HomeMy WebLinkAbout15 - Agreement to Designate Funds for Restoration Work in Big Canyon Phase 2A (20X12)Q �EwPpRT
CITY OF
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iz NEWPORT BEACH
<,FORN'P City Council Staff Report
February 11, 2020
Agenda Item No. 15
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Robert Stein, Assistant City Engineer
rstein@newportbeachca.gov
PHONE: 949-644-3322
TITLE: Approve an Agreement with Newport Bay Conservancy to Designate
Funds for Restoration Work in Big Canyon Phase 2A (20X12)
ABSTRACT -
The Big Canyon Phase 2A project (20X12) includes the removal of non-native trees and
plants, minor re -contouring of the creek banks to promote a stable flood plain,
supplementing the soils and installing a temporary irrigation system, and replanting the
area with a native -plant palette that is fire and pest resistant (Attachment A).
Newport Bay Conservancy (NBC) is the recipient of two grants totaling $1,688,731 to
restore eleven acres in the Phase 2A area of Big Canyon Nature Park. In accordance
with the terms and conditions of the attached agreement ("Agreement"), NBC will use
these grant funds to reimburse the City for costs associated with implementing the Big
Canyon Phase 2A restoration construction project.
RECOMMENDATIONS:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
b) Authorize the City Manager to execute an Agreement with Newport Bay Naturalists
and Friends (DBA Newport Bay Conservancy) to designate $1,688,731 of grant funds
for restoration work in Big Canyon Nature Park; and
c) Approve Budget Amendment No. 20-032 recognizing contribution funds of $1,688,731
from Newport Bay Conservancy in Account No. 13801-511050-20X12 and
appropriating $1,688,731 in increased expenditures for the Big Canyon - Phase 2A
(20X12) in Account No. 13801-980000-20X12.
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Approve an Agreement with Newport Bay Conservancy to Designate Funds for
Restoration Work in Big Canyon Phase 2A (20X12)
February 11, 2020
Page 2
FUNDING REQUIREMENTS:
The Budget Amendment (Attachment F) recognizes $1,688,731 in increased revenue
(Account No. 13801-511050-20X12) from Newport Bay Conservancy and appropriates
$1,688,731 in increased expenditures for the Big Canyon - Phase 2A project (Account
No. 13801-980000-20X12) (Attachment F).
Pursuant to the Agreement terms with NBC, the City agrees to set aside $100,000 from
the Upper Newport Bay Tidelands Fund in order to pay for any auxiliary tasks or
improvements such as trail improvements, or other unforeseen and non -grant eligible
costs associated with the project. The additional funds will be included in the proposed
FY 2020-21 Capital Improvement Program (CIP) budget.
DISCUSSION:
The City and NBC have been working together cooperatively on a plan to restore the
Phase 2A area of Big Canyon Nature Park, which has become heavily vegetated with
non-native, invasive trees, notably the Brazilian Pepper Tree. NBC previously obtained
grant funding to hire a consultant to prepare a restoration design for the Phase 2A area.
The construction documents have now been completed.
NBC has now been awarded two grants totaling $1,688,731 to fund the implementation
of the Phase 2A restoration: (1) California Department of Fish and Wildlife grant
agreement for $638,740 (Attachment C); and (2) State Coastal Conservancy agreement
for $1,049,991 (Attachment D).
Pursuant to the Agreement with NBC, the City agrees to manage the construction; hire a
construction contractor; hire biological and cultural monitors, geotechnical consultants,
and outside contract inspectors; and hire consultants and contractors for performing post
construction monitoring and maintenance. In return, NBC commits to reimburse the City
for these costs using their grant funding pursuant to the process outlined in the
agreement.
To meet the grant match requirement specified in the State Coastal Conservancy
agreement, NBC and City will provide a contribution $109,145, in the form of staff
management, inspection and administration services, to complete the project.
With this agreement in place, City staff will work with NBC and the Regulatory Agencies
to complete any remailing permitting and approvals, and then the City will bid and award
the necessary construction contract later this year and be ready to commence work at the
end of the bird -breeding season.
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Approve an Agreement with Newport Bay Conservancy to Designate Funds for
Restoration Work in Big Canyon Phase 2A (20X12)
February 11, 2020
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find the Agreement with NBC is not subject to the
California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the
activity will not result in a direct or reasonably foreseeable indirect physical change in the
environment) 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, because it
has no potential for resulting in physical change to the environment, directly or indirectly.
City Council, on January 22, 2019, adopted Resolution No. 2019-9 which adopted
Mitigated Negative Declaration No. ND2018-001, (SCH 2018081098), including the
Mitigation Monitoring and Reporting Plan, prepared for the Big Canyon Coastal Habitat
Restoration and Adaptation Project - Phase 2A (PA2018-078), pursuant to the California
Environmental Quality Act, State CEQA Guidelines and City Council Policy K-3
(Attachments E and E1).
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A —
Location of Phase 2A in Big Canyon Nature Park
Attachment B —Agreement
with Newport Bay Conservancy
Attachment C —
CDFW Agreement
Attachment D —
SCC Agreement
Attachment E —
January 22, 2019 City Council Staff Report
Attachment E1
— Resolution No. 2019-9
Attachment F —
Budget Amendment
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Big Canyon Creek
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Phase lI 4P�
Phase 2A: Coastal Canyon Creek and Riparian Restoration - includes Areas of Non -tidal Alkaline Marsh 15.61 acres) a
Phase 28: Coastal Canyon Creek Restoration Selenium Management of Impacted Pond Reeds and Sediment (4.83 acres) 0-
—M Phase 2C: Removal of Invasive Pepper Trees and Creation ofiransitional Zone Habitat for SLR Adaptation (4-34 acres) � I•
Phase I: Creek and Riparian Halxtat Restoration
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0 Parcel Boundaries"
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California Dept- of Fish & Wildlife Property FeEi
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Figure 3
Big Canyon Coastal Creek Restoration and Estuary Adaptation — Phase II
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ATTACHMENT B
AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH
AND NEWPORT BAY NATURALISTS AND FRIENDS
DBA NEWPORT BAY CONSERVANCY
TO DESIGNATE FUNDS FOR RESTORATION WORK IN BIG CANYON
THIS AGREEMENT TO DESIGNATE FUNDS FOR RESTORATION WORK IN BIG
CANYON ("Agreement") is made and entered into as of this 11th day of February, 2020
("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"), 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. 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 east of the California Department of Fish and Wildlife's freshwater lake located
just upstream of Back Bay Drive within Big Canyon depicted on Exhibit A attached
hereto and incorporated herein by reference.
C. The City and Newport Bay Conservancy have been working together cooperatively
on a plan to restore Big Canyon Nature Park that has become heavily vegetated with
non-native, invasive trees, notably the Brazilian Pepper Tree. The longer term plan
calls for restoring the canyon in phases. The first phase, Phase 1A, was completed in
July 2017.
D. NBC is now the recipient of two grant to fund design and implementation of Phase 2A:
(1) State Coastal Conservancy grant (Grant No. 18-142), and (2) State of California,
Natural Resources Agency, Department of Fish and Wildlife grant (Grant No.
Q1996008) ("Grants" or "Grant Funding Agencies") attached as Exhibit B and C hereto
and incorporated herein by reference. These Grants provide NBC with funds to
prepare final construction documents and implement restoration of nine acres of
coastal sage upland, riparian, and freshwater marsh habitats in Phase 2A
("Restoration"), and perform selective removal of individual invasive or diseased trees
with an additional two acres within the Phase 2A area. Under the terms of the State
Coastal Conservancy Grant, all work shall be completed by December 31, 2022;
under the Department of Fish and Wildlife Grant, all work shall be completed by March
15, 2023.
E. The Restoration Project includes the removal of nine -acres of Brazilian Pepper Trees
and other non-native plants, minor recontouring of the creek banks to promote a stable
flood plain, supplementing the soils and installing a temporary irrigation system, and
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page 1
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replanting the area of a native -plant palette that is fire resistant and pest -resistant
(e.g., the Polyphagous Shothole Borer).
F. In 2017, City received permitting authority to selectively remove individual invasive or
diseased trees in a remainder area of the Phase 1 project, designated herein as
"Phase 1 B". Phase 1 B has not yet been implemented. The State Coastal Conservancy
grant (Grant No. 18-142) provides NBC with funds to implement selective removals in
Phases 1 B. Therefore, selective removals in Phases 1 B and 2A ("Selective
Removals") can be performed together using grant funding. The Selective Removal
Project will be a separate project from the nine (9) -acre Restoration Project. The
Selective Removals and Restoration Project shall be collectively referred to herein as
"Projects".
G. A term of the State Coastal Conservancy Grant is that the California Conservation
Corps ("CCC') shall perform a portion of the grant funded work. Because of the special
nature of the Selective Removal Project, it is appropriate to assign this project to the
CCC.
H. City will provide upfront interim funds to proceed with the Restoration and Selective
Removal projects with repayment to the City from grant funds that are paid in arrears.
The City has approved the construction documents for the Restoration and Selective
Removal Work and anticipates a construction start in September 2020.
J. In consideration of the mutual promises and obligations contained in this Agreement,
the receipt and sufficiency of which is hereby acknowledged, City hereby agrees to
designate interim funds for NBC to use in the Restoration and Selective Removal
Work in Big Canyon.
K. Upon receipt of the Grant funds, NBC will repay the interim funds to the City as
specified in this Agreement.
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
A. NBC shall administer the provisions of the Grants including project reporting and
data management. NBC will provide copies of all grants and permits to the City.
B. NBC will process all invoices received from the City for work satisfactorily
performed by Contractor, biological and cultural monitors, geotechnical
consultants, outside contract inspectors, and other related Project charges and
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page 2
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services previously approved by NBC, and submit such invoices for reimbursement
to the Grant Funding Agencies within thirty (30) days and in accordance with the
Grants. NBC shall send the reimbursement funds to the City within thirty (30) days
of receipt of the Grant funds, as described in Article 5.
C. During the term of each grant, at project completion, NBC will reimburse City for
costs for annual monitoring and maintenance (reporting, quantitative/qualitative
assessments, weeding). After the term of each grant has ended, the City will be
responsible for monitoring and maintenance costs as described in Article 3.
D. NBC will perform close-out of funding grants and permit applications.
ARTICLE 3. RESPONSIBILITIES OF CITY
A. City will hire Construction Contractor(s) ("Contractor(s)") for the Restoration Project
following public bid and contract procedures.
B. City will hire the California Conservation Corps for the Selective Removal Project
per the terms of the CDFW grant and City's standard contract procedures.
C. As needed, City will contract with a company to deliver and remove haul -off
containers to the site. NBC agrees to reimburse City for costs for dumpsters, haul -
off and dump fees.
D. City will contract with the biological and cultural monitors to perform tasks as
specified in the permits. City shall require that these monitors provide the required
insurance coverage for construction of the Project. NBC shall be named as an
additionally insured party.
E. City will manage and inspect the construction of the Selective Removal and
Restoration Projects using City Staff within the established budget and time frame,
as required by the construction documents and permits. City will conduct the
construction activities to meet the stringent requirements normally conditioned on
its contractors including any repairs of property damaged during construction. City
will not charge NBC for these services.
F. City will review all change order requests with NBC and obtain written authorization
from NBC before directing Contractor to perform work.
G. The City shall require that all Contractors provide the required construction
insurance coverage. NBC shall be named as additionally insured party.
H. City agrees to consult with NBC if City believes outside contract inspectors are
needed. As agreed by Parties, where NBC's approval shall not be unreasonably
withheld, City will hire inspectors.
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page 3
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City agrees to review with NBC all invoices from Contractors, biological and cultural
monitors, and outside contract inspectors. As approved NBC, City will pay invoices.
City will forward copies of paid invoices to NBC for reimbursement, as defined in
Article 5.
J. City agrees to set aside up to $100,000 of Tidelands Funds in order to pay for
monitoring and maintenance tasks after 2022, and any unforeseen and unbillable
costs associated with the Projects that may not be covered under either grant.
K. City agrees to provide information needed by NBC for grant reporting requirements.
L. In consultation with NBC, where NBC's approval shall not be unreasonably withheld,
City may hire a consultant and contractor for five-year monitoring and maintenance
of the Project. During the term of each grant, NBC shall reimburse City for costs, as
defined in Article 5.
M. After project completion, City is responsible for irrigation water costs.
N. City, in its sole discretion and for any reason, shall have the right to reject any
bids for the completion of the Projects.
ARTICLE 4. TERM
The term of this Agreement shall be in full force and effect until the specified responsibilities of
the Parties have been fulfilled or rescinded by both Parties or until July 31, 2023, whichever is
sooner.
ARTICLE 5. PAYMENT
In accordance with the terms and conditions of this Agreement, NBC shall provide City with a Not -
To -Exceed amount of $1,688,731.00 in furtherance of implementation of the Restoration and
Selective Removal Projects.
City shall be responsible for making payments on invoices submitted by Contractor(s). Upon City's
payment to Contractor(s), City shall forward copies of invoices to NBC, and NBC shall use its due
diligence to submit such invoices within thirty (30) days to the Grant Funding Agencies for
reimbursement and 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 in providing City with reimbursements for the Projects.
ARTICLE 6. 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 2A Page 4
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To City:
City of Newport Beach
Attn: Bob Stein, Assistant City Engineer
100 Civic Center Dr.
P.O. Box 1768
Newport Beach, CA 9265892660
To: NBC
Newport Bay Conservancy
Attn: Heather Cieslak, Operations Director
2301 University Drive
Newport Beach, CA 92660
ARTICLE 7. 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 8. FORCE MAJEURE
Except for the payment of money, no 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, Act of God, strike or labor dispute, war or other violence, acts of third parties
not within City's or County's reasonable control or any law, order or requirement of any governmental
agency or authority.
ARTICLE 9. 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, notwithstanding the provisions of
Code of Civil Procedure Section 394. The Parties agree to waive any and all rights to request that
an action be transferred for trial to another County.
ARTICLE 10. ENTIRE AGREEMENT
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 11. 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 of the same or other covenants,
conditions or obligations of this Agreement.
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page 5
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ARTICLE 12. 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 13. 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 14. CONDITIONS OF AGREEMENT
NBC shall comply with the following conditions prior to receiving the funds from the City:
NBC must have all permits and licenses in place, including those required by the City (collectively
"Licenses") prior to awarding a successful bid to a subcontractor to commence the Restoration
Project.
City shall provide NBC with written documentation that any Contractors have furnished
performance bonds in favor of the grantee and the Conservancy in amounts specified in the
Grants.
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 15. ADMINISTRATION
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.
NBC shall act as lead for the administration, operation and supervision of the Restoration and
Selective Removal as required per the Grants in Exhibit B and C.
ARTICLE 16. INDEMNITY AND LIABILITY FOR DAMAGES
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 NBC, its officers, agents,
or employees, with respect to the Restoration and Selective Removal Projects, 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.
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 City, its officers, agents,
or employees, with respect to the Restoration and Selective Removal Projects, save and except to
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page 6
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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 17. INSURANCE REQUIREMENTS
Without limiting NBC's indemnification of City, and prior to commencement of Restoration or
Selective Removal, NBC 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
D, and incorporated herein by reference. All policies, endorsements, certificates, and/or binders shall
be subject to approval by the City as to form and content. These requirements are subject to
amendment or waiver only writing by the City. A lapse in any required insurance coverage during
this Agreement shall be a breach of this Agreement.
ARTICLE 18. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
This Agreement shall not be assigned or transferred without the prior written approval of City
which approval may be withheld in the City's sole discretion.
ARTICLE 19. CONFLICT OF INTEREST
The NBC or its 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, NBC shall conform to all requirements of the Act.
Notwithstanding Section 9.1.3, failure to conform to the requirements of the Act constitutes a
material breach and is grounds for immediate termination of this Agreement by City. NBC shall
indemnify and hold harmless City for any and all claims for damages resulting from NBC's violation
of this Section.
ARTICLE 20. COMPLIANCE WITH ALL LAWS
NBC 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 NBC shall conform to
applicable City, county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator.
ARTICLE 21. 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.
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page 7
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ARTICLE 22. TERMINATION OF AGREEMENT
Any Party may at any time prior to the commencement of the Projects and without cause, terminate
this Agreement, upon not less than thirty (30) calendar days' written notice to the other Part.
ARTICLE 23. AMENDMENTS
This Agreement may be modified or amended only by a written document executed by both NBC
and City 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
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.
ARTICLE 26. STANDARD PROVISIONS
26.1 Recitals. City and NBC acknowledge that the above Recitals are true and correct and
are hereby incorporated by reference into this Agreement.
26.2 Integrated Agreement. 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.
26.3 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.
26.4 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.
26.5 No 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 2A Page 8
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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: Z C)o
By:
FAaron C. Harp
City Attorney
ATTEST:
Date:
Im
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Will O'Neill
Mayor
NEWPORT BAY NATURALISTS
AND FRIENDS, a California non-profit
public benefit corporation doing
business as ("DBA") NEWPORT BAY
CONSERVANCY
Date:
By:
Randall English
Chief Executive Officer
[END OF SIGNATURES]
Josie Bennett
Secretary
Attachments: Exhibit A: Depiction of Restoration Area
Exhibit B: Grant Award from State Coastal Conservancy
Exhibit C: Grant Award from California Department of Fish and
Wildlife
Exhibit D: Insurance Information
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page 9
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EXHIBIT A
DEPICTION OF RESTORATION AREA
All work will be completed in Phase 1 b and Phase 2A outlined in black and red respectively:
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Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page A-1
15-14
EXHIBIT B
Grant Award from State Coastal Conservancy
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page B-1
15-15
STATE OF CALIFORNIA
STANDARD AGREEMENT
Std.2 (Grant - Rcv UI "Ix)
AGREEMENT NUMBER AM. NO
18-142
TAXPAYERS FEDERAL EMPLOYER
IDENTIFICATION NO.
33-0545786
Z5h`^I I
THIS AGREEMENT, made and entered into this day of S i..AvU . 2�1.Ct
in the State of California, by and between State of California, through its duly elected or appointed, qualified and acting
TITLE OF OFFICER ACTING FOR STATE AGENCY
Executive Officer State Coastal Conservancy
hereafter called the Conservancy, and
Newport Bay Naturalists and Friends dba Newport Bay Conservancy hereafter called the Grantee.
The Grantee, for and in consideration of the covenants, conditions. agreements, and stipulations of the Conservancy hereinafter expressed, does hereby agree
as follows:
SCOPE OF AGREEMENT
Pursuant to Chapter 6 of Division 21 of the California Public Resources Code, the State Coastal Conservancy ("the
Conservancy") hereby grants to the Newport Bay Naturalists and Friends dba Newport Bay Conservancy ("the
grantee") a sum not to exceed $1,049.991 (one million forty-nine thousand nine hundred ninety-one dollars), subject
to this agreement. The grantee shall use these funds to complete the following project ("the project") at Big Canyon
Nature Park in Newport Beach, CA in the County of Orange, as shown on Exhibit l , which is incorporated by
reference and attached.
The provisions on the following pages constitute a part of this agreement.
IN WITNESS WHEREOF. this agreement has been executed by the parties hereto. upon the date first above written.
STATE OF CALIFORNIA
GRANTEE
AGENCY
GRANTEE !!/other than an ndividuat. state whether a corporation, partnership. etc.)
State Coastal Conservancy
Newport Bay Naturalists and Friends dba Newport
Bay Conservancy
BY (Authonzed Sigoatu(
)
BY WNAZ&eIAlgaTfULE
PRINTED NAME AND ITLE OF PERSON SIGNING
PRIO OF P ON SICNING
Samuel Schu hat, Executive Officer
Randall English, President
ADDRESS S PHONE NUMBER
ADDRESS & PHONE NUMBER
1515 Clay Street, 10"' Floor
P.O. Box 10804
Oakland, CA 94612 Phone: -(5 10) 286-1015
Newport Beach. CA 92658 Phone: (949) 933-9654
AMOUNT ENCUMBERED BY THIS
DOCUMENT
PROGRAhrCATEGORY (CODE AND TITLE)
FUND TITLE: PROP NO.
$1,049,991.00
Local Assistance
Water, Suualit
Q Y Supply, ...(Prop 1) /
I certify that this
Federal Trust Fund Authority
agreement is exempt
PRIOR AMOUNT ENCUMBERED
FUND ITEM
CHA
STATUTE
FISCAL YEAR
from Department of
FOR THIS AGREEMENT
PTER
General Services'
approval.
$-0-
3760-101-0890 =
S969,555.00
14
2017
17/18
1�
(FI9APOOI53/15.614)(USFWS)
II
3760-101-608300007(B5862) =
$15,436.00
14
2017
17/18
3760-101-608300007(B5862) =
$65,000.00
23
2016
16/17
��
E inda oe
Pr curem �nl and
Co tracts anager
Tor.%L.%}I0L`,T tEAC1,NIBERED
PROJECT NAME
r0 DATE
$1,049,991.00
Big Canyon Creek Restoration
I hereby certify upon my wli personal knowledge that budgeted funds are available for the penod and purpose of the expenditure staled above.
SIGNATUREOU IN ICER
DATE
06 L9 .
U t.KAN I tttC frU ACCOUNTING U PROJECT MANAGER ❑ CONTROLLER ' Q -STATE AGENCY
15-16
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 2
SCOPE OF AGREEMENT (Continued)
The grantee will prepare final designs and implement restoration of 11 acres of coastal
sage upland, riparian, and freshwater marsh habitats as Phase 2A of the for the Big
Canyon Creek Restoration and Adaptation Project, within the 60 -acre Big Canyon Nature
Park. Specifically, the grantee will remove a dense, invasive Brazilian peppertree forest
lay back Big Canyon Creek's banks to address incision and reconnect the creek to the
floodplain, and restore native habitats that are resilient to the newly -arrived invasive
beetle Polyphagous Shot Hole Borer. The project will also enhance public access and
education with improved trails and closure of illegal trails, as provided in the project
description of the mitigated negative declaration for the for the Big Canyon Creek
Restoration and Adaptation Project.
The grantee shall carry out the project in accordance with this agreement and a work
program, as provided in the "WORK PROGRAM" section, below. The grantee shall
provide $109,145 (one hundred nine thousand one hundred forty-five dollars) and any
funds beyond those granted under this agreement which are needed to complete the
project.
CONDITIONS PRECEDENT TO CONSTRUCTION AND DISBURSEMENT
The grantee shall not begin construction of the project and the Conservancy shall not be
obligated to disburse any funds unless and until the following conditions precedent have
been met:
I . The board of directors of the grantee has adopted a resolution designating positions
whose incumbents are authorized to negotiate and execute this agreement and
amendments to it on behalf of the grantee.
2. The Executive Officer of the Conservancy ("the Executive Officer") has approved in
writing:
a. A work program for the project, as provided in the "WORK PROGRAM" section,
below.
b. A plan for installation of signs and acknowledgment of Conservancy support, as
provided in the "SIGNS AND ACKNOWLEDGMENT" section, below.
15-17
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 3
CONDITIONS PRECEDENT TO CONSTRUCTION AND
DISBURSEMENT(Continued)
c. All contractors that the grantee intends to retain in connection with the project.
The grantee must provide written evidence to the Conservancy that each
contractor has complied with the bonding requirements described in the
"BONDING" section, below.
3. The grantee has provided written evidence to the Conservancy that:
a. All permits and approvals necessary to the completion of the project under
applicable local, state and federal laws and regulations have been obtained.
b. The grantee has provided for required insurance coverage, including additional
insured endorsement, as described in the "INSURANCE" section, below.
4. The grantee and the Conservancy and, if any portion of the property on which the
project will be constructed is not owned by the grantee, then the owner of that
propertyl, have entered into, and the grantee has recorded, an agreement to protect the
public interest in the improvements or facilities constructed under this agreement, as
required by Public Resources Code section 31116(c).
5. Additionally, no Conservancy funds shall be disbursed until the grantee has provided
the Executive Officer with evidence that all other public funds available for the
project have been expended.
6. The grantee has completed and returned to the Conservancy the Federal Sub-Awardee
Questionnaire.
Notwithstanding the above, the grantee may begin to prepare plans, specifications and
engineering work upon meeting conditions precedent no. 1 and no. 2, and upon the
Executive Officer's review and approval of a separate work program (tasks, budget and
timeline) and approval of any contractors that the grantee will retain to perform the work.
15-18
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 4
ADDITIONAL GRANT CONDITION1Sl
The grantee shall also meet the following conditions:
1. n carrying out the project, the grantee shall ensure compliance with all applicable
impact avoidance, minimization and mitigation measures and monitoring and
reporting requirements for the project identified in the Big Canyon Coastal
Habitat Restoration and Adaptation Project Phase 2A Initial Study and
Mitigated Negative Declaration, and the Mitigation Monitoring and Reporting
Program and the National Environmental Policy Act.
Prior to the release of funds for construction, the grantee shall provide evidence of
completion of the following:
2. Wetland and Riparian Area Monitoring Plan. A plan to collect and report
monitoring data in a manner that is compatible and consistent with the Statewide
Wetland and Riparian Area Monitoring Program framework (currently available
at
http://WWW.mMateEguaiim,ca.gov/monitorin2 council/wetland work ou /index
.html).
3. Baseline Condition Report. A "Level 2" baseline wetland and riparian assessment
utilizing the California Rapid Assessment Method (CRAM) within the year prior
to the beginning of project construction, unless otherwise agreed upon in writing
by the Conservancy and the grantee. (More information is available at
http://www.cramwetlands.orgl). The baseline CRAM assessment's budget and
timeline shall be included in the grantee's approved Work Plan. The CRAM
assessment shall be completed by a certified CRAM practitioner and the data shall
be uploaded at http://www.cramwettands.org/.
4. The Publication of Project Information. The grantee shall upload project
information, including periodic monitoring data, to the project tracker for
"EcoAtlas", an online database and web -based viewer of stream and wetland
maps, restoration information, and monitoring results (currently available at
http://ptrack.ecoatias.orgl), to track project information and aggregate data.
5. Plan for Completion of Post -Construction CRAM Assessment. A budget and
timeline for the collection of at least one additional CRAM assessment following
construction of the project and prior to the completion date of the grant agreement
in order to document the change in wetland condition at the project site.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 5
ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT
In carrying out the project, the grantee acknowledges that the Conservancy is disbursing
$969,555 from the USFWS National Coastal Wetlands Conservation (NCWC) Grant,
attached as Exhibit 2 to this agreement and incorporated by reference. The grantee shall
comply with all applicable terms and conditions that may be required by the NCWC grant
(attached as exhibit B) to the Conservancy or that may be necessary to enable the
Conservancy to comply with terms and conditions of the grants, including the following:
Compliance with all applicable terms and conditions of the NCWC Grant agreement
with the Conservancy , which is attached as Exhibit 2 to this agreement including, but
not limited to compliance with the USFWS Financial Assistance Award Terms and
Conditions, for awards effective as of January 1, 2017 (available at
http:'www.fws.govrgrants/atc.html).
