Claims (as defined in Paragraph 6 above) arising from or connected with any Hazardous Materials (as defined below) released or brought onto the Property by Permittee or its contractors in the performance of the Project, except any Hazardous Materials placed, disposed, or released by State. This release and indemnification includes, without limitation, Claims for injury to or death of any person or damage to any property; and the violation or alleged violation of, or other failure to comply with, any Environmental Laws (as defined below). If any action or proceeding is brought against the State by reason of any such Claim, Permittee shall, at the election of and upon written notice from State, defend such action or proceeding by counsel reasonably acceptable to the State or reimburse State for all reasonable charges incurred for services of the California Attorney General in defending the action or proceeding. The term "Hazardous Materials" includes, without limitation, any substance, material or waste that is: (a) flammable, explosive or radioactive; (b) a petroleum product or petroleum hydrocarbon, including crude oil, or any product, by-product or fraction thereof; or (c) designated, defined, classified or regulated as a hazardous material, hazardous waste, hazardous or toxic substance, pollutant, contaminant or related material under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. section 9601, et seq.; hereinafter, "CERCLA"); the Resource Conservation and Recovery Act of 1976 (42 U.S.C. section 6901, et seq.; hereinafter "RCRA"); the Toxic Substances Control Act (15 U.S.C. section 2601, et seq.; hereinafter "TSCA"); the Hazardous Materials Transportation Act (49 U.S.C. section 5101, et seq.; hereinafter "HTA"); the Hazardous Waste Control Law (Health & Saf. Code section 25100, et seq.; hereinafter "HCU); the Carpenter -Presley -Tanner Hazardous Substance Account Act (Health & Saf. Code section 25300, et seq.; hereinafter "HSA"), including the regulations adopted and publications promulgated pursuant to such statutes, or any other applicable Environmental Laws now in effect or enacted after the date of this Permit. The term "Environmental Laws" includes without limitation, CERCLA, RCRA, TSCA, HTA, HCL, HSA and any other federal, state, local or administrative agency statute, code, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment, or Hazardous Materials. 9. Contractors: Permittee shall incorporate the terms, conditions, and requirements of this Permit when contracting out all or any portion of the work permitted hereunder. Permittee shall be responsible for ensuring that all contractors and subcontractors comply with the terms and conditions of this Permit. Failure of any contractor or subcontractor to abide by the terms and conditions of this Permit shall constitute a default by Permittee (see Paragraph 24) allowing State to terminate this Permit and seek all legal remedies. 10. Labor Code Requirements; Prevailing Wage: Permittee understands and agrees that work performed on the Property may be subject to California Labor Code requirements, which include prevailing wage provisions. For more details, please refer to the Department of Industrial Relations (DIR) website at http://www.dir.ca.gov. Permittee shall pay prevailing wage to all persons employed in the performance of any part of the Project if required by law to do so. 11. Insurance Requirements: As a condition of this Permit, and in connection with its indemnification and waiver of claims for the Project, Permittee will provide, and/or cause its contractors to provide, a policy or policies of insurance as follows: 3of9 13-21 COMMERCIAL GENERAL LIABILITY Permittee shall maintain general liability coverage with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate annually for bodily injury and property damage liability combined. The policy shall include coverage for liabilities arising out of the Project, Property, operations, independent contractors, products, completed operations, personal and advertising injury, and liability assumed under this Permit as an insured contract. The policy must include State of California, the California Department of Fish and Wildlife, and their officers, agents and employees as additional insureds by endorsement, but only insofar as the operations under this Permit are concerned. The additional insured endorsement must be provided with the certificate of insurance. AUTOMOBILE LIABILITY Permittee shall maintain motor vehicle liability insurance with limits of not less than $1,000,000 per accident for bodily injury and property damage. The policy shall name the State of California and the California Department of Fish and Wildlife as additional insureds by endorsement with respect to liability arising out of all vehicles owned, hired and non -owned. The additional insured endorsement must be provided with the certificate of insurance. WORKERS' COMPENSATION Permittee shall maintain statutory workers' compensation and employer's liability coverage for all its employees who will be engaged in the performance of the Project, including special coverage extensions where applicable. Employer's liability limits of $1,000,000 shall be required, and the policy shall include a waiver of subrogation in favor of the State of California and the California Department of Fish and Wildlife. The waiver of subrogation endorsement must be provided with the certificate of insurance. GENERAL REQUIREMENTS Permittee shall ensure that the following general requirements are met: a. Insurance Companies must be acceptable to the Department of General Services, Office of Risk and Insurance Management. b. Coverage needs to be in -force for the complete term of this Permit. If insurance expires during the term of the Permit, a new certificate must be received by the State within thirty (30) days of the expiration date of the existing policy. Any new insurance must meet the requirements of this Permit. c. Permittee shall notify the State within five business days of Permittee's receipt of any notice of cancellation or non -renewal of any insurance required by this Permit. d. Permittee is responsible for any deductible or self -insured retention contained within the insurance program. e. In the event Permittee fails to keep in effect at all times the specified insurance coverage, the State may, in addition to any other remedies it may have, terminate this Permit upon the occurrence of such event, subject to the provisions of this Permit. f. Any insurance required to be carried shall be primary, and not excess, to any other insurance carried by the State. g. If Permittee is self -insured in whole or in part as to any of the above described types and levels of coverage, Permittee shall provide State with written acknowledgment of this fact at the time of the execution of this Permit. The State may require financial information to justify Permittee's self -insured status. If, at any time after the execution of this Permit, Permittee abandons its self -insured status, Permittee shall immediately notify State of this fact and shall comply with all of the terms and conditions of this Insurance clause pertaining to policies of insurance in regard to those types and levels of insurance. 4of9 13-22 It is agreed that State shall not be liable for the payment of any premiums or assessments on the required insurance coverage. FIRE AND CASUALTY DAMAGES. State will not keep improvements (if any) which are constructed or installed by Permittee under the provisions of this Permit insured against fire or casualty, and Permittee shall make no claim of any nature against State by reason of any damage to the business or property of Permittee in the event of damage or destruction by fire or other cause, arising other than from or out of gross negligence or willful misconduct of agents or employees of the State in the course of their employment. 12. Reservation of Rights: State reserves the right to use the Property in any manner, provided such use does not unreasonably interfere with Permittee's rights herein. 13. Access Limits and Special Conditions: Access to the Property and use of roads/trails shall be limited to the route(s) designated by State and as depicted in Exhibit A. 14. Notice of Work: Prior to any entry upon the Property for any of the purposes hereinabove set forth, Permittee shall notify the CDFW staff person named below (the "CDFW Representative") in writing at least three (3) business days prior to commencement of work. The Permittee shall also notify the CDFW Representative in writing at least forty-eight (48) hours in advance of any change in the project schedule or prior to cessation of work. Alys Arenas, CDFW Reserve Manager 600 Shellmaker Rd., Newport Beach, CA 92660 (949) 402-4339 alys.arenas@wildlife.ca.gov 15. Limits of Work: In no event shall this Permit authorize work in excess of, contrary to, or that varies from the Project designs or the terms and conditions of any regulatory agency permit or approval or any other Project documents, approved by State. Under no circumstances, whether or not permitted or authorized by any regulatory agency permit or approval, shall work exceed that which is reasonably necessary to carry out the purpose of the Project or extend beyond the Project boundaries as depicted in Exhibit A. The State has issued this Permit in its capacity as the owner of the Property. Nothing in this Permit constitutes regulatory approval of the Project by the State or CDFW. 16. Special Hazards: Reserved. 17. Public Safety: Permittee shall erect orange plastic temporary construction fencing prior to commencement of work to prohibit public access to the construction zone, if applicable. Permittee shall remove such fencing within two (2) days of the completion of work. Permittee shall, or shall cause its contractors or subcontractors to take any and all other necessary and reasonable steps to protect the public from harm due to Project activities. 18. Compliance with Monitoring and Mitigation Measures: Natural resource monitoring and mitigation measures shall be completed in consultation with and to the satisfaction of the CDFW Representative by applicable dates stated in the permit, approval, or other Project document under which the measure is required, if applicable. Activities conducted on the Property authorized by this Permit will comply with all state and federal laws, including but not limited to the California Endangered Species Act (Fish and Game Code section 2808, et seq.), Fish and Game Code section 1600, et seq., CEQA. Unless otherwise authorized by this Permit, all activities conducted on the Property will comply with applicable Wildlife Area Regulations set forth in Chapter 8 (commencing with Section 550) of Subdivision 2 of Division 1 of Title 14, California 5of9 13-23 Code of Regulations, or Ecological Reserve Regulations set forth in Chapter 11 (commencing with section 630) of Subdivision 2 of Division 1 of Title 14, California Code of Regulations, as applicable. State will advise Permittee if any new special status species, threatened/endangered species protocols, or other resource issues are identified on the Property. Permittee shall consult with the State to determine the appropriate level of avoidance/mitigation necessary to protect the resource(s) during future work. 19. Restoration of Property: Permittee shall be responsible for restoration, repair, and revegetation of the Property as specified in the Project Designs in consultation with, and to the satisfaction of, the CDFW Representative, unless otherwise specified, no later than 180 days after completion of the Project. These obligations shall survive the expiration or termination of this Permit. 20. Right to Halt Work: The State reserves the right to halt work and require Permittee to carry out restoration, repair, and mitigation measures at any time, with or without prior notice to Permittee, in the event the State determines that any provision contained herein is violated, or any other threat to the Property or its resources, or the health and safety of any person(s) on the Property arises. 21. Use Restrictions: The use of the Property by Permittee and/or Permittee's Parties shall be restricted to the daytime hours between sunrise and sunset on a day-by-day basis, unless otherwise approved in advance in writing by State. Activities on the Property shall be conducted only in a manner consistent with this Permit that will not interfere with the orderly operation of the Property. Permittee agrees to prohibit any disorderly conduct and/or contraband. Contraband includes, but is not limited to: beer, alcoholic beverages, marijuana, illegal and illicit drugs, firearms, explosives, and weapons. Use of specified roads and trails (as identified on Exhibit A) by any motorized vehicle (including but not limited to motorcycle, car, truck, jeep, tractor, or all -terrain vehicle) shall be limited to only the Permittee and Permittee's Parties for patrol, maintenance or repair purposes only and shall be subject to all other conditions and/or restrictions of this Permit. Permittee shall not use or allow the Property to be used, either in whole or in part, for any purpose other than as herein set forth, without the prior written consent of CDFW. 22. State's Right to Enter: At all times during the term of this Permit, there shall be and is hereby expressly reserved to State and to any of its agencies, contractors, agents, employees, representatives or licensees, the right at any and all times, and any and all places, to enter upon said Property to survey, inspect, or perform any other lawful State purposes. Permittee agrees to not interfere with State's right to enter. 23. Protection of Property: Permittee shall protect the Property, including all improvements and the natural resources thereon, at all times at Permittee's sole cost and expense, and Permittee shall strictly adhere to the following restrictions: (a) Permittee may not place or dump garbage, trash or refuse anywhere upon or within the Property, except in self-contained trash receptacles that are maintained to State's satisfaction by Permittee. (b) Permittee may not commit or create, or suffer to be committed or created, any waste, hazardous condition and/or nuisance to occur upon the Property. 