HomeMy WebLinkAbout14 - RRMP for Big Canyon Restoration AreaCITY OF
F NEWPORT REACH
City Council Staff Report
November 25, 2014
Agenda Item No. 14
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director- (949) 644 -3330,
dawebb @newportbeachca.gov
PREPARED BY: Bob Stein, Assistant City Engineer
PHONE: (949) 644 -3322
TITLE: Contract with the New Irvine Ranch Conservancy for Preparation of a Resource and
Recreation Management Plan (RRMP) for Big Canyon Restoration Area
ABSTRACT:
A formal restoration planning document for Big Canyon is desired in order to guide policy and
management decisions for proposed extensive restoration efforts in the canyon.
RECOMMENDATION:
Approve a Professional Services Agreement with the New Irvine Ranch Conservancy at a not -to- exceed
price of $169,060.00 for the preparation of a RRMP for Big Canyon and authorize the City Manager and
City Clerk to execute the Agreement with the New Irvine Ranch Conservancy once the intended
contribution funding is secured and made available from a settlement agreement between the Irvine
Company and Defend the Bay, Inc.
FUNDING REQUIREMENTS:
Funding of this plan is listed in the current adopted FY 2014/15 CIP budget as a contribution (7251 -
05002004). Adequate funding will be available for this agreement upon receipt of the anticipated
settlement contribution.
DISCUSSION:
The New Irvine Ranch Conservancy (IRC) is a non - governmental organization that manages parklands
and open space areas for the County of Orange, City of Irvine and City of Newport Beach. IRC has a
professional staff of land managers, scientists and public program experts and has managed Upper Buck
Gully for the City since 2009.
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Last month, City and IRC staff met with the California Department of Fish and Wildlife (DFW) and Newport
Bay Conservancy to discuss restoration options for Big Canyon in the area between Jamboree Road and
Newport Bay. DFW owns the land adjacent to the bay and around the freshwater lake adjacent to Back
Bay Drive. The City owns Back Bay Drive and the remainder of land to the south and east of the DFW
property to Jamboree Road. The parties developed a concept plan (Attachment B) that envisions removing
most of the invasive plants and trees within the City property and replacing them with native -type plants,
enhancing the trail system, and other minimalist amenities such as information signage.
With this concept plan as the basis, City staff would like IRC to prepare a formal planning document called
a Resource and Recreation Management Plan (RRMP) as was done for Upper Buck Gully in 2009. The
RRMP is a comprehensive, long -term management plan that provides guidance for habitat restoration and
enhancement, education, public access and recreation, and monitoring. The RRMP is reviewed by DFW
and U.S. Fish and Wildlife Service, and therefore provides a level of certainty for permitting requirements
from these agencies for future projects in the canyon. An approved RRMP for Big Canyon would give the
City the option of enrolling this area of Big Canyon at a future date into the Orange County Central Coastal
Natural Community Conservation Plan (NCCP). Enrolling Big Canyon into the NCCP could provide the
City (upland) mitigation credits for development elsewhere in the City.
Funding for this task is anticipated to be provided from an older settlement agreement between the Irvine
Company and Defend the Bay, Inc. The City has attempted to work with both parties to reach agreement
on (1) the projects to be funded and (2) contingency conditions in the event there are any surplus funds.
ENVIRONMENTAL REVIEW:
This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15306
(Information Collection) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the
CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3. The preparation of the RRMP does
not authorize any specific development or project, but would create the guidelines and standard for future
projects. Those future projects would be subject to CEQA.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at
which the City Council considers the item).