2. Compliance with NEPA, Section 7 of the ESA, Magnuson -Stevens Fishery
Conservation and Management Act, the Bald and Golden Eagle Protection Act, and
Section 106 of the NHPA.
3. U.S. Department of the Interior PA Certifications Regarding Debarment, Suspension
and Other Responsibility Matters, Drug -Free Workplace Requirements (DOI 2010
form), available at http://www.doi.2ovfarchive/nbc/fonnsm-gt/forms/di20IO.pdf.
4. Provide information, reports and forms required of the Conservancy by the NCWC
Grant, including the following:
a. Information necessary to report tinder the Federal Funding Transparency Act by
completing the Federal Funding Transparency Act Reporting form attached as
Exhibit C.
b. Lobbying Certification (www.grants.gov Lobbying Form), available at
http://apply07.grants..ov/applv/forms/sample/GG LobbyingForm-V 1. l.pdf.
c. Assurances: Construction Programs (SF 424D), available at
http://apply07.grants.gov/apply./forms/sample/Mandatory_SF424D-V 1.1.pdf.
d. Financial status reports (accounting for finds — Standard Form (SF) 425) as and
when specified in the NCWC Grant award letter (page 3, under the heading
"Reporting Requirements").
15-20
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 6
ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT (Continued)
e. Performance reports, as and when specified in the NCWC Grant award letter
(page 3, under the heading "Reporting Requirements") Also see 2 C.F.R. §
§200.327 et seq. The grantee is encouraged to submit federal reporting data in
metric units of measurement to facilitate federal reporting of program
accomplishments.
f. Conflict of Interest Disclosures and Other Mandatory Disclosures, as required in
the NCWC Grant award letter (page 4, under the headings "Conflict of Interest
Disclosures" and "Other Mandatory Disclosures").
5. Funds must be used consistent with the applicable provisions of the Buy American
Act (41 USC 10a, et seq.).
6. Compliance with the requirements of the federal Administrative Requirements found
at 2 C.F.R. Part 200, Subparts A through D (http://www.ecfr.gov/cgi-bin/text-
idx?SID=66fleac60ecb3f2fcd992313ae9775dc&node=pt2.1.200&rgn=div5). These
requirements include, but are not limited to, the following:
a. Record retention and access requirements related to record under 2 CFR §200.333
et seq.
b. Procurement Standards, found at 2 CFR §§200.317– 200, which require the
grantee to: use specified methods of procurement (§200.320); take all specified
affirmative steps to assure that minority businesses, women's business enterprises,
and labor surplus area firms are used when possible (§200.321); perform a cost or
price analysis in connection with every procurement action in excess of the
Simplified Acquisition Threshold, currently $150,000, but periodically adjusted
for inflation. (§200.323); and to incorporate into any procurement contract the
contracts must contain the applicable provisions described in Appendix II to Part
200— Contract Provisions for non -Federal Entity Contracts Under Federal
Awards (2 CFR §200.326).
c. Cost Principles found at 48 CFR § 1, Subpart 31.2, found at
hn]2s://www.ecfr.gov/cgi-
bin/textidx?c=ecfr&S[D=d7b7 Ia950c5af733ac0a257cI 9fc578c&M=div6&view
=text&node=48:1.0.1.5 30 2&idno=48.
15-21
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 7
ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT (Continued)
The grantee shall comply with federal Davis Bacon Act and the Department of Labor
regulations concerning the Davis -Bacon Act and other federal and state wage and
hour laws. When required by the Davis -Bacon Act, the Department of Labor's (DOL)
government -wide implementation of the Davis -Bacon Act, or by Federal program
legislation, all laborers and mechanics employed by contractors or subcontractors to
work on construction contracts in excess of $2,000 financed by Federal assistance
funds must be paid wages not less than those established for the locality of the project
(prevailing wage rates) by the DOL. Non-federal entities must include in their
construction contracts a requirement that the contractor or subcontractor comply with
the requirements of the Davis -Bacon Act and the DOL regulations. In addition, the
grantee must comply with Pres. Executive Order 11246 of September 24, 1965,
entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of
October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR
chapter 60)(all construction contracts awarded in excess of $10,000); the Copeland
"Anti -Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor
regulations (29 CFR part 3) (for contracts for construction or repair); and Sections
103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
330) as supplemented by Department of Labor regulations (29 CFR part 5)
(construction contracts awarded in excess of $2,000, and in excess of $2500 for other
contracts which involve the employment of mechanics or laborers).
8. The grantee shall comply with the requirements specified in 2 CFR Part 25, requiring
that the grantee register and maintain current its Central Contractor Registration and
obtain a Data Universal Numbering System (DUNS) identification number. On
execution of this Agreement, the grantee shall provide the Conservancy with its
current DUNS number.
9. The grantee shall comply with the requirements specified in 2 CFR Part 175,
prohibiting specified acts involving "trafficking in persons" by the grantee or its
employees during the term of the federal grant, as required by the Trafficking Victims
Protection Act (TVA, 22 U.S. C. 7101, et seq.). The grantee, its employees, sub -
recipients under this award, and subrecipients' employees may not engage in severe
forms of trafficking in persons during the period of time that the award is in effect;
procure a commercial sex act during the period of time that the award is in effect; or
use forced labor in the performance of the award or subawards.( "Severe forms of
trafficking in persons," "commercial sex act," and "coercion" have the meanings given
the TVPA, (22 U.S.C. 7102) The U.S. Fish and Wildlife Service may unilaterally
terminate this award, without penalty, if a sub -recipient that is a private entity -
15 -22
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 8
ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT (Continued)
a. Is determined to have violated an applicable prohibition in paragraph 9; or
b. Has an employee who is determined by the agency official authorized to terminate
the award to have violated an applicable prohibition in paragraph 9 through
conduct that is either—
i. Associated with performance under this award; or
ii. Imputed to the subrecipient using the standards and due process for imputing
the conduct of an individual to an organization that are provided in 2 CFR part
180, "OMB Guidelines to Agencies on Governmentwide Debarment and
Suspension (Nonprocurement)," as implemented by U.S Fish and Wildlife
Service.
TERM OF AGREEMENT
This agreement shall take effect when signed by both parties and received in the offices
of the Conservancy together with the resolution described in the "CONDITIONS
PRECEDENT TO CONSTRUCTION AND DISBURSEMENT" section of this
agreement. An authorized representative of the grantee shall sign the first page of the
originals of this agreement in ink.
This agreement shall run from its effective date through February 28, 2041 ("the
termination date") unless otherwise terminated or amended as provided in this agreement.
However, all work shall be completed by March 31,2021 ("the completion date"). The
grantee shall submit a final Request for Disbursement no later than February 28, 2021.
AUTHORIZATION
The signature of the Executive Officer of the Conservancy on this agreement certifies
that at its May 16, 2019 meeting, the Conservancy adopted the resolution included in the
staff recommendation attached as Exhibit 3. This agreement is executed under that
authorization.
15-23
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 9
Standard Provisions
WORK PROGRAM
Before beginning construction, the grantee shall submit a detailed work program to the
Executive Officer for review and written approval of its consistency with the purposes of
this grant agreement. The work program shall include:
1. Construction plans and specifications: which have been certified by a licensed
architect or registered engineer, or approved by the grantee's Public Works Director.
2. A schedule of completion for the project specifically listing the completion date for
each project component and a final project completion date.
A detailed project budget. The project budget shall describe all labor and materials
costs of completing each component of the project, including the grantee's labor and
materials costs and costs to be incurred under a contract with any third party retained
by the grantee for work under this agreement. For each project component, the project
budget shall list all intended funding sources, including the Conservancy and
USFWS' grant, the grantee's required contribution and all other sources of monies,
materials, or labor. The grantee shall review the plans on-site with Conservancy staff.
[f all or any part of the project to be funded under this agreement will be performed by
third parties ("contractors") under contract with the grantee, then the grantee shall, prior
to initiating any contractor selection process, submit the selection package, including any
applicable construction plans and specifications that have been certified or approved as
described above, to the Executive Officer for review and written approval as to
consistency with the purposes of this grant agreement. Upon approval by the Executive
Officer, the grantee shall proceed with the contractor selection process. Prior to final
selection of a contractor, the grantee shall submit to the Executive Officer for written
approval the names of all contractors that the grantee intends to hire. The grantee shall
then comply with the above paragraph regarding submission and approval of a work
program prior to construction.
disbursing $969,555 from the USFWS National Coastal Wetlands Conservation (NCWC)
Grant, attached as Exhibit 2 to this agreement and incorporated by reference. The work
program may be modified without amendment of this agreement upon the grantee's
submission of a modified work program and the Executive Officer's written approval of
it. However, if this agreement and the work program are inconsistent, the agreement
shall control.
15-24
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 10
SIGNS AND ACKNOWLEDGMENT
Prior to beginning the project, the grantee shall submit a plan to the Executive Officer for
the installation of signs and acknowledgment of Conservancy support. Except as the
Executive Officer agrees otherwise, the plan shall commit the grantee to mention the
Conservancy's support in its project -related press releases, contacts with the media, and
social media postings, and on its website.
The grantee shall install and maintain a sign or signs visible from the nearest public
roadway identifying the project, acknowledging Conservancy assistance and displaying
the Conservancy's logo, and directing the public to the project]. The Conservancy shall
provide to the grantee specifications for the signsThe signs shall also acknowledge
funding from the Water Quality, Supply, and Infrastructure Improvement Act of 2014
(Proposition 1) by using the official logo prepared by the California Natural Resources
Agency, which the Conservancy has available in various file formats.] The grantee may
incorporate the required information into other signs as approved by the Executive
Officer. In special circumstances, where the placement of signs or the general
specifications are inappropriate, the Executive Officer may approve alternative, more
appropriate methods for acknowledging the sources of funding. The grantee shall
submit plans describing the number, design, placement and wording of the signs, or the
specifications of a proposed, alternative method. The Conservancy will withhold final
disbursement until the signs are installed as approved by the Conservancy.
If the grantee intends to use any contractors on any portion of the project to be funded
under this agreement, construction shall not begin until each contractor has furnished a
performance bond in favor of the grantee and in favor of the Conservancy, individually or
as a co -obligee, in the following amounts: for faithful performance, one hundred percent
(100%) of the contract value; and for labor and materials, one hundred percent (100%) of
the contract value. This requirement shall not apply to any contract for less than $20,000.
Any bond fumished under this section shall be executed by an admitted corporate surety
insurer licensed in the State of California.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 11
COSTS AND DISBURSEMENTS
When the Conservancy determines that all "CONDITIONS PRECEDENT TO
CONSTRUCTION AND DISBURSEMENT" have been fully met, the Conservancy shall
disburse to the grantee, in accordance with the approved project budget, a total amount
not to exceed the amount of this grant, as follows:
The withholding for this agreement is five percent. The Conservancy shall disburse
funds for costs incurred to date, less five percent, upon the grantee's satisfactory progress
tinder the approved work program, and upon the grantee's submission of a "Request for
Disbursement" form, which shall be submitted no more frequently than monthly but no
less frequently than quarterly. The Conservancy shall disburse the five percent withheld
upon the grantee's satisfactory completion of construction and compliance with the
"PROJECT COMPLETION" section, below, and upon the Conservancy's acceptance of
the project.
The Conservancy will reimburse the grantee for expenses necessary to the project when
documented by appropriate receipts. The Conservancy will reimburse travel and related
expenses at actual costs not to exceed the rates provided in Title 2, Division 1, Chapter 3,
Subchapter 1, Article 2 of the California Code of Regulations ("CCR"), except that
reimbursement may be in excess of these rates upon documentation that these rates are
not reasonably available to the grantee. Reimbursement for the cost of operating a
private vehicle shall not, under any circumstance, exceed the current rate specified by the
State of California for unrepresented state employees as of the date the cost is incurred.
The Conservancy will reimburse the grantee for other necessary expenses if those
expenses are reasonable in nature and amount taking into account the nature of the
project, its location, and other relevant factors.
The grantee shall request disbursements by filing with the Conservancy a fully executed
"Request for Disbursement" form (available from the Conservancy). The grantee shall
include in the form its name and address, the number of this agreement, the date of the
submission, the amount of the invoice, the period during which the work was actually
done, and an itemized description, including time, materials, and expenses incurred of all
work done for which disbursement is requested. Hourly rates billed to the Conservancy,
and specified in the approved work program budget shall be equal to the actual
compensation paid by grantee to employees, which may include employee benefits. The
form shall also indicate cumulative expenditures to date, expenditures during the
reporting period, and the unexpended balance of funds under the grant agreement.
15-26
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 12
COSTS AND DISBURSEMENTS (Continued)
An authorized representative of the grantee shall sign the forms. Each form shall be
accompanied by:
1. All receipts and any other source documents for direct expenditures and costs that the
grantee has incurred.
2.. Invoices from contractors that the grantee engaged to complete any portion of the
work funded under this agreement and any receipts and any other source documents
for costs incurred and expenditures by any such contractor, unless the Executive
Officer makes a specific exemption in writing.
3. A supporting progress report summarizing the current status of the project and
comparing it to the status required by the work program (budget, timeline, tasks, etc.)
including written substantiation of completion of the portion of the project for which
the grantee is requesting disbursement.
The grantee's failure to fully execute and submit a Request for Disbursement form,
including attachment of supporting documents, will relieve the Conservancy of its
obligation to disburse funds to the grantee until the grantee corrects all deficiencies.
EXPENDITURE OF FUNDS AND ALLOCATION OF FUNDING AMONG
BUDGET ITEMS
The total amount of this grant may not be increased except by written amendment to this
agreement. The grantee shall expend funds consistent with the approved project budget.
Expenditure on items contained in the approved project budget, other than overheard and
indirect costs, may vary by as much as ten percent without prior approval by the
Executive Officer, provided that the grantee first submits a revised budget to the
Conservancy and requests disbursement based on the revised budget. Any deviation
greater than ten percent, and any deviation that shifts funds from approved budget items
into an overhead or indirect costs category, must be identified in a revised budget
approved in advance and in writing by the Executive Officer. The Conservancy may
withhold payment for items which exceed the amount allocated in the project budget by
more than ten percent and which have not received the approval required above. Any
increase in the funding for any particular budget item shall mean a decrease in the
funding for one or more other budget items unless there is a written amendment to this
agreement.
15-27
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 13
PROJECT COMPLETION
Within thirty days of completion of construction of the project, the grantee shall supply
the Conservancy with evidence of completion by submitting a final report which
includes:
1. A report certifying completion of the project according to the approved work
program, including photographs documenting project completion.
2. Documentation that signs are installed as required by the "SIGNS AND
ACKNOWLEDGMENT" section of this agreement.
3. A fully executed final "Request for Disbursement."
4. A final inspection report by a licensed architect or registered engineer or the grantee's
Public Works Director, and a copy of "as built" drawings of the completed project.
Evidence that the following activities have been completed:
a. Post -Construction Condition Report. A "Level 2" CRAM wetland or riparian
assessment following project construction and prior to the project completion
date. An updated budget (including an identified funding source) and timeline for
the post -construction "Level 2" CRAM assessment required in the
ADDITIONAL GRANT CONDITIONS section, above. The CRAM assessment
shall be completed by a certified CRAM practitioner and the data shall be
uploaded at http://www.cramwetlands.org/.
b. Update Project Information. All relevant project information has been updated in
the project tracker on EcoAtlas (currently available at http://ptrack.ecoatlas.org/)
to reflect completion of the project.
Within thirty days of grantee's submission of the above, the Conservancy shall determine
whether the grantee has satisfactorily completed the project. If so, the Conservancy shall
issue to the grantee a letter of acceptance of the project. The project shall be deemed
complete as of the date of the letter.
EARLY TERMINATION, SUSPENSION AND FAILURE TO PERFORM
Before the project has commenced, either party may terminate this agreement for any
reason by providing the other party with seven days notice in writing.
Before the project is complete, the Conservancy may terminate or suspend this agreement
for any reason by providing the grantee with seven days notice in writing. In either case,
the grantee shall immediately stop work under the agreement and take all reasonable
15-28
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 14
EARLY TERMINATION SUSPENSION AND FAILURE TO PERFORM
{Continued}
measures to prevent further costs to the Conservancy. The Conservancy shall be
responsible for any reasonable and non -cancelable obligations incurred by the grantee in
the performance of this agreement prior to the date of the notice to terminate or suspend,
but only up to the undisbursed balance of funding authorized in this agreement. Any
notice suspending work under this agreement shall remain in effect until further written
notice from the Conservancy authorizes work to resume.
If the grantee fails to complete the project as required, or fails to fulfill any other
obligations of this agreement prior to the termination date, the grantee shall be liable for
immediate repayment to the Conservancy of all amounts disbursed by the Conservancy
under this agreement. The Conservancy may, at its sole discretion, consider extenuating
circumstances and not require repayment for work partially completed. This paragraph
shall not be deemed to limit any other remedies the Conservancy may have for breach of
this agreement.
Before the project is complete, the grantee may terminate this agreement for any reason
by providing the Conservancy with seven days notice in writing and repaying to the
Conservancy all amounts disbursed by the Conservancy under this agreement. The
Conservancy may, at its sole discretion, consider extenuating circumstances and allow
early termination without repayment for work partially completed.
The parties expressly agree to waive, release and relinquish the recovery of any
consequential damages that may arise out of the termination or suspension of this
agreement under this section.
The grantee shall include in any agreement with any contractor retained for work under
this agreement a provision that entitles the grantee to suspend or terminate the agreement
with the contractor for any reason on written notice and on the same terms and conditions
specified in this section.
OPERATION AND MAINTENANCE
The grantee shall use, manage, maintain and operate the project throughout the term of
this agreement consistent with the purposes for which the Conservancy's grant was made.
The grantee assumes all operation and maintenance costs of these facilities and
structures; the Conservancy shall not be liable for any cost of maintenance, management,
or operation. The grantee may be excused from its obligations for operation and
15-29
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 15
OPERATION AND MAINTENANCE (Continued)
maintenance during the term of this agreement only upon the written approval of the
Executive Officer.
For purposes of this agreement, "operation costs" include direct costs incurred for
material and labor needed for operations, utilities, insurance, and similar expenses.
"Maintenance costs" include ordinary repairs and replacements of a recurring nature
necessary to prolong the life of capital assets and basic structures, and the expenditure of
funds necessary to replace or reconstruct capital assets or basic structures.
MITIGATION
Without the written permission of the Executive Officer, the grantee shall not use or
allow the use for mitigation (in other words, to compensate for adverse changes to the
environment elsewhere) of any portion of real property on which the Conservancy has
funded construction. In providing permission, the Executive Officer may require that all
funds generated in connection with any authorized or allowable mitigation on the real
property shall be remitted promptly to the Conservancy. As used in this section,
mitigation includes, but is not limited to, any use of the property in connection with the
sale, trade, transfer or other transaction involving carbon sequestration credit or carbon
mitigation.
INSPECTION
Throughout the term of this agreement, the Conservancy shall have the right to inspect
the project area to ascertain compliance with this agreement.
INDEMNIFICATION AND HOLD HARMLESS
The grantee shall be responsible for, indemnify and hold harmless the Conservancy, its
officers, agents, and employees from any and all liabilities, claims, demands, damages, or
costs, including, without limitation, litigation costs and attorneys fees, resulting from or
arising out of the willful or negligent acts or omissions of the grantee, its officers, agents,
contractors, subcontractors, and employees, or in any way connected with or incident to
this agreement, except for the active negligence of the Conservancy, its officers, agents,
or employees. The duty of the grantee to indemnify and hold harmless includes the duty
to defend as provided in Civil Code section 2778. This agreement supersedes any right
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 16
INDEMNIFICATION AND HOLD HARMLESS (Continued)
the grantee may have as a public entity to indemnity and contribution as provided in Gov.
Code Sections 895 et seq.
The grantee waives any and all rights to any type of express or implied indemnity or right
of contribution from the State, its officers, agents, or employees, for any liability
resulting from, growing out of, or in any way connected with or incident to this
agreement.
Nothing in this agreement is intended to create in the public or in any member of it rights
as a third -party beneficiary under this agreement.
The obligations in this "INDEMNIFICATION AND HOLD HARMLESS" section shall
survive termination of this agreement.
INSURANCE
The grantee shall procure and maintain insurance, as specified in this section, against
claims for injuries to persons and damage to property that may arise from or in
connection with any activities of the grantee or its agents, representatives, employees,
volunteers, or contractors associated with the project undertaken pursuant to this
agreement.
As an alternative, with the written approval of the Executive Officer, the grantee may
satisfy the coverage requirement in whole or in part through: (a) its contractors'
procurement and maintenance of insurance for work under this agreement, if the
coverage otherwise fully satisfies the requirements of this section; or (b) the grantee's
participation in a "risk management" plan, self insurance program or insurance pooling
arrangement, or any combination of these, if consistent with the coverage required by this
section.
The grantee shall maintain property insurance, if required below, throughout the term of
this agreement. Any required errors and omissions liability insurance shall be maintained
from the effective date through two calendar years after the completion date. The grantee
shall maintain all other required insurance from the effective date through the completion
date.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 17
INSURANCE (Continued)
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
a. Insurance Services Office ("ISO") Commercial General Liability coverage,
occurrence basis (Form CG 00 01) or comparable.
b. Automobile Liability coverage: ISO Form Number CA 0001, Code I (any auto).
c. Workers' Compensation insurance as required by the Labor Code of the State of
California, and Employer's Liability insurance.
2. Minimum Limits of Insurance. The grantee shall maintain coverage limits no less
than:
a. General Liability: $2,000,000 per occurrence for bodily injury,
(Including operations, products personal injury and property damage. If
and co,npleted operations, as Commercial General Liability Insurance or other
applicable) form with a general aggregate limit is used, either
the general aggregate limit shall apply separately
to the activities under this agreement, or the
general aggregate limit shall be twice the required
occurrence limit.
b. Automobile Liability: $1,000,000 per accident for bodily injury and
property damage.
c. Worker's Compensation As required by law with Employer's Liability of
no less than $1,000,000
3. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions
must be declared to and approved by the Executive Officer.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 18
INSURANCE (Continued)
4. Required Provisions Concerning the Conservancy and the State of California.
a. Each insurance policy required by this section shall be endorsed to state that
coverage shall not be canceled by either party, except after thirty days' prior
written notice by first class mail has been given to the Conservancy; or in the
event of cancellation of coverage due to nonpayment, after ten days prior written
notice to the Conservancy. The grantee shall notify the Conservancy within two
days of receipt of notice that any required insurance policy will lapse or be
cancelled At least ten days before an insurance policy held by the grantee lapses
or is cancelled, the grantee shall provide the Conservancy with evidence of
renewal or replacement of the policy.
b. The grantee hereby grants to the State of California, its officers, agents,
employees, and volunteers, a waiver of any right to subrogation which any insurer
of the grantee may acquire against the State of California, its officers, agents,
employees, and volunteers, by virtue of the payment of any loss under such
insurance. Grantee agrees to obtain any endorsement that may be necessary to
effect this waiver of subrogation, but this provision applies regardless of whether
or not the grantee has received a waiver of subrogation endorsement from the
insurer.
c. The general liability and automobile liability policies are to contain, or be
endorsed to contain, the following provisions:
(i) The State of California, its officers, agents, employees, and volunteers are
to be covered as additional insureds with respect to liability arising out of
automobiles owned, leased, hired or borrowed by or on behalf of the
grantee; and with respect to liability arising out of work or operations,
including completed operations, performed by or on behalf of the grantee
including materials, parts or equipment furnished in connection with the
work or operations.
(ii) For any claims related to this agreement, the grantee's insurance coverage
shall be primary insurance as respects the State of California, its officers,
agents and employees, and not excess to any insurance or self-insurance of
the State of California.
(iii)The limits of the additional insured coverage shall equal the limits of the
named insured coverage regardless of whether the limits of the named
insurance coverage exceed those limits required by this agreement.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 19
INSURANCE (Continued)
5. Acceptability of Insurers. Insurance shall be placed with insurers admitted to transact
business in the State of California and having a current Best's rating of "B+:VTI" or
better or, in the alternative, acceptable to the Conservancy and approved in writing by
the Executive Officer.
6. Verification of Coverage. The grantee shall famish the Conservancy with original
certificates and amendatory endorsements, or copies of the applicable policy
language, effecting coverage required by this clause. All certificates and
endorsements are to be received and approved by the Executive Officer before work
commences. The Conservancy may require, at any time, complete, certified copies of
all required insurance policies, including endorsements affecting the coverage.
7. Contractors. The grantee shall include all contractors as insureds under its policies or
shall require each contractor to provide and maintain coverage consistent with the
requirements of this section. To the extent generally available, grantee shall also
require each professional contractor to provide and maintain Errors and Omissions
Liability insurance appropriate to the contractor's profession and in a reasonable
amount in light of the nature of the project with a minimum limit of liability of
$ 1,000,000
8. Premiums and Assessments. The Conservancy is not responsible for premiums and
assessments on any insurance policy.
AUDITS/ACCO UNTING/RE CORDS
The grantee shall maintain financial accounts, documents, and records (collectively,
',records") relating to this agreement, in accordance with the guidelines of "Generally
Accepted Accounting Principles" ("GAAP") published by the American Institute of
Certified Public Accountants. The records shall include, without limitation, evidence
sufficient to reflect properly the amount, receipt, deposit, and disbursement of all funds
related to the implementation of the project, and the use, management, operation and
maintenance of the real propertyj. Time and effort reports are also required. The grantee
shall maintain adequate supporting records in a manner that permits tracing from the
request for disbursement forms to the accounting records and to the supporting
documentation.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 20
AUDITS/ACCOUNTING/RECORDS (Continued)
Additionally, the U.S. Fish and Wildlife Service, the U.S. Inspector General, the
Conservancy or their agents may review, obtain, and copy all records relating to
performance of the agreement. The grantee shall provide the Conservancy or its agents
with any relevant information requested and shall permit the Conservancy or its agents
access to the grantee's premises upon reasonable notice, during normal business hours, to
interview employees and inspect and copy books, records, accounts, and other material
that may be relevant to a matter under investigation for the purpose of determining
compliance with this agreement and any applicable laws and regulations.
The grantee shall retain the required records for a minimum of three years following the
later of final disbursement by the Conservancy, and the final year to which the particular
records pertain. The records shall be subject to examination and audit by the
Conservancy and the Bureau of State Audits during the retention periods.
If the grantee retains any contractors to accomplish any of the work of this agreement, the
grantee shall first enter into an agreement with each contractor requiring the contractor to
meet the terns of this section and to make the terms applicable to all subcontractors.
The Conservancy may disallow all or part of the cost of any activity or action that it
determines to be not in compliance with the requirements of this agreement.