6of9 13-24 (c) Other than as required by the Project, Permittee may not cut, prune or remove any native trees or brush upon the Property, except for routine fire protection, trail clearing, maintenance or the elimination of safety hazards, without first obtaining written permission from the CDFW Representative. (d) Other than as required by the Project, Permittee may not disturb, move or remove any rocks or boulders upon the Property except for routine fire protection, trail clearing, maintenance or the elimination of safety hazards, without first obtaining written permission from the CDFW Representative. (e) Other than as required by the Project, Permittee may not grade or regrade, or alter in any way, the ground surface of the Property, without first obtaining written permission from the CDFW Representative. (f) Permittee may not bait, poison, trap, hunt or engage in any other activity which results in the killing, maiming or injury of animals or wildlife upon the Property, without first obtaining written permission from the CDFW Representative. (g) Permittee shall not generate, use, store, release, or dispose of Hazardous Materials on the Property, or authorize or permit any of the same by any third party. (h) Permittee shall exercise due diligence in the protection of the Property against damage or destruction by fire, vandalism or other cause. 24. Default: In the event of a default or breach by Permittee of any of the terms or conditions set forth in this Permit, State may at any time thereafter, without limiting State in the exercise of any right or remedy at law or in equity which State may have by reason of such default or breach: (a) Maintain this Permit in full force and effect and recover the consideration, if any and other monetary charges as they become due, without terminating Permittee's right to use of the State Property, irrespective of whether Permittee shall have abandoned the Property. (b) Terminate this Permit whereupon Permittee shall immediately vacate and surrender possession of the Property to State. In such event, State shall be entitled to recover from Permittee all damages incurred by State by reason of Permittee's default including, but not limited to, the following: (i) any amount necessary to compensate State for all the detriment proximately caused by Permittee's failure to perform its obligations under this Permit or which in the ordinary course of events would be likely to result therefrom; plus (ii) at State's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law. Upon termination of this Permit, State shall have the right to make any reasonable repairs, alterations, restoration, or modifications to the Property, which State, in its sole discretion, deems reasonable and necessary for the State's use of the Property. 25. State's Right to Cure Permittee's Default: At any time, after Permittee is in default or material breach of this Permit, State may, but is not required to, cure such default or breach at Permittee's cost. If State at any time, by reason of such default or breach, pays any sum or does any act that requires the payment of any sum, the sum paid by State shall be due immediately from Permittee to State at the time the sum is paid by State, and if received from Permittee at a late date shall bear the maximum interest allowed by California law from the date the sum is paid by State until State receives payment from Permittee. 7of9 13-25 26. Revocation of Permit: State shall have the absolute right to revoke this Permit for any reason upon ten (10) days written notice to Permittee. Written notice to Permittee may be accomplished by electronic or facsimile transmission, and the notice period set forth in this paragraph shall begin on the date of the written notice. If Permittee is in breach of the Permit or owes money to the State pursuant to this Permit, any prepaid monies paid by Permittee to State shall be held and applied by the State as an offset toward damages and/or amounts owed. Nothing stated herein shall limit the State's exercise of its legal and equitable remedies. All written notices to Permittee shall be sent to the following address: Public Works Director City of Newport Beach 100 Civic Center Drive, Newport Beach, CA 92658 27. Recovery of Legal Fees: If any action is brought by either party to enforce or interpret any provision of this Permit or to restrain the breach of any agreement contained herein, or for the recovery of possession of the Property, or to protect any rights given, the prevailing party shall not be entitled to attorneys' fees.. 28. Voluntary Execution and Independence of Counsel: By their respective signatures below each party hereto affirms that they have read and understood this Permit and have received independent counsel and advice from their attorneys with respect to the advisability of executing this Permit. 29. Reliance on Investigations: Permittee accepts this Permit, and the Property to which it pertains, in its as -is condition and has made such investigation of the facts pertaining to this Permit and all the matters pertaining thereto as Permittee deems necessary. 30. Entire Agreement: The parties further declare and represent that no inducement, promise or agreement not herein expressed has been made to them and this Permit contains the entire agreement of the parties, and that the terms of this agreement are contractual and not a mere recital. 31. Warranty of Authority: The undersigned each hereby represents that he or she has the authority to, and by signing this Permit does, bind the person or entity on whose behalf and for whom they are signing this Permit and the attendant documents provided for herein, and this Permit and said additional documents are, accordingly, binding on and enforceable against said person or entity. 32. Assignment: This Permit shall not, nor shall any interest herein, be assigned, mortgaged, hypothecated, or transferred by Permittee, whether voluntary or involuntary or by operation of law, nor shall Permittee let or sublet or grant any license of permit with respect to the use and occupancy of the Property or any portion thereof, without the prior written consent of State. 33. Choice of Law: This Permit will be governed and construed by the laws of the State of California 8of9 13-26 IN WITNESS WHEREOF, the undersigned have executed this Permit effective as of the date first set forth above. STATE OF CALIFORNIA Erinn Wilson-Olgrin Regional Manager South Coast Region California Department of Fish and Wildlife CITY OF NEWPORT BEACH Grace K. Leung City Manager City of Newport Beach, a California municipal corporation: Approved as to Form: Aaron C. Harp City Attorney Attest: Leilani I. Brown City Clerk 9of9 13-27 1 2 3 4 5 6 T 1 8 9 10 11 12 13 _ o W. date I by I ckd I descnpfion Exhibit A -Attachment 2 / Q 7o Q ° \ A 225/22 JL DP 30%DESIGN Project Map fi fi 8 12122 JL DP S.1116 0 % DESIGN 0 C 1 3/8/24 1 JL I DP 90% DESIGN c PROJECT BOUNDARY\ o A EX. TIDAL CHANNEL \ CCCLM 0 � r qEX. BOX CULVERT � � B HABRAT DESCRIPTION TYPE HABITAT COLOR ELEVATION R (FEET NAVD) AREA (AC) ( ) MUDFLAT RESTORATION -0.2-2.7 0.34 LOW MARSH RESTORATION 2.7 - 3.8 0.20 MID MARSH RESTORATION 3.8-5.4 0.76 HIGH MARSH RESTORATION 5.4-6.3 1.79 ALKALI MEADOW RESTORATION WA 2.24 0.77 ENHANCEMENT MULEFAT SCRUB RESTORATION ENHANCEMENT N/A 1.31 0.04 0.30 VEGETATED SOIL LIFT WILLOW SCRUB RESTORATION N/A 2.04 0.38 0.22 ENHANCEMENT VEGETATED SOIL LIFT COASTAL SAGE RESTORATION WA 4.28 0.99 ENHANCEMENT TRAILS N/A N/A 1.12 W' \ o � EXISTIN` GTRAIL�✓ p° O C 1 \ D 3 / ` CONCRETE ARIZONACROSSING' SHADE TREE PLANTING LEGEND ��il EX. PEDESTRIAN• • SAMBUCUS MEXICANUS (BLUE ELDERBERRY) BRIDGE _ R o 0 MALOSMALAURINA(LAURELSUMAC) G RHUS INTEGRIFOLIA(LEMONADE BERRY) / 0 +° �• �� ° - PRELIMINARY - NOT F J (� SALIX LASIOLEPSIS(ARROYO WILLOW) ' a�•� ° )l e O FOR CONSTRUCTION PROJECT Q o BOUNDARY BURNS 9 I o a .B o `MSDONNELL o - V ROAD 0 0 4225 Execut ve M Suite #500 EXISTING PARKING AREA / _ La Jolla CA 92037 I / /) � EXISTING ROAD p p � o � o O 868 320 2920 G y\ PROJECT BOUNDARY ° 0 �, �a✓ V O 0 �qo O e G tletail /� I I/ ®=� ✓ _ ` @ �e ^ ° MARCH 2024 G MATHIASON V l '✓/' / - o \1J� designed checked JLEE D POHL ewPon 9aY H NEWPORT BEACH, ANYON NATURE CALIFORNIA PARK BIG C PHASE 3 RESTORATION REVEGETATION PLAN °p0G s�,� �s�\oa� REVEGETATIONPLAN NORTH ?B Protect contact °� 133465 -- scuaIN s 7 drawing rev �oFCFtfo"= CI104 — C March 6, 2024 sheet 16 0 27 sheets file 133465C1104.DWG ZACLIENTS\ENS\NPBEACHCA\133465_BIGCYN-PH3\DESIGN\CARD\DWGS\133465CI104.DWG,3/6/2024 3:20 PM,lee, Joshua I Qosh). 13-28 California Department of Fish and Wildlife Agreement Number: P2450008 Exhibit B — Budget Detail and Payment Provisions City of Newport Beach: (CDFW EXB Revised 04/2019) Page 1 of 1 1. INVOICING AND PAYMENT This is a zero -dollar ($0.00) contract. The City of Newport Beach, herein after referred to as City has agreed to perform the services described in the Scope of Work at no expense to CDFW. City will be reimbursed in accordance with the terms of the Grant administered by the Conservancy. Because this is a no -cost contract, there will be neither invoicing nor payment between the Parties. City will not submit invoices to CDFW, and the City understands that there will be no payment from CDFW for any goods or services. Notwithstanding the forgoing, in the unlikely event that project costs exceed, or are anticipated to exceed, the amount of available grant funding and contingencies, the parties agree to meet in good faith to decide whether and how to proceed, if at all, with respect to funding the Project. 2. CONTRACT WRITTEN PRIOR TO APPROVAL OF THE BUDGET ACT A. It is mutually understood between the parties that this Agreement may have been written prior to approval of the Budget Act for the mutual benefit of both parties in order to avoid program and fiscal delays. B. This Agreement is valid and enforceable only if sufficient funds are made available by the Budget Act for the Fiscal Year(s) involved for the purposes of this program. In addition, this Agreement is subject to any additional restrictions, limitations, or conditions enacted by the Legislature and contained in the Budget Bill or any statute enacted by the Legislature which may affect the provisions, terms, or funding of this Agreement in any manner. C. It is mutually agreed that if the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no further force and effect. In this event, the State shall have no liability to pay any funds whatsoever to the Contractor or to furnish any other considerations under this Agreement and the Contractor shall not be obligated to perform any additional provisions of this Agreement. D. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an agreement amendment to the Contractor to reflect the reduced amount. 3. PROMPT PAYMENT CLAUSE Payment will be made in accordance with, and within the time specified in Government Code Chapter 4.5, commencing with Section 927. 13-29 Modified General Terms and Conditions (GTC 02/2025) EXHIBIT C APPROVAL: This Agreement is of no force or effect until signed by both parties and approved by the Department of General Services, if required. City may not commence performance until such approval has been obtained. 2. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 3. ASSIGNMENT: This Agreement is not assignable by the City, either in whole or in part, without the consent of the State in the form of a formal written amendment. 4. AUDIT: City agrees that the awarding department, the Department of General Services, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. City agrees to maintain such records forpossible audit for a minimum of three (3) years after final payment, unless a longer period of records retention is stipulated. City agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, City agrees to include a similar right of the State to audit records and interviewstaff in any subcontract related to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code §10115 et seq., CCR Title 2, Section 1896). 5. INDEMNIFICATION: City agrees to indemnify, defend and save harmless the State, its officers, agents and employees from any and all claims and losses accruing or resulting to any and all contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation furnishing or supplying work services, materials, or supplies in connection with the performance of this Agreement, and from any and all claims and losses, made during the performance of the Project by any person, firm or corporation who may beinjured or damaged by City in the performance of this Agreement. Upon completion of performance of the Project and thereafter, State agrees to indemnify, defend and save harmless the City, its officers, agents and employees from any and all claims and losses accruing or resulting to any person, firm or corporation who may be injured or damaged by or as a result of the Project, except to the extent of the gross negligence or willful misconduct of City. The foregoing does not include State claims against the City's contractors, subcontractors, suppliers, laborers, and any other person, firm or corporation arising out of the furnishing or supplying work services, materials, or supplies in the performance of the Project. 13-30 6. DISPUTES: City may continue with the responsibilities under thisAgreement during any dispute. 7. TERMINATION FOR CAUSE: The State may terminate this Agreement and be relieved of any payments should the City fail to perform the requirements of this Agreement at the time and in the manner herein provided. In the event of such termination the State may proceed with the work in any manner deemed proper by the State. All costs to the State shall be deducted from any sum due the Cityunder this Agreement and the balance, if any, shall be paid to the City upon demand. 8. INDEPENDENT CONTRACTOR: City, and the agents and employees of Contractor City, in the performance of this Agreement, shall act in an independent capacity and not as officers or employees or agents of the State. 9. RECYCLING CERTIFICATION: The City shall certify in writing under penalty of perjury, the minimum, if not exact, percentage of post -consumer material as defined in the Public Contract Code Section 12200, in products, materials, goods, orsupplies offered or sold to the State regardless of whether the product meets the requirements of Public Contract Code Section 12209. With respect to printer or duplication cartridges that comply with the requirements of Section 12156(e), the certification required by this subdivision shall specify that the cartridges so comply (Pub. Contract Code §12205). 10. NON-DISCRIMINATION CLAUSE: During the performance of this Agreement, City and its subcontractors shall not deny the contract's benefits to any personon the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, nor shall they discriminate unlawfully against any employee or applicant for employment because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. City shall ensure that the evaluation and treatment of employees and applicants for employment are free of such discrimination. City and subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Gov. Code §12900 et seq.), the regulations promulgated thereunder (Cal. Code Regs., tit. 2, §11000 et seq.), the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government Code (Gov. Code §§11135-11139.5), and the regulations or standards adopted by the awarding state agency to implement such article. City shall permit access by representativesof the Department of Fair Employment and Housing and the awarding state agency upon reasonable notice at any time during the normal business hours, but in no caseless than 24 hours' notice, to such of its books, records, accounts, and all other sources of information and its facilities as said Department or Agency shall require toascertain compliance with this clause. City and its subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement. (See Cal. Code Regs., tit. 2, §11105.) City shall include the nondiscrimination and compliance provisions of thisclause in all subcontracts to perform work under the Agreement. 