ATTACHMENTS:
Description
Attachment A - Location Mao
Attachment B - Concept Plan
Attachment C - Agreement
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ATTACHMENT C
PROFESSIONAL SERVICES AGREEMENT
WITH NEW IRVINE RANCH CONSERVANCY
FOR BIG CANYON RECREATION AND RESOURCE MANAGEMENT PLAN
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is made and
entered into as of this 25th day of November, 2014 ( "Effective Date "), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
( "City "), and NEW IRVINE RANCH CONSERVANCY, a California nonprofit corporation
( "Consultant'), whose address is 4727 Portola Parkway, Irvine, California 92620, 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 develop a Recreation and Resource
Management Plan for Big Canyon ( "RRMP ").
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. 2017 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Consultant shall perform the on -call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or
"Work "). Upon written request from the Project Administrator as defined herein, Consultant
shall provide a letter proposal for Services requested by the City (hereinafter referred to as
the "Letter Proposal'). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
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2.1.3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
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.
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 and the Letter Proposal. 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 and the Letter Proposal,
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, including delays in
providing necessary permissions, data, reports, or other information by City. 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 a Fee of One Hundred Sixty Nine Thousand
and Sixty Dollars and 001100 ($169,060.00) for the Services described in the Scope
of Services attached hereto as Exhibit A.
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4.2 Payment for the Scope of Services shall be made in four (4) equal
installments commencing with the date of execution of this Agreement and bi- monthly
thereafter in accordance with the provisions of this Section.
Payment for Scope of Services
Vt Installment $42,265
2nd Installment $42,265
3rd Installment $42,265
4th Installment $42,265
4.3 Compensation includes all costs and expenses related to providing the
Services and deliverables. Consultant's compensation for all Work performed in
accordance with this Agreement, shall not exceed this Fee amount 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.
4.4 Consultant shall submit quarterly invoices to City describing the Work
performed the preceding quarter. 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 quarterly invoice by City staff.
4.5 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 at the sole discretion of City
and in an amount to be mutually agreed upon.
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 Dr. Riley Pratt 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.
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5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. City's
Deputy Public Works Director 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 as described further in the attached Scope
of Services. 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 the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
8.2 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 the highest professional standard.
8.3 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.
8.4 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.
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9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties ") from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims "), which may arise under this Agreement or
in any manner 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.
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.
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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 B, 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 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.
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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.
Consultant shall, at Consultant's expense, provide such Documents 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.
17.4 City hereby grants Consultant non - exclusive license to use GIS
information, field and monitoring data, and other related Work Product for publication in
scientific or peer- reviewed journals and professional presentations with appropriate
acknowledgement of City. No Work Product shall be used by Consultant for any other
purpose without the expressed written consent of City. All work generated by or on
behalf of Consultant as part of its unrelated or previous activities shall remain the
exclusive property of Consultant.
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
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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.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
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24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation of this
Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first -
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Public Works Director
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Executive Director
New Irvine Ranch Conservancy
4727 Portola Parkway
Irvine, CA 92620
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for
payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
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within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than thirty (30) 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.
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28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
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28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
New Irvine Ranch Conservancy Page 11
TERM
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized agents as of the date first set forth above.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: I 1 I(q 11.0
By: am mt,-
Aar n C. Harp (.AM �\IwtltH
City Attorney
ATTEST:
CITY OF NEWPORT BEACH,
a California municipal corporation
Rush N. Hill, II
Mayor
CONSULTANT: New Irvine Ranch
Conservancy, a California nonprofit
corporation
Date:
By: By:
Leilani I. Brown Michael O'Connell
City Clerk President / Executive Director
Bv:
Ken Kramer
Assistant Secretary
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services and Costs
Exhibit B - Insurance Requirement
New Irvine Ranch Conservancy Page 12
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EXHIBIT A
SCOPE OF SERVICES AND COSTS
New Irvine Ranch Conservancy ( "NIRC) will develop a Resource and Recreation
Management Plan ( "RRMP ") for Big Canyon Nature Preserve. The purpose of the RRMP
is to provide a planning document that will guide the management, restoration,
enhancement and recreation in Big Canyon. NIRC will develop detailed knowledge of the
Big Canyon ( "the Preserve ") natural systems and the many challenges of the surrounding
urban interface to plan for its long -term management, restoration and public enjoyment.