The grantee shall conduct an audit in accordance with Title 2, Code of Federal
Regulations, Part 200 (2 CFR 200). The audit shall be conducted at least every two
years, completed within twelve months after the end of the grantee's fiscal year, and
submitted to the Conservancy within thirty days after the completion of the audit. The
Conservancy shall provide technical assistance to the grantee, at the grantee's request, for
meeting the requirements of 2 CFR 200.
NONDISCRIMINATION
During the performance of this agreement, the grantee and its contractors shall not deny
the agreement's benefits to any person on 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. The grantee shall insure that the evaluation
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 21
NONDISCRIMINATION (Continued)
and treatment of employees and applicants for employment are free of such
discrimination. The grantee and contractors 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 Conservancy to implement such article. The
grantee shall permit access by representatives of the Department of Fair Employment and
Housing and the Conservancy upon reasonable notice at any time during the normal
business hours, but in no case less than 24 hours' notice, to such of its books, records,
accounts, and all other sources of information and its facilities as said Department or the
Conservancy shall require to ascertain compliance with this clause. The grantee and its
contractors 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.)
The grantee shall include the nondiscrimination and compliance provisions of this clause
in all contracts to perform work under this agreement.
PREVAILING WAGE
Work done under this grant agreement may be subject to the prevailing wage and other
related requirements of the California Labor Code, Division 2, Part 7, Chapter 1, sections
1720-1861. If required bylaw to do so, the grantee shall pay prevailing wage to all
persons employed in the performance of any part of the project and otherwise comply
with all associated requirements and obligations.
The grantee shall review applicable statutory provisions and the regulations adopted
under the provisions and the information available on the Department of Industrial
Relations website (http://www.dir.ca.gov/Publie-Works/PublicWorks.html) to determine
its responsibilities. The grantee may also review the Conservancy publication,
Information on Current Status of Prevailing Wage Laws for State Coastal Conservancy
Grantees (March 2015), available from the Conservancy on request, for additional
information.
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Newport Bay Naturalists and Fr -ends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 22
DRUG-FREE WORKPLACE
The grantee's signature on this F-greement constitutes the certification required by
Government Code Section 8355, which requires that all state grantees provide a drug-free
workplace by doing all of the following:
(1) Publishing a statement notiiying employees that the unlawful manufacture,
distribution, dispensation, possession, or use of a controlled substance is prohibited in the
person's or organization's workplace and specifying actions that will be taken against
employees for violations of the prohibition.
(2) Establishing a drug-free awareness program to inform employees about all of the
following:
a. The dangers of drug abuse in the workplace.
b. The person's or organization's policy of maintaining a drug-free workplace.
c. Any available drug counseling, rehabilitation, and employee assistance programs.
d. The penalties that may be imposed upon employees for drug abuse violations.
(3) Requiring that each employee engaged in the performance of the grant be given a
copy of the drug-free workplace statement and that, as a condition of employment on the
grant, the employee agrees to abide by the terms of the statement.
UNION ORGANIZING
By signing this agreement, gran_ee acknowledges the applicability of Government Code
Sections 16645 through 16649 to this agreement and certifies that no state funds
disbursed by this agreement will be used to assist, promote or deter union organizing. If
grantee makes expenditures to assist, promote or deter union organizing, grantee agrees
to maintain records sufficient to show that no state funds, including the funds provided
under this agreement, have been used for these purposes, and shall provide these records
to the Attorney General upon request.
INDEPENDENT CAPACITY
The grantee, and the agents and employees of grantee, in the performance of this
agreement, shall act in an independent capacity and not as officers or employees or
agents of the State of California.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 23
ASSIGNMENT
Without the written consent of the Executive Officer, the grantee may not assign this
agreement in whole or in part.
TIMELINESS
Time is of the essence in this agreement.
EXECUTIVE OFFICER'S DESIGNEE
The Executive Officer shall designate a Conservancy project manager who shall have
authority to act on behalf of the Executive Officer with respect to this agreement. The
Executive Officer shall notify the grantee of the designation in writing.
AMENDMENT
Except as expressly provided in this agreement, no changes in this agreement shall be
valid unless made in writing and signed by the parties to the agreement. No oral
understanding or agreement not incorporated in this agreement shall be binding on any of
the parties.
SURVIVAL
The obligations in the "INDEMNIFICATION AND HOLD HARMLESS" section,
above, shall survive the termination of this agreement.
LOCUS
This agreement is deemed to be entered into in the County of Alameda.
15-38
w
15-39
Exhibit 1: Project Location
Figure 3
Rig Canyon Coastal Creek Restoration and Estuary Adaptation — Phase ii
15-40
In Reply Refer (w
I'WS/R8/WSI'R
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Pacific Southwest Region
Wildlife & Sport Fish Restoration Program
2800 Cottage Way, W-1729
Sacramento, California 95825
Joel Gerwein, Ph.D., Project Manager
California State Coastal Conservancy
1515 Clay Street, 10' Floor
Oakland, California 94612-1401
DUNS: 808322408
Subject: Notice of Grant Award for FBMS# F I9AP00153
Dear Dr. Gerwein:
F[tni a w�x�mrv�
NtSRV1C1[
May 23, 2019
Your organization's application for Federal financial assistance titled "2019 Coastal Wetland -
Big Canyon Wetlands Restoration Phase 2A" submitted to the U.S. Fish and Wildlife Service
(Service)'s Assistance Listings (CFDA) Program 15.614 is approved. This award is made under
the authority of Coastal Wetlands Planning, Protection and Restoration Act, 16 U.S.C. §§3951-
3957. For a complete list of this program's authorizing legislation, go to https://beta.sam.gov/
and search by the CFDA Assistance Listings Program number. This award is made based on
approval of your organization's proposal, hereby incorporated by reference into this award.
The performance period of this award is January 1, 2019 through December 31, 2022. Only
allowable costs resulting from obligations incurred during the performance period and any
authorized pre -award costs may be charged to this award. Liquidate all obligations incurred
under the award no later than 90 calendar days after the end of the performance period, unless
the Service approves a final financial reporting period extension (see Reporting Requirements
section below). if you need more time to complete project activities, you must submit a written
request to r8fa_grants(ufws.gov before the end of the stated performance period (see Period of
Performance Extensions section below).
Payments-
Your organization has completed enrollment in U.S. Treasury's Automated Standard Application
for Payment (ASAP), system. When requesting payment in ASAP, your Payment Requestor will
be required to enter an Account ID. The number assigned to this award is the partial Account ID
in ASAP. When entering the Account ID in ASAP, the Payment Requestor should enter the
award number identified in the subject line on letter followed by a percent sign (%). Refer to the
ASAP.gov .Help menu for detailed instructions on requesting payments in ASAP.
15-41
Use the information below to identify your award funds at: httDs://www.asaD.eov
ASAP Accounting
FY/Funding
Federal
% of
State
% of'
Total
Information
Title
Share
Federal
Share
State
Award
Share
Share
F19AP00153-0001 -0000
Coastal
I'mm,00()
61%
641,854
39%
1,641,854
Wetlands
"Totals: 7
000,000
---
$641,854
$1,641,854
Terms of Acceptance:
Service grant and cooperative agreement awards are made based on the application submitted to
and approved by the Service, and are subject to the terms and conditions incorporated into the
Notice of Award either by direct citation or by reference to Federal regulations; program
legislation or regulation; and special award terms and conditions. Recipients indicate their
acceptance of an award by starting work, drawing down funds, or accepting the award via
electronic means. Recipient acceptance of an award from the Service carries with it the
responsibility to be aware of and comply with all terms and conditions applicable to the award.
The Federal regulations applicable to Service recipients and their subreeipients and contractors
are listed by recipient type in the Service's Financial Assistance Award Terms and Conditions.
The "Department of the Interior (DOI) Award Provisions" attached to this Notice of Award also
apply (Attachment A). If you do not have access to the Internet and require a printed copy of the
award terms and conditions, contact the Service Project Officer identified in the Project Contacts
section.
The recipient can initiate termination of award by sending written notice to the Service Project
Officer stating the reasons for termination, the effective date, and in the case of partial
termination, the portion to be terminated. For applicable award termination regulations and
procedures, see 2 CFR 200.339.
_Special Conditions and Provisions:
- Cost accounting is required at Grant level
- Your organization's SAM CCR registration is set to expire on February 4, 2020. Under the
terms and conditions of this award, your organization is required to maintain an active CCR
registration throughout the entire approved award period.
- Recipient needs prior written approval from the USFWS to make a cumulative transfer among
direct cost categories which exceed, or are expected to exceed, ten percent of the current total
approved budget.
- The U.S. Fish and Wildlife Service approves the pre -agreement costs $266,601 as specified in
the grant documents.
- Drawdown of funds is limited to reimbursement of expenditures not to exceed $30,445 (federal
share) for administrative costs. Pre -award nonfederal match of $266,601 is approved under this
award. Activities approved as pre -award are for grant and project administration, planning.
engineering, permitting, and coordination. No ground disturbing activity is authorized or will he
reimbursable until the applicant supplies sufficient intbrination to complete federal compliance
requirements, the award is amended, and this condition on reimbursement for implementation is
removed. Recipients and sub -recipients of Federal grant awards must comply with the
requirements ofthe National Environmental Policy Act (NEPA), Section 7 of ESA. Ma.-nuson-
Stevens Fishery Conservation Act. the Bald and Golden Cagles Protection Act, and the National
Historic Preservation Act.
15-42
-'There is always the possibility of accidental discovery of buried archaeological deposits during
site construction. Ifarchaeological remains arc uncovered, conditions placed upon the grantee
will required that work halts immediately until a quali(icd archaeologist can evaluate the
materials. Upon discovery of suspected archaeological deposits. the grantee will be required to
contact the US Dish and Wildlife Service at (503) 625-4377and the State Historic Preservation
Officer immediately. The State Historic Preservation Officer and the Fish and Wildlife Service
will determine necessary next steps. If human remains are encountered, excavation or
disturbance at the site will be required to be halted by conditions placed upon the grantee. The
county coroner. the US Fish and Wildlife Service. and the State l listoric Preservation Officer
will be immediately contacted. I f the coroner determines the remains are Native American, the
coroner will contact the Native American Heritage Commission. Working with the Commission.
the State i listoric Preservation Officer and the Fish and Wildlife Service will determine
necessary next steps.
Reporting Re uirements:
Report Title
Report Period:
Due Date
Interim Federal Financial Report
(SF -425
01/01/2019-12/31/2019
03/31/2020
interim Performance Report
01/01/2019-12/31/2019
03/31/2020
Interim Federal Financial Report
(SF -425)
01/01/2019-12/31/2020
03/31/2021
Interim Performance Report
01 /01/2019-12131/2020
03/31 /2021
Interim Federal Financial Report
(SF -425
01/01/2019-12/31/2021
03/31/2022
Interim Performance Report
01/01/2019-12/31/2021
03/31/2022
Final Federal Financial Report
(SF -425
01/01/2019-12/31/2022
03/31/2023
Final Performance Report
01/01/2019-12/31/2022
03/31/2023
All Reports should be sent to r8fa—grants@fws.gov.
Recipients must use the Standard Form (SF) 425, Federal Financial Report form for all financial
reporting. A final SF 425, Federal Financial Report is required within 90 calendar days of the
end date of the award. This form is available at online at
https://www.grants.gov/web/grants/fonns/post-award-reporting-forms.html. For assistance
completing the SF -425, watch the instructional Adeo,'Compfeting the Federal Financial Report
(SF -425) available on the Service's Financial Assistance Wiki.
Performance reports must contain: 1) a comparison of actual accomplishments with the goals and
objectives of the award as detailed in the approved scope of work; 2) a description of reasons
why established goals were not met, if appropriate; and 3) any other pertinent information
relevant to the project results. Please include the Service award number provided in the subject
line of this letter on all reports.
Financial and performance reporting due dates may be extended upon receipt of a written request
addressed to the Service at r8fa_grants@fws.gov identifying the type of report to be extended,
the requested revised due date, and a justification for the extension. The Service may approve an
additional extension if justified by a catastrophe that significantly impairs the Recipient's
operations. Requests for reporting due date extensions must be received by the Service before
the original reporting due date.
15-43
For additional information regarding financial and performance reporting requirements and
sanctions for noncompliance, see Service Policy 516 FW 1, Monitoring Financial and
Performance Reporting for Financial Assistance.
Significant Developments Reports (see 2 CFR 200.328(d)):
Events may occur between the scheduled performance reporting dates that have significant
impact upon the supported activity. In such cases, recipients are required to notify the Service in
writing as soon as the recipient becomes aware of any problems, delays, or adverse conditions
that will materially impair the ability to meet the objective of the Federal award. This disclosure
must include a statement of any corrective action(s) taken or contemplated, and any assistance
needed to resolve the situation. The recipient should also notify the Service in writing of any
favorable developments that enable meeting time schedules and objectives sooner or at less cost
than anticipated or producing more or different beneficial results than originally planned.
Conflict of Interest Disclosures:
Recipients are responsible for notifying the Service Project Officer in writing of any conflicts of
interest that arise during the life of this award, including those reported to them by any
subrecipient under the award. Conflicts of interest include any relationship or matter that might
place the recipient, including their employees and subrecipients, in a position of conflict, real or
apparent, between their responsibilities under the award and any other outside interests. Conflicts
of interest include direct or indirect financial interests; close personal relationships; positions of
trust in outside organizations; consideration of future employment arrangements with a different
organization; and decision-making authority related to the proposed project. Conflicts of interest
are those circumstances real or perceived that would cause a reasonable person with knowledge
of the relevant facts to question the impartiality of the recipient, or the recipient's employees or
subrecipients, in matters pertaining to the award. Recipients must notify the Service in writing if
any employees, including subrecipient and contractor personnel, are related to, married to, or
have a close personal relationship with any Federal employee within the Federal program issuing
this award. The term employee means any individual engaged in the performance of work under
the Federal award. Recipients may not have a former Federal employee as a key project official,
or in any other substantial role related to their award, whose participation put them out of
compliance with the legal authorities addressing post -Government employment restrictions. See
the U.S. Office of Government Ethics website at https://oge.gov/ for more information on these
restrictions. The Service will examine each conflict of interest disclosure based on its particular
facts and the nature of the project and will determine if a significant potential conflict exists. If it
does, the Service will work with the recipient to determine an appropriate resolution. Failure to
disclose and resolve conflicts of interest in a manner that satisfies the Service may result in any
of the remedies described in 2 CFR 200.338 Remedies for Noncompliance including termination
of this award.
Other Mandatory Disclosures:
Recipients of Federal awards must disclose, in a timely manner, in writing to the Federal
awarding agency or pass-through entity all violations of Federal criminal law involving fraud,
bribery, or gratuity violations potentially affecting the Federal award. Non -Federal entities that
receive a Federal award including the term and condition outlined in 2 CFR 200, Appendix
X11—Award Term and Condition for Recipient Integrity and Performance Matters are required
to report certain civil, criminal, or administrative proceedings to SAM. Failure to make required
disclosures can result in any of the remedies described in 2 CFR 200.338 Remedies for
Noncompliance, including suspension or debarment.
15-44
Indirect Costs: Indirect costs under this award are approved on the condition that the Recipient
will submit an indirect cost rate proposal to their cognizant agency immediately after the award
is made and no later than 90 calendar days past the award performance period start date. The
Recipient is not authorized to charge indirect costs under this award until the Recipient has
received, and provided a copy to the Service Project Officer, an approved Negotiated Indirect
Cost Rate Agreement (NICRA) from the Federal government. In the event the Recipient fails to
establish an approved rate before the end of the award performance period, the Service may
either: 1) de -obligate the Federal amount budgeted for indirect costs and, if not otherwise
prohibited by legislation or regulation, allow the Recipient to use costs otherwise allocable as
indirect costs to satisfy cost-sharing or matching requirements; or 2) allow the Recipient to
transfer the amount otherwise allocable as indirect costs to direct costs. Service approval of such
budget changes will depend on the particular award circumstance. Recipients may not shift
indirect costs otherwise allocable to this award to another Federal award unless specifically
authorized by legislation.
If the Recipient has submitted an indirect cost rate proposal to the cognizant agency within the
required timeframe but the cognizant agency has delayed approval of the proposal, the Recipient
must provide to the Service Project Officer a copy of the submitted proposal, the name of the
cognizant agency, and evidence of the proposal submission date in the form of either a copy of
an emailed submission or written confirmation of the proposal receipt date from the cognizant
agency. Upon review of the documentation and consultation with the cognizant agency, the
Service may give written approval to the Recipient to charge indirect costs at their proposed rate
until their proposal is approved. Service approval to charge indirect costs based on a proposed
rate will depend on the circumstance; the Service will not approve a Recipient to charge indirect
costs based on a proposed rate if rate approval delays are due to the Recipient having submitted a
late, incomplete, or inaccurate proposal. The Recipient must receive written prior approval from
the Service before charging indirect costs based on a proposed rate. The award may be subject to
further revision if the approved rate is higher or lower than the proposed rate.
System for Award Management (SAM) Registration: Under the terms and conditions of this
award, your organization must maintain an active SAM registration at www.SAM.gov until the
final financial report is submitted or final payment is received, whichever is later. If your
organization's SAM registration expires during the required period, the Service will suspend
payment under this and all other Service awards to your organization until you update your
organization's SAM registration.
Proiect/Proaram Plan and Budget Revisions:
Recipients are required to report deviations from budget or project scope or objective, and
request prior approvals for budget and program pian revisions in accordance with 2 CFR 200.308
unless otherwise specifically waived in this award.
Period of Performance Extensions:
If additional time is needed to complete the approved project, you must send an SF -424 and
written notice to the Service at r8fa rantsafws.gov. This notice must be received at least 30
calendar days before the authorized performance period end date, and must include supporting
reasons and revised end date. Extensions for time cannot be authorized for the purpose of
spending an unused balance of funds that remains after the approved project activities have been
completed.
15-45
Proiect Contacts:
The Service Project Officer for this award
The Recipient Project Officer for this award
is:
is:
Becky Miller, Grant Management Specialist
Joel Gerwein, Ph.D., Project Manager
Phone: (916) 978-6185
Phone: (510) 286-4170
Cell: (916) 768-2330
Email:.ioel.gerweiii@scc.ca.gov
Email: beck millers fws. ov
Please contact Becky Miller with any questions. Please include the Service award number
provided in the subject line of this letter in all written communications.
Thank you far your interest and efforts in supporting conservation for fish and wildlife and their
habitats.
Sincerely,
Lawrence M. Riley
Chief
Enclosures:
- SF424, Budget and Narrative
- Attachment A: DOI Award Provisions
15-46
Attachment A: DOI Award Provisions
1. Conflicts of Interest
(a) Applicability.
(1) This section intends to ensure that non -Federal entities and their employees take appropriate
steps to avoid conflicts of interest in their responsibilities under or with respect to Federal
financial assistance agreements.
(2) In the procurement of supplies, equipment, construction, and services by recipients and by
subrecipients, the conflict of interest provisions in 2 CFR 200.3 18 apply.
(b) Requirements.
(1) Non -Federal entities must avoid prohibited conflicts of interest, including any significant
financial interests that could cause a reasonable person to question the recipient's ability to
provide impartial, technically sound, and objective performance under or with respect to a
Federal financial assistance agreement.
(2) In addition to any other prohibitions that may apply with respect to conflicts of interest, no
key official of an actual or proposed recipient or subrecipient, who is substantially involved in
the proposal or project, may have been a former Federal employee who, within the last one (1)
year, participated personally and substantially in the evaluation, award, or administration of an
award with respect to that recipient or subrecipient or in development of the requirement leading
to the funding announcement.
(3) No actual or prospective recipient or subrecipient may solicit, obtain, or use non-public
information regarding the evaluation, award, or administration of an award to that recipient or
subrecipient or the development of a Federal financial assistance opportunity that may be of
competitive interest to that recipient or subrecipient.
(c) Notification.
(1) Non -Federal entities, including applicants for financial assistance awards, must disclose in
writing any conflict of interest to the DOI awarding agency or pass-through entity in accordance
with 2 CFR 200.112, Conflicts of Interest.
(2) Recipients must establish internal controls that include, at a minimum, procedures to identify,
disclose, and mitigate or eliminate identified conflicts of interest. The recipient is responsible for
notifying the Financial Assistance Officer in writing of any conflicts of interest that may arise
during the life of the award, including those that have been reported by subrecipients.
(d) Restrictions on Lobbying. Non -Federal entities are strictly prohibited from using funds under
this grant or cooperative agreement for lobbying activities and must provide the required
certifications and disclosures pursuant to 4 3 CFR Part 18 and 31 USC 13 52.
(e) Review Procedures. The Financial Assistance Officer will examine each conflict of interest
disclosure on the basis of its particular facts and the nature of the proposed grant or cooperative
agreement, and will determine whether a significant potential conflict exists and, if it does,
develop an appropriate means for resolving it.
(f) Enforcement. Failure to resolve conflicts of interest in a manner that satisfies the Government
may be cause for termination of the award. Failure to make required disclosures may result in
any of the remedies described in 2 CFR 200.338, Remedies for Noncompliance, including
suspension or debarment (see also 2 CFR Part 180).
15-47
I1. Data Availability
(a) Applicability. The Department of the Interior is committed to basing its decisions on the best
available science and providing the American people with enough information to thoughtfully
and substantively evaluate the data, methodology, and analysis used by the Department to inform
its decisions.
(b) Use of Data. The regulations at 2 CFR 200.315 apply to data produced under a Federal
award, including the provision that the Federal Government has the right to obtain, reproduce,
publish, or otherwise use the data produced under a Federal award as well as authorize others to
receive, reproduce, publish, or otherwise use such data for Federal purposes.
(c) Availability of Data. The recipient shall make the data produced under this award and any
subaward(s) available to the Government for public release, consistent with applicable law, to
allow meaningful third party evaluation and reproduction of the following:
(1) The scientific data relied upon;
(2) The analysis relied upon; and
(3) The methodology, including models, used to gather and analyze data.
15-48
Exhibit 3 Stair Recommendalion
COASTAL CONSERVANCY
Stasi Recommendation
May 16, 2019
Big Canyon Creek Phase 2A Restoration and Estuary Adaptation
Project No. 17-018-02
Project Manager: Evyan Sloane
RECOMMENDED ACTION: Authorization to disburse up to $1,049,991 to the Newport Bay
Conservancy to prepare final designs and implement Phase 2A of the Big Canyon Creek Phase
2A Restoration and Estuary Adaptation Project within the 60 -acre Big Canyon Nature Park in the
City of Newport Beach and County of Orange and adoption of findings under the California
Environmental Quality Act.
LOCATION: Big Canyon Nature Park, City of Newport Beach, County of Orange
PROGRAM CATEGORY: Integrated Coastal and Marine Resources Protection; Resource
Enhancement
EXHIBITS
Exhibit 1: Project Location
Exhibit 2: Phase I Project Photos
Exhibit 3: September 28.2017 Staff Recommendation
Exhibit 4: Project Letters
Exhibit 5: Initial Study / Final Mitigated Negative Declaration for the Big
Canyon Creek Restoration and Adaptation Project
Exhibit 6: City Response to IS/MND Comments
Exhibit 7: Mitigation Monitoring and Reporting Plan
RESOLUTION AND FINDINGS:
Staff recommends that the State Coastal Conservancy adopt the following resolution pursuant to
Sections 31111 31220, 31251-31270 of the Public Resources Code:
"The State Coastal Conservancy hereby authorizes the disbursement of up to one million forty-
nine thousand nine hundred ninety-one dollars ($1,049,991) to the Newport Bay Conservancy to
prepare final designs and implement the restoration of approximately 1 i acres of coastal sage
upland, riparian, and freshwater marsh habitats in the Phase 2A project areas of the Big Canyon
Creek Phase 2A Restoration and Estuary Adaptation Project within the Big Canyon Nature Park.
Page 1 of 12
15-49
h\Illlni I Stall. RLcommciulatton
Big Canyon Creek Restoration and EsluaryAdaptation Phase 2A Proiect
"Ibis authorization Is subject to the following conditions:
I. Prior to disbursement of funds for each phase of the project, the City shall submit for the
review and written approval of the Executive Officer of the Conservancy (Executive
Officer) the following items.-
a.
tems:a. A detailed work program, schedule, and budget.
b. Names and qualifications of any contractors to be retained.
c. Evidence of all required permits and approvals have been obtained.
d. Evidence that all necessary funds for implementation of each phase the project have
been obtained.
2. In implementing the project, the Newport Bay Conservancy shall:
a. Acknowledge Conservancy and US Fish and Wildlife Service funding in accordance
with a plan that has been approved by the Executive Officer.
b. Ensure compliance with all applicable impact avoidance, minimization and mitigation
measures and monitoring and reporting requirements for the project identified in (1)
the Big Canyon Coastal Habitat Restoration and Adaptation Project—Phase 2A
Initial Study and Miligaled Negative Declaration, and the Mitigation Monitoring and
Reporting Program and (2) in any permits, approvals or other environmental
documentation for the projectEnsure compliance with all requirements of the USFWS
grant, including compliance with the National Environmental Policy Act."
Staff further recommends that the Conservancy adopt the following findings:
"Based on the accompanying staff report and attached exhibits, the State Coastal Conservancy
hereby finds that:
1. The proposed project is consistent with the current Conservancy Project Selection
Criteria and Guidelines.
2. The Conservancy has independently reviewed and considered the Big Canyon Coastal
Habitat Restoration and Adaptation Project—Phase 2A Initial Study and Mitigated
Negative Declaration and the Mitigation Monitoring and Reporting adopted by the City
of Newport Beach pursuant to the Califomia Environmental Quality Act ("CEQA"). The
Conservancy finds that the proposed project as designed and mitigated avoids, reduces,
or mitigates the potentially significant environmental effects to a less -than -significant
level and that there is no substantial evidence based on the record as a whole that the
project may have a significant effect on the environment, as defined in 14 Cal. Code
Regulations Section 15382.
3. The Newport Beach Conservancy is a nonprofit organization organized under section
501(c)(3) of the U.S. Internal Revenue Code, with purposes consistent with Division 21
of the Public Resources Code."
Page 2 of 12
15-50
Exhibit 3: Stair Recommendation
Big Canyon Creek Restoration and Estuary Adaptation Phase 2,4 Project
PROJECT SUMMARY:
Staff recommends the Conservancy provide up to $1,049,991 to the Newport Bay Conservancy
(NBC) to prepare final designs and implement restoration of 1 I acres of coastal sage upland,
riparian, and freshwater marsh habitats within the 60 -acre Big Canyon Nature Park in the City of
Newport Beach and County of Orange (Exhibit I, Phase 2A). Funds for this authorization
primarily derive from a grant to the Conservancy of $1,000,000 from the US Fish and Wildlife
Service (USFWS) National Coastal Wetlands Conservation Program (NCWC) specifically for
this project. The remaining $30,445 in USFWS grant funds will be used to pay for Conservancy
staff project management costs. The proposed project aims to improve the water quality, restore
natural riparian habitat, and protect and restore estuary habitats.