13-31 11. CERTIFICATION CLAUSES: The CONTRACTOR CERTIFICATION CLAUSES contained in the document CCC 04/2017 are hereby incorporated by reference and made a part of this Agreement by this reference as if attached hereto, and are to be completed by the contractor awarded the Project by the City. 12. TIMELINESS: Time is of the essence in this Agreement. 13. COMPENSATION: The consideration to be paid City, as provided herein,shall be in compensation for all of City's expenses incurred in the performance hereof, including travel, per diem, and taxes, unless otherwise expressly so provided. 14. GOVERNING LAW: This contract is governed by and shall be interpreted in accordance with the laws of the State of California, and any dispute brought relating to this contract shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 15. ANTITRUST CLAIMS: The City by signing this agreement hereby certifies that if these services or goods are obtained by means of a competitive bid, the City shall comply with the requirements of the Government Codes Sectionsset out below. a. The Government Code Chapter on Antitrust claims contains the following definitions: 1) "Public purchase" means a purchase by means of competitive bids of goods, services, or materials by the State or any of its political subdivisions or public agencies on whose behalf the Attorney General may bring an action pursuant to subdivision (c) of Section 16750 of the Business and Professions Code. 2) "Public purchasing body" means the State or the subdivision or agency making a public purchase. Government Code Section 4550. b. In submitting a bid to a public purchasing body, the bidder offers and agrees that if the bid is accepted, it will assign to the purchasing body all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2 (commencing with Section 16700) of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of goods, materials, or services by the bidder for sale to the purchasing body pursuant to the bid. Such assignment shall be made and become effectiveat the time the purchasing body tenders final payment to the bidder. Government Code Section 4552. C. If an awarding body or public purchasing body receives, either through judgment or settlement, a monetary recovery for a cause of action assignedunder this chapter, the assignor shall be entitled to receive reimbursement for actual legal costs incurred and may, upon demand, recover from the public body any portion of the recovery, including treble damages, attributable to overcharges that were paid by the assignor but were not paidby the public body as part of the bid price, less the expenses incurred in obtaining that portion of the recovery. Government Code Section 4553. 13-32 d. Upon demand in writing by the assignor, the assignee shall, within one yearfrom such demand, reassign the cause of action assigned under this part if the assignor has been or may have been injured by the violation of law for which the cause of action arose and (a) the assignee has not been injured thereby, or (b) the assignee declines to file a court action for the cause of action. See Government Code Section 4554. 16. CHILD SUPPORT COMPLIANCE ACT: For any Agreement in excess of $100,000, the contractor acknowledges in accordance with Public Contract Code7110, that: a. The contractor recognizes the importance of child and family support obligations and shall fully comply with all applicable state and federal laws relating to child and family support enforcement, including, but not limited to, disclosure of information and compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section 5200) of Part 5of Division 9 of the Family Code; and b. The contractor, to the best of its knowledge is fully complying with the earnings assignment orders of all employees and is providing the namesof all new employees to the New Hire Registry maintained by the California Employment Development Department. 17. UNENFORCEABLE PROVISION: In the event that any provision of this Agreementis unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement have force and effect and shall not be affected thereby. 18. PRIORITY HIRING CONSIDERATIONS: If this Contract includes services in excessof $200,000, the City shall give priority consideration in filling vacancies in positions funded by the Contract to qualified recipients of aid under Welfare and Institutions Code Section 11200 in accordance with Pub. Contract Code §10353. 19. SMALL BUSINESS PARTICIPATION AND DVBE PARTICIPATION REPORTING REQUIREMENTS: a. If for this Contract City made a commitment to achieve small business participation, then City must within 60 days of receiving final payment under this Contract (or within such other time period as maybe specified elsewhere in this Contract) report to the awarding departmentthe actual percentage of small business participation that was achieved. (Govt. Code § 14841.) b. If for this Contract City made a commitment to achieve disabled veteran business enterprise (DVBE) participation, then City must within 60 days of receiving final payment under this Contract (or within such other time period as may be specified elsewhere in this Contract) certify in a report to the awarding department: (1) the total amount the prime City received under the Contract; (2) the name and address ofthe DVBE(s) that participated in the performance of the Contract; (3) the amount each DVBE received from the prime City; (4) that all payments under the Contract have been made to the DVBE; and (5) the actual percentage of DVBE participation that was achieved. A person or entity that knowingly provides false information shall be subject to a civil penalty for each violation. (Mil. & Vets. Code § 999.5(d); Govt. Code § 14841.) 13-33 20. LOSS LEADER: If this contract involves the furnishing of equipment, materials, or supplies then the following statement is incorporated: It is unlawful for any person engaged in business within this state to sell or use any article or product as a "loss leader" as defined in Section 17030 of the Business and Professions Code. (PCC 10344(e).) 21. GENERATIVE Al DISCLOSURE OBLIGATIONS: a. The following terms are in addition to the defined terms and shall apply to the Contract: 1) "Generative Al (GenAl)" means an artificial intelligence system that can generate derived synthetic content, including text, images, video, and audio that emulates the structure and characteristics of the system's training data. (Gov. Code § 11549.64.) b. City shall immediately notify the State in writing if it: (1) intends to provide GenAl as a deliverable to the State; or (2), intends to utilize GenAl, including GenAl from third parties, to complete all or a portion of any deliverable that materially impacts: (i) functionality of a State system, (ii) risk to the State, or (iii) Contract performance. For avoidance of doubt, the term "materially impacts" shall have the meaning set forth in State Administrative Manual (SAM) § 4986.2 Definitions for GenAl. C. Notification shall be provided to the State designee identified in this Contract. d. At the direction of the State, City shall discontinue the provision to the State of any previously unreported GenAl that results in a material impact to the functionality of the System, risk to the State, or Contract performance, as determined by the State. e. If the use of previously undisclosed GenAl is approved by the State, then City will update the Deliverable description, and the Parties will amend the Contract accordingly, which may include incorporating the GenAl Special Provisions into the Contract, at no additional cost to the State. f. The State, at its sole discretion, may consider City's failure to disclose or discontinue the provision or use of GenAl as described above, to constitute a material breach of Contract when such failure results in a material impact to the functionality of the System, risk to the State, or Contract performance. The State is entitled to seek any and all remedies available to it under law as a result of such breach, including but not limited to termination of the contract. 13-34 California Department of Fish and Wildlife Exhibit D — Modified Additional Provisions (Rev 02/2025) Page 1 of 9 1. LICENSES AND PERMITS (If Applicable) — The contractor awarded the Project by the City must be an individual or firm licensed to do business in California and must obtain, at his/her expense, all licenses and permits required by law for accomplishing any work required in connection with this Agreement. For a contractor located within the State of California, a business license from the City/County in which you are headquartered is necessary; however, for a corporation, a copy of its incorporation documents/letters from the Secretary of State's Office can be submitted. For a contractor outside the State of California, it will need to submit to CDFW, a copy of its business license or incorporation papers for its respective State showing that its company is in good standing in that State. In the event any licenses and/or permits expire at any time during the term of this Agreement, City agrees to provide the California Department of Fish and Wildlife (CDFW) a copy of the renewed licenses and/or permits within thirty (30) days following the expiration date. In the event the City fails to keep all required licenses and permits current, the State may, in addition to any other remedies it may have, terminate this Agreement upon occurrence of such event. 2. RIGHTS IN DATA — The City agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes and other written or graphic work produced in the performance of this Agreement, are subject to the rights of the State as set forth in this section. The State will have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. If any such work is copyrightable, the City may copyright the same, except that, as to any work which is copyrighted by the Contractor, the State reserves a royalty -free, non-exclusive, and irrevocable license to reproduce, publish, and use such work, or any part thereof, and to authorize others to do so. 3. RIGHT TO TERMINATE — Both parties reserve the right to terminate this agreement subject to 30 days written notice to the other party. However, the agreement can be immediately terminated for cause. The term "for cause" will mean that either party fails to meet the terms, conditions, and/or responsibilities of the contract. In this instance, the contract termination will be effective as of the date indicated on the notification to the other party. This agreement may be suspended or cancelled without notice, at the option of the City, if the City or State's premises or equipment are destroyed by fire or other catastrophe, or so substantially damaged that it is impractical to continue service. 4. SETTLEMENT OF DISPUTES — Unless otherwise provided in this Agreement, any dispute concerning a question of fact arising under this Agreement which cannot be resolved informally, may be decided by the following two (2) step procedure: a. The City must provide written notice of the particulars of such disputes to the CDFW Contract Manager or appointed representative. The CDFW Contract Manager must respond, in writing, within ten (10) working days of receipt of the written notice of dispute. 13-35 California Department of Fish and Wildlife Exhibit D — Modified Additional Provisions (Rev 02/2025) Page 2 of 9 Should the City disagree with the CDFW Contract Manager's decision, the City may appeal to the second level. Pending the decision on appeal, the City may proceed diligently with the performance of this Agreement in accordance with the CDFW Contract Manager's decision. b. The second level appeal must indicate why the CDFW Contract Manager's decision is unacceptable, attaching it to the City's original statement of the dispute with supporting documents, and a copy of the CDFW Contract Manager's response. This letter of appeal must be sent to the California Department of Fish and Wildlife, Deputy Director, or duly appointed representative. The second level appeal must be filed within fifteen (15) working days upon receipt of the CDFW Contract Manager's decision. Failure to submit an appeal within the period specified will constitute a waiver of all such rights to an adjustment of this Agreement. The Deputy Director, or designee, will meet with the City to review the issues raised. A written decision signed by the Deputy Director or designee, will be returned to the City within fifteen (15) working days of the receipt of the appeal. The decision of the Deputy Director, or designee, will be final. 