To develop such knowledge, NIRC will collect, organize and evaluate existing resource
data with respect to the Preserve. Upon execution of the Agreement to which this Scope
of Work is attached, City will provide NIRC with all relevant information and data in its
possession including GIS files, land use data, ownership and jurisdictional information,
resource data, and any other relevant information. Information on historic and current
habitats, as well as planned land uses directly and indirectly impacting the Lands, will be
obtained from The Irvine Company LLC, City, the County of Orange, the State of
California, and the Nature Reserve of Orange County ( "NROC "), and will include previous
NCCP data as made available to NIRC mangers by these and other sources.
NIRC, with the approval of City, will subcontract with a qualified consultant or
consultants ( "Consultant") to prepare a comprehensive resource and recreational
management plan document for the Preserve consistent with the terms and criteria of the
Orange County Central Coastal Natural Communities Conservation Plan (the "NCCP "),
including collection and organization of the data described above and gathering additional
data on soils, vegetation, species occurrences and other biological resources as needed
and appropriate. NIRC will supervise Consultant and will coordinate and provide planning
support services in the preparation of the RRMP for City, which is estimated to require up
to twelve (12) months to prepare, including time for supplemental field surveys, public
information sessions and agency review and approval. The City anticipates submitting
the RRMP for review by the state and federal wildlife agencies and NROC, with the intent
of enrolling the Big Canyon Preserve in the NCCP. Because the RRMP must be approved
by state and federal wildlife regulatory agencies and coordinated with NROC to enroll the
Preserve in the NCCP, NIRC will organize the consultation and involvement of such
agencies in the planning process and will assist City in submittal of the City- approved
draft to NROC and applicable state and federal wildlife regulatory agencies for review.
After development of the RRMP and based on the long -term habitat restoration,
maintenance and public access recommendations set forth in the approved RRMP, City,
with the assistance of NIRC, will establish implementation priorities based on the RRMP.
As part of this process, NIRC will submit a capital program (habitat restoration and public
access) for City's review no later than 60 days after the completion and approval of the
RRMP. The capital program will address components of stewardship and public access
(including trails and facilities) as identified by the RRMP.
During development of the RRMP, City will create an informal Stakeholder
Advisory Group (including adjacent homeowners) that City shall convene as needed to
assist City and NIRC in completing and implementing the RRMP. NIRC shall participate in
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Stakeholder Advisory Group meetings to the extent appropriate. City may also choose to
host one or more public meetings associated with the RRMP development, and NIRC will
participate in and support City in such process.
Costs for Scope of Services:
TASK
Review of Existing Information
Updated Detailed Site Evaluation
Biological Surveys
Soil Surveys
RRMP Draft Preparation
RRMP Document Finalization
Project - Related Meetings
TOTAL PROJECT COST
New Irvine Ranch Conservancy
COST
$8,440
$6,850
$71,770
$12,830
$40,200
$12,100
$16,870
$169,060
Page A -2
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INSURANCE REQUIREMENTS- PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
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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.
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 one
million dollars ($1,000,000) per claim and two million dollars ($2,000,000) 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.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included
as insureds under such policies.
C. Primary and Non- Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self -
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
New Irvine Ranch Conservancy Page B -1
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shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
E. 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.
F. 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.
G. Requirements not Limitinq. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally
provided by any insurance. Specific reference to a given coverage
feature is for purposes of clarification only as it pertains to a given issue
and is not intended by any party or insured to be all inclusive, or to the
exclusion of other coverage, or a waiver of any type. If the Consultant
maintains higher limits than the minimums shown above, the City requires
and shall be entitled to coverage for higher limits maintained by the
Consultant. Any available insurance proceeds in excess of the specified
minimum limits of insurance and coverage shall be available to the City.
H. 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.
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.
J. 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.
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K. 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.
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