Big Canyon Creek is in urgent need of habitat restoration and enhancement due to watershed
impacts from channel incision, loss of floodplain, unstable banks, poor water quality, and
aggressive encroachment of invasive species. Without restoration efforts requested in this
proposal, the remaining native habitats and associated wildlife will rapidly disappear from this
important coastal tributary of Upper Newport Bay. Increased impacts from poor water quality
will degrade both the creek and downstream Upper Newport Bay Ecological Reserve.
The project will remove a dense, invasive Brazilian peppertree forest, lay back Big Canyon
Creek's banks to address incision and reconnect the creek to the floodplain, and restore native
habitats that are resilient to the newly arrived invasive beetle Polyphagous Shot Hole Borer. The
project will also enhance public access and education with improved trails and closure of illegal
trails. The proposed project is Phase 2A of a larger watershed restoration and will build upon the
lessons -learned and outcomes of the previous phase of restoration (Phase 1). Phase 1
implementation, carried out by the City of Newport Beach in 2017, restored a 6 -acre parcel
including 650 feet of creek restoration, 2 acres of riparian habitat restoration, and 1 -acre of
wetland habitat creation and enhancement for storm water treatment (See Exhibit 1 for map of all
project phases & Exhibit 2 for photos of Phase 1). Future project phases (Phase 2B & 2C)
include the remediation and restoration of a selenium impacted freshwater pond, the creation of
new transitional salt marsh habitat to adapt to sea -level rise, and improved public access and
education. The overall Big Canyon Restoration project (Phases 1 & 2A -C) will result in a
mosaic of native and resilient wetland habitats that will support threatened and endangered
species and persist in the face of environmental stressors such as the invasive shot -hole borer and
sea -level rise.
Site Description: The proposed project is located within the 60 -acre Big Canyon Nature Park
(Canyon) at the downstream end of the Big Canyon watershed in the City of Newport Beach and
Orange County (Exhibit 1).
The Big Canyon watershed covers approximately two square miles located on the east side of the
Upper Newport Bay. Big Canyon Creek winds through the Canyon in a general southeast to
northwest direction and then discharges into Upper Newport Bay. The Big Canyon Nature Park
(Canyon) is the only natural, undeveloped portion of the Big Canyon watershed and is the only
significant remaining natural canyon on the east side of Newport Bay. The Canyon has been
influenced by the construction of a freshwater pond that is now almost filled with cattails,
historical placement of dredge and fill material, an interim restoration effort, and other
anthropogenic activities within and adjacent to the Canyon including the construction of culverts,
Page 3 of 12
15-51
Eshlhit 3 Slntr Recommend.mon
Big C'an.vn►t Creek Restoration and EviuurY Acluptuliott Phase Zf1 1'rujecl
roads and other structures. Stockpiling of dredge fill during the 1950s and 1960s within Big
Canyon raised the elevations within the Canyon and consequently channelized the creek to the
north. The Canyon has also been heavily invaded by non-native species especially the hyper-
invasivc Brazilian pepper tree (Schinits terebinlhilblius). Finally, Big Canyon Creek runs
through the Canyon and is one of the few perennial streams that discharges to Newport Bay. Big
Canyon Creek is listed as an impaired waterbody for selenium. A total maximum daily load
(TMDL) has been established for the creek and concentrations of selenium above water quality
guidelines have been measured in dry weather flows.
"The 45 -acre parcel of the Canyon is owned by the City of Newport Beach (City) and the lower
15 -acre portion of the Canyon is owned by the California Department of Fish and Wildlife
(CDF W ).
Project History: The Conservancy has been funding Big Canyon technical studies to support
more developed restoration plans since 2002. While those studies and the initial restoration
plans were successful in determining the necessary hydrologic and biological changes required to
restore ecosystem function in Big Canyon, the discovery of high levels of selenium prevented the
implementation of any previous design plans. In 2009 through 2011, the source of selenium and
the extent of contamination were unknown. With the completion of Conservancy -funded
technical studies, the selenium source has been identified as a seepage at the base of Jamboree
Road at the top of the Canyon that flows through a geologic formation containing California
Monterey Rock. This type of rock naturally contains high concentrations of selenium.
The City of Newport Beach, along with the Santa Ana Regional Water Quality Control Board
(SARWQCB), is currently implementing an early phase of the project aimed to restore riparian
habitat, reduce selenium inputs, and monitor water quality in Big Canyon (see Phase I project
area in Exhibit I and Phase I photos in Exhibit 2). By diverting and capturing the water that
flows through the Monterey Rock formation, the City has successfully reduced the amount of
selenium entering the proposed project area. The monitoring results to -date demonstrate this
success. In light of this new scientific evidence and the need to now address the remnant
selenium concentrations present in the project area (i.e., mainly in the freshwater pond), there is
momentum among the landowners and agency partners to move forward with a new restoration
design.
On September 28, 2017, the Conservancy granted $640,00 to the Newport Bay Conservancy
(NBC) to conduct feasibility studies and prepare designs, engineering, environmental analysis,
and permit applications for Phases 2A -C (Exhibit 3). Following completion of 60% designs,
NBC worked with the Conservancy to submit a proposal to the USFWS in July 2018. The
USFWS awarded the grant to the Conservancy in March 2019.
PROJECT FINANCING
Coastal Conservancy (USFWS NCWC grant) $969,555
Coastal Conservancy $80,436
Project Total $1,049,991
The source of funding for the proposed authorization is a USFWS National Coastal Wetlands
Page 4 of 12
15-52
rxhibit3 Stair Rccnnimendation
Big Canyon Creek Restoration and Estuary Adaptation Phase 2A Protect
Conservation Grant awarded to the Conservancy for the project. The USFWS has awarded
$1,000,000 to the Conservancy for project implementation. Approximately $970,000 of the
grant will Support project implementation directly, while the remaining $30,000 will pay for
Conservancy staff costs. To meet required matching funds for the NCWC grant opportunity, the
Conservancy is anticipated to provide an additional eighty thousand four hundred thirty-six
dollars ($80,436). The anticipated source of funding for the $80,436 of match is the 2016 fiscal -
year appropriation from the Water Quality, Supply, and Infrastructure Improvement Act of 201 d
(Proposition I, codified at Water Code section 79700 et seq). Funds appropriated to the
Conservancy derive from Chapter 6 of the Act and may be used "for multi -benefit water quality,
water supply, and watershed protection and restoration projects for the watersheds of the state"
(Section 79731). Section 79732(b) states more specifically that these funds may be used for
"implement[ing] watershed adaptation projects in order to reduce the impacts of climate change
on California's communities and ecosystems" and "protect and restore aquatic, wetland, and
migratory bird ecosystems." Consistent with these provisions, the proposed project will restore
coastal sage upland, riparian, and freshwater marsh habitats. The project area will also provide
habitat connectivity to an adjacent, future project area (Phase 2C) where adaptive measures will
be constricted to respond to sea level rise.
The proposed project was reviewed and subsequently recommended for funding through a
competitive grant process under the Conservancy's Proposition 1 Grant Program Guidelines
adopted in June 2015 ("Prop I Guidelines' ). (See section 79706(a)). The proposed project
meets each of the evaluation criteria in the Prop 1 Guidelines as described in further detail in the
following sections of this staff recommendation: "Project Summary" (sections above) and
"Consistency with Conservancy's Project Selection Criteria & Guidelines" (section below).
The NBC, City of Newport Beach, California Department of Fish and Wildlife, and Irvine Ranch
Conservancy will provide significant in-kind contributions of staff time, valued at ninety-two
thousand two hundred seventy-three dollars ($92,273).
CONSISTENCY WITH CONSERVANCY'S ENABLING LEGISLATION:
Conservancy funding of the proposed project is consistent with Chapters 5 and 6 (Sections 31220
and 31251-31270) of the Conservancy's enabling legislation, Division 21 of the Public
Resources Code, regarding enhancement of coastal resources, as well as Section 31 111 of the
Public Resources Code.
Pursuant to Section 31220, the Conservancy may award grants to protect and restore coastal
habitats if the project "restores coastal wetlands, riparian areas, floodplains, and other sensitive
watershed lands." The area of the proposed restoration project is within the Big Canyon Creek,
coastal watershed. Consistent with Section 31220(b), the project will achieve the following
objectives: (1) restore fish and wildlife habitat within a coastal watershed (31220(b)(2)), (2)
reduce threats to coastal fish and wildlife (31220(b)(3)), and (3) restore riparian areas,
floodplains, and other sensitive watershed lands, including watershed lands draining to sensitive
coastal or marine areas (31220(b)(6)).
As Section 31220(c) requires, the proposed project is consistent with local and state watershed
plans, The Conservancy has consulted with the State Water Resources Control Board in the
development of the project to ensure consistency with Chapter 3 of Division 20.4 of the Public
Resources Code regarding water quality. (See Exhibit 4, Project Letters) Section 31220(c) also
Page 5 of 12
15-53
..1
tahihit 3 Stan' Kccomm�mcEauun
I3ig' Canyon Creek Restoration and Esluuly Aciuplulion Phase 2A I'rn%e(:l
states that "projects funded pursuant to this section shall include a monitoring and evaluation
component." A monitoring plan is being prepared as part of the Final design phase of the overall
project. The proposed project is consistent with applicable and relevant Integrated Regional
Water Management programs, local watershed management plans, and water quality control
plans adopted by the state or regional water quality control boards, as discussed in the
"Consistency with Local Watershed Management Plan/State Water Quality Plan" sections
below.
Pursuant to Section 31251, the Conservancy may award grants to nonprofit organizations to
enhance coastal resources that, because of human -induced events, or incompatible land uses,
have suffered loss of natural and scenic values. Such grants may be used to provide corrective
measures that will enhance the natural and scenic character of coastal areas. The proposed
project will implement the corrective measures, i.e., restoration, that are necessary to enhance the
natural and scenic character of the Big Canyon Nature Park, which has been significantly
degraded from fill and invasive species.
'As required by Section 31252, the area for the proposed project is identified in the City of
Newport Beach's Local Coastal Program as an environmentally sensitive area and is designated
for passive recreation and wildlife habitat restoration. See additional discussion in the
"Consistency with Local Coastal Program Policies" section, below.
Section 31253 states that the Conservancy may provide up to the total cost of a coastal resource
enhancement project. Consistent with Section 31253, the following factors were considered in
determining the amount of Conservancy funding for this project: the total amount of funding
available for coastal resource enhancement projects, the fiscal resources of the applicant, the
urgency of the project, and the Conservancy's project selection criteria, as described in detail
below, under the heading "Consistency with Conservancy's Project Selection Criteria &
Guidelines."
Pursuant to Section 31111, the Conservancy "may fund and undertake plans and feasibility
studies and may award grants to public agencies and nonprofit organization" to restore coastal
habitat and other functions prescribed in Division 21. Consistent with this section, the proposed
project provides funds to complete restoration and management designs to enhance estuarine and
wildlife habitat.
The Conservancy has consulted with the State Water Resources Control Board in the
development of the project to ensure consistency with Chapter 3 of Division 20.4 of the Public
Resources Code regarding water quality. Section 31220(c) states that "projects funded pursuant
to this section shall include a monitoring and evaluation component." A monitoring plan is
being prepared as part of the final design phase of the overall project. The proposed project is
consistent with applicable and relevant Integrated Regional Water Management programs, local
watershed management plans, and water quality control plans adopted by the state or regional
water quality control boards, as discussed in the "Required Criteria" and "Consistency with
Local Watershed Management Plan/State Water Quality Plan" sections below.
Page 6 of 12
15-54
Exhibit l: Stalr Recommendation
Bike Canyon Creek Restoration and EsluaryAdaptation Phase 2A Project
CONSISTENCY WITH CONSERVANCY'S 2018-2022 STRATEGIC PLAN
GOALS & OBJEC.TIVES:
Consistent with Goal 6, Objective B ofthe Conservancy's 2018-2022 Strategic Plan, the
proposed project will restore and enhance coastal habitats, including 11.32 acres ofcoastal sage
upland, riparian, and freshwater marsh habitats.
Consistent with Goal 6, Objective D of the Conservancy's 2018-2022 Strategic Plan, the
proposed project will enhance coastal floodplains, including 11.32 acres of coastal sage upland,
riparian, and freshwater marsh habitats along Big Canyon Creek.
CONSISTENCY WITH CONSERVANCY'S
PROJECT SELECTION CRITERIA & GUIDELINES:
The proposed project is consistent with the Conservancy's Project Selection Criteria and
Guidelines, last updated on October 2, 2014, in the following respects:
Required Criteria
1. Promotion of the Conservancy's statutory programs and purposes: See the "Consistency
with Conservancy's Enabling Legislation" section above.
2. Consistency with purposes of the funding source: See the "Project Financing" section
above.
3. Promotion and implementation of state plans and policies:
A Strategy for California @ 50 Million: Supporting California's Climate Change Goals
Steward and Protect Natural and Working Landscapes; Incorporate climate change
adaptation into all planning and investment. The proposed project will accomplish
these goals by restoring and enhancing a sensitive coastal and riparian ecosystem by
improving ecological functions in a way that supports native species as well as designing
for tidal marsh migration as sea levels rise.
• California Water Action Plan.
Protect and restore important ecosystems (restore coastal watersheds and strategic
coastal estuaries): The proposed project is designed to accomplish this goal by restoring
11.32 acres of coastal sage upland, riparian, and freshwater marsh habitats.
• Southern California Wetlands Recovery Project (WRP).
Preserve and restore coastal wetland ecosystems. The proposed project is on the WRP
Work PIan and is designed to accomplish the WRP's goals.
4. Support of the public: The project is supported by the City of Newport Beach, California
Department of Fish and Wildlife, Assemblyman Mathew Harper, and Senator John M. W.
Moorlach (see Exhibit 4).
5. Location: The proposed project would be located within the coastal zone of the City of
Newport Beach.
6. Need: Support from the Conservancy is critical at this moment because the City of Newport
Beach has started implementation on the early phases of restoring Big Canyon Creek and in
Page 7 of 12
15-55
Exhibit 3: SIaB' Recommendation
Big Canyon Creek Restoration and Estuary Adaptation Phase 2,4 Project
order to maximize those restoration benefits, the adjacent areas need to be restored quickly so
that the entire Big Canyon area can function as a holistic, connected ecosystem.
7. Greater -than -local interest: The proposed project will restore critical riparian and wetland
habitats in Upper Newport Bay, which provides plant and wildlife habitat of regional and
statewide importance for resident and migratory species.
8. Sea level rise vulnerability: The Phase 2A project area is not vulnerable to sea level rise.
However, the overall Big Canyon Creek Restoration and Estuary Adaptation Project will
include a site-specific analysis of the effects of flooding, inundation, accretion, and sea level
rise on the project area using habitat evolution modeling. The modeling results will then be
used to develop restoration designs for estuarine -upland transition areas needed for coastal
wetlands to migrate upland as the sea rises, particularly in Phases 2B and 2C.
Additional Criteria
9. Urgency: The project area has been invaded by a prevalent non-native tree, the Brazilian
peppertree. Further exacerbating the invasive species problem, the Polyphagous Shot Hole
Borer has killed many native riparian trees in the area. The proposed project is needed to halt
further the spread of non-native tree species and the deadly fungal pathogen transmitted by
the Polyphagous Shot Hole Borer.
10. Resolution of more than one issue: The proposed project will not only restore valuable
wetland and riparian habitat, it will also reduce the naturally -occurring water contaminant,
selenium, reduce channel erosion and incision, provide resilience against the effects of the
Polyphagous Shot Hole Borer, and remove a non-native tree species.
11. Leverage: Seethe "Project Financing" section above.
12. Innovation: The project is innovative in that it will use traditional and new pest management
techniques to combat the Polyphagous Shot Hole Borer (PSHB) in consultation with the
University of California Riverside. These activities may include heavy pruning of the
existing infested mature trees, the application of soil amendments (e.g., mycorrhizal
inoculum and compost tea), and tree injections to improve the resilience of existing woody
plants. The project will utilize woody species and herbaceous plants with demonstrated low
susceptibility to PSHB. Soil amendments, such as gypsum and mulch, will be added also to
reduce salinity levels. Without these management measures, the existing and proposed
riparian habitat will be impacted by the PSHB infestation through the loss of mature trees
that provide habitat to endangered species.
13. Readiness: Project partners have already successfully implemented Phase 1 of the project.
The NBC and its partners have also completed 60% designs and CEQA for Phase 2A. They
are ready to complete the final designs and implement the restoration as soon as funds are
available and anticipate securing the necessary funds to proceed to implement by the end of
2019.
14. Realization of prior Conservancy goals: "See "Project History" above."
15. Cooperation: The grantee will work with the City of Newport Beach and the California
Department of Fish and Wildlife (property owners) to finalize the design and engineering
plans to develop the least impactful and most cost-effective restoration approach to the
Page 8 of 12
a
15-56
hAhnhit 3. Slu@' Itwonunenchition
Big Canyon Creek Restoration and Estuary Aclapiaiion Phase 2A Project
project area. These partners are also moving forward with preparation of a Memorandum of
[lnderstanding describing their partnership roles and responsibilities.
16. Vulnerability from climate change impacts other than sea level rise: Estuarine -upland
transition zone habitat that is infrequently influenced by tidal flows is more drought and fire
tolerant compared to other upland habitats that experience no tidal inundation. The proposed
project will develop restoration designs for estuarine -upland transition zone habitat thus
increasing the project area's resiliency to predicted increases in drought and fires with global
climate change.
CONSISTENCY WITH LOCAL COASTAL PROGRAM POLICIES:
The City of Newport Beach's Local Coastal Program policies 4.2.1-1 & 4.2.1-2 recognize the
freshwater wetlands of Big Canyon should be protected and maintained for "biological
productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes."
Restoration of coastal sage upland, riparian, and freshwater marsh habitats in the Phase 2A
project area within the 60 -acre Big Canyon Nature Park is consistent with the policies cited
above.
CONSISTENCY WITH LOCAL WATERSHED MANAGEMENT PLAN/
STATE WATER QUALITY CONTROL PLAN:
The project is consistent with the Water Quality Control Plan. for the Santa Ana River Basin
(February 2016). The project proposal and IS -MND were reviewed by the Regional Water
Quality Control Board and found to comply with State water quality standards outlined in the
Water Quality Control Plan for the Santa Ana River Basin.
COMPLIANCE WITH CEQA:
The City of Newport Beach ("City"), as lead agency under the California Environmental Quality
Act ("CEQA") prepared and adopted an Initial Study Mitigated Negative Declaration ("IS -
MND", Exhibit 5) and a Mitigation Monitoring and Reporting Plan ("MMRP", Exhibit 7) for the
Big Canyon Creek Restoration and Estuary Adaptation Phase 2A Project. The IS -MND indicates
that the proposed project could have significant effects on the environment associated with
biological resources, cultural resources, and human annoyance. However, mitigation measures
have been incorporated into the proposed project design to mitigate these potential effects below
a level of significance.
The City submitted a draft IS -MND for public review on September 4, 2018- During the 30 -day
public comment period, three letters were received, one email, and one phone message from
Citizens of the Bluffs, Tony Knox, Orange County Public Works, Robert B. Olds, and
Anonymous. On October 4, 2018, the City responded to each of the comments set forth which is
attached as Exhibit 6 to this staff recommendation. The City approved the IS -MND on January
25, 2019.
The Final IS -MND indicated that the proposed project would not have a significant effect on the
environment. The only potential effects, which have been mitigated, are in the areas of noise,
Page 9of12
15-57
�^ 1
V.0111it 3- Slall' itmommendation
Big C'an.W)n Creek Resioration tinct Eatuaiy Adaptation Phase 2A Project
cultural resources, and biological resources. The City will be responsible for compliance with
the mitigation measures. The potential significant effects on biological resources, water quality
and cultural resources will be mitigated by the following mitigation measures:
Mitigation Measure BIO -1 (Biological Resources) - Special -Status Plants. The following
mitigation will be implemented to avoid temporary construction -related impacts to special -status
plant species within the project site:
a. W ithin two weeks prior to construction activities, preconstruction surveys will be conducted
by a qualified Project Biologist to confirm presence/absence of special -status plant species
within the project site. The locations of any special -status plant species identified during the
pre -construction botanical survey, including those with a CRPR of 1, 2, or 3 shall be flagged
(or otherwise delineated and marked) by a biologist and shall be avoided. To verify avoidance
during construction, a qualified biologist will be onsite during any ground disturbing activities
within 10 feet of a special -status plant species population.
b. If special -status plant species are observed during the preconstruction surveys within the
portion of the project site proposed for restoration and if avoidance of the special -status plant
species is not feasible, coordination with USFWS and CDFW will be required to confirm
suitable mitigation before ground -disturbing activities. At a minimum, the
plan must include a description of the existing conditions, site selection criteria, site preparation
and planting methods, maintenance and monitoring schedule, performance standards, adaptive
management strategies, and identification of responsible parties.
BIO -2: Nesting Birds. Impacts to nesting birds will be avoided by conducting all grading and
construction activities outside of the bird breeding season (February 15 to August 31; January 15
to August 31 for raptors). If breeding season cannot be avoided, the following measures will be
followed.
a. During the avian breeding season, a qualified Project Biologist will conduct a pre -construction
avian nesting survey no more than seven days before vegetation disturbance or site clearing, with
additional surveys if there is a week-long break in construction during breeding season.
b. The nest survey will cover all reasonably potential nesting locations on and within 300 feet of
the proposed areas where construction activities will occur.
c. If an active nest is found during an avian nest survey, a qualified Project Biologist will
create a 300 -foot minimum avoidance buffer for special -status species (e.g., coastal
California gnateatcher, least Bell's vireo); a 500 -foot minimum avoidance buffer for all raptor
species; and 300 -foot minimum avoidance buffer (or other buffer as determined appropriate by
the Project Biologist) for other passerine birds. The nest site area shall not be disturbed until the
nest becomes inactive or the young have fledged.
BIO -3: Special -Status Bats. Impacts to special -status bat species will be avoided by conducting
all grading and construction activities outside of the maternity roosting season (mid-March
through August). If maternity roosting season cannot be avoided, the following measures would
be followed.
a. If grading/construction activities must occur during the maternity season, a qualified biologist
will conduct a pre -construction survey to identify potential active roosts. If no bats are observed,
work may proceed in the proposed work area the following day and will remain cleared for the
duration of the work activity. If active roosts are observed, no grading/construction activities
Page 10 of 12
15-58
Exhibit 3: Staff Recommendation
Big Canyon Creek Restoration and Estuary Aclaptation Phase ZA Project
may take place in the proposed work area the following day and not until it can be verified with
thermal imaging that bats have left the area or the maternity roosting season is over.
b. Additional pre -construction surveys will be required in new work areas located more than 100
feet away from the previously surveyed work area.
CR -1 (Cultural Resources) : Archaeological Monitoring. An archaeological monitor will be
retained to observe all ground -disturbing activities. Before start of ground -disturbing activities,
the archaeologist will conduct cultural resources sensitivity training for all construction
personnel. Archaeological monitoring shall be conducted by an archaeologist familiar with the
types of archaeological resources that could be encountered within the project site. The qualified
archaeologist, in coordination with the City, may reduce or discontinue monitoring if it is
determined that the possibility of encountering buried archaeological deposits is low based on
observations of soil stratigraphy or other factors. Atter monitoring has been completed, the
qualified archaeologist shall prepare a monitoring report that details the results of monitoring.
If archaeological resources are encountered during monitoring, and if it is determined that the
discovered archaeological resource constitutes a historic property under Section 106 of the
National Historic Preservation Act (NHPA) or a historical resource under CEQA, avoidance and
preservation in place is the preferred manner of treatment. In the event that preservation in place
is demonstrated to be infeasible and data recovery through excavation is the only feasible
mitigation available, a Cultural Resources Treatment Plan would be prepared and implemented
by a qualified archaeologist in consultation with the Corps and the City. The plan will provide
for the adequate recovery of the scientifically consequential information contained in the
archaeological resource.
CR -2: Native American Monitoring. The City will retain a Native American monitor to
observe all ground -disturbing activities, including but not limited to brush clearance, vegetation
removal, grubbing, grading, and excavation. The Native American monitor will be selected from
amongst the Native American groups that have an affiliation with the project area and consulted
pursuant to CEQA. All authorities ascribed to the archaeological monitor, including the authority
to stop work in the event of the discovery of cultural resources, will also apply to the Native
American monitor. If archaeological materials are encountered, the Native American monitor
shall participate in any discussions involving treatment and subsequent mitigation.
NOI-I (Noise): The construction contractor will ensure proper maintenance and working order
of equipment and vehicles and that all construction equipment is equipped with manufacturers
approved mufflers and baffles.
N0I-2: The construction contractor(s) shall endeavor to use quieter equipment as opposed to
noisier equipment (such as rubber -tired equipment rather than track equipment), when feasible.
Noisy equipment will be switched off when not in use.
NOI-3: Construction activities will be scheduled to avoid operating several pieces of
equipment simultaneously, which causes high noise levels, to the extent feasible.
N0I4: The construction contractor shall place all stationary construction equipment so that
emitted noise is directed away from sensitive receptors nearest the project site.
Page I I of 12
15-59
t"',
rl a;
C�
1bM1
T
Exhibit 3.5talr Recommendation
Bid; Caizyon Creek Re.sioration and Estual)p Aclaptation Phase 2A Project
If the proposed funding authorization is approved, Conservancy staff will file a notice of
determination.
Page 12 of 12
15-60
FAlihil l .Stall' Rrcon mrntfrwurr
BIG CANYON COASTAL HABITAT RESTORATION AND
ADAPTATION PROJECT -- PHASE 2A
Mitigation Monitoring and Reporting Program
Prepared for January 2019
City of Newport Beach
Public Works Department
15-61
Exhibit 3 Stall' Recommendation
TABLE OF CONTENTS
Section 1: Introduction......................................................... 1
Section 2: Project Description.......................................................................2
Section 3: Mitigation Monitoring and Reporting Program...............................3
Big Canyon Coastal Habitat Restoration and Adaptation Projeel — Phase 2A I ESA 1 Project No. 171063
Mitigation MoMoring and Reporting Program January 2019
15-62
Exhibitl StaffRecommendution
15-63
Exhibit 3: Staff Recommendation
Introduction
The following is a Mitigation Monitoring and Reporting Program (MMRP) for the Big Canyon
Coastal Habitat Restoration and Adaptation Project — Phase 2A, which has been prepared
pursuant to Section 15097 of the CEQA Guidelines and Section 21081.6 of the Public Resources
Code. This MMRP lists all applicable mitigation measures from the Initial Study and Mitigated
Negative Declaration (IS/MND). The appropriate timing of implementation and responsible
party are identified to ensure proper enforcement of the mitigation measures from the IS/MND
to reduce project impacts to less than significant levels.