5. PROPERTY ACQUISITIONS — Property, as used in this section must include: a. Equipment — Tangible property (including furniture) with a unit cost of $5,000.00 or more, and a useful life of four (4) years or more. Actual costs include the purchase price plus all costs to acquire, install and prepare the equipment for its intended use. b. Furniture — Standard office furnishings including desks, chairs, bookcases, credenzas, tables, etc., with a unit cost of less than $5,000.00. C. Portable Assets — Items considered `highly desirable' because of their portability and value, e.g., calculators, laptops, tablets, mobile phones, flash drives, cameras, and microscopes, etc. (excludes all hardware, software, data processing systems). d. Electronic Data Processing (EDP) Equipment —All computerized and auxiliary automated information handling including system design and analysis, conversion of data, computer programming, information storage and retrieval, voice, video, and data communications, requisite system controls, simulation and all related interactions between people and machines. The City may purchase property under this Agreement only if specified in Exhibit B titled `Budget Detail and Payment Provisions'. Any property purchased by the City, with funds provided by CDFW under this Agreement, will be the property of the State during the customary depreciable life thereof. The City must promptly report any such purchase to the CDFW Contract Manager. Should this Agreement be terminated for any reason, or upon expiration and failure to negotiate hereof, all such property will be returned to the State within the timeframe negotiated between the City and the State. Prior written authorization by the CDFW Contract Manager will be required before the City will be reimbursed by CDFW for any property purchases not specified in the Line -Item Budget. The City will provide to the CDFW Contract Manager, all particulars regarding the necessity for such property and the reasonableness of the cost. 13-36 California Department of Fish and Wildlife Exhibit D — Modified Additional Provisions (Rev 02/2025) Page 3 of 9 Before property purchases made by the City are reimbursed by CDFW, the City must provide the following: 1. paid vendor receipts identifying the Agreement number, 2. purchase date, 3. purchase price, 4. description of the item, 5. serial number, 6. model number, and 7. location, including street address where property will Agreement. be used during the term of this Paid receipts must be attached to City's invoices. The City must keep adequate and appropriate records of all property purchased with Agreement funds and at the time of purchase, and if any property is purchased with State Funds, prepare a Property Purchased with State Funds report and submit one (1) copy to the CDFW Contract Manager and one (1) copy must be retained by the City. CDFW reserves the right, at any time, to evaluate the cost of property and reimburse at an amount equal to costs reflected in but not limited to Agreements the State Department of General Services, Procurement Division has negotiated with vendors who supply the same type of property. The City must tag all acquired assets purchased with State Funds. The purpose of tagging assets is to designate the assets as belonging to the State. Upon termination, expiration or failure to negotiate renewal of this Agreement, all property purchased with State Funds funds must promptly be returned to the State. The City will prepare an inventory of State Furnished Property report and submit to the State and will at that time query the CDFW Contract Manager as to the State's requirements, including the manner and method, in returning said property to the State. Final disposition of such property will be at State expense in accordance with instructions from the CDFW Contract Manager to be issued immediately after receipt of the final inventory. 6. LOST, STOLEN or DESTROYED PROPERTY — The City must immediately report the loss, theft, or destruction to the local law enforcement agency (or the California Highway Patrol (CHP) if the crime occurs on either state-owned or state leased property) and to the CDFW Contract Manager and prepare a Property Survey Report. In the case of stolen property, the City must also complete a CHP Report of Crime on State Property (STD 99) form and obtain a copy of the law enforcement agency's report to submit to the CDFW Contract Manager. The City will adjust their property records and retain a copy of the Property Survey Report as documentation. Losses of State property due to fraud or embezzlement must be reported in the same manner as described above. The City will be charged with any loss and damages to State property due to the City's negligence. The City will, at the request of the State, submit an inventory of property furnished or purchased under the terms of this Agreement. Such inventory will be required not more frequently than annually. 7. INCOME RESTRICTIONS — The City agrees that, with the exception of grant funding provided by the Conservancy, any refunds, rebates, credits, or other amounts (including any interest 13-37 California Department of Fish and Wildlife Exhibit D - Modified Additional Provisions (Rev 02/2025) Page 4 of 9 thereon) accruing to or received by the City under this Agreement will be paid by the City to CDFW, to the extent that they are properly allocable to costs for which the City has been reimbursed by CDFW under this Agreement. 8. CONFIDENTIALITY OF DATA - The City must protect from disclosure all information made available by CDFW. The City will not be required to keep confidential any data or information which is publicly available, independently developed by the City, lawfully obtained from third parties, or subject to disclosure pursuant to law. Written consent of CDFW must be obtained prior to disclosing information that is required to be kept confidential under this Agreement. 9. RESERVED. 10. RESERVED. 11. USE OF SUBCONTRACTOR(S) - If the City desires to accomplish part of the services using one (1) or more subcontractors, the following conditions must be met: a. The City must submit any subcontracts to the State for approval prior to starting any of the work, which approval shall not be unreasonably withheld; b. The Agreement between the City and the subcontractor must be in writing; c. The subcontract must include specific language which establishes the rights of the auditors of the State to examine the records of the subcontractor relative to the services and materials provided under the Agreement; and d. Upon termination of any subcontract, the State must be notified immediately, in writing. Further, any subcontract in excess of $100,000.00 entered into as a result of this Agreement must contain all applicable provisions stipulated in this Agreement. The City will be responsible for all work performed under this agreement. The State will not entertain requests to arbitrate disputes among subcontracts concerning responsibility for performing any part of the work. All changes in subcontractual relationship during the term of this agreement must be submitted to the CDFW Contract Manager in writing within 10 working days of said change. 12. POTENTIAL SUBCONTRACTOR(S) - Nothing contained in this Agreement or otherwise will create any contractual relation between the State and any subcontractor(s) and no subcontract will relieve the City of its responsibilities and obligations hereunder. The City agrees to be as fully responsible to the State for the acts and omissions of its subcontractor(s) and of persons directly employed or indirectly employed by any of them as it is for the acts and omissions of persons directly employed by the City. The City's obligation to pay its subcontractor(s) is an independent obligation from the State's obligation to make payments to the City. As a result, the State will have no obligation to pay or to enforce the payment of any monies to any subcontractor. 13-38 California Department of Fish and Wildlife Exhibit D — Modified Additional Provisions (Rev 02/2025) Page 5 of 9 13. TRAVEL AND PER DIEM —The City agrees that all travel and per diem paid its employees under this Agreement will be at rates not to exceed those amounts paid to the non-represented/excluded State employees. No travel outside the State of California will be reimbursed unless prior written authorization is obtained from CDFW. 14. NOVATION — If the City proposes any Novation Agreement, CDFW will act upon the proposal within sixty (60) days after receipt of the written proposal. The State may review and consider the proposal, consult and negotiate with the City, and accept or reject all or part of the proposal. Acceptance or rejection may be made orally within the sixty (60) day period and confirm in writing within five (5) days. No Novation Agreement will become operative or otherwise binding on the State pursuant to this paragraph in the absence of a formal Novation Agreement amendment which has been approved in accordance with all applicable State policy, laws, and procedures. 15. INSURANCE — Prior to commencement of the work, the City must furnish CDFW either proof of self-insurance, or certificate(s) of insurance showing that the required insurance is presently in effect. City agrees to make complete copies of its applicable insurance policies available to CDFW upon request. The State will not be responsible for any premiums or assessments on the policy. General Provisions Applying to All Policies: 1) Coverage Term — Coverage needs to be in force for the complete term of the contract. If insurance expires during the term of the contract, a new certificate must be received by the State at least ten (10) days prior to the expiration of this insurance. Any new insurance must still comply with the original terms of the contract. The policy's retroactive date must be shown on the certificate of insurance and must be before the execution date of the contract or before the start of any contract work. 2) Policy Cancellation / Termination & Notice of Non -Renewal — City must provide the State within two (2) business days a copy of any notice of Cancellation/Termination or Non -renewal received by City for any of the required insurance policies. In the event City or its contractors fails to keep in effect at all times the specified insurance coverage, the State may, in addition to any other remedies it may have, terminate this Contract upon the occurrence of such event, subject to the provisions of this Contract. 3) Deductible — City and its contractors, as applicable, shall be responsible for any deductible or self -insured retention contained within their insurance program. 4) Primary Clause — Any required insurance contained in this contract must be primary, and not excess or contributory, to any other insurance carried by the State. 5) Insurance Carrier Required Rating — All insurance companies must carry a rating acceptable to the Office of Risk and Insurance Management. If the City is self -insured for a portion or all its insurance, review of financial information including a letter of credit may be required. 13-39 California Department of Fish and Wildlife Exhibit D — Modified Additional Provisions (Rev 02/2025) Page 6 of 9 6) Endorsements — Any required endorsements requested by the State must be physically attached to all requested certificates of insurance and not substituted by referring to such coverage on the certificate of insurance. This endorsement must be supplied under form acceptable to the Office of Risk and Insurance Management. In the case of City's utilization of subcontractors to complete the contracted scope of work, the general contractor awarded the Project by the City must include all of its subcontractors as insureds under City's insurance or supply evidence of insurance to the State equal to policies, coverages and limits required by this Agreement. 7) Inadequate Insurance — Inadequate or lack of insurance does not negate the City's obligations under the contract. Provider hereby represents and warrants that Provider is currently and will remain, for the duration of this Agreement at Provider's own expense, insured or self -insured against: 1) Commercial General Liability — City's general contractor awarded the Project must maintain general liability on an occurrence form with limits not less than $1,000,000.00 per occurrence for bodily injury and property damage liability combined with a $2,000,000.00 annual policy aggregate. The policy must include coverage for liabilities arising out of premises, operations, independent contractors, products, completed operations, personal & advertising injury, and liability assumed under an insured contract. This insurance must apply separately to each insured against whom claim is made or suit is brought subject to the contractor's limit of liability. The policy must be endorsed to include the State of California, its officers, agents, and employees as additional insured, but only with respect to work performed under the Contract. 2) Automobile Liability — (If applicable per Exhibit A) City's general contractor awarded the Project must maintain motor vehicle liability with limits not less than $1,000,000.00 combined single limit per accident. Such insurance must cover liability arising out of a motor vehicle including owned, hired, and non -owned motor vehicles. The policy must be endorsed to include the State of California, its officers, agents, and employees as additional insured, but only with respect to work performed under the Contract. 3) Reserved. 4) Reserved. 5) Reserved. 13-40 California Department of Fish and Wildlife Exhibit D - Modified Additional Provisions (Rev 02/2025) Page 7 of 9 6) Pollution Liability - (If applicable per Exhibit A) City's general contractor awarded the Project must maintain pollution liability covering the contractor's liability with limits not less than $1,000,000.00 per incident, and annual aggregate amount of $2,000,000.00 which may include Pesticide/Herbicide Applicator Coverage if applicable, or its equivalent. The policy must be endorsed to include the State of California, its officers, agents, and employees as additional insured, but only with respect to work performed under the Contract. 7) Reserved. 8) Reserved. 9) Workers Compensation and Employers Liability - City's general contractor awarded the Project must maintain statutory worker's compensation and employer's liability coverage for all its employees who will be engaged in the performance of the Contract. Employer's liability limits of $1,000,000.00 are required. The waiver of subrogation endorsement is required when work is performed on State owned or controlled property. The Workers' Compensation policy must be endorsed with a waiver of subrogation in favor of the State. When watercraft is/are used in performance of agreement work contractor's workers' compensation policy must be endorsed to include applicable special coverage extensions where applicable. 16. COMPUTER SOFTWARE (IT SERVICES) - The City certifies that it has appropriate systems and controls in place to ensure that State funds will not be used in the performance of this Agreement for the acquisition, operation, or maintenance of computer software in violation of copyright laws. 17. TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT Recipients of a federal contract, grant or other federal funds are prohibited to procure/obtain, and extend, re -new and/or enter into a new contract to procure equipment, services or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system or as critical technology as part of any system. Covered telecommunications equipment is equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary of affiliate of such entities). For the purpose of public safety, security of government facilities, physical surveillance of critical infrastructure and other nation security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahura Technology Company (or any subsidiary or affiliate of such entities) is prohibited. 2 CFR 200.216. 18. INSPECTION - The State, through any authorized representatives, has the right at all reasonable times to inspect or otherwise evaluate the work performed or being performed hereunder including subcontract supported activities and the premises in which it is being performed. If any inspection or evaluation is made by the State of the premises of the City or a subcontractor, the City must provide and require their subcontractor(s) to provide all reasonable facilities and assistance for the 13-41 California Department of Fish and Wildlife Exhibit D - Modified Additional Provisions (Rev 02/2025) Page 8 of 9 safety and convenience of the State representatives in the performance of their duties. All inspections and evaluations must be performed in such a manner as will not unduly delay the work. 19. FORCE MAJEURE - Neither party will be liable to the other for any delay in or failure of performance, nor will any such delay in or failure of performance constitute default, if such delay or failure is caused by 'Force Majeure'. As used in this section, 'Force Majeure' is defined as follows: Acts of war, acts of God such as earthquakes, floods, and other natural disasters such that performance is impossible. 20. FORCED, CONVICT AND INDENTURED LABOR - No foreign -made equipment, materials, or supplies furnished to the State pursuant to this Agreement may be produced in whole or in part by forced labor, convict labor, or indentured labor. By submitting a bid to the State or accepting a purchase order, the City agrees to comply with this provision of the Agreement. This requirement does not apply to public works (construction) Agreements. 21. CONTRACT STAFF REQUIREMENTS - The City represents that it has or will secure at its own expense, all staff required to perform the services described in this Agreement. Such personnel must not be employees of or have any contractual relationship with the California State Department of Fish and Wildlife or any other governmental entity. 22. EVALUATION OF CONTRACTOR (CONSULTANT AGREEMENTS ONLY) -Performance of the City, under this Agreement, will be evaluated. The evaluation must be prepared on a Contract/Contractor Evaluation Sheet (STD 4) and maintained in the Agreement file. If the City did not satisfactorily perform the work or service, a copy of the negative evaluation form will be submitted to the City and the Department of General Services, Legal Division, within fifteen (15) days of the completion of the evaluation. The City will have thirty (30) days to prepare and send statements defending its performance under the Agreement. The evaluation of the City will not be a public record. 23. REQUIREMENTS FOR LEGAL AGREEMENTS ONLY - In accordance with Public Contract Code § 10353.5, the City must: ❖ Agree to adhere to legal costs and billing guidelines designated by the State; ❖ Adhere to litigation plans designated by the State; ❖ Adhere to case phasing of activities designated by the State; ❖ Submit and adhere to legal budgets as designated by the State; Maintain legal malpractice insurance in an amount not less than the amount designated by ••• the State; Submit to legal bills legal bill audits and law firm audits if requested by the State or by any legal cost control providers retained by the State for this purpose; and ❖ Submit to a legal cost and utilization review, as determined by the State. 24. EXECUTIVE ORDER N-6-22 - RUSSIA SANCTIONS - On March 4, 2022, Governor Gavin Newsom issued Executive Order N-6-22 (the EO) regarding Economic Sanctions against Russia and Russian entities and individuals. "Economic Sanctions" refers to sanctions imposed by the 13-42 California Department of Fish and Wildlife Exhibit D — Modified Additional Provisions (Rev 02/2025) Page 9 of 9 U.S. government in response to Russia's actions in Ukraine, as well as any sanctions imposed under state law. The EO directs state agencies to terminate contracts with, and to refrain from entering any new contracts with, individuals or entities that are determined to be a target of Economic Sanctions. Accordingly, should the State determine City is a target of Economic Sanctions or is conducting prohibited transactions with sanctioned individuals or entities, that shall be grounds for termination of this agreement. The State shall provide City advance written notice of such termination, allowing City at least 30 calendar days to provide a written response. Termination shall be at the sole discretion of the State. 13-43 ATTACHMENT C AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND NEWPORT BAY NATURALISTS AND FRIENDS DBA NEWPORT BAY CONSERVANCY TO DELINEATE RESPONSIBILITIES AND DESIGNATE FUNDING FOR PHASE3 RESTORATION WORK IN BIG CANYON THIS AGREEMENT ("Agreement") is made and entered into as of this day of , 2025 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NEWPORT BAY NATURALISTS AND FRIENDS, a California non-profit public benefit corporation doing business as ("DBA") NEWPORT BAY CONSERVANCY ("NBC"), with the foregoing referred to herein in the singular as "Party" and collectively as "Parties," 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 the City. B. Big Canyon between Jamboree Road and Back Bay Drive consists of the Big Canyon Nature Park owned by the City of Newport Beach as well as a freshwater lake area owned by California Department of Fish and Wildlife ("CDFW'). C. City is the owner of real property commonly known as the Big Canyon Nature Park, located in Sections 24 and 25 of Township 6 South, Range 10 West of the Newport Beach 7.5 minute U.S. Geological Survey (USGS) topographic quadrangle within the lowest subwatershed of the Big Canyon Watershed situated west of Jamboree Road and along Back Bay Drive as depicted on Exhibit A attached hereto and incorporated herein by reference. D. CDFW is the owner of a freshwater lake located to the east and upstream of Back Bay Drive within Big Canyon, as depicted on Exhibit A. E. The City and NBC have been working together since 2016 on a plan to restore Big Canyon Nature Park due to it becoming heavily vegetated with invasive trees, notably the Brazilian Pepper Tree, and a tulle -chocked freshwater lake that is now a large mosquito breeding area and a sink for pollutants, especially selenium. The six acre Phase 1 of the restoration was completed in July 2017. The eleven acre Phase 2 was completed in July 2021. The proposed fourteen acre Phase 3 project is located west of Phase 2 and east of Back Bay Drive. F. NBC is the recipient of three grants to fund, in part, the design and implementation of construction for Phase 3 of the restoration project: (1) State Coastal Conservancy in the amount of $1,575,409.00-1 (2) Ocean Protection Council in the amount of $2,684,675.00-1 and (3) to be finalized in August of 2025, Wildlife Conservation Board expected in the amount of $3,241,000 (collectively, "Grants"). 13-44 G. The Grants provide NBC with funds for Phase 3 of the restoration project including preparation of final construction documents and the implementation of restoration of fourteen acres of coastal sage upland, riparian, and freshwater and saltwater marsh habitats within and adjacent to the area owned by CDFW ("Project"). H. The Project includes but is not limited to: restoring Big Canyon Creek; creating or restoring fourteen acres with native vegetation; recreating an estuary in Big Canyon by removing bay spoils stockpiled in the canyon in the 1960's; providing pristine habitat for endangered or sensitive bird, fish, and plant species; reducing the selenium hazard in the canyon; removing a large mosquito breeding area; removing an infestation of the Polyphagous Shothole Borer; providing for coastal habitat adaptation to sea level rise; and, significantly enhancing the educational opportunities for a popular destination for school classes around the county. City will provide upfront interim funding to proceed with the Project, and upon receipt of the funding from the Grants, NBC will reimburse the City for the interim funding as specified in this Agreement. NBC will also utilize a portion of the Grant funds for other activities such as monitoring and maintenance. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: ARTICLE 1. ELEMENTS OF AGREEMENT The Parties will work cooperatively together so that the Project may be completed in a manner so as to minimize costs and impacts to the public. The specific terms and conditions governing the elements of this Agreement are set forth hereinafter. ARTICLE 2. RESPONSIBILITIES OF NBC 2.1 NBC shall administer the provisions of the Grants, including but not limited to Project reporting and data management. NBC will provide copies of all Grants and permits to the City. 2.2 NBC shall be responsible to ensure all authorization is obtained from CDFW for the City to access the CDFW property and perform the Project, and for obtaining all resource and regulatory agency permits, paying all permit fees, and ensuring all permit and Grants requirements are incorporated into the construction documents. 2.3 NBC will process all invoices received from the City for work satisfactorily performed by a contractor or consultant and other reimbursable Project related charges and services pursuant to the terms of the Grants and submit such invoices for reimbursement to the Grants funding agencies within thirty (30) days and in accordance with the provisions of the Grants. NBC shall send the reimbursement funds to the City within thirty (30) days of receipt of funding through the Grants. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 2 13-45 2.4 NBC shall ensure the Grants funding includes reimbursement for all fees for consultant provided construction support services including hiring the design Engineer of Record. Construction support services include, but are not limited to: preparing construction document packages to be uploaded into PlanetBids; reviewing and answering questions posed by contractors during the bid period; reviewing qualifications of low -bidders, preparing for and running pre -construction meetings; reviewing contractor submittals and requests -for -information; and attending site visits to the construction site when requested by the City or the Project construction manager. 2.5 NBC will provide funding to hire a project management team that will provide the day-to-day oversight over the construction contractor. The contracted construction management team will report to the City. 2.6 During Project implementation, NBC shall be responsible for all cultural and biological monitoring including hiring and paying consultants and monitors as may be required. 2.7 After Project completion, NBC is responsible for irrigation and site maintenance and monitoring as may be required. As stated in Section 3.10 of this Agreement, during the second through fifth year after Project completion (excluding the first year), City agrees to contribute up to twenty percent (20%) of these maintenance and monitoring costs, in an amount not to exceed fifty thousand dollars ($50,000) per year. 2.8 NBC staff shall attend construction meetings when requested by City or the Project construction manager. 2.9 NBC will perform close-out of funding for the Grants and permit applications. ARTICLE 3. RESPONSIBILITIES OF CITY 3.1 City will hire construction contractor(s) for the Project following public bid and contract procedures. City, in its sole discretion and for any reason, shall have the right to reject any bids for the implementation of the Project. 3.2 City will contract with a construction management company to manage and inspect the Project per the approved construction documents, permits, established budget and Project schedule. City will pay the construction manager invoices. City shall submit paid invoices to NBC for reimbursement within thirty (30) days of paying the invoice. NBC shall send the reimbursement funds to the City within thirty (30) days of receipt of funding through the Grants. 3.3 City will contract with a geotechnical engineer and a surveyor to assist City's project manager in the implementation of the Project. City will pay the Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 3 13-46 geotechnical engineer and surveyor invoices. City shall submit paid invoices to NBC for reimbursement. 3.4 City will conduct the construction activities in accordance with industry standards and including any repairs of property damaged during construction. 3.5 City will review all change order requests with NBC and obtain written authorization from NBC, which shall not be unreasonably withheld, before directing a contractor to perform work under a change order. NBC acknowledges that costs for change order work is often time -sensitive and its timely review and responses to City are required in order to avoid additional costs. 3.6 The City shall require that all contractors provide insurance coverage with NBC and the Grants funding agencies named as additionally insured entities. 3.7 City agrees to review with NBC all invoices from the contractors. NBC's approval of invoices shall not be unreasonably withheld. City will forward copies of paid invoices to NBC for reimbursement. 3.8 City agrees to provide information that is in the custody or control of the City to NBC as needed to meet the reporting requirements of the Grants. 3.9 City will not charge NBC for time spent by City staff administering the Project. 3.10 City agrees to contribute up to twenty percent (20%) of the maintenance and monitoring costs for the second through fifth year after Project completion (excluding the first year), in an amount not to exceed fifty thousand dollars ($50,000) per year. Such funds may also be used by City for any unforeseen and unbillable costs associated with the Project that may not be covered under the Grants. Notwithstanding the foregoing, NBC will use best efforts to secure additional grant funding to cover any unforeseen and unbillable costs not covered under the Grants. ARTICLE 4. TERM The term of this Agreement shall commence on the Effective Date and shall continue for five (5) years after Project completion, or until June 30, 2032, whichever occurs first, unless terminated earlier as provided herein. ARTICLE 5. PAYMENT AND REIMBURSEMENT In accordance with the terms and conditions of this Agreement, the total cost of the Project shall not exceed Six Million Five Hundred Ninety Four Thousand Dollars and 00/100 cents ($6,594,000.00). City shall be responsible for making payments on invoices submitted by contractor(s). Upon City's payment to contractor(s), City shall Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 4 13-47 forward copies of invoices to NBC, and NBC shall submit such invoices within thirty (30) days to the Grants funding agencies for reimbursement in accordance with the Grants. Upon NBC's receipt of the reimbursements, NBC shall provide such reimbursements to City within thirty (30) days. NBC shall not unreasonably delay providing City with reimbursements for the Project. ARTICLE 6. LICENSE 6.1 For the duration of this Agreement, City hereby grants a revocable, non- exclusive license to NBC, including its agents, contractors, subcontractors, and consultants when acting on behalf of NBC, to enter upon, over and under and temporarily occupy those portions of City property in Big Canyon necessary to carry out the Project in accordance with the terms and conditions of the Grants and this Agreement ("License"). 