Big Canyon Coastal Habitat RaStoration and Adaptation Project — Phase 2A ESA /Project No. 171063
Mitigation Mondoring and Reporting Program January 2019
63
15-64
0
Exhibit 3. StaffRccommcndalion
Project Description
The proposed project is located within the City of Newport Beach, on a site in the eastern
portion of the 60 -acre Big Canyon Nature Park. The proposed project encompasses 11.32 acres
and includes the following: (1) restore historic riparian habitat by removing non-native
vegetation and replanting native species, (2) create a mosaic of native and sustainable habitats,
(3) stabilize the creek and floodplain with erosion control measures, and (4) enhance public
access within the Big Canyon Nature Park by improving existing trails and closing illegal trails.
The project also includes maintenance of the restored habitat area and erosion quality
measures to ensure that the plants are established and erosion features function as designed.
Big Canyon Coastal Habitat Restoration and Adaptation Project — Phase 2A z ESA / Project No. 171063
Midgadon Monitoring and Reporting Program January 2019
15-65
Exhibit3� Staff Recommendation
Mitigation Monitoring and Reporting Program
TABLE 1
MITIGATION MONITORING AND REPORTING PROGRAM
Mitigation Measure{ Timing for I Responsible Party I Verification Date
Implementation
Biological Resources (BIO)
13I0-1: Special -Status Plants Special -Status Plants. Impacts to special -status plants
would be avoided by implementing the following:
Two weeks prior to
Newport Bay Conservancy
construction
and City of Newport Beach
a, Within two weeks prior to construction activities, preconstruction surveys shall be
conducted by a qualified Project Biologist to confirm presence/absence of special -
status plant species within the project site. The locations of any special -status plant
species identified during the pre -construction botanical survey, including those with
a CRPR of 1, 2, or 3 shall be flagged (or otherwise delineated and marked) by a
biologist and shall be avoided. To verify avoidance during construction, a qualified
biologist shall be onsite during any ground disturbing activities within 10 feet of a
special -status plant species population.
b. If special -status plant species are observed during the preconstruction surveys within
the portion of the project site proposed for restoration and if avoidance of the speciai-
status plant species is not feasible, coordination with USFWS and/or CDFW will be
required to confirm suitable mitigation prior to ground -disturbing activities. The
mitigation strategy may include on-site or off-site restoration, translocation, and/or
seed collection, and shall be outlined in a restoration/revegetation plan to be
approved by USFWS and/or CDFW. At a minimum, the plan shall include a
description of the existing conditions, site selection criteria, site preparation and
planting methods, maintenance and monitoring schedule, performance standards,
adaptive management strategies, and identification of responsible parties.
BI0.2: Nesting Birds. Impacts to nesting birds would be avoided by conducting all
Prior to construction
Newport Bay Conservancy
grading and construction activities outside of the bird breeding season (February 15 to
August 31; January 15 to August 31 for raptors). If breeding season cannot be avoided,
Grading and construction
and City of Newport Beach
the following measures would be followed.
activities should be
a. During the avian breeding season, a qualified Project Biologist shall conduct a
conducted outside of bird
breeding season from
preconstruction avian nesting survey no more than 3 days prior to vegetation
September 1 to February
disturbance or site clearing. If grading or other construction activity begins in the
14 for passerine birds and
non -breeding season and proceeds continuously into the breeding season, no
September 1 to January 14
surveys shall be required. However, if there is a break of 3 days or more in grading
for raptors to avoid impacts
or construction activities during the breeding season, a new nesting bird survey shall
to nesting birds.
be conducted before these activities begin again.
If grading and construction
b. The nest survey shall cover all reasonably potential nesting locations on and
activities are conducted
within 300 feet of the proposed areas where construction activities will occur.
during the avian breeding
c. If an active nest is found during an avian nest survey, a qualified Project Biologist
season, a preconstruction
shall implement a 300 -foot minimum avoidance buffer forspecial-status species I
survey shall be conducted
Big Canyon Coastal Habitat Restoration and Adaptation Project— Phase 2A 4 RlD,eCt
Mitigation Monitoring and Reporting Program ESA r No 1711,.32
}anuary 2C t i
15-66
t
Exhibit 3: Staff Recommendation
Program
Mitigation Measure
Timing for
Implementation
Responsible Party
Verification Date
(e.g., coastal California gnatcatcher, least Bell's vireo); a 500 -foot minimum
no earlier than 3 days prior
avoidance buffer for all raptor species; and 300 -foot minimum avoidance buffer
to vegetation disturbance
(or other buffer as determined appropriate by the Project Biologist) for other
or site clearing for each
passerine birds. Buffer distances for other species will be determined by the
area of work.
Project Biologist based on the species and its breeding or nesting requirements.
The nest site area shall not be disturbed until the nest becomes inactive or the
young have fledged.
BIO -3: Special -Status Bats, Impacts to special -status bat species would be avoided by
Prior to construction
Newport Bay Conservancy
conducting all grading and construction activities outside of the maternity roosting
season (mid-March through August). If maternity roosting season cannot be avoided,
Grading and construction
and City of Newport Beach
the following measures would be followed.
activities should be
a. If grading/construction activities must occur during the maternity season, a
conducted outside of
maternity roosting season
qualified biologist shall conduct a pre -construction survey to identify potential
from September to Mid -
active roosts. The pre -construction survey shall occur the night before
March to avoid impacts to
grading/construction activities to observe if any bats are exiting suitable habitat
special -status bats.
within 100 feet of the proposed work area. The pre -construction survey will be
conducted at sunset for 90 minutes by a qualified biologist with the
If grading and construction
use of a
thermal imaging camera to observe and record any bats. If no bats are
activities are conducted
observed, work may proceed in the proposed work area the following day and
during the maternity
will remain cleared for the duration of the work activity. If active roosts are
roosting season which is
observed, no grading/construction activities may take place in the proposed
mid-March to August, a
work area the following day and not until it can be verified with thermal imaging
preconstruction survey
that bats have left the area or the maternity roosting season is over.
shall be conducted no
b. Additional pre -construction surveys will be required in new work areas located
more the night before
more than 100 feet away from the previously surveyed work area.
grading/construction
activities
tttwt.aauu Cats %vr%)
CR -1: Archaeological Monitoring. An archaeological monitor (working under the direct
supervision of a Secretary of the Interior -qualified archaeologist (USDI, 200a]) shall be
retained to observe all ground -disturbing activities, including but not limited to brush
clearance, vegetation removal, grubbing, grading, and excavation. Prior to start of
ground -disturbing activities, the archaeologist shall conduct cultural resources sensitivity
training for all construction personnel. Construction personnel shall be informed of the
types of archaeological resources that may be encountered, and of the proper
procedures to be enacted in the event of an inadvertent discovery of archaeological
resources or human remains. The City shall ensure that construction personnel are
made available for and attend the training and retain documentation demonstrating
attendance.
Big CanyonCoaslat Habitat Restoration and Adapiaton Project— Phase 2A
Mitigation Monitoring and Reporting Program
Prior to construction;I Newport Bay Conservancy
During construction; and City of Newport Beach
28,4 ; =roect Nd 1710&c
wanoarr 2013
15-67
Mitigation Monitoring and Reporting Program Exhibit 3: Staff Recommendation
Mitigation Measure
Timing for
Implementation
Responsible Party
Verification Date
Archaeological monitoring shall be conducted by an archaeologist familiar with the types
of archaeological resources that could be encountered within the project site. The
qualified archaeologist, in coordination with the City, may reduce or discontinue
monitoring if it is determined that the possibility of encountering buried archaeological
deposits is low based on observations of soil stratigraphy or other factors. The
'
archaeological monitor shall be empowered to halt or redirect ground -disturbing
activities away from the vicinity of a discovery until the qualified archaeologist has
evaluated the discovery and determined appropriate treatment. The archaeological
monitor shall keep daily logs detailing the types of activities and soils observed, and any
discoveries. After monitoring has been completed, the qualified archaeologist shall
prepare a monitoring report that details the results of monitoring. The report shall be
submitted to the City, the Corps, and any Native American groups who request a copy.
A copy of the final report shall be filed at the SCCIC.
If archaeological resources are encountered during monitoring, and if it is determined
that the discovered archaeological resource constitutes a historic property under
Section 108 of the National Historic Preservation Act (NHPA) or a historical resource
under CECA, avoidance and preservation in place is the preferred manner of treatment.
Preservation in place maintains the important relationship between artifacts and their
archaeological context and also serves to avoid conflict with traditional and religious
values of groups who may ascribe meaning to the resource. Preservation in place may
be accomplished by, but is not limited to, avoidance, incorporating the resource into
open space, capping, or deeding the site into a permanent conservation easement. In
the event that preservation in place is demonstrated to be infeasible and data recovery
through excavation is the only feasible mitigation available, a Cultural Resources
Treatment Plan would be prepared and implemented by a qualified archaeologist in
consultation with the Corps and the City. The plan will provide for the adequate recovery
of the scientifically consequential Information contained in the archaeological resource.
The Corps and the City shall be required to consult with appropriate Native American
representatives in determining treatment for prehistoric or Native American resources to
ensure cultural values ascribed to the resource, beyond that which is scientifically
important, are considered.
CR -2: Native American Monitoring. The City shall retain a Native American monitor to
Prior and during
Newport Bay Conservancy
observe all ground -disturbing activities, including but not limited to brush clearance,
construction
and City of Newport Beach
vegetation removal, grubbing, grading, and excavation. The Native American monitor
shall be selected from amongst the Native American groups identified by the NAHC as
having affiliation with the project area. The Native American representative shall be
allowed to participate in the cultural resources sensitivity training, discusses in
Mitigation Measure CR -1, and all authorities ascribed to the archaeological monitor,
including the authority to stop work in the event of the discovery of cultural resources,
Big Canyon Coastal Habitat Restoration and Adaptation Proj"t— Phase 2A
Mitigation Monitoring and Reportlng Program
ESA / Protect tic 171063
January 201?
15-68
Exhibit 3: Staff Recommendation
Mitigation Measure
Timing for
Implementation
Responsible Party
shall also apply to the Native American monitor. In the event that archaeological
materials are encountered, the Native American monitor shall participate in any
discussions involving treatment and subsequent mitigation.
CR -3: Paleontological Monitoring. A qualified paleontologist meeting the Society for
Vertebrate Paleontology (SVP) guidelines for professional
During construction
Newport Bay Conservancy
paleontologist (SVP, 2010)
shall be retained to oversee all mitigation measures related to paleontological
and Cit of
Y Newport Beach
resources. That said, both the paleontological and archaeological monitoring could be
carried out by the same person, presuming the monitor is qualified in both disciplines.
During ground disturbing activity, the qualified
paleontologist or paleontological monitor
shall conduct spot-checks of exposed sediments. The purpose would be to determine
whether the project would impact the paleontologicaliy sensitive Monterey Formation.
The qualified paleontologist may institute paleontological monitoring If, based on
observations of subsurface stratigraphy or other factors, he or she determines that the
possibility of encountering fossiliferous deposits is high.
Paleontological monitoring
would be conducted by a paleontological monitor working under the supervision of the
qualified paleontologist. In the event that monitoring is required, the monitor shall have
the authority to temporarily halt or divert work away from exposed fossils
in order to
recover the fossil specimens and shall complete daily monitoring logs outlining the day's
activities. The qualified paleontologist shall prepare a final monitoring report to be
submitted to the City and filed with the local repository, along with any fossils recovered
during construction.
The qualified paleontologist shall also contribute to any construction worker cultural
Training shall occur prior to
resources sensitivity training (see Mitigation Measure CR -1) either in person or via a
training module provided to the qualified archaeologist. The training
site grading
shall include
information of the types of paleontological resources that may be encountered, and the
proper procedures to be enacted in the event of an inadvertent discovery of
paleontological resources.
In the event of unanticipated discovery of paleontological resources, the City shall
During Construction
cease ground -disturbing activities within 100 feet of the find until it can be assessed by
the qualified paleontologist. The qualified paleontologist shall the
assess find,
implement recovery measures if necessary, and determine if paleontological monitoring
is warranted once work resumes.
Noise (NOI)
NOI-1: The construction contractor shall ensure proper maintenance and working order
of equipment and vehicles and that all construction equipment is
During construction
Construction Contractor,
equipped with
manufacturers approved mufflers and baffles.
Newport Bay Conservancy
and City of Newport Beach
Big Canyon Coastal Habitat Restoration and Adaplason Project— Phase 2A
Mitigation Mcniladvp and Reporting Program
Monitoring and Reporting
Verification Date
'e SA/Pro;ectNo 174C-33
Janva:, 2019
15-69
Mitigation Monitcring and Reporting Program Exhibit 3: Stats Recommendation
Mitigation Measure
N0I.2: The construction contractor(s) shall endeavor to use quieter equipment as
opposed to noisier equipment (such as rubber -tired equipment rather than track
equipment), when feasible. Noisy equipment shall be switched off when not in use.
NOW: Construction activities shall be scheduled so as to avoid operating several
pieces of equipment simultaneously, which causes high noise levels, to the extent
feasible.
NOI-4: The construction contractor shall place all stationary construction equipment so
that emitted noise is directed away from sensitive receptors nearest the project site.
Big Canyon Coastal Habitat Restoration and Adaptation PraJect - Phase 2A
Mitigation Monitoring and Reporting Program
Timing for
Implementation
Pre -grade meeting and
during construction
During construction
During construction
Responsible Party
Construction Contractor,
Newport Bay Conservancy
and City of Newport Beach
Construction Contractor,
Newport Bay Conservancy
and City of Newport Beach
Construction Contractor,
Newport Bay Conservancy
and City of Newport Beach
Verification Date
ESA / PIorael No. 1711063
Januar12019
15-70
EXhiblt 1- StalrReconnnendaition
October 4, 2018
Makana Nova, AICD
Associate Planner
Community Development Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Subject: Response to Comments on the Initial Study/Mitigated Negative Declaration for the Big Canyon
Coastal Habitat Restoration and Adaptation Project - Phase 2A
Dear Ms. Nova, AICD:
The IS/MND for the Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 2A was circulated
for public review from September 4, 2018 to October 5, 2018. The City of Newport Beach received three
comment letters, one email and one phone message that included a map. The comments that were received are
presented in Table I and have been bracketed and assigned a comment letter and then each comment has been
assigned a number.
TABLE 1
LIST OF COMMENTS RECEIVED
Letter Name Commenter Date of Letter
Comment Letters
A Citizens of The Bluffs
September 12, 2018
B Tony Knox
September 14, 2018
C Orange County Public Works
October 4, 2018
Comment Email
D Robert B. Olds
September 25, 2018
Comment Phone Message
E Anonymous
September 26, 2018
15-71
Exhibit 3' Siafli2ccntnmcndaLiott
Ole,
September 12, 7018
To: Mr. Kevin Muldoon
City Of Newport Beach
Mr_ David Webb
Public Works Director
From: Citizens of The Bluffs
Newport Beach, CA
Subject: Big Canyon Coastal Habitat Restoration and Adaptation Pian
Per new notifications of intent to adopt a negative Declaration, on behalf of citizens of The
Bluffs, we are requesting to maintain the natural Habitat of Big Canyon Natural Preserve ParkA-1
and the creek by cleaning up all the debris from old dry broken dead trees, graffiti on the
trees and make an effort save the healthy ones_ Also installation of appropriate fencing
around the Big Canyon Creek area is a must to keep the public out of sensitive habitats and A-2
for safety purposes_
We appreciate the beauty of the Big Canyon natural Park environment plays an important role
in environmental studies but prefer to maintain this natural preserve native habitat presence
as much as possible by avoiding any significant changes to this surrounding Big Canyon natural
park area_
We would appreciate some minor changes that include the following: I A-3
Installation of more signs placed throughout the entire Big Canyon Natural Park area
with same content as current signage
Add to signage that the area is "lased and entrance prohibited from dusk to dawn' or IA -4
9PM to 6 Am
` We want to be assured that the currently installed and authorized metal pole gate on
the back Bay Dr side of the Big Canyon adjacent to the Newport Back Bay Parking tot A-5
(picture attached) ) is not going to be removed for the safety of our neighborhood.
We are requesting for regularly random patrolling by police officers or rangers of the
Big Canyon nature park from different sides to eliminate camp fires, illegal activities, TA -6
littering, and graffiti, especially in the evening hours for the safety our neighborhood 1
and its citizens_
We are requesting that the existing, healthy trees not be removed to prevent erosion
from flooding and not creating an unnatural park setting.
Thank you for your assistance in supporting these actions in an effort to maintain and sustain
the beauty of The Back Bay. A-7
Sincerely,
15-72
/7
P.xhihit 1 Staff ltccunvmcndatkon
�6Jec�--- U3 C' -'a' .
Signatures of the residents Of The Bluffs, NewPort Beach, California
ZM7tst L Alm, `11I2 (f rX
q-13
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03/1t)
15-73
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E-Aihil3. MOT R=ommcndalion
Comment No. A -'i
The comment request that the natural habitats of the Big Canyon Nature Preserve Park and the creek are
maintained by cleaning Lip all debris from old broken dead trees and graffiti.
Response to Comment No. A-1
The proposed Project encompasses 11.32 acres and includes the removal of the non-native habitat that includes
the pepper trees. The native habitats on the Project site that includes the freshwater marsh, alkali heath march and
the Menzies's Goldenbush scrub are not proposed to be removed. Portions of the native arroyo willows wil I be
removed, but only those portions that are infested with the Polyphagous Shot Hole Borer (PSHB).
The implementation of the proposed restoration would result in the removal of existing debris from old broken
trees as well as the removal of graffiti on the 11.32 -acre project site.
Cleaning up all debris from old broken dead trees and graffiti outside of the Project site is not part of the proposed
Project.
Comment No. A-2
The comment requests the installation of appropriate fencing adjacent to the existing trails that extend around the
Big Canyon Creek area to keep the public out of sensitive habitats and for safety purposes.
Response to Comment No. A-2
Currently, there is no fencing along the existing trails around the Big Canyon Creek area. Signs along the trails
will be included to direct visitors to remain on the trails and out of the habitat restoration area. Fencing is not
proposed, however, the City will revisit their determination to not fence Big Canyon Creek area during the final
design of the Project.
Comment No. A-3
The comment requests installation of more signs placed throughout the entire Big Canyon Natural Park area with
the same content as the current signage.
Response to Comment No. A-3
As illustrated on Figure 14 of the IS/MND, the Project includes proposed interpretive signs and signs for rest
areas. The current signs in the Big Canon Nature Park that are located outside of the Project site prohibit certain
activities within the park. The Project does not include additional signs that prohibit activities because these signs
are appropriate at entrances to the park.
15-78
Cshdut i SudT-Reeommendatmn
Comment No. A-4
This comment requests that signage in the area state that the park is closed and entrance prohibited from dusk to
dawn or 9 pin to 6 am.
Response to Comment No. A-4
Based on discussions with City staff, there will be a recommendation to modify the park hours restrictions by
stating "No Use of Park Between Dusk and Dawn" and eliminate the current restriction which is "No Use of Park
Between 11:00 PM and 6:00 AM.
Comment No. A-5
This comment requests that the currently installed metal pole gate on the Back Bay Drive side of the Big Canyon
Nature Park adjacent to the Newport Back Bay Parking lot is retained for the safety of the neighborhood.
Response to Comment No. A-5
The existing installed metal pole gate is located off of the Project site. Modification to the existing gate is not
included in the proposed Project.
Comment No. A-6
The comment requests that a regular random patrolling by police officers or rangers of the Big Canyon nature
park is provided to eliminate camp fires, illegal activities, littering, and graffiti, particularly within the evening
hours.
Response to Comment No. A-6
According to City staff, the Newport Beach Police Department does not regularly patrol the Big Canyon Nature
Park, but will respond to incidents. After the construction activities for Phase I were completed, there have been
no incidents within the Phase 1 area because the area contains substantially less dense trees. The removal of the
pepper trees within the Project site and the establishment of a meadow habitat within the majority of the Project
site would substantially reduce opportunities for illegal activities because these activities would not he hidden
from views.
Comment No. A-7
The comment request that the existing, healthy trees not be removed to prevent erosion from flooding and not
create an unnatural park setting.
15-79
Exhibit 3: Staff Recommendation
Response to Comment No. A-7
The proposed restoration project does not include the removal of existing, health native trees; however, the non-
native trees are proposed to be removed as well as the native arroyo willow trees that are infested with the PSHB.
15-80
Exhihii 3. S1;10'Itccnmmendation
,�G>~IVED BY
COMMUNITY
DEVELOPMENT
City Newport of Ne September 14, 2018
Beach Planning Division OCT 0 2 2418
Attn: Makana Nova, Associate Planner
100 Civic Center Drive, Bay 1-13
Newport Beach, CA 92658-8915 CITY OF
Re: Big Canyon Coastal Habitat Restoration & Adaptaiion�Phase 2A COMMENTS
#CD2018-027 and ND2018-001 (PA2018-078)
Gentlemen:
In response to your Notice of Intent to Adopt a Mitigated Negative Declaration regarding the above
application, be advised that the proposed project will most definitely have sienificant negative
impacts
the environment. In my view, it would be blind and deaf to arrive at any other conclusion. To rlp out a on
mature forest of evergreen trees standing 20 to 30 feet tall and replacing them with bushes 3 to 4 feet tall B-1
will leave this park a hot, barren waste land of little interest to anyone, at least anyone that I know.
Here are the significant impacts that I see:
1. Removal of the mature pepper tree forests in this park 3.4.2 d & e will also:
A. Remove (kill) the most beautiful habitat in the park
I B-2
B. Remove the root systems that prevent erosion when the creek floods
I B-3
C. Remove the tree cover for birds, including two endangered species you noted
D. Result in intense heat in summer as there will be no from
I B-4
shade thetrees
E. Result in removal of native species that are close to and intermingled with the
I B-5
pepper trees
F. Prevent new evergreen trees from re -growing
I B-6
G. Deprive the existing educational program from utilizing the forest to foster adventure; shade
T B-7
and learning experiences for underprivileged children bussed into the area for nature
study
B -g
H. Take away protection for the indigenous animals from surrounding urbanintrusion
I B-9
I. Interfere with the natural symbiosis between plants and animals existing for decades there
J. Replace beautiful green with ugly, useless brown brush
I B-11
and stunted green desert plants
K. Eliminate totally the scenic beauty of the forest from all directions, including the homes and
I B-11
apartments surrounding the park and individuals walking through the park
L. Deplete the oxygen making capacity of the
B-12
park's habitat — green trees make more oxygen
than desert bushes. They also absorb more carbon dioxide (CO2).
M. Contrary to Section 3.4.2 (D) of the project plan, it WILL "Result in the loss of forest land
B-13
or conversion of forest land to non forest use".
B-14
Discussion:
These 13 major impacts are just the beginning. I invite you to walk through Phase 1— it is not
anything like a park. It is hot, everything except the dirt paths is full of weeds so tall
you cannot see through
them and there is no "nature"! There is nothing to do or to see! — only the City's attempt to tame the creek's
flood waters and mitigate the soil's salinity and
other chemistry. Phase 2A would just extend the horrid
result further into the park from Jamboree Road, leaving nothing but an and trail
nobody would want to
use, except maybe to traverse the park and exit it as soon as possible. The evergreen forest is the gem, not
the foe.
B-15
The pepper trees have been dubbed "invasive", but so what. There are invasive trees all over the
1
15-81
Exhibit 3. Staff Recommendation
city, and there is no good reason to replace them with "native" vegetation, basically desert scrub. Since I
have lived in the area (a Quarter century), there have been 2 attempts to replace the scrub outside the
confines of the creek in what is now the park, with native vegetation, to no avail — it still looks like the B 5
desert, which it always has been.
Mitgation of the pepper trees. It is reported that some of the trees have been infested with some kind
of "borer" and eventually this will kill the trees. This has been the mainstay reason for tearing them out, that
is, they are going to die -anyway, so let's just take them out now. Not a good reason. If they die, they have
seeds, and new trees will grow in their stead, as a natural progression of vegetative life. The report does not
state that all the trees are infected, so let the uninfected trees stay. The report is silent about whether or how
these trees might be treated to protect against the "borers" - would that be better than tearing down all the B-16
forests? We need more Iight shined on this alternative. Thinning out the forest makes sense not only from
the perspective of users' enjoyment and the neighborhoods' lovely view out over the forests, but also
increasing the utility of the forest as an integral part of the park, where new nature trails might be made so
that the public could actually use the forest instead of just viewing it.
Use of the forest — another view. Apart from rare vandalism, e.g. burning of palm trees not too long
ago, the forest, has been primeval and undebased — until very recently. Neighbors have told -me that
nefarious activities are now occurring there, particularly from young people from out of town, e.g, smoking
pot, sex, and most recently, graffiti on the trees themselves. To preserve the forest, it has been suggested
that the city fence off the forest with a gate to be opened only for scheduled uses, e.g. educational programs.
That seems a good idea, because the city's idea of promoting use of the nature park (whereas it has been
inconspicuous before now) is bound to also promote accelerated vandalism, not only in the forest but B-17
keeping the evergreen forest and preserving it from vandalism. throughout the park. That means more police surveillance and visitor fear and reluctance. So, consider
One last thought from a neighbor: if you really are intent on tearing out all these trees, you should
erect a fence along the fire road above the forest where it is very possible that people could fall over the
cliff, such as where the fire road T's into the other dirt road which goes left to the Bluffs and right towards
Jamboree Road under the apartments.
And oh — an afterthought — the parking lot, which I understand is owned by the Dept. of Fish and
Wildlife, but is in the city limits, needs to be chained off at night (or speed bumps installed, or both)
because in the last few months, almost every night between 20 PM and 2 AM there are cars doing really 8..1 g
loud brodies there, which is (mildly to very) disturbing to hundreds of nearby residents. A hidden motion
actuated camera might catch these (probably juvenile) culprits.
2. Construction of this proiect will denude the land with no guarantee that replanting with immature native
bushes will prevent severe erosion from flood waters of Big Can on Creek.
Discussion:
It cannot be denied that the centerpiece of this park is a creek. This creek undoubtedly formed the
canyon through which it flows. In other words, historic hydraulic forces carved out this canyon, just as such
forces carved out our mini Grand Canyon back bay, now seen from space. The point is that hydraulic forces
of flood waters take out small vegetation along with soil, and in nature, only strong trees, if anything, can
withstand such forces and afford protection to smaller, sturdier and mature plants. Removal of the forests in
this park cannot help but to destroy the plants which the city intends to replace the trees with — all it will
take is a good winter storm to wipe out the park's new plant life and leave an ugly mess. Replanting after
that is always subject to the vagaries of future storms, not to mention the cost to taxpayers of funding this
process.
A much better scenario is the forest left in tact, thinned out for better park use, but remaining to
•
.S r
15-82
G\hibit 3 Staff Recommendation
continue protecting the canyon, its inhabitants and provide a worthy habitat for the creek.
3. Heavy equipment and hundreds of truckloads of earth uprooted trees and vegetation over a period of
several months in the rainy winter season will be seen heard smelled and endured unnecessarily by park
goers, 'o ers c clists regidar street traffic and surroundin Wei hborhoods resulting in the following
significant impacts:
A. NOISE. The plan calls for 5 months (weather permitting during winter) of 6 -day -a -week
destruction/construction followed by more months of repairing, planting, landscaping and maintenance of
the newly manufactured contours of this park. This is a BIG, intensive project. This means big noise.
Presently the park is completely silent. Quite a contrast to utter tranquility.
1. Excessive noise will be made by enormous diesel dump trucks traversing the dirt roads of
the park (hundreds and hundreds of trips are projected to haul dirt, trees etc).
2. Heavy diesel earth moving equipment, like bulldozers, backhoes etc. will be employed to
regrade the banks of the creek and other loud equipment will be needed to uproot all the trees etc,
3. Loud chain saws will cut up the trees and other "unwanted" plants
4. Stump grinders and tree chippers will scream.
Those of us who live on the bluffs of this park (like I do) know that you can sometimes hear voices across
the back bay, it is that quiet. The loud, excessive noise and vibration from this project over the course of
many months will most certainly irritate every person within earshot, and it will deprive all the hundreds of
surrounding residences of peace and quiet.
T B-19
B. AIR/WATER POLLUTION. Plenty of dust, diesel and gasoline fumes, pollen, construction and
plant particulate will contaminate the air in, on, around and over the project site and the surrounding
neighborhoods. The creek itself cannot be fully protected against construction and earth moving work, let B-21
alone changing its banks and meanderings. The creek's pollution, of course, Wins out into the harbor via the
back bay.
C. VEHICULAR DANGER. The project depends on all the necessary workers, vendors, trucks and
equipment to access the park, coming and going, via Back Bay Road. As a lot of us know, Back Bay Road
is dangerous already, because it is not a real road but a multi -use TRAIL It was obviously designed as very
slow (15 MPH max) one-way travel except for bicyclists, who share the trail with motorized vehicles,
joggers, baby carriages, lots of dogs and pedestrians, all within feet of each other without curbs or center
dividers. Back Bay Road is not straight, but rather a series of reverse curves, some of them blind. Not
uncommonly, motorists who embark on the trail will become worried or disoriented and turn around and go B-22
the wrong way to exit, rather than complete the course, despite the "Wrong Way" signs.
Heavy trucks and equipment plus all the other traffic on this narrow, one-way trail will create
unusually dangerous condition for all users, especially those exposed to extra wide vehicles which will
encroach on to the bike lanes and cause bicyclists to encroach into the pedestrians lane -That, combined with
the dust and noise of construction vehicles will make the Back Bay Road untenable.
Discussion:
The above impacts (A, B & C) on humans are self evident. They are many, and they are more than
"significant". In totality, they preclude the magnitude of and misguided vision for this project. But how
about the animals. The park is full of animals. They have no voice to speak out or object. Their only choice B-23
is to leave the area and take their chances somewhere else, or try to survive in a much changed environment
2
7
1
15-83
ol ,
rxhib:t 3 Stair RCtimmnlend;$ion
Of construction, deforestation, and confrontation. Some of the animals are admittedly "endangered species"
A lot of animals will be displaced, injured or killed. That is not what we want.
4. Destruction of aboriginal historical site Native American artifacts and evidence of aboriginal culture
identified and preserved; if this is not possible, neither should this project be approved or
dating back perhaps 5000 to 10,000 years ago are likely in the zone of proposed construction and must be It is well documented that local villages of Native Americans once pursued further.
lived on the shores and canyons
of our back bay, particularly on the side of the back bay where this project is intended, such as the
Moyogna, or perhaps outposts of the Kenyaangna, both of which were tribes in Newport Beach. Known
variously as the Gabrielino, Tongva or Kizh (pronounced "Keech"), these aboriginals left many artifacts
and other indicia of their civilization, some of which has been saved from other construction projects in our
city. These must be found, preserved and turned over to the descendents of these peole. Reference:
http://gabrielenoindians.org/ and http•/Isocalsto try efts blogSDot com/ p
I have personally spoken with people driving through the park claiming to represent the Kizh nation
who say they have found native artifacts there.
I have re -read this letter and have to add, if this isn't convincing, I don't know what is.
Respectfully,
-:7
Tony Knox 941'721-8311
P. O. Box 8678
Newport Beach, CA 92658
4
B-23
B-24
15-84
6xhihil 3 Staff Recommend; tion
Comment No. B-1
�.I
This comment expressed an opinion that the proposed Project will most definitely have significant negative
impacts.
Response to Comment No. B-1
As discussed in the IS/MND, there are potential significant impacts related to biological resources, cultural
resources, and noise; however, mitigation measures have been recommended to reduce the potential significant
impacts to less than significant.
Comment No. B-2
This comment identified that removal of the mature pepper trees on the Project site would remove (kiI I) the most
beautiful habitat in the park.
Response to Comment No. B-2
This comment expressed an opinion and does not address the contents of the IS/MND. No further response is
necessary.
Comment No. B-3
This comment identified that removal of the mature pepper trees on the Project site would remove the root
systems that prevent erosion when the creek floods.
Response to Comment No. B-3
Construction activities would remove the root system of the existing pepper trees. The proposed restoration plan
includes engineering the creek and adjacent area to reduce the potential for erosion during floods.
Comment No. B-4
This comment identified that removal of the mature pepper trees on the Project site would remove the tree cover
for birds, including two endangered species.
Response to Comment No. B-4
There are endangered species in the vicinity of the Project site; however, there are no endangered species on the
Project site. The pepper trees are non-native and do not provide habitat for nearby endangered species (i.e.,
coastal California gnatcatcher and the least Bell's vireo).
15-85
F.Othit 1: SWO-Recommendation
Comment No. B-5
This comment identified that removal of the mature pepper trees on the Project site would result in intense heat in
summer as there vi 11 he no shade from the trees.
Response to Comment No. B-5
This comment expressed an opinion and does not address the contents of the IS/MND. No further response is
necessary.
Comment No. B-6
This comment identified that removal of the mature pepper trees on the Project site would result in removal of
native species that are close to and intermingled with the pepper trees.
Response to Comment No. B-6
The existing pepper trees which are non-native do not provide habitat for native plant or wildlife species.
Comment No. B-7
This comment identified that removal of the mature pepper trees on the Project site would prevent new evergreen
trees from re -growing.
Response to Comment No. B-7
The proposed Project includes a restoration plan that has specific plant species based on the soil conditions of the
Project site.
Comment No. B-8
This comment identified that removal of the mature pepper trees on the Project site would deprive the existing
educational program utilizing the forest to foster adventure, shade and leaming experiences for underprivileged
children bussed into the area for nature study.
Response to Comment No. B-8
This comment expressed an opinion and does not address the contents of the 1S/MND_ No further response is
necessary.
15-86
- j�,. 1
l ,
GxNM 3 ScaO' Kecommenda(ion
Comment No. B-9
This comment identified that removal of the mature pepper trees on the Project site would take away protection
for the indigenous animals from surrounding urban intrusion.
Response to Comment No. B-9
This comment identified that the Project would eliminate protection of native animals from surrounding urban
intrusion. Native animals or wildlife are not associated with the non-native pepper trees. Therefore, the removal
of the non-nativc pepper trees would not eliminate protection of native animals from surrounding urban intrusion -
Comment No. B-10
This comment identified that removal of the mature pepper trees on the Project site would interfere with the
natural symbiosis between plants and animals existing for decades at the Project site.
Response to Comment No. B-10
This comment identified the relationship of the existing pepper trees and plants and animals. However, this
comment does not comment on the contents of the IS/MND. No further response is necessary.
Comment No. B-11
This comment identified that removal of the mature pepper trees on the Project site would replace beautiful green
with ugly, useless brown brush and stunted green desert plants.
Response to Comment No. B-11
This comment expressed an opinion of the view of the Project site and does not comment on the contents of the
IS/MND- No further response is necessary.
Comment No. B-12
This comment identified that removal of the mature pepper trees on the Project site would eliminate the scenic
beauty of the forest from all directions, including the homes and apartments surrounding the park and individuals
walking through the park.
Response to Comment No. B-12
This comment expressed an opinion of the scenic view of the Project site and does not comment on the contents
of the IS/MND. No further response is necessary.
15-87
Exhibit 3: Slatr Recommendation
Comment No. B-13
This comment identified that removal of the mature pepper trees on the Project site would deplete the oxygen
making capacity of the park's habitat because green trees make more oxygen than desert bushes and green trees
absorb more carbon dioxide.
Response to Comment No. B-13
This comment regarding the cycle of oxygen is correct, but this comment does not comment on the contents of
the IS/MND. No further response is necessary.
Comment No. B-14
This comment disagreed with the finding that the proposed Project would not result in the loss of forest land or
conversion of forest land to non -forest use.
Response to Comment No. B-14
As discussed on page 44 of the IS/MND, in determining whether impacts to forest resources, including
timberland, are significant environmental effects, lead agencies may refer to information compiled by the
Department of Forestry and Fire Protection regarding the State's inventory of forest lands, including the Forest
and Range Assessment Project and the Forest Legacy Assessment project. Forest lands refer to productive land
for timber; and therefore, the Project site is not identified as forest land because it is not used for producing
timber.
Comment No. B-15
This comment refers to the current environmental conditions of Phase I after the construction activities were
completed. The comment provided an opinion that the evergreen trees (i.e., the non-native pepper trees) should
remain and not replaced with native vegetation.
Response to Comment No. B-15
This comment expresses an opinion and does not provide a specific comment on the contents of the IS/MND.
Comment No. B-16
This comment states that the removal of the pepper trees is proposed because the trees are infested with the
PSHB.
rxhibit 3 star -Recommendation
Response to Comment No. B-16
There are a number of objectives of the proposed Project as listed on page 18 of the IS/MND. The primary
purpose is to restore the Big Canyon Nature Park by removing the exotic and invasive plants and create a mosaic
of coastal habitats as well as restoring the creek. The existing pepper trees are non-native and do not provide
habitat for sensitive wildlife species. Some of the native arroyo willows trees are currently invested with the
PSHB and are proposed to be removed to eliminate the spread of infestation -
Comment No. B-17
This comment requests that a fence he constructed around Big Canyon Creek area to prevent people from falling
over the cliff.
Response to Comment No. B-17
As stated in Response to Comment No. A-2 above, there is currently no fencing along the existing trails around
the Big Canyon Creek area. Signs along the trails will be included to direct visitors to remain on the trails and out
of the habitat restoration area. Fencing is not proposed, however, the City will revisit their determination to not
fence Big Canyon Creek area during the final design of the Project.
Comment No. B-18
This comment requested that the existing parking lot off of Back Bay Drive be chained off at night.
Response to Comment No. B-18
The Back Bay Drive parking lot is not located on the Project site, and the Project does not include modifications
to the operation of the existing parking lot. As stated in Response to Comment A-4, there will be a
recommendation by City staff to modify the park hours restrictions by stating "No Use of Park Between Dusk and
Dawn" and eliminate the current restriction which is "No Use of Park Between 11:00 PM and 6:00 AM.
However, this restriction would only apply to the Big Canyon Nature Park and not the Back Bay.
Comment No. B-19
This comment states that the construction of the Project would denude the land and that there would be no
guarantee that the restoration efforts would prevent erosion from flood waters.
15-89
lshihit.1 Star Recommendation
Response to Comment No. B-19
As described in the IS/MND, the proposed Project includes the re -contouring of the creek and flood area as well
as provide stabilisation of the creek channel. These efforts will reduce the potential for erosion during flood
events.
Comment No. B-20
This comment states that the proposed construction activities will substantially increase noise levels during the
approximately 5 months of construction activities.
Response to Comment No. B-20
The comment is correct. Construction activities for the Project will increase noise levels at the nearby residences;
however, as stated on page 122 of the IS/MND, construction activities would comply with the current City noise
ordinance which limits construction hours between 7:00 am and 6:30 pm on any weekdays and between 8:00 am
and 6:00 pm on any Saturday. All construction work would be prohibited on any Sunday or federal holiday.
Although construction noise levels -would be less than significant, noise reduction devices and techniques are
recommended to reduce construction noise as discussed on pages 126 and 127 of the IS/MND.
Comment No. B-21
This comment raises a concern regarding the increase of air emissions and surface water pollution during
construction activities.
Response to Comment No. B-21
Construction air emissions are discussed on pages 58 through 60 of the IS/MND and determined that the Project
would not exceed the construction air quality significance thresholds established by the South Coast Air Quality
Management District.
The Project includes a Construction Pollution Prevention Plan (CPPP) that would reduce water quality effects
during construction activities of the Project.
Comment No. B-22
This comment raises a safety concern regarding the use of Back Bay Drive by workers, vendors, trucks, and
equipment to access the park because Back Bay Drive is a multi -use trail.
15-90
Exhihil 3 Slafi Recommcmiaiiun
Response to Comment No. B-22
As discussed on page 136 of the IS/MND, construction vehicles such as the haul trucks as well as construction
employees, vendors and equipment, would use Back Bay Drive. As noted in the comment, the current speed limit
on Back Bay Drive is 15 miles per hour. All vehicles associated with construction activities of the Project would
limit their speeds to 15 miles per hour. It is understood that access to the site includes vehicles travelling north on
Back Bay Drive from Jamboree Road and access from the Project site includes vehicles travelling north on Back
Bay Drive to East Bluff Drive. Pages 134 and 135 of the IS/MND identified peak hour traffic associated with the
Project would include about 24 one-way trips by employees during the peak hour while during the non -peak hour
which is when haul truck would operate, a maximum of 26 one-way trips over 6 hours during the non -peak hours
each day would occur. This would result in a maximum average of 4 to 6 one-way trips per hour. Because the
speed limit on Back Bay Drive is 15 miles per hour, less than significant traffic safety impacts would occur.
Comment No. B-23
The comment identified that animals in the Project area would be impacted during construction activities.
Response to Comment No. B-23
Pages 67 through 71, provided an evaluation of the potential impacts on plant and wildlife species during
construction activities. As discussed, potential impacts to special -status plant, nesting birds and special -status bats
were found to be potentially significant. Mitigation measures BIO -1 through BIO -3 are provided to reduce the
potential impacts to less than significant.
Comment No. B-24
This comment identified the potential for Native American artifacts within the Project area and that the
construction activities could impact them.
Response to Comment No. B-24
As discussed on pages 83 through 85 of the IS/MND, there is a potential for construction activities to impact
currently unknown historical and archaeological resources. Mitigation measures CR -1 (Archaeological
Monitoring) and CR -2 (Native American Monitoring) have been included to reduce the potential impacts to
unknown historical and archaeological resources to less than significant.
15-91
ficfiiftil 3' Simi' Rrennzmcncttrfioa
PublicWorks
Integrity, Accountability, Service, Trust
Shane L Silsby, Director
October 4, 2018
Makana Nova, Associate Planner
City of Newport Beach Planning Division
100 Civic Center Drive, Bay 1-B
Newport .Beach, CA 92658-8915
NCL -18-052
Y
n
Subject: Notice of Intent to Adopt a Negative Declaration—Big Canyon Coastal Habitat
Restoration and Adaptation
Dear Ms. Makana Nova,
The County of Orange Paas reviewed the Notice of Intent to Adopt a Negative Declaration
for the Big Canyon Coastal Habitat Restoration and Adaptation project and has no comments at
this time. We would like to be advised of firmer developments on the project. Please continue to
keep us on the distribution list for future notifications related to the project.
If you have any questions, please contact Cindy Salazar in Develapment Services at (714) 667-
8870.
Sicerel`y
ICichard Vuong, Manager, Planning Division
OC Public Works Service AiCa/OC Development Services
300 North Flower Street
Santa Ana, California 9270214048
Richard.Vuung@ocpw.ocgov.com
300 N. Flower Street. Santa Ana, CA 92703
P.O. Box 4048, Santa Ana, CA 92702-1048
G1
VAW;.oapublf Grrorks,c=
714.667,8800 i infc)@OCPVV.Ocgov.com
15-92
Exhibit 3: Staff Recommendation
Comment No. C-1
This comment stated that the County of Orange has no comments on the IS/MND and requests that they receive
future notifications related to the Project.
Response to Comment No. C-1
The City acknowledges this comment from the County of Orange.
15-93
_`✓}
Exhibit 3: Siaf3' Rmommendation
From: rbolds(thpacbelLnet
Date: September 25, 2018 at 4:03:19 PM PDT
To: mnovau)newportbeach eov
Subject: Big Canyon Restoration -Phase 2A
Following comment submitted regarding subject project.
The location of the project, as stated, is not accurate. The Northern boundary of Project 2A does
not abut Amigos Way, but does encompass Vista Bonita and Vista Caudal, which together
comprise the vast majority of the Northern boundary of the entire restoration D-1
project. Recommend the project location information be changed to properly reflect the streets
along the Northern boundary.
Sincerely,
Robert B.Olds
641 Vista Bonita
Newport Beach, CA 92660
15-94
Exhibit 3- Stan' Rmommendation
Comment No. D-1
'rhe comment states that the description of the project location was not accurate because the northern boundary of
the Project site does not abut Amigos Way.
Response to Comment No. D-1
This comment was provided on the Notice of Intent to Adopt a Negative Declaration (NOI). The NOI was
providing a general description of the location of the proposed Project. The Project location within the IS/MND
provided a detailed description of the location, and Figure 2 illustrated the streets that are located north of the
Project site. These streets included Amigos Way, Domingo Drive, and Vista Bonita. The reference to Vista
Caudal in this comment as being located north of the Project site is not accurate. Vista Caudal is located north of
future Phase 2C area.
7.
.d
15-95
Exhibit 3. Stall" Ruxommcndation
September 26, 2018
Voicemail Recording
Approximately 2 minutes and 41 seconds long
Citizen of Newport Beach
This is a message from a City of Newport Beach citizen representing others living around Big
Canyon Nature Park. The commenter states that the City should implement a fence around the
Big Canyon Creek because there is graffiti and trash around the area, and this is disrespectful to
nature. The Park/Creek area looks like it is a disaster. A fence would keep the public out and
stop the graffiti, littering, decrease the chance of fires starting in the area, and prohibit the use of
drugs and other substances in the Park/Creek area_ The commenter recommends that if theCity
wants to use the area for educational purposes, then they have someone open the gate for the
group/educational entity, then close it after they are done. The commenter expresses extreme
concern over these issues and states that it is unacceptable what is currently happening in the
Park. The commenter clearly states that a new fence would keep people out and decrease
these existing issues.
E-1
15-96
FA1111lt 3- St"WRcxommendation
Comment No. E-1
This comment requested fencing to be included in the proposed Project and located around the entire Project site.
Response to Comment No. E-1
As stated in Response to Comment No. A-2 above, there is currently no fencing along the existing trails around
the Big Canyon Creek area. Signs along the trails will be included to direct visitors to remain on the trails and out
of the habitat restoration area. Fencing is not proposed, however, the City will revisit their determination to not
fence Big Canyon Creek area during the final design of the Project.
If you have any questions, please call me at 714 742 5375.
Sincerely,
/444 &0 -
Michael Houlihan, AICP
Principal Associate
15-97
State of California — Natural Resource§%6h6pff Reeommendntion�MUIVD G. BRO6NN JR.. Governor ,*1 1
DEPARTMENT OF FISH AND WILDLIFE
CHARLTON H. BONHAM, Director
South Coast Region _ A' a
3883 Ruffin Road
San Diego, CA 92123 "�•
www.wildlife.ca.gov
June 7, 2016
State Coastal Conservancy
1330 Broadway, Suite 1300
Oakland, CA 94612
RE: Support for Grant Proposal— Big Canyon Coastal Creek Restoration and
Estuary Adaptation — Phase II
Dear Madam/Sir-
On behalf of the Department of Fish and Wildlife (Department), I am writing this letter of
support for the Newport Bay Conservancy (NBC), and the City of Newport Beach, as
they apply for funding for Grant Proposal Big Canyon Coastal Creek Restoration and
Estuary Adaptation -Phase 11.
NBC's and co -applicants' proposal, which would be funded under the Water Quality,
Supply and Infrastructure Act of 2104, Proposition 1 Grant Program through the
California Coastal Conservancy, could dramatically improve a disturbed watershed area
that feeds into the Upper Newport Bay Ecological Reserve. The project would provide
multiple species benefits through the restoration of creek habitat. Ecosystem
functioning could be restored through the removal of invasive plant species, the
reduction of selenium loads that are toxic to wildlife, and provide adaptation to sea level
rise that would benefit sensitive species utilizing the area.
The Department has been working cooperatively with the City of Newport Beach, NBC,
and resource agencies in planning efforts to identify problem areas and propose viable
alternatives for restoration in this sensitive area. This project would be a culmination of
those efforts and provide the ability to execute our planning efforts. The State is a
landowner for a portion of the project area and we are planning to enter into a
Memorandum of Understanding (MOU) with the City of Newport Beach to execute the
project successfully -
I respectfully and strongly encourage State Coastal Conservancy approval of the grant
application for this effort.
Sincerely,
/0
Richard Burg
Senior Environmental Scientist/Supervisor, Lands Program
South Coast Region
cc: Terri Stewart, CDFW
Carla Navarro, CDFW
Robert Stein, City of Newport Beach
Peter Bryant, Newport Bay Conservancy
Conserving Ccaffornia's Wi(.dffe Since 1870
15-98
Exhibit 3. Star Rccommcndatinn
July 28, 2017
Chairman Douglas Bosco
State Coastal Conservancy
1515 Clay St., 10th Floor
Oakland, CA 94612
-J
RE: Support for Big Canyon Coastal Creek Restoration, Fresh Water Pond Vector
Remediation and Estuary Adaptation — Phase 11, submitted by Newport Bay
Conservancy
Dear Chairman Bosco:
On behalf of the City of Newport Beach, I write in support of the Newport Bay Conservancy
for funding of their project that includes Big Canyon Coastal Creek Restoration, Fresh
Water Pond Vector Remediation and Estuary Adaptation -Phase II.
The City's support includes in-kind service contributions to assist NBC, in which we will
review the work plan prepared by NBC and the construction documents prepared by NBC's
consultant, and act as lead agency on the CEQA analysis prepared by NBC's consultant_
The City will also provide in-kind support by participating in meetings of the proposed
Technical Advisory Committee that has been identified in the Project Work Plan. The City's
Public Works Department provides experience and expertise having successfully completed
Phase I of the Big Canyon restoration project. The City supports NBC and the Phase II
project based on the following expected benefits to the Newport Beach Community:
• Improve Water Quality and Restore Natural Systems: The project's water quality
benefits will be achieved by the removal/stabilization of selenium impacted vegetation
and sediment within the fresh water pond. This will then allow for sustainable restoration
efforts within the pond area and adjacent riparian habitat (4.8 acres), and the
downstream development of the transitional environment (4.3 acres) between the
riparian and estuary ecosystems. The City has completed the water quality elements in
Phase I that have significantly reduced the sources of selenium in the upper Big Canyon
preserve.
Provide Long -Term Remediation of Mosquito Breeding Habitat in Fresh Water
Pond — Efforts to reduce mosquito breeding and populations by the County of Orange
Vector Control in the fresh water pond have not been effective, and they have requested
action to provide a long-term solution. The stagnant fresh water and heavy reed
vegetation provides favorable habitat to mosquito species that may pose a threat to
public health and safety because of their disease -transmitting capabilities. These
include Culex tarsalis (C. tarsalis), C. pipiens, and C. peus species that are known
15-99
C)
Exhibit 3: StatY R commendation
vectors capable of transmitting Western Equine Encephalitis and St. Louis Encephalitis
to both human and equine hosts. Phase It includes the analysis and selection of the
preferred alternative to address this community health issue from the fresh water pond.
Protect and Restore Coastal Creek and Estuary Habitats: The Phase II project
includes the implementation of the restoration of 9.6 acres and the restoration
planning/design of an additional 9 acres of coastal creek and upland habitats, including
Least Bell's Vireo habitat, impacted by selenium loading, hydromodification, and
invasive plant species. The restoration will include removal of invasive plants and re -
vegetation in the lower Big Canyon Preserve using techniques similar to those being
used for upstream Phase I riparian corridor restoration.
• Protect and Restore Coastal Watersheds — Big Canyon is the only significant
remaining natural canyon on the east side of Newport Bay. The project continues the
restoration efforts to preserve and restore this important coastal ecosystem that includes
riparian, upland, coastal and transitional habitats.
• Protect and Restore Aquatic, Wetland and Migratory Bird Ecosystems — Upper
Newport Bay serves as an important aquatic, coastal wetland and migratory bird
ecosystem. This project's proposed transitional habitat area for adaption of the adjacent
estuary to sea level rise will be designed to provide a suitable ecosystem for Newport
Bay's resident as well as migratory bird populations.
• Protect Fisheries - This project protects fisheries through the water quality
improvements and adaptive coastal estuarine habitat measures.
Restoration in Big Canyon is also expressly planned to assist educational efforts like the
Orange County Department of Education's "Inside the Outdoors" program by re-creating a
spectrum of integrated habitats and water quality improvement features within this nature
park watershed.
This proposed project is part of extensive planning efforts by the City in partnership with
resource agencies, environmental non -profits, and the community, to improve water quality
and restore habitat in Big Canyon. Restoration activities are integrated with larger
restoration efforts planned for Newport Bay (Central Orange County Integrated and Coastal
Water Management Plan, 2009) and the selenium mitigation program is addressed in detail
in the 2011 Big Canyon Selenium BMP Strategic Plan (revised 2015).
The City respectfully and strongly supports the State Coastal Conservancy award of the Big
Canyon Coastal Creek Restoration, Fresh Water Pond Vector Remediation and Estuary
Adaptation -Phase II project.
Sincerely,
David Kiff
City Manager
City of Newport Beach
15-100
STATE CAPITOL
PO BOX 9-:21149
SAGRMIL NTO. CA 94249-00?4
(ti It') 319.707's
s AX (916) 319.2174
July 271h, 2017
Exhibit 3: Staff Recommendation
C tX'r �rlrttt
N6gisinfure
MATTHEW HARPER
ASSEIABLYM EMBER SEVENTYFOURThl DISTRICT
Chairman Douglas Bosco
State Coastal Conservancy
1515 Clay St 10th Floor, Oakland, Ca 94612
Dear Chairman Bosco:
DISTRICT OFFICE
15.73 SOU 1N COAST DRIVE. oU.iF ?05
U)StA MLSA. CA 92626
171-11668.2 100
I AX (714) i M-T+O<
I write to express my strong support of the Newport Bay Conservancy (NBC) in their
efforts to restore Big Canyon, a 45 -acre side canyon on the east side of Upper Newport Bay
in Newport Beach. This Canyon has been heavily impacted by excess selenium loads and
by huge populations of invasive species, especially Brazilian Pepper trees.