6.2 The License includes posting of signs, subject to approval of the City, as reasonably necessary or required to notify the public of the work, for safety purposes, as required by the terms of the Grants, or other such lawful purpose. 6.3 No grant of an easement or other interest in land is intended by the License or this Agreement. 6.4 Nothing herein shall be construed to give NBC any right to hold over or to continue possession of after the expiration or termination of this Agreement. 6.5 NBC shall keep the City reasonably informed of its use of the licensed area, and shall submit its work schedule, including intended days and hours of operation, to the City for approval, which approval shall not be unreasonably withheld. NBC agrees that all of its activities shall be held solely during approved days and hours of operation, subject to exceptions made on a case -by -case basis upon the prior written approval of the City. 6.6 NBC agrees to accept the license area in an "as is" condition, and that no representations with respect to the condition or improvements of the license area have been made except as specifically set forth in this Agreement. 6.7 Use of the license area by NBC is non-exclusive and City may permit other persons or entities to utilize portions of the license area, provided that such use does not interrupt or unreasonably interfere with the essential operation of the Project. ARTICLE 7. NOTICES Any notice or other written instrument required or permitted by this Agreement to be given to either Party shall be deemed received when personally served or transmitted by facsimile, or forty-eight (48) hours after being deposited in the U.S. Mail, postage prepaid, 1st Class or certified, and addressed as follows: Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 5 13-48 To City: City of Newport Beach Attn: Jim Houlihan, Deputy Public Works Director/City Engineer 100 Civic Center Dr. Newport Beach, CA 92660 To NBC: Newport Bay Conservancy Attn: Heather Cieslak, Operations Director 2301 University Drive Newport Beach, CA 92660 ARTICLE 8. 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. ARTICLE 9. FORCE MAJEURE Except for the payment of money, neither Party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, acts of God, strike or labor dispute, war or other violence, acts of third parties not within their reasonable control or any law, order or requirement of any governmental agency or authority. ARTICLE 10. GOVERNING LAW & VENUE This Agreement shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court. The Parties agree to waive any and all rights to request that an action be transferred for trial to another County. This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. ARTICLE 12. WAIVER A waiver of a breach of the covenants, conditions or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 6 13-49 of the same or other covenants, conditions or obligations of this Agreement. ARTICLE 13. MODIFICATION Alteration, change, or modification of this Agreement shall be in the form of a written amendment, which shall be signed by each Party. ARTICLE 14. ASSIGNMENT No Party shall assign its performance of this Agreement, nor any part thereof, without the prior written consent of the non -assigning parties. ARTICLE 15. CONDITIONS OF AGREEMENT 15.1 NBC must have all permits and licenses in place prior to City awarding a successful bid to a contractor to commence the Project. 15.2 City shall provide NBC with written documentation that contractors have furnished performance bonds where required in favor of the Grants funding agency and NBC in amounts required by law and as specified in the Grants. 15.3 Prior to City's commencement of any construction pursuant to this Agreement, NBC shall provide City written evidence that NBC has complied with all conditions of the Grants, as required by the Grant funding agencies ARTICLE 16. ADMINISTRATION 16.1 This Agreement will be administered by the Public Works Department. City's Public Works Director, or designee, shall have the authority to act for City under this Agreement. 16.2 NBC shall act as lead for the administration, operation and supervision of the Project as required by the Grants. ARTICLE 17. INDEMNITY AND LIABILITY FOR DAMAGES 17.1 City shall indemnify, defend and hold NBC, its officers, agents and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by City, its officers, agents, or employees, with respect to the performance of work on the Project, save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any negligence of NBC, its officers, agents or employees, or by any act or omission for which the NBC, its officers, agents or employees are liable without fault. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 7 13-50 17.2 NBC shall indemnify, defend and hold City, its officers, agents and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by NBC, its officers, agents, or employees, with respect to the Project or the Grants, save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any negligence of City, its officers, agents or employees, or by any act or omission for which City, its officers, agents or employees are liable without fault. ARTICLE 18. INSURANCE REQUIREMENTS Without limiting each Party's duty to indemnify the other Party, and prior to commencement of the Project, each Party 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, or in the case either party is a public agency, self- insurance, of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by reference. All policies, endorsements, certificates, and/or binders shall be subject to approval by the other Party as to form and content. These requirements are subject to amendment or waiver only in writing by the other Party. A lapse in any required insurance coverage during this Agreement shall be a breach of this Agreement. ARTICLE 19. CONFLICT OF INTEREST Either Party or its officers and employees may be subject to the provisions of the California Political Reform Act of 1974 ("Act"), which: (a) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement; and, (b) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, each Party shall conform to all requirements of the Act. Failure to conform to the requirements of the Act constitutes a material breach and is grounds for immediate termination of this Agreement by the other Party. Each Party shall indemnify and hold harmless the other Party for any and all claims for damages resulting from violation of this section. ARTICLE 20. COMPLIANCE WITH ALL LAWS Each Party 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 either Party shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 8 13-51 ARTICLE 21. POSSESSORY INTEREST TAXES NBC acknowledges that the Agreement granted herein may be subject to possessory interest taxes. NBC shall have the sole obligation to pay any taxes, fees and assessments, plus applicable penalties and interest, which may be imposed by law and arise out of NBC's Agreement hereunder. NBC shall indemnify, defend and hold harmless City against any and all such taxes, fees, penalties or interest assessed, or imposed against City hereunder. ARTICLE 22. TERMINATION OF AGREEMENT Any Party may at any time prior to the commencement of the Project and without cause, terminate this Agreement, upon not less than sixty (60) calendar days' written notice to the other Party. ARTICLE 23. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Parties and approved as to form by the City Attorney. ARTICLE 24. 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. ARTICLE 25. COUNTERPARTS AND AUTHORITY 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 and the same instrument. By executing this agreement, each signer represents and certifies that they have authority to bind their respective Party and that by executing this Agreement such Party is bound hereto. The Parties acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. ARTICLE 27. 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. Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 9 13-52 ARTICLE 28. THIRD PARTY RIGHTS The Parties do not intend to create rights in or grant remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant, obligation or undertaking established herein. [SIGNATURES ON NEXT PAGE] Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 10 13-53 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: AarUnC. Citvor ATTEST: Date: BY: CITY OF NEWPORT BEACH, a California municipal corporation Date: ->rl 'I /I By: Harp V; , Ls Grace K. Leung ney AF City Manager Molly Perry Interim City Clerk CONSULTANT: NEWPORT BAY NATURALISTS AND FRIENDS, a California non-profit public benefit corporation doing business as ("DBA") NEWPORT BAY CONSERVANCY Date: By: Bryan Tsu Chief Executive Officer Date: By: Susie Onate Secretary [END OF SIGNATURES] Attachments: Exhibit A: Depiction of Phase 3 Restoration Area Exhibit B: Insurance Requirements Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page 11 13-54 EXHIBIT A DEPICTION OF THE PHASE 3 RESTORATION AREA (see attached) Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 3 Page A-1 13-55 1 2 Exhibit A- Project Map EX. TIDAL CHANNEL' 11t it EX BOX CULVERT HABITAT RABRAT ELEV!NA T �I DESCRIPTION TYPE COLOR (FAREA (AC) d MUDFUT RESTORATION ';.. �;:: 0.31 O LOW MARSH RESTORATION 020 ( m Y MID MARSH RESTORATION Q76 / HIGH MARSH RESTORATION 1.79 ALKALI MEADOW RESTORATION 224 ENHANCEMENT O.T7 �•• RESTORATION 1.31 MULEFAT SCRUB ENHANCEMENT (104VEGETATED SOIL LIFT 030RESTORATION 204WILLOW SCRUB ENHANCEMENT 038VEGETATED SOIL LIFT "' 092COASTAL SAGE RESTORATION 420 ENHANCEMENT 0.99 1 TRAILS WA WA 1.12 /�. E CONCC EX RETE APoION4 CROSSING I SHADE TREE PLANTING LEGEND EX PEDESTMAN SAMBUCUS MEXICANUS (BLUE ELDERBERRY) _ BRIDGE i MALOSMA LAURINA(LAUREL SUMAC) n U !� y RHUS INTEGRIFOLIA (LEMONADE BERRY) I /� SAUX LASKILEPSIS(ARROYO WILLOW) /I r EXISTING PARKING AREA PROJECT BOUNDARY � I • l yl -IENTS1E71SWPBEACHCA1133465_BIGCYWPH3IDESIGNICADDIDWCS\133415CI104.DWG,3r =43:20 PM.Iee. Odd IQwh). 7 a • 10 11 12 13 t \ (�` \/ 4 P^y — \... li ., 0 may— ��. � Q� Do •d//'' ° -��` PROJECT BOUNDARY r` �\ \ O t EXISTINGTRAIL I � 0 i Ih/ EX CULVERTS _ i PRELIMINARY - NOT • M FOR CONSTRUCTION .:_ PROJECT BOUNDARY ` �MRNS DONNELL 4225Eaec t,, Sa - a5W EXISTING ROAD - 1 La Jdla CA 9203T ��'}} O. O c h BS&J2 Emo / �(V✓ 6p f Q 0 Q • eta ed R.\ �MARCH2D21 Ie GMATHIASON �1 • o ;D E �� ` v�\ NEWPORT BFACH, CALIFORNIA BIG CANYON NATURE PARK PHASE 3 RESTORATION �"� REVEGETATION PLAN P•M k 133465 — — °�• C1104 — C MercN 6, 202A +het 16 01 27 eNsN M 133465CN04.DWG REVEGETATION PLAN eca[ l H- daaaigion IESIGN IESIGN IESIGN 13-56 EXHIBIT B INSURANCE REQUIREMENTS 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. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City of Newport Beach, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liabilitv Insurance. Consultant shall maintain commercial general liability insurance, and if necessary excess/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 two million dollars ($2,000,000) per occurrence, four million dollars ($4,000,000) general aggregate. The policy shall cover liability arising from bodily injury, property damage, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). Consultant shall submit to City, along with a certificate of insurance, additional coverage as stated in Section 4. Other Insurance Requirements. 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 13-57 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. Consultant shall submit to City, along with a certificate of insurance, additional coverage as stated in Section 4. Other Insurance Requirements. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of two million dollars ($2,000,000) per claim and four million dollars ($4,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. E. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this contract, then said policies shall be "following form" of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this contract, including, but not limited to, the additional insured and primary & non-contributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant's primary and excess/umbrella liability policies are exhausted. Consultant shall submit to City, along with a certificate of insurance, additional coverage as stated in Section 4. Other Insurance Requirements. 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 of Newport Beach, its City Council, boards and commissions, officers, agents, volunteers, 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, 13-58 excess/umbrella liability, pollution, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City of Newport Beach, its City Council, boards and commissions, officers, agents, volunteers, employees shall be included as insureds under such policies. C. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City of Newport Beach, 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. D. Additional Insured Status. All liability policies including general liability, excess/umbrella liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City of Newport Beach, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. E. 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. F. 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. G. Subcontractors. Consultant shall verify that all subcontractors maintain insurance meeting the minimum 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 20 38 04 13. Limits of liability for General Liability in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) and two million dollars ($2,000,000) completed operations aggregate; Professional Liability (Errors & Omissions) in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000); Pollution Liability Insurance in an amount not less than one million dollars ($1,000,000) per loss and in the aggregate. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: 13-59 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. 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 20 38 04 13. 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 13-60 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. 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. 13-61 Attachment D PROFESSIONAL SERVICES AGREEMENT WITH HORROCKS LLC FOR BIG CANYON RESTORATION — PHASE 3 CONSTRUCTION MANAGEMENT SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 26th day ofAugust, 2025 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and HORROCKS LLC, a Delaware limited liability company ("Consultant"), whose local address on file with the California Secretary of State is 3111 Camino Del Rio North, Suite 550, San Diego, CA 92108 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 Construction Management Services. The Consultant's Construction Manager will oversee and monitor the construction contractor in its performance of the contract document tasks. The Construction Manager will report to the City's Project Manager, provide recommendations on Action Items, receive direction from the City's Project Manager, and communicate decisions to the construction contractor. ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional 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 professional 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 December 31, 2027, 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. 13-62 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 Four Hundred Eighty Seven Thousand Forty Dollars and 001100 ($487,040.00), 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. Horrocks LLC Page 2 13-63 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 Matt Horrocks 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. 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 professional standards and with the ordinary degree of skill and care that would be used by other reasonably Horrocks LLC Page 3 13-64 competent 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 i 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, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement (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"), and which relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, 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, active 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 the Consultant. Horrocks LLC Page 4 13-65 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 Horrocks LLC Page 5 13-66 of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint 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. Horrocks LLC Page 6 13-67 18. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to Consultant or contractor bids or actual cost to City. 19. 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. 20. 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. 21. 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. 22. 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. Horrocks LLC Page 7 13-68 23. 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 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 sea., 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. 25.2 If subject to the Act and/or Government Code §§ 1090 et seci., 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. 26. NOTICES 26.1 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. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Director of Public Works Public Works Department City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Horrocks LLC Page 8 13-69 Attn: Matt Horrocks Horrocks LLC 2162 W. Grove Pkwy Ste. 100 Pleasant Grove, UT 84062 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment underthis 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.). 28. TERMINATION 28.1 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. 28.2 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. 29. STANDARD PROVISIONS 29.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 29.2 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, Horrocks LLC Page 9 13-70 county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.3 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. 29.4 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. 29.5 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. 29.6 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. 29.7 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. 29.8 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. 29.9 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. 29.10 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. 29.11 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. 29.12 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] Horrocks LLC Page 10 13-71 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By. ` T Aa rilfttHarp City Attorney A� ATTEST: Date: Al CITY OF NEWPORT BEACH, a California municipal corporation Date: Joe Stapleton Mayor CONSULTANT: Horrocks LLC, a Delaware limited liability company Date: By: Molly Perry Matt Horrocks Interim City Clerk Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Horrocks LLC Page 11 13-72 EXHIBIT A SCOPE OF SERVICES Horrocks LLC Page A-1 13-73 (D Horrocks. Exhibit A — Scope of Services June 5, 2025 Project Title: City of Newport Beach RFP #25-46 - Construction Management Services for Big Canyon Restoration — Phase 3 Horrocks is pleased to submit this proposal and the following Scope of Services to the City of Newport Beach for Construction Management Services for the Big Canyon Restoration - Phase 3 project. We understand that the City seeks a qualified Construction Manager to oversee and monitor the construction contractor's performance of contract document tasks. This proposal highlights how our firm will address the needs and scope required for the project. Horrocks is prepared to dedicate experienced professionals who will report directly to the City's Project Manager, providing insightful recommendations, diligently following City direction, and ensuring clear communication of decisions to the contractor, all under the Project Manager's sole authorization and approval. We are confident that our expertise and collaborative approach align perfectly with the requirements of this important restoration project. STAFFING This proposal assumes the City of Newport Beach requires full-time inspection in addition to Construction Management due to the project's extensive site, the potential for concurrent tasks, and its location within and adjacent to the sensitive habitats of Back Bay. Given these environmental considerations, we acknowledge the City's concern about the contractor's adherence to the Stormwater Pollution Prevention Plan (SWPPP) and the Floodplain Management Plan (FWMP), as well as their cooperation with the biologist as outlined in the contract specifications. As detailed in the RFP, if the contractor demonstrates consistent progress, follows permit and project guidelines effectively, and collaborates well with third -party staff such as the Biologist, City Inspectors, and other permit holders, Horrocks is prepared to coordinate a reduction in our management and inspection hours with the City. Accordingly, we are prepared to discuss project cost savings in staffing allocation and reimbursable items proportionally at the appropriate time to ensure the budget aligns with the City of Newport Beach's goals and objectives for this project. The staff augmentation services to be provided under this scope shall include work related to the construction phases of the above -mentioned project as outlined by the following tasks. In general, the work consists of services as defined by the City's outline as provided in the RFP. CONSTRUCTION MANAGER -Representative (CONSTRUCTION MANAGER) acknowledges that the City may retain other consultants, engineering and otherwise, and that coordination between said consultants and CONSTRUCTION MANAGER may be necessary from time to time to ensure services herein performed are effective. CONSTRUCTION MANAGER agrees to provide such coordination as necessary within the scope of services contained herein. 619-510-4560 I Horrocks.com 2365 Northside Drive, Suite 575, San Diego, CA 92108 13-74 City of Newport Beach June 5, 2025 RFP #25-46 - Construction Management Services for Big Canyon Restoration — Phase 3 Page 2 TASK 0 — PROJECT ADMINISTRATION INCLUDING INVOICING AND DOCUMENT CONTROL CONSTRUCTION MANAGER Representative will conduct and in-house plan review with key team members and review drawings and construction documents for inconsistencies and historical shortcomings in the drawings, specifications and agency standards. Other key elements that will be reviewed and commented on include: 1. Limitations of access for work to be completed 2. Review of specified materials availability and compatibility 3. Review status and recommendations of soil reports, explorations/bores and plan alignment 4. Schedule and chair a meeting with stakeholders impacted or benefactors of the construction project 5. Review existing utilities, highlight critical crossings and review pot -hole information and recommend if additional investigations would be beneficial. 6. Review and check engineer's quantities and estimates for costs Representation on Behalf of City CONSTRUCTION MANAGER shall consult with and advise City and act as its representative during construction. CONSTRUCTION MANAGER shall not be responsible for the means, methods, techniques, sequences, or procedures of construction selected by Contractor(s), or the safety precautions and programs incident to the work of Contractor(s). CONSTRUCTION MANAGER efforts shall be directed toward providing a greater degree of confidence for the City that the completed work of Contractor(s) will conform to the Contract Documents, the CONSTRUCTION MANAGER Representative shall not be responsible for failure of Contractor(s) to perform the work in accordance with the Contract Documents or Schedule. On the basis of on -site examination of materials, equipment, and workmanship, CONSTRUCTION MANAGER shall keep City informed of the progress of the work, shall endeavor to guard City against defects and deficiencies in such work and may disapprove or reject work failing to conform to the Contract Documents. CONSTRUCTION MANAGER will notify contractor of defective work and document as necessary. CONSTRUCTION MANAGER will attend all project meetings as needed during the pre -construction and construction period. CONSTRUCTION MANAGER will prepare an agenda for all meetings and prepare minutes following all meetings on behalf of the city. Document Management CONSTRUCTION MANAGER Team members will be provided access to the web -based file management system (if applicable), in order to access pertinent files to review and respond within the timeframes allowed in the project specifications. A CONSTRUCTION MANAGER Representative will serve as the point of contact for all communication and coordination with the City's staff and Contractor representatives. 13-75 City of Newport Beach June 5, 2025 RFP #25-46 - Construction Management Services for Big Canyon Restoration — Phase 3 Page 3 Records Maintain orderly files for correspondence, reports of job conferences, Shop Drawings and samples submissions, reproductions of original Contract Documents including all addenda, change orders, field orders, additional Drawings issued subsequent to the execution of the Contract, clarifications and interpretation of the Contract Documents, progress reports, and other Project related documents. Prepare daily reports including digital photographs with proper labeling for recording Contractor's hours on the job site, weather conditions, data relative to questions of extras or deductions, list of visiting officials and representatives of manufacturers, fabricators, suppliers and distributors, daily activities, decisions, on -site equipment, subcontractors on -site, observations in general and specific observations in more detail as in the case of observing test procedures. Maintain notes to be capable of verifying record drawing information for accuracy and completeness. Maintain a set of record drawings. CONSTRUCTION MANAGER shall meet with any outside agencies that are stakeholders in this project and the contractor to make sure all project documentation is compliant. TASK 1 — PRE -CONSTRUCTION MEETING AND PREP WORK CONSTRUCTION MANAGER will chair and conduct a Pre -Construction Conference with the City, Contractor, and CONSTRUCTION MANAGER representatives. CONSTRUCTION MANAGER will prepare a general agenda recognizing all city topics and comments prepared as a guide for this scope of work and submit for review and approval by the city prior to issuance/distribution. The major items included in the Pre -construction conference will include but not be limited to : all company personnel and chain of command by organization, dispute resolution protocol, submittals, digital / hard copy record keeping and protocol, construction sequence and key milestone dates, schedule updates, storage of equipment and materials, environmental, traffic control, payment requirements and procedures. CONSTRUCTION MANAGER will be furnished contract documents and will act as directed by City, in order to assist observing performance of the work of the Contractor(s). TASK 2 — PROGRESS MEETINGS AND PREP WORK, TASK 3 — MEETING MINUTES AND DISTRIBUTION, TASK 4 -- CITY REQUESTED MEETINGS CONSTRUCTION MANAGER Representatives will schedule and conduct weekly progress meetings including an advanced agenda submittal prior to the upcoming meeting, sign -in sheet, update and submit all submittal logs, and record all meeting and take accurate and comprehensive meeting notes. All meetings will include an agenda item for schedule updates, conflicts, utilities coordination, traffic impacts, stakeholder interface and notices, and an overall project participation survey on a weekly / bi-weekly basis to maintain the highest level of service and communication throughout the project. The agenda shall include and reference all project "logs" including: RFI's, Submittal, etc. 13- 76 City of Newport Beach June 5, 2025 RFP #25-46 - Construction Management Services for Big Canyon Restoration — Phase 3 Page 4 All meetings shall be recorded, however once the meeting notes have been distributed and accepted by all the recording shall be deleted. These shall be sent out as meeting memorandums by the CONSTRUCTION MANAGER. CONSTRUCTION MANAGER will attend all City Staff Meetings as requested by owner or stakeholders. TASK 5 — SUBMITTALS, SCHEDULES AND SWPPP REVIEW AND COORDINATION, TASK 6 — RFI REVIEW AND COORDINATION CONSTRUCTION MANAGER representatives will receive and log all correspondence, submittals, shop drawings, request for information (RFIs) and samples for use during the project. All logs will be maintained on a daily and weekly basis for reporting and review at the weekly project meetings. 1. Receive and log Shop Drawings and samples, which are furnished by Contractor. 2. Coordinate Review of specified Shop Drawings with design engineer or city representatives, SWPPP, Water Flow Management Plan, Schedule, samples, test results, and other data that Contractor is required to submit, but only for conformance with the information given in the Contract Documents. Such review shall not extend to means, methods, sequences, techniques or procedures of construction selected by Contractor(s), or to safety precautions and programs incident thereto. TASK — PROJECT INSPECTION Review of Work, Rejection of Defective Work, Inspections, and Tests 1. Conduct on -site observations of the work in progress to assist City in determining if the work is proceeding in accordance with the Contract Documents and that completed work will conform to the Contract Documents. 