NBC is the only organization focused exclusively on the conservation and
restoration of Upper Newport Bay, which is one of the most precious natural resources in
Southern California. They organize community-based native habitat restoration and other
service activities that involve the public and local businesses in the stewardship of the Bay.
They conduct various environmental education programs and nature tours for school and
college groups and for the public. They undertake and support science -based adaptive
management for over a square mile of protected tidelands and uplands in the heart of
Newport Beach. This includes performing and sponsoring habitat and wildlife monitoring
and research, implementing conservation projects, and providing information management
services. The experience of this organization and its partners provides a guarantee that
funding for the Big Canyon restoration project will be wisely used.
Restoration of Big Canyon will enhance Upper Newport Bay as an area rich with
Opportunities for recreation and for education at all levels. The restored canyon will
include a creek with associated natural streamside habitats, and interpretive trails to
enhance safe public access.
The City of Newport Beach is the relevant landowner, is solidly behind the project
and will work in partnership with NBC in its implementation.
Sincerely,
P
Assemblyman Matthew Harper
15-101
Exhibit 3- Sta1T Recommendation
July 27, 2017
Chairman Douglas Bosco
State Coastal Conservancy
1515 Clay St IOth Floor
Oakland, CA 44612
Dear Chairman Bosco:
r.. •_!•Irl. ✓R{ n vc:...
.. t.u't.v,•.rt.. • .,;,�
n( t.UE rur n
I write in support of the Newport Bay Conservancy (NBC) and it's desire to restore Big Canyon, a 45 -
acre side canyon on the east side of Upper Newport Bay in Newport Beach. Over the years the canyon
has been heavily impacted by excess selenium loads and by huge populations of invasive species,
especially Brazilian Pepper trees, making a restoration project necessary. In my years of service on the
Orange County Vector Control Board, we spent considerable attention on the lake and addressing
mosquito abatement. As a former Orange County Supervisor, this location is adjacent to the Upper
Newport Bay Regional Park.
Currently, the NBC is the only organization focused exclusively on the conservation and restoration of
Upper Newport Bay, which is a precious natural resource in Southern California and my District. The
NBC's work includes organizing community-based native habitat restoration and other service activities
that involve the public and local businesses in the stewardship of the bay. They conduct environmental
education programs and nature tours for school and college groups and for the public. The NBC's work
also includes undertaking and supporting science -based adaptive management for over a square mile of
protected tidelands and uplands in the heart of Newport Beach. They are also performing and sponsoring
habitat and wildlife monitoring and research, implementing conservation projects, and providing
information management services. The experience of this organization and its partners provides an
assurance that a restoration project for the Big Canyon will be effective and beneficial to our community
and the natural habitat.
Restoration of Big Canyon will enhance Upper Newport Bay as an area rich with opportunities for
recreation and for education at all levels. The restored canyon will include a creek with associated natural
streamside habitats, and interpretive trails to enhance safe public access. The City of Newport Beach is
the relevant landowner and strongly supports the project and has indicated that it will work in partnership
with NBC in its implementation.
Very truly yours,
John M. W. Moorlach
15-102
hL
SENATOR
JOHN M. W. MOORLACH
THIRTY SEVENTH SENATE DISTPT.T
July 27, 2017
Chairman Douglas Bosco
State Coastal Conservancy
1515 Clay St IOth Floor
Oakland, CA 44612
Dear Chairman Bosco:
r.. •_!•Irl. ✓R{ n vc:...
.. t.u't.v,•.rt.. • .,;,�
n( t.UE rur n
I write in support of the Newport Bay Conservancy (NBC) and it's desire to restore Big Canyon, a 45 -
acre side canyon on the east side of Upper Newport Bay in Newport Beach. Over the years the canyon
has been heavily impacted by excess selenium loads and by huge populations of invasive species,
especially Brazilian Pepper trees, making a restoration project necessary. In my years of service on the
Orange County Vector Control Board, we spent considerable attention on the lake and addressing
mosquito abatement. As a former Orange County Supervisor, this location is adjacent to the Upper
Newport Bay Regional Park.
Currently, the NBC is the only organization focused exclusively on the conservation and restoration of
Upper Newport Bay, which is a precious natural resource in Southern California and my District. The
NBC's work includes organizing community-based native habitat restoration and other service activities
that involve the public and local businesses in the stewardship of the bay. They conduct environmental
education programs and nature tours for school and college groups and for the public. The NBC's work
also includes undertaking and supporting science -based adaptive management for over a square mile of
protected tidelands and uplands in the heart of Newport Beach. They are also performing and sponsoring
habitat and wildlife monitoring and research, implementing conservation projects, and providing
information management services. The experience of this organization and its partners provides an
assurance that a restoration project for the Big Canyon will be effective and beneficial to our community
and the natural habitat.
Restoration of Big Canyon will enhance Upper Newport Bay as an area rich with opportunities for
recreation and for education at all levels. The restored canyon will include a creek with associated natural
streamside habitats, and interpretive trails to enhance safe public access. The City of Newport Beach is
the relevant landowner and strongly supports the project and has indicated that it will work in partnership
with NBC in its implementation.
Very truly yours,
John M. W. Moorlach
15-102
Exhibit 3: StafrRecommendation
COASTAL CONSERVANCY
Staff Recommendation
September 28, 2017
Big Canyon Creek Restoration and Estuary Adaptation
Project No. 17-018-01
Project Manager: Evyan Sloane
RECOMMENDED ACTION: Authorization to disburse up to $640,000 to the Newport Bay
Conservancy to conduct feasibility studies and prepare designs, engineering, environmental
analysis, and permit applications for the restoration of coastal sage upland, riparian, and
freshwater marsh habitats within the 60 -acre Big Canyon Nature Park in the City of Newport
Beach and County of Orange.
LOCATION: Big Canyon Nature Park, City of Newport Beach, County of Orange
PROGRAM CATEGORY: Resource Enhancement
EXHIBITS
Exhibit 1: Project Location
Exhibit 2: Phase I Prosect Photos
Exhibit 3: Project Letters
RESOLUTION AND FINDINGS:
Staff recommends that the State Coastal Conservancy adopt the following resolution pursuant to
Sections 31111 and Sections 31251-31270 of the Public Resources Code:
"The State Coastal Conservancy hereby authorizes the disbursement of up to six hundred forty
thousand dollars ($640,000) to the Newport Bay Conservancy to conduct feasibility studies and
prepare designs, engineering, environmental analysis, and permit applications for the restoration
of approximately 19.2 acres of coastal sage upland, riparian, and freshwater marsh habitats at
Big Canyon Nature Park. Prior to the disbursement of funds, the Newport Bay Conservancy
shall submit for review and written approval of the Conservancy's Executive Officer a work
program, including budget and schedule, and any contractors to be employed under the grant."
Staff further recommends that the Conservancy adopt the following findings:
"Based on the accompanying staff report and attached exhibits, the State Coastal Conservancy
hereby finds that.
15-103
Exhibit 3: Stair Recommendation
The proposed authorization is consistent with Section 31 1 11 of the Public Resources Code
regarding grants to undertake plans and feasibility studies, and with Chapter 6 of Division 21
of the Public Resources Code, regarding enhancement of coastal resources.
The proposed project is consistent with the current Conservancy Project Selection Criteria
and Guidelines.
3. The Newport Beach Conservancy is a nonprofit organization existing under section 501(c)(3)
of the U.S. Internal Revenue Code, and whose purposes are consistent with Division 21 of
the Public Resources Code."
PROJECT SUMMARY:
Staff recommends the Conservancy provide up to $640,000 to the Newport Bay Conservancy
(NBC) to conduct feasibility studies and prepare design, engineering, environmental analysis and
permit applications for the restoration of native habitats within the 60 -acre Big Canyon Nature
Park in Orange County (Exhibit 1). NBC, in partnership with the City of Newport Beach,
proposes to plan the restoration of coastal sage upland, riparian and freshwater marsh habitats for
a total of at least 19.6 acres of restored land.
The proposed project aims to improve the water quality, restore natural riparian habitat, protect
and restore estuary habitats, and develop a sea -level rise adaptation strategy for coastal habitats.
First, the project's potential water quality benefits will be assessed by conducting a feasibility
study of how best to stabilize selenium -impacted vegetation and sediment within 5.8 acres of
freshwater pond and wetland habitat (see Phase 2B project area in Exhibit 1). The City has
already successfully decreased selenium concentrations in an earlier phase of the project
upstream from the project area (see Phase I project area in Exhibit 1 and Phase I photos in
Exhibit 2), and developing a plan for minimizing the release of selenium downstream of Phase I
in the proposed project area, would further help minimize selenium impacts to wildlife. Once
the feasibility study is complete, the project will complete designs and environmental analyses
for the needed restoration activities.
Second, the project will complete designs and environmental analyses to restore approximately
9.2 acres of riparian corridor habitat (see Phase 2C project area in Exhibit 1). The site currently
contains dense stands of invasive Brazilian pepper trees. This restoration work will utilize
methods that were successful in an earlier phase of the project.
Last, the feasibility of restoring 4.6 acres of estuarine -upland transition zone habitat will be
analyzed. This feasibility analysis will include actions such as removing invasive pepper trees to
allow for marsh migration as sea levels rise. (See Phase 2C project area in Exhibit 1.) Once the
feasibility study is complete, the project will complete designs and environmental analyses for
the selected adaptation strategy.
Site Description: The proposed project is located within the 60 -acre Big Canyon Nature Park
(Canyon) at the downstream end of the Big Canyon watershed in the City of Newport Beach and
Orange County.
15-104
F_Nhihit 3: Stale Recommendation
The Big Canyon watershed covers approximately two square miles located on the east side ol'the
Upper Newport Bay. Big Canyon Creek winds through the Canyon in a general southeast to
northwest direction and then discharges into Upper Newport Bay. The Big Canyon Nature Park
(Canyon) is the only natural, undeveloped portion of the Big Canyon watershed and is the only
significant remaining natural canyon on the cast side of Newport Bay. The Canyon has been
influenced by the construction of a freshwater pond that is now almost completely filled with
cattails, historical placement of dredge and fill material, an interim restoration effort, and other
anthropogenic activities within and adjacent to the Canyon including the construction of Back
Bay Drive, installation of culverts, and construction of utility roads. Stockpiling of dredge fill
during the 1950s and 1960s within Big Canyon raised the elevations within the Canyon and
consequently channelized the creek to the north. The Canyon has also been heavily invaded by
non-native species especially the hyper -invasive Brazilian pepper tree (Schinus terehinihifolius).
Finally, Big Canyon Creek runs through the Canyon and is one of the few perennial streams that
discharges to Newport Bay. Big Canyon Creek is listed as an impaired waterbody for selenium.
A total maximum daily load (TMDL) has been established for the creek and concentrations of
selenium above water quality guidelines have been measured in dry weather flows.
The 45 -acre parcel of the Canyon is owned by the City of Newport Beach (City) and the lower
15 -acre portion of the Canyon is owned by the California Department of Fish and Wildlife
(CDF W).
Project History: The Conservancy has been funding Big Canyon technical studies to support
more developed restoration plans since 2002. While those studies and the initial restoration
plans were successful in determining the necessary hydrologic and biological changes required to
restore ecosystem function in Big Canyon, the discovery of high levels of selenium prevented the
implementation of any previous design plans. In 2009 through 2011, the source of selenium and
the extent of contamination were unknown. With completion of Conservancy -funded technical
studies, the selenium source has been identified as a seepage at the base of Jamboree Road at the
top of the Canyon that flows through a geologic formation containing California Monterey Rock.
This type of rock naturally contains high concentrations of selenium.
The City of Newport Beach along with the Santa Ana Regional Water Quality Control Board
(SARWQCB) are currently implementing an early phase of the project aimed to restore riparian
habitat, reduce selenium inputs, and monitor water quality in Big Canyon (see Phase I project
area in Exhibit I and Phase I photos in Exhibit 2). By diverting and capturing the water that
flows through the Monterey Rock formation, the City has successfully reduced the amount of
selenium entering the proposed project area. The monitoring results to -date demonstrate this
success. In light of this new scientific evidence and the need to now address the remnant
selenium concentrations present in the project area (i.e. mainly in the freshwater pond), there is
momentum among the landowners and agency partners to move forward with a new restoration
design.
PROJECT[' FINANCING
Coastal Conservancy
Project Total
$640,000
$640,000
15-105
Exhibit 3: Staff Rmommcndation
The anticipated source of funding for this project is the 2016 fiscal year appropriation from the
Water Quality, Supply, and Infrastructure Improvement Act of 2014 (Proposition 1, Water Code
§ 79700 et seg). These funds appropriated to the Conservancy derive from Chapter 6 of the Act
(commencing with § 79730) and may be used "for multi -benefit water quality, water supply, and
watershed protection and restoration projects for the watersheds of the state" (Section 79731).
Section 79732(b) states more specifically that these funds may be used for "implement[ing]
watershed adaptation projects in order to reduce the impacts of climate change on California's
communities and ecosystems" and "protect and restore aquatic, wetland, and migratory bird
ecosystems." Consistent with these provisions, the proposed project will conduct a feasibility
study to develop the most effective sea -level rise adaptation strategy to protect coastal salt marsh
in the Upper Newport Bay and it will prepare designs, engineering, environmental analysis and
permit applications for restoration of watershed aquatic ecosystems.
The proposed project was reviewed and subsequently recommended for funding through a
competitive grant process under the Conservancy's Proposition I Grant Program Guidelines
adopted in June 2015 ("Prop 1 Guidelines"). (See § 79706(a)). The proposed project meets each
of the evaluation criteria in the Prop 1 Guidelines as described in further detail in the following
sections of this staff recommendation: " "Project Summary" (sections above) and "Consistency
with Conservancy's Project Selection Criteria & Guidelines" (section below).
The NBC, City of Newport Beach, and California Department of Fish and Wildlife will provide
significant in-kind contributions of staff time, valued at seventy-eight thousand dollars
($78,000).
CONSISTENCY WITH CONSERVANCY'S ENABLING LEGISLATION:
Conservancy funding of the proposed project is consistent with Chapter 6 (Sections 31251-
31270) of the Conservancy's enabling legislation, Division 21 of the Public Resources Code,
regarding enhancement of coastal resources, as well as Section 311 I 1 of the Public Resources
Code.
Pursuant to Section 31251, the Conservancy may award grants to nonprofit organizations to
enhance of coastal resources that, because of human -induced events, or incompatible land uses,
have suffered loss of natural and scenic values. Such grants may be used for to provide
corrective measures that will enhance the natural and scenic character of coastal areas. The
proposed project will plan the corrective measures, i.e., restoration, that are necessary to enhance
the natural and scenic character of the Big Canyon Nature Park, which has been significantly
degraded from fill and invasive species.
As required by Section 31252, the planning area for the proposed project is identified in the City
of Newport Beach's Local Coastal Program as an environmentally sensitive area and is
designated for passive recreation and wildlife habitat restoration. See additional discussion in
the "Consistency with Local Coastal Program Policies" section, below.
Section 31253 states that the Conservancy may provide up to the total cost of a coastal resource
enhancement project. Consistent with Section 31253, the following factors were considered in
determining the amount of Conservancy funding for this project: the total amount of funding
available for coastal resource enhancement projects, the fiscal resources of the applicant, the
urgency of the project, and the Conservancy's project selection criteria, as described in detail
15-106
Exhibit 3 Staff Recommendation
below, under the heading "Consistency with Conservancy's Project Selection Criteria &
Guidelines."
Pursuant to Section 31111, the Conservancy "may fund and undertake plans and feasibility
studies, and may award grants to public agencies and nonprofit organization" for the purposes of
restoring coastal habitat and undertaking other functions prescribed in Division 21. Consistent
with this section, the proposed project provides funds to complete restoration and management
planning to enhance estuarine and wildlife habitat.
CONSISTENCY WITH CONSERVANCY'S 2013 STRATEGIC PLAN
GOAL(S) & OBJECTIVE(S), AS REVISED JUNE 25,2015:
Consistent with Goal 5, Objective A of the Conservancy's 2013-2018 Strategic Plan, the
proposed project develops pians for the restoration and enhancement of stream corridors and
coastal wetland habitat.
CONSISTENCY WITH CONSERVANCY'S
PROJECT SELECTION CRITERIA & GUIDELINES:
The proposed project is consistent with the Conservancy's Project Selection Criteria and
Guidelines, last updated on October 2, 2014, in the following respects:
Required Criteria
1. Promotion of the Conservancy's statutory programs and purposes: See the "Consistency
with Conservancy's Enabling Legislation" section above.
2. Consistency with purposes of the funding source: See the "Project Financing" section
above.
3. Promotion and implementation of state plans and policies:
• A Strategy for California @ 50 Million: Supporting California's Climate Change Goals
Steward and Protect Natural and Working Landscapes; Incorporate climate change
adaptation into all planning and investment. The proposed project will accomplish
these goals by developing plans to restore and enhance a sensitive coastal and riparian
ecosystem by improving ecological functions in a way that supports native species as
well as designing for tidal marsh migration as sea levels rise.
• Safeguarding California: Reducing Climate Risk Plan (July 2014)
Ocean and Coastal Ecosystems and Resources; Improve management practices for
coastal and ocean ecosystems and resources, and increase capacity to withstand and
recover from climate impacts. The proposed project will accomplish this goal by
restoring a wetland system that has adequate areas of surrounding upland transitional
habitat that will allow for wetland migration and transgression.
• California Water Action Pian.
Protect and restore important ecosystems (restore coastal watersheds and strategic
coastal estuaries): The proposed project is designed to accomplish this goal.
• Southern California Wetlands Recovery Project (WRP).
15-107
Exhibit 3: Staff Recommendation
Preserve and restore coastal wetland ecosystems. The proposed project is on the WRP
Work Plan and is designed to accomplish the WRP's goals.
4. Support of the public: The project is supported by the City of Newport Beach, California
Department of Fish and Wildlife, Assemblyman Mathew Harper, and Senator John M. W.
Moorlach (see Exhibit 3).
5. Location: The proposed project would be located within the coastal zone of the City of
Newport Beach.
b. Need: Support from the Conservancy is critical at this moment because the City of Newport
Beach has started implementation on the early phases of restoring Big Canyon Creek and in
order for the adjacent areas to maximize those restoration benefits, feasibility studies and
restoration designs must be developed quickly to implement restoration throughout the entire
project area holistically.
7. Greater -than -local interest: The proposed project will conduct a feasibility analysis and
develop designs for creating upland -estuarine transition zone habitat in order to adapt to
rising sea levels. This type of strategy is theoretically well known in the wetland restoration
community, but it has not been designed and implemented at many pilot sites. The proposed
project will take a theoretical concept and develop site-specific restoration designs of
transition zones that could be potentially used or built -upon elsewhere in the state.
8. Sea level rise vulnerability: The proposed project will include a site-specific analysis of the
effects of flooding, inundation, accretion, and sea level rise on the project area using habitat
evolution modeling. The modeling results will then be used to develop restoration designs
for estuarine -upland transition areas needed for coastal wetlands to migrate upland as the sea
rises.
Additional Criteria
9. Urgency: Portions of the project area have been projected to be subject to flooding and
inundation due to sea level rise. The restoration and enhancement of Big Canyon will
include adaptation strategies that must be studied, designed, and implemented as soon as
possible in order to maximize their capability to adapt to rising sea levels.
10. Resolution of more than one issue: The proposed project will not only restore valuable
wetland and riparian habitat, it will also develop restoration plans to reduce the naturally -
occurring water contaminant, selenium, as well as a strategy for coastal salt marsh to
adequately adapt to sea level rise.
I L Innovation: The project is innovative in that it will use site-specific marsh evolution
modeling to develop a sea level rise adaptation strategy (see "Sea level rise vulnerability"
above).
12. steadiness: Project partners have already implemented an early phase of the project and are
now ready to implement further phases.
13. Realization of prior Conservancy goals: "See "Project History" above."
14. Cooperation: The grantee will work with the City of Newport Beach and the California
Department of Fish and Wildlife (property owners) to prepare the feasibility study to develop
the least impactful and most cost-effective restoration approach to the freshwater pond.
15-108
Exhibit 3: Staff Recommendation
These partners are also moving forward with preparation of a Memorandum of
Understanding describing their partnership roles and responsibilities.
15. Vulnerability from climate change impacts other than sea level rise: Estuarine -upland
transition zone habitat that is infrequently influenced by tidal flows is more drought and fire
tolerant compared to other upland habitats that experience no tidal inundation. The proposed
project will develop restoration designs for estuarine -upland transition zone habitat thus
increasing the project area's resiliency to predicted increases in drought and fires with global
climate change.
CONSISTENCY WITH LOCAL COASTAL PICOGRAM POLICIES:
A portion of the planning area, the mouth of Big Canyon, for the proposed project is identified in
the City of Newport Beach's Local Coastal Program as an environmentally sensitive area and is
designated for passive recreation and wildlife habitat restoration. More specifically, the LCP
policies 4.2.1-1 & 4.2.1-2 recognize the freshwater wetlands of Big Canyon be protected and
maintained for "biological productivity and the quality of coastal waters, streams, wetlands,
estuaries, and lakes."
COMPLIANCE WITH CEQA:
The proposed project is statutorily exempt from the provisions of CEQA pursuant to 14
California Code of Regulations Section 15262, since it involves only feasibility or planning
studies for possible future actions which have not yet been approved, adopted, or funded.
The restoration design will incorporate environmental considerations into project
conceptualization, design and planning consistent with Section 15004(b)(1), and will not have a
significant adverse effect or limit the choice of alternatives or mitigation measures before CEQA
compliance, consistent with Section 15004(b)(2). The design, engineering and permitting phases
will be the subject of an environmental analysis approved by the City of Newport Beach prior to
funding implementation of those improvements.
The proposed project is also statutorily exempt from CEQA pursuant to 14 California Code of
Regulations Section 15306, to the extent that it also consists of basic data collection and resource
evaluation activities, which do not result in a serious or major disturbance to an environmental
resource, and which are for information gathering purposes, or as part of a study leading to an
action which a public agency has not yet approved, adopted, or funded.
Staff will file a Notice of Exemption upon approval of the proposed project.
15-109
Exhibit 2: Phase I photos
Big Canyon Water QuaIifV`ndal
aWdoRe'storation Project —
2017
} {.
Unique field constraints, steep slopes, long rain season, high groundwater, muddy conditions.
PROJECT TEAM
• Contractor: ECI, Miguel Macias—Construction
Superintendent/Field Engineering
Design Consultant: Burns & McDonnell, Steve Gruber
Project Manager
• Restoration Design & Permitting: ESA, Dave Pohl —
Principal
• City Inspection: TomLegault— SeniorInspector,
Marcus Pughsi -- Construction Supervisor
Project Manager: Bob Stein
Project Director: Dave Webb
15-110
Exhibit 2: P;h,ase i photos_
~ Exhibit. I Staff RecorrU46rid'anon
Big Canyon Water Quality and
4@1�� `:fy Restoration Project — 2017
Ile
:f b
Y K
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a
LONG-TERM PROJECT SUPPORTERS
➢ City of Newport City Councils (2011-2017),,,,,
➢ Water Quality/Tidelands Committee
➢ Big Canyon Country Club
➢ Defend the Bay
➢ OCTA (Measure M)
➢ The Irvine Company
➢ !Newport Bay Conservancy
➢ Irvine Ranch Conservancy
➢ California State Coastal Conservancy
➢ Regional Water Quality Control Board
➢ California Coastal Commission
15-111
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Project Location r'
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Exhibit 3: Staff Recommendation
SOURCE: ESRI 2015 Big Canyon Habitat Restoration and Water Quality Improvement Project. 4130934
Figure 3
Big Canyon Coastal Creek Restoration and Estuary Adaptation — Phase II
15-113
EXHIBIT C
Grant Award from California Department of Fish and Wildlife
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page C-1
15-114
State of California - Natural Resources Agency GAVINNiGWSOM Governor '•^I
DEPARTMENT OF FISH AND WILDLIFE CHARLTOMH. BOAMM, Director
P.O. Box 944209
Sacramento, CA 94244-2090
www.wildlife.ca.gov
PROPOSITION 1 WATERSHED RESTORATION GRANT PROGRAM
BIG CANYON HABITAT RESTORATION AND ADAPTATION PROJECT—PHASE 2
GRANT AGREEMENT DUMBER — Q1996008
GRANTOR: State of California, acting by and through
The California Department of Fish and Wildlife
P.O. Box 944209
Sacramento, CA 94244-2090
GRANTEE: Newport Bay Conservancy
600 Shellmaker Road
Newport Beach, CA 92660
SECTION 1 — LEGAL BASIS OF AWARD
The California Department of Fish and Wildlife (CDFW or Grantor) developed the
Watershed Restoration Grant Program in response to the Water Quality, Supply, and
Infrastructure Improvement Act of 2014 (Proposition 1). Proposition 1 amended the
California Water Code (CWC) to add article, Section 79737, authorizing the Legislature
to appropriate funds to CDFW to fund multi-benefrt ecosystem and watershed restoration
and protection projects.
Pursuant to Fish and Game Code Section 1501.5(b), Grantor is authorized to enter into
this Grant Agreement (Agreement) and to make an award to Newport Bay Conservancy
(Grantee) for the purposes set forth herein. Grantee accepts the grant on the terms and
conditions of this Agreement. Accordingly, Grantor and Grantee (Parties) hereby agree
as follows:
SECTION 2 — GRANT AWARD
2.01 Grant: In accordance with the terms and conditions of this Agreement, including
Section 5.06 - General Terms and Conditions, Grantor shall provide Grantee with
a maximum of $638,740.00 (Grant Funds) to financially support and assist
Grantee's implementation of Big Canyon Habitat Restoration and Adaptation
Project - Phase 2 (Project).
2.02 Term: The term of this Agreement is August 1, 2019, or upon Grantor approval,
whichever is later, through March 15, 2023,
SECTION 3 — ELIGIBLE USES OF GRANT
Only Grantee expenditures that are necessary to implement the Project, comply with
applicable federal and State of California law, and made in accordance with Section 6 -
(Tei p[ale v.07!24/201 9)
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NEWPORT BAY CONSERVANCY
Project Statement and Section 9— Budget and Payment asset forth within this Agreement
are eligible for reimbursement from the Grant Funds.
SECTION 4- GRANTEE'S REPRESENTATIONS AND WARRANTIES
Grantee represents and warrants to Grantor as follows:
4.09 Existence and Power: Grantee is a non-public entity validly existing, and in good
standing under the laws of California. Grantee has full power and authority to
transact the business in which it is engaged and full power, authority, and legal
right to execute and deliver this Agreement and incur and perform its obligations
hereunder.