2. Report to City and Contractor whenever CONSTRUCTION MANAGER or observer believe that any work is unsatisfactory, faulty or defective or does not conform to the Contract Documents, or does not meet the requirements of any inspections, tests or approval required to be made, or has been damaged prior to final payment; and advise if work should be corrected or rejected or should be uncovered for observation, or requires special testing, inspection, or approval. 3. Verify that all material tests and quality control functions are conducted as required by the Contract Documents and in the presence of the required personnel and that Contractor maintain adequate records thereof; observe, record, and report appropriate details relative to the test procedures and start-ups. 4. Accompany visiting inspectors representing public or other agencies having jurisdiction over the Project; record the outcome of these inspections and report to City. 5. Handle notifications of non -compliant work and log work accordingly until all work is compliant. 13-77 City of Newport Beach June 5, 2025 RFP #25-46 - Construction Management Services for Big Canyon Restoration — Phase 3 Page 5 TASK 8 -- CHANGE ORDER REVIEW AND COORDINATION CONSTRUCTION MANAGER will keep log, consider and evaluate Contractor's suggestions for changes in Drawings or Specifications and report them with recommendations to the City. CONSTRUCTION MANAGER shall complete an independent cost estimate for all change orders as well as evaluate and process all appropriate contract change order and/or value engineering recommendations. TASK 9 — PAY APPLICATION PROCESSING - QUANTITY TRACKING AND VERIFICATION Based on CONSTRUCTION MANAGER's team on -site observations, review all applications for payment and the accompanying data and schedules, determine the amounts owing to Contractor(s) and recommend in writing payments to Contractor(s) in such amounts. Such recommendations of payment will constitute a representation to City, that the work has progressed to the point indicated, that, to the best of CONSTRUCTION MANAGER's knowledge, information and belief, the quality of such work is in accordance with the Contract Documents (subject to an evaluation of such work as a functioning Project upon Substantial Completion, and that payment of the amount recommended is due Contractor(s). All payment applications must be on City supplied form and all items must match the Bid Documents. TASK 10 — PUNCH LIST CREATION AND INSPECTION, TASK 11 — SUBSTANTIAL COMPLETION WALK AND APPROVAL, TASK 12 — PROJECT CLOSEOUT CONSTRUCTION MANAGER will coordinate with the contractor's representatives in their preparation of a punch list/deficiencies list to be used to finalize the project and accept the work as complete. CONSTRUCTION MANAGER will conduct an inspection to determine if the Project is complete based on the review of the contractors list and issue to Contractor a list of any observed items requiring completion or correction not included on their list. Conduct final inspection in the company of City and Contractor and prepare a final list of items to be completed or corrected or make sure the contractor creates the necessary punch list if required by the contract. Verify that all items on final list have been completed or corrected and confirm, that the Contractor has fulfilled all obligations there under so that ENGINEER may recommend, in writing, final payment to Contractor(s) and may give written notice to City and the Contractor(s) that the work is acceptable (subject to any conditions therein expressed). CONSTRUCTION MANAGER shall not be responsible for the acts or omissions of any Contractor, or subcontractor, or any of the Contractor(s)' or subcontractor(s)' agents or employees or any other persons (except ENGINEER's own employees and agents) at the site(s) or otherwise performing any of the Contractor(s)' work. CONSTRUCTION MANAGER will review the contractor's record drawings for completeness and provide 1 copy signed as part of the record drawings files for city records as part of project closeout. Record drawings will be coordinated with contractors' record drawings as required. 13-78 City of Newport Beach June 5, 2025 RFP #25-46 - Construction Management Services for Big Canyon Restoration — Phase 3 Page 6 LIMITATIONS OF AUTHORITY Except upon written instructions from the City: 1. Shall not authorize any deviation from the Contract Documents or approve any substitute materials or equipment. 2. Shall not undertake any of the responsibilities of Contractor, subcontractors or Contractor's superintendent, or expedite the work. 3. Shall not advise on or issue directions relative to any aspect of the means, methods, techniques, sequences or procedures of construction unless such is specifically called for in the Contract Documents. 4. Shall not advise on or issue directions as to safety precautions and programs in connection with the work. CITY OF NEWPORT BEACH RESPONSIBILITIES ACKNOWLEDGED Horrocks has reviewed the scope of service and acknowledges the responsibilities of the City of Newport Beach in support of this project as included in this RFP. 13-79 EXHIBIT B SCHEDULE OF BILLING RATES Horrocks LLC Page B-1 13-80 Q Horrocks. Exhibit B - Proposed Fee June 5, 2025 Project Title: City of Newport Beach RFP #25-46 - Construction Management Services for Big Canyon Restoration - Phase 3 The estimated fees for the proposed scope of services total is $487,040,00, as detailed in the attached proposal fee breakdown of estimated hours This proposal is further based on the attached estimate work resource allocation, assuming a total contract duration of 11 months with the staffing resources outlined therein Fee Breakdown Jim Tomasulo Prinicapal Engineer lac Gentry Sr Construction Manager Josh Farrel Construction Inspector Lisa Conk Document Control Task Hourly Rates 5350,00 $265.00 $190.00 $120.00 Task Hour; Task Total 0 Project Administration including Invosnng and Document Control 10 33 0 250 293 $42,245.00 1 Pre Construction Meeting and Prep Work 12 0 5 17 $3,780,00 2 Progress Meetings and Prep Work 30 0 1S 45 $9,750.00 3 Meeting Minutes and Distribution 5 0 40 45 $6,125.00 4 JCity requested meetings (assume addtl 5 mtgs) 5 0 5 10 $1,925.00 5 Submittals, Schedules and SWPPP: review and coordination 110 0 65 175 $36,950.00 6 RFl review and coordination 125 0 75 200 $42,125.00 7 Project Inspection 105 1280 1385 $271,025.00 8 Change Order review and coordination 40 0 20 60 $13,000.00 9 Pay Application Processing - Quantity Tracking and Verification 50 96 50 196 $37,490.00 10 Punch List Creation and Inspection 10 0 10 $2,650.00 11 Substantial Completion Walk and Approval 10 0 10 $2,650.00 12 Project Closeout 45 0 45 90 517,325.0O Subtotal Hours 10 580 1 1376 570 2536 Subtotal Cost $3,500.00 $153,700.00 1 $261,440.00 r $68,400.00 1 Total: $487,040.00 619.510.4550 - Horrocks,=n 2365 Norlfisids Dr,re. Soile 575. San Diego, CA 92108 13-81 City of Newport Beach RFP #25-46 - Construction Management Services for Big Canyon Restoration — Phase 3 Work Allocation June 5, 2025 Page 2 Month Anticipated Sched Date Description Senior Construction Manager % Allocation Construction Inspector °% Allocation Admin/Doc Contro4 % Allocation Construction Management for Big Canyon Restoration Phase 3 Month 1 25-Jul Construction Management 52 30% 0 0% 25 15% Month 2 25-Aug Construction Management 52 30% 0 0% 55 32% Month 3 25-Sep Construction Management 56 33% 172 100% 60 35% Month 4 25-Oct Construction Management 56 33% 172 100% 60 35% Month 5 25-Nov Construction Management 52 30% 172 100% 60 35% Month 6 25-Dec Construction Management 52 30% 172 100% 60 35% Month 7 26-lan Construction Management 52 30% 172 100% 60 3S% Month 8 26-Feb Construction Management 52 30% 172 100% 55 32% Month 9 26-Mar Construction Management 52 30% 172 100% 55 32°% Month 10 26-Apr Construction Management 52 305/0 172 100% 55 32°% Month 11 26-may Construction Management 52 30% 0 0% 25 15% Hours 580 1376 570 13-82 EXHIBIT C INSURANCE REQUIREMENTS 1. Provision of Insurance. Without limiting Contractor's indemnification of City, and prior to commencement of Work, Contractor shall obtain, provide and maintain at its own expense during the term of this Contract, policies of insurance of the type and amounts described below and in a form satisfactory to City. Contractor agrees to provide insurance in accordance with requirements set forth here. if Contractor uses existing coverage to comply and that coverage does not meet these requirements, Contractor 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. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each employee for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California. In addition, Contractor shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with California law for all of the subcontractor's employees. Contractor 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, employees, and any person or entity owning or otherwise in legal control of the property upon which Contractor performs the Project and/or Services contemplated by this Agreement. B. General Liability Insurance. Contractor shall maintain commercial general liability insurance, and if necessary excess/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 two million dollars ($2,000,000) per occurrence, four million dollars ($4,000,000) general aggregate and four million dollars ($4,000,000) Horrocks LLC Page C-1 13-83 completed operations aggregate. The policy shall cover liability arising from bodily injury, property damage, products -completed 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. Contractor 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 Contractor arising out of or in connection with Work to be performed under this Contract, 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 for each accident. D. Professional Liability (Errors & Omissions) Insurance. Contractor shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of two million dollars ($2,000,000) per claim and four million dollars ($4,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Contractor agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. E. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this contract, then said policies shall be "following form" of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this contract, including, but not limited to, the additional insured and primary & non- contributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Contractor's primary and excess/umbrella liability policies are exhausted. 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 Contract 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 property upon which Contractor performs the Project and/or Services contemplated by this Agreement or shall specifically allow Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery Horrocks LLC Page C-2 13-84 prior to a loss. Contractor hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess/umbrella liability, pollution liability, and automobile liability, if required, 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 property upon which Contractor performs the Project and/or Services contemplated by this Agreement shall be included as additional insureds under such policies. C. Primary and Non -Contributory. Contractor's insurance coverage shall be primary insurance and/or the primary source of recovery with respect to City, its City Council, boards and commissions, officers, agents, volunteers and employees. Any insurance or self-insurance maintained by City shall be excess of Contractor's insurance and shall not contribute with it. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation or nonrenewal of coverage (except for nonpayment for which ten (10) calendar days' notice is required) for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Contractor 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. All of the executed documents referenced in this Contract must be returned to City within ten (10) regular City business days after the date on the "Notification of Award". Insurance certificates and endorsements 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 Contract. 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, Contractor shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of Horrocks LLC Page C-3 13-85 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. B. City's Right to Revise Requirements. The City reserves the right at any time during the term of the Contract to change the amounts and types of insurance required by giving Contractor sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Contractor, City and Contractor may renegotiate Contractor's compensation. C. Right to Review Subcontracts. Contractor agrees that upon request, all agreements with subcontractors or others with whom Contractor 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. Contractor shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Contractor 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 20 38 04 13. D. Enforcement of Contract Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of City to inform Contractor 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 Exhibit A 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 Contractor maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Contractor or sub -contractors. Any available proceeds in excess of specified minimum limits of insurance and coverage shall be available to the City. F. Self -Insured Retentions. Contractor agrees not to self -insure or to use any self - insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If Contractor's existing coverage includes a self -insured retention, the self- Horrocks LLC Page C-4 13-86 insured retention must be declared to City. City may review options with Contractor, which may include reduction or elimination of the self -insured retention, substitution of other coverage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. G. City Remedies for Non -Compliance. If Contractor 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 Contract, or to suspend Contractor'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 Contractor or reimbursed by Contractor upon demand. H. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, 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. Contractor's Insurance. Contractor shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgement may be necessary for its proper protection and prosecution of the Work. J. Coverage Renewal. Contractor will renew the coverage required here annually as long as Contractor continues to provide any Work under this or any other Contract or agreement with City. Contractor shall provide proof that policies of insurance required herein expiring during the term of this Contract have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and/or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City with five (5) calendar days of the expiration of the coverages. Horrocks LLC Page C-5 13-87 Attachment E 13-88