4.02 Binding Obligation: This Agreement has been duly authorized, executed and
delivered on behalf of Grantee and constitutes the legal, valid, and binding
obligation of Grantee, enforceable in accordance with the Agreement's terms.
SECTION 5 - GRANTEE'S AGREEMENTS
5.01 Purpose: This Agreement is entered into by the Parties for the purpose of
providing financial support to Grantee to complete the Project, specifically the
activities identified within Section 6 — Project Statement.
5.02 Proiiect: Grantee shall complete activities as set forth in Section 6 — Project
Statement.
5.03 Use of Proiect Funds: Grantee agrees that only Grantee expenditures that are
necessary to implement the Project, comply with applicable federal and State of
California law, and made in accordance with Section 6 — Project Statement and
Section 9 — Budget and Payment as set forth within this Agreement are eligible for
reimbursement from the Grant Funds. Grantee acknowledges that it may not
transfer Grant Funds between or among budget line items without written approval
from the CDFW Grant Manager in accordance with Section 9 — Budget and
Payment.
5.04 Eligibility of Funds: In the event that the California Budget Act does not provide
sufficient appropriations to allow Grantor to fund the Project at the level specified
in Section 2 — Grant Award and Section 9 — Budget and Payment of this
Agreement, Grantor reserves the right to modify this Agreement to reflect a
reduction in available funds, as an alternative to termination.
5.05 Submission of Reports: Grantee shall comply with the format, content, and
timing requirements set out in Section 8 — Reports. Failure to submit timely and
accurate reports shall be considered evidence of non-compliance with this
Agreement and shall permit termination of this Agreement by Grantor.
5.06 General Terms and Conditions: Non -Public Entities General Grant Provisions
(Exhibit 1.b) is attached hereto and made a part of this Agreement.
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5.07 Amendments: This Agreement may only be amended in accordance with Section
5.06 — General Terms and Conditions. Grantee shall submit any request to amend
any term of this Agreement in writing to the CDFW Grant Manager no later than
120 days prior to the end of the term of this Agreement. Grantee must include an
explanation of and justification for any such request.
5.08 Acknowledgement of Credit: Grantee shall include signage, to the extent
practicable, informing the public that the Project received funds through the
California Department of Fish and Wildlife from the Water Quality, Supply, and
Infrastructure Improvement Act of 2014 (Proposition 1, CWC § 79707 (g)). Further,
Grantee shall include appropriate acknowledgement of credit to the Watershed
Restoration Grant Program and its implementing agency, the California
Department of Fish and Wildlife, for Grantor's financial support when using any
data and/or information developed under this Agreement (e.g., in posters, reports,
publications, presentations).
5.09 Labor Code Requirements; Prevailing Wage: State grants may be subject to
California Labor Code requirements, which include prevailing wage provisions.
Certain State grants administered by the CDFW are not subject to Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the Labor Code. For
more details, please refer to California Fish and Game Code Section 1501.5 and
the Department of Industrial Relations website at http://www.dir.ca..qov. Grantee
shall pay prevailing wage to all persons employed in the performance of any part
of the Project if required by law to do so.
5.10 Environmental Compliance: Grantee shall not proceed with on the ground
implementation until California Environmental Quality Act compliance and all
necessary permits and consultations are secured and Grantee has received a
Notice to Proceed letter from the CDFW Grant Manager. Written permission must
be obtained from landowner(s) for access to perform grant work; copies of such
permission shall be provided to the CDFW Grant Manager.
5.11 California Business and Professions Code: As may be necessary, Grantee
shall be responsible for obtaining the services of appropriately licensed
professionals to comply with the applicable requirements of the California Business
and Professions Code including but not limited to Section 6700 et seq.
(Professional Engineers Act) or Section 7800 et seq. (Geologists and
Geophysicists Act).
If Grantee fails to perform in accordance with the compliance provisions of this
Agreement, Grantor shall have sole discretion to delay, interrupt, or suspend the
work for which the Grant Funds are supplied.
SECTION 6 - PROJECT STATEMENT
6.01 Introduction: The Project will confer benefits to the entire Upper Newport Bay by
restoring transitional habitat through removal of non-native vegetation, restoration
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of hydrological functioning and establishment of native plant communities that will
promote biodiversity, improve water quality, enhance flood protection and
resilience to sea level rise and other stressors, and provide and support critical
habitat for endangered species.
While restoration of Big Canyon entails multiple phases, this project focuses on
implementation of Phase 2A, a 9.24 acre area of Big Canyon that is heavily
impacted by invasive species, stream and flood plain erosion, degraded creek
water quality by pollution from groundwater seepage, increased peak -flows during
storm events, and year-round urban dry weather flows. Degraded habitat and high
selenium concentrations at Big Canyon critically impact the Upper Newport Bay
estuary making restoration of Big Canyon a priority for regional stakeholders.
6.02 Objectives: Specific objectives of this Project are to:
1. Remove exotics and invasive plants;
2. Create wetland habitat to greatly enhance and improve the resilience of the
restored ecosystem;
3. Restore connectivity between Big Canyon Creek channel and floodplain;
4. Improve water quality of Big Canyon Creek; and
5. Restore, enhance, and improve resilience of riparian and upland habitats.
6.03 Prosect Description
6.03.1 Location: Grantee will implement the Project on approximately 9.24
acres of publicly owned land located at the Big Canyon Nature Park
between Upper Newport Bay and the City of Newport Beach at
33.630580 latitude, -117.884160 longitude in Orange County, California
(Property).
6.03.2 Proiect Site Access: Grantee shall cause the Landowner(s) to give
Grantor, and Grantee's [its/their] employees and agents written
permission to access the Property at least once every 12 months from
the date of Grantor's Notice to Proceed until 25 years after the term of
this Agreement (as set out in Section 2 -- Grant Award) ends for
purposes of inspections and monitoring. Such access shall be
reasonably acceptable to the Landowner(s) and the requester following
written or verbal request to Grantee. Grantee shall provide a copy of the
access agreement to Grantor to include in Grantor's Agreement file prior
to Grantee beginning any work at the Project site(s).
6.03.3 Materials and Equipment: Property acquisitions and equipment
purchases must be consistent with Section 5.06 — GeneralTerms and
Conditions. Field supplies such as transect tapes, PVC, quadrat
materials, bags, stakes, coir fiber, and weeding tools along with personal
protection equipment such as boots, eyewear, and gloves will be
purchased by Grantee for the Restoration Coordinator, Field Technician,
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and Grantee volunteers. Permanent signage and plant materials (e.g.,
bulk seed and container plants) will be purchased by Grantee.
6.03.4 Proiect Implementation: Consistent with Grantee's proposal for the
Project, Grantee will complete the following tasks in accordance with
Section 6.03.6 — Schedule of Due Dates and Deliverables:
Task 1 — Project Management and Administration
Grantee will provide technical and administrative services associated
with performing and completing the work for this Project, including
managing this Agreement, assuring all permits are finalized, delivering
the final landowner access agreement, administering subcontracts,
invoicing and payments, drafting and finalizing progress and final
reports, and data management.
Subtask 1.1 — Data Management
Grantee Restoration Coordinator will coordinate data management
activities. Grantee, its subcontractors and collaborators shall be
responsible for ensuring that data collection, data acquisition, and/or
data development activities will incorporate the standards expressed
in CDFW's Scientific Integrity Policy
(https://nrm.dfc.ca.gov/FileHandler.ashx?Document[D=154775&inline)
and Scientific Data Governance Policy. Grantee shall submit a Data
Management Plan. The CDFW Grant Manager will provide the Data
Management Plan form upon Grant execution.
Grantee and its subcontractors and/or collaborators are responsible
for ensuring that project data are collected using peer -approved
methods, undergo a quality control and accuracy assessment
process, include metadata that meet CDFW s minimum standards
(https://www.wildlife.ca.gov/Data/BIOS/Metadatal and include
documentation of the methods and quality assessments utilized, and
are properly stored and protected until the Project has been
completed and data have been delivered to as required under this
Grant Agreement.
All scientific data collection efforts are required to include metadata
files or records indicating at a minimum:
1. Who collected the data;
2. When the data was collected;
3. Where the data was collected;
4. How the data was collected (description of methods and
protocols);
5. The purposes for which the data was collected;
6. Definitions of variables, fields, codes, and abbreviations used in
the data, including units of measure;
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7. The terms of any landowner access agreement(s), if applicable;
8. References to any related Department permits or regulatory
actions;
9. Peer review or statistical consultation documentation; and
10. Data licensing and disclaimer language.
All data and associated metadata collected by or created under this
Agreement are a required deliverable of this Agreement. All data
deliverables should be budgeted for and included in the Project
timeline as a pant of this Agreement. A condition of final payment on
this Agreement shall include the delivery of all related data assets.
Geospatial data must be delivered in an industry -standard geospatial
data format where applicable and docurnented with metadata in
accordance with the CDFW Minimum Metadata Standards.
Data related to observation, occurrence or distribution of state or
federal special status species or California Native Plant Society listed
species shall be reported to the California Natural Diversity Database
(CNDDB) using the online field survey form or other digital method.
The following Project information shall be uploaded by Grantee to
Project Tracker (http://ptrack.ecoatias.org/) in EcoAtlas
(http://www.ecoatlas.o[gD: Project name, Project proponent and
contact information, Project boundary [GIS polygon], Proposition 1
funding details, pertinent dates, activity type, and habitat types and
amounts.
Water quality data generated by the Project will be collected in a
manner that is compatible and consistent with the California
Environmental Data Exchange Network (CEDEN,
http:/Avww.Geden.orp/) (CWC §79704). Grantee shall upload
relevant data to CEDEN and provide a receipt of successful data
submission, generated by CEDEN, to the CDFW Grant Manager
prior to submitting a Final Invoice.
Task 2 — Mobil lzation/Demobilization and Site Preparation
Surveys and construction for the proposed project will be subcontracted
to Surveying contractor or Construction contractor, which will be
determined later by Grantee. Prior to construction, biological, cultural,
and geotechnical surveys will be performed by Surveying contractor. A
construction survey will also be conducted by Construction contractor to
determine markers and reference points that will guide construction
activities. A Stormwater Pollution Prevention Plan (SWPPP) is required
prior to construction and will also be developed by Construction
contractor. Task 2 deliverables will include full details on mobilization
and demolition activities in quarterly and final reports along with copies
of the construction survey and draft and final versions of the SWPPP.
Page 6 of 17
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Task 3 — Removal of Invasive Vegetation
Construction contractor will first remove the invasive peppertrees and
other invasive plants. In the peppertree areas, 6.83 acres will undergo
extensive clearing and grubbing. Some clearing will be carried out
outside the peppertree monoculture area to allow for stream restoration
in two segments ofthecreekwhere the channel has been locally incised.
Invasive plants will be selectively removed from an additional 2.4 -acre
riparian area. The total area of clearing, grubbing and selective
vegetation removal is 9.24 acres. Removal and clearing of peppertrees
and other exotics will involve shredding smaller limbs and foliage and
chipping the large trunks and stems. The small limbs and foliage will
require off-site disposal along with the peppertree seed. Where feasible,
chipped material will be used for on-site trails to reduce off-site hauling.
Where root mass from invasive trees provides stabilization of the stream
bank, stabilizing of the creek will be implemented as discussed in Task
4 below.
Task 4 - Stream and Wetland Restoration
Following clearing and removal of invasive species, the site will be
graded by Construction contractor to pull back incised channel banks to
achieve gentler bank slopes, reconnecting the channel with its
floodplain. The areas adjacent to the riparian corridors will be graded to
extend the flood inundation at higher storm flows and provide conditions
suitable for a wetter alkali meadow habitat. This will allow for a gradual
transition from creek channel to floodplain wetlands to upland coastal
scrub. The cleared and graded areas will be replanted with native
coastal vegetation by Construction contractor. The Project will restore a
mosaic of woody and herbaceous riparian vegetation along the creek
corridor, wet alkali and high alkali meadow communities adjacent to the
riparian corridor, and coastal sage scrub transitional habitat at higher
elevations. The plant palette for these habitats will be tolerant of the high
salinity soils that dominate the project area.
There are two creek segments totaling 680 feet within the project area
where the channel is severely incised. Along the two incised creek
segments, the channel bank will be pulled back by Construction
contractor to create a gentler slope to provide connectivity between the
channel and floodplain and support riparian vegetation. Within these
segments, existing mature peppertrees have been established with
extensive root systems that provide stabilization of the creek banks.
To provide bank stabilization where needed after the peppertrees are
removed, Construction contractor will reconstruct and stabilize the bank
by adding vegetated soil lifts. Encapsulated vegetated soil lifts planted
with native riparian shrubs (e.g., mulefat, sandbar willow) will be used to
construct and protect the banks, and to provide erosion control. Each lift
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will be encapsulated in coir fiber that will biodegrade over the first two to
three years, once the incorporated native riparian vegetation has
established. This technique was used successfully in Phase 1. Within
the upstream segment, the bank stabilization efforts will extend into
areas of existing woody riparian mixed with invasive plants. In these
areas, the extent of bank stabilization and grading has been limited to
minimize disturbance of native plants but may include clearing of 0.5
acres to reconnect the flood way and stabilize creek banks.
Outside of the incised creek reaches, additional reaches will also be
regarded by Construction contractor to pull back the existing channel
banks and reconnect the floodplain, where appropriate. The grading will
create a gentle slope where riparian vegetation will be planted within a
45 -65 -foot -wide riparian corridor, reducing bank erosion and improving
water quality through natural filtration and 'infiltration. Outside the
riparian corridor and within areas designated for peppertree removal, the
site will be graded to level out depressions from peppertree root mass
removal to reduce unnatural ponding and restore wet alkali meadow
hydrology. In addition, Construction contractor will regrade a scour pond
formed by wet weather flows from the storm drain outlet to reduce
mosquito breeding habitat.
Task 5 - Revegetation and Habitat Restoration
Prior to site replanting, Construction contractor will install temporary
irrigation followed by soil amendments that will include a mixture of
woody mulch, gypsum, and compost. Native vegetation will be
established by transplanting one -gallon container plants, installing live
stakes, and hydroseeding where appropriate. Revegetabon will be
conducted by Construction contractor or the California Conservation
Corps or 'the certified community local conservation corps. A 120 -day
plant establishment and maintenance period will begin after
revegetation is complete. As -built drawings will be developed exhibiting
the final outcomes of the project and submitted as a deliverable.
Descriptions of key milestones associated with project activities for
Tasks 3, 4, and 5 (e.g., clearing, grubbing, grading, erosion control, and
revegetation) will be included in the quarterly and final reports.
Task 6 - Construction Inspection
The City of Newport Beach and Surveying contractor will perform project
inspections and construction monitoring with assistance from Grantee.
Inspections and monitoring will ensure that Construction contractor is
achieving the quality, accuracy, and progress that are specified for the
project and that all requirements for the permits and grant agreements
are satisfied. Results of inspections and monitoring will be summarized
in the quarterly and final reports.
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Task 7 - Long -Term Management
Grantee, in collaboration with the City of Newport Beach and Surveying
contractor, will develop a long-term management plan for the proposed
restoration project based on the guidelines outlined in Big Canyon
Nature Park Resource and Recreation Management Plan prepared by
Dudek and Irvine Ranch Conservancy in 2016. Implementation of the
long-term management plan will begin after Construction contractor
successfully completes the 120 -day plant establishment and
maintenance period. A Field Technician will be hired by Grantee who
will work with the Restoration Coordinator and Grantee volunteers to
monitor the project area and implement the long-term management
plan. Deliverables associated with this Task include draft and final
versions of the long-term management plan. As implementation of the
long-term management will begin immediately after the 120 -day plant
establishment and maintenance period in completed, results of these
efforts will be summarized within quarterly and final progress reports
completed by the Restoration Coordinator through the duration of this
Agreement. Data collected during the quantitative and qualitative
assessments will be uploaded to the EcoAtlas Project and the California
Natural Diversity Database each year.
6.03.5 Long -Term Maintenance: Grantee shall ensure that the Project and
Property are properly operated, used, and maintained consistent with
the purposes (as stated in Section 6.01 — Introduction) and objectives
(as stated in Section 6.02 — Objectives) of the Project for 25 years
beyond the term of this Agreement. Grantor will not fund long-term
maintenance activities outside of the term of this Agreement.
6.03.6 Schedule of Due Dates and Deliverables:
Task
Description
Deliverables
Estimated Completion
Dates
1
Project
Quarterly Progress
Due within 30 days
Management and
Reports
following each calendar
Administration
quarter (September,
December, March, June
Monthly Invoices
Due .within 30 days
following each month
Copies of Executed
Due within 30 days of
Subcontracts
executing agreements
with each subcontractor
Submit Project Data
March 15, 2023
Draft Final Report
February 15, 2023
March 15 2023
Final Re ort
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Task
Description
Deliverables
Estimated Completion
Dates
Project Close-out
March 15, 2023
Summary Report
Final Invoice
March 31, 2023
2
Mobilization/Demo
Draft and Final SWPPP
October 15, 2020
bilization and Site
Preparation
Construction SurveyOctober
15, 2020
Mobilization/demobilizati
Due with the Quarterly
on update that can be
Progress Reports
within quarterl report(s)
3
Removal of
Updates within Quarterly
Due with the Quarterly
Invasive
and Final Reports
and Final Progress
Vegetation
Reports
4
Stream and
Updates within Quarterly
Due with the Quarterly
Wetland
and Final Reports
and Final Progress
Restoration
Reports
5
Revegetation and
Updates within Quarterly
Due with the Quarterly
Habitat
and Final Reports
and Final Progress
Restoration
Repo
As -built drawings
February 15, 2023
6
Construction
Results of inspection
Reference Task 1 -
Inspection
and monitoring included
Quarterly and Final
as updates within
Progress Reports
Quarterly and Final
completion dates
Reports
7
Long-term
Draft Long-term
September 15, 2021
Management
Management Plan
Final Long-term
October 15, 2021
Management Plan
Analysis of quantitative
Due with the Quarterly
data
and Final Progress
Report
Post construction,
Due with the Quarterly
qualitative and
and Final Progress
quantitative
Reports
assessments
SECTION 7 -- CONTACTS
The point of contact may be changed at any time by either party by providing a 10 day
advance written notice to the other party. The Parties hereby designate the following
points of contact during the Term of this Agreement:
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CDFW Grant Manager:
Grantee Project Manager:
Name:
Craig Zeff
Name:
Amanda Swanson
Title:
Environmental Scientist
Title:
Restoration Coordinator
600 Shellmaker Rd.
Newport Beach, CA 92660
Address:
P.O. Box 944209
Sacramento CA 94244
Address:
Phone:
916 445-0604
Phone:
949 439-5801
Email:
Craig. zeffwild life. ca.g ov
Email:
I Amanda.swanson@newr)ortbay.org
Direct all administrative in uides to:
CDFW Grant Coordinator:
Grantee Project Coordinator:
Name:
Keng Saefon
Name:
Heather Cieslak
Title:
Associate Governmental
Program Analyst
Title:
Operations Director
Address:
P.O. Box 944209
Sacramento, CA 94244
Address:
600 Shellmaker Road
Newport Beach, CA 92660
Phone:
916 445-5350_
Phone:
Email:
949 923-2269
Heather.cieslak new ortba .or
Email:
Ken .saefon ildlife.ca. ov
SECTION 8 - REPORTS
8.01 Progress Reports: Grantee shall submit Quarterly Progress Reports that comply
with the requirements below to the CDFW Grant Manager. The CDFW Grant
Manager will provide Grantee with a sample Progress Report upon request.
Requirements:
1. Grantee name, the Project title, this Agreement number, and dates progress
report covers;
2. Activities and tasks performed and/or completed, a summary of progress to
date including progress since the last report, and a brief outline of upcoming
work scheduled for the subsequent quarter;
3. Documentation of all subcontractor activities;
4. Updates on progress towards meeting project objectives, output and
outcome performance measures;
5. Document delivery of any intermediate work products;
6. Costs incurred during the subject period, total of costs incurred to date, and
the remaining balance;
7. Any problems encountered while performing the tasks and proposed
solutions, timeline for resolution, and status of previously unresolved
problems; and
8. Quarterly progress reports will be submitted electronically in PDF or
Microsoft Word compatible format and conform to the template provided.
8.02 Draft and Final Reports: Grantee shall submit a Draft Final Report and Final
Report by the dates listed in Section 6.03.6 — Schedule of Due Dates and
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Deliverables. Grantee shall submit a Draft Final Report, at least 30 days prior to
Grantee's submission of the Final Report. The report shall summarize the life of
the Agreement and describe the work and results pursuant to Section 6 — Project
Statement. The Draft and Final Reports will be submitted, electronically, to the
CDFW Grant Manager upon completion of the Project tasks. The CDFW Grant
Manager will provide Grantee a sample Final Report template, upon request.
8.03 Project Close -Out Summary Report: Grantee shall prepare and submit a Project
Close -Out Summary Report, to the CDFW Grant Manager, in either PDF or
Microsoft Word compatible format by the date listed in Section 6.03.6 — Schedule
of Due Dates and Deliverables. Grantee's Project Close -Out Summary Report
must summarize the Project's accomplishments consistent with the Watershed
Restoration Grants Program goals. Grantee shall include a Final Invoice with the
Project Close -Out Summary Report. The CDFW Grant Manager will provide
Grantee with a Project Close -Out Summary Report template, upon request.
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SECTION 9 - BUDGET AND PAYMENT
9.01 Budget Details and Funding Summary: Grantor will provide an amount not to
exceed $638,740.00 as detailed in the Line Item Budget Detail (Budget) below.
Grantee or its partners will provide up to $1,195,365.95 in funds or in-kind
services as cost share to complete tasks described in Section 6 - Project
Statement. Grantee will provide Grantor accurate records of all cost share with
Grantee's Final Invoice.
R
Line Item Rulget Detail ,;=
.. ) ....\. . . .S. ... ..n \.. .. .. .. r ... ..
A. PERSONNEL SERVICES
Field Technician
$12,960.00
Restoration Coordinator
$251958.00
Subtotal Personnel Services
$38,998.00
Staff Benefits
$4,670.00
Total Personnel Services
$43,588.00 11.
B OPERATING'EXA ISSES GENERAL X ,..,
Field Supplies: transect tapes, PVC, quadrat materials,
bags, weeding tools, and Personal Protection Equipment $1,500.00
boots, eyewear, gloves, etc.
Plant materials: bulk seed, container plants $71,446.00
Permanent signage $4,000.00
Subtotal Operating Expenses: General $76,946.00
C�.OPER�►TI. GEXPEtJSES �SUBCONTRACT.DRS _ _ `' ''
k
Surveying contractor —surveys, review of documentation, $65,000.00
support with construction monitoring
Construction contractor— Clearing, grubbing, earthwork,
erosion control, fine grading and soil prep, hydroseed,
mulching, irrigation installment
$310,860.00
California Conservation Corps or Certified Local Corps —
selective tree removal, branch/limb removal infected with,
PHSB, planfing container plpolyants
$133,723.00
Subtotal Operating Expenses: Subcontractors
$509,590
1D OPERATING; EXPENSES . E9 UIP ;
Equipment item
$0.00
Subtotal Operating Expenses: Equipment
$0.00
E INbIRECT COSTS `^
Indirect` Charge Rate 7.148%
(Applies to Sections A + B only)
$8,616.00
F GRAND, TOTAL .{A+B+O+p+E)
$638,74!}:00
Page 13 of 17
15-127
Q1996008
NEWPORT BAY CONSERVANCY
Any changes or modifications to a fund source below must be promptly reported
to CDFW Grant Manager, in writing.
Funding Sources Summary.
Source of Funds
Cash
In -Kind
Total
CDFW Proposition 1 Grant
Program
$638,740.00
$31,381.00
$670,121.00
USFWS (via CA State Coastal
Conservancy)
$969,555.00
$0.00
$969,555.00
California State Coastal
Conservancy
$80,436
$30,445.00
$110,881.00
City of Newport Beach
$0.00
$35,000.00
$35,000.00
Newport Bay Conservancy
$0.00
$48,548.95
$48,548.95
Total Project Cost
$1,688,731.00
$145,374.95
$1,834,105.95
9.01.1 Budget Flexibility: Grantee must submit all budget line item revision
requests, in writing, to the CDFW Grant Manager, prior to implementing
any changes. All proposed budget changes require prior approval from
the CDFW Grant Manager, regardless of budgetary impact.
Informal Budget adjustments between existing line items may be
permitted. Any revision to the Line Item Budget Detail must comply with
Section 5.09 — Amendments. Considerations for informal Budget
adjustments, if granted, must include:
1. Revisions which are consistent with the purpose, objectives, and
description of the Project as detailed in Section 6 - Project
Statement;
2. Revisions that do not increase or decrease the total Agreement
amount;
3. Revisions that do not substitute key personnel; and
4. Line item shifts within a budget category (e.g. Field Supplies to
Travel) up to $25,000 or 10% of the Agreement amount,
whichever is less.
Formal Budget adjustments will be considered by the Grantor, with prior
approval from the CDFW Grant Manager. An amendment to the
Agreement is required if a formal Budget adjustment is approved.
Considerations for formal amendments, if granted, include:
1. Shifting Grant Funds between budget categories (e.g. Personnel
Services to Operating Expenses);
2. Increasing or decreasing the total Agreement amount;
Page 14 of 17
15-128
Q1996008
NEWPORT BAY CONSERVANCY
3. Substituting key personnel; or
4. Line item shifts within a budget category (e.g. Field Supplies to
Travel) that exceeds $25,000 or 10% of the Agreement amount,
whichever is less.
9.02 Payment Provisions
9.02.7 Disbursements: Grantor will disburse Grant Funds to Grantee not more
frequently than monthly in arrears, upon receipt of an original itemized
invoice and any required mandatory documentation as identified in
Section 6.03.6 — Schedule of Due Dates and Deliverables.
Grant disbursements will be mailed to the following Grantee address:
Grantee Name: Newport Bay Conservancy
Attention: Amanda Swanson
Address: 600 Shellmaker Road
Newport Beach, CA 92660
9.02.2 Invoice Documentation: Each invoice for payment must be
accompanied by a written description, notto exceed two pages in length,
of Grantee's performance under this Agreement since the time the
previous such report was prepared. The report shall describe the types
of activities and specific accomplishments during the period for which
the payment is being made rather than merely listing the number of
hours worked during the reporting period. The Final Invoice must include
a budget summary of all cost share expenditures by fund source, as
applicable. The CDFW Grant Manager will provide Grantee with a
sample invoice template upon request. The Final Invoice is due in
accordance with Section 6.03.6 — Schedule of Due Dates and
Deliverables. The invoice package must be either mailed hard copy or
electronic submission to CDFW Grant Manager contact located in
Section 7 — Contacts.
Requirements: The invoice shall contain the following information:
1. The word "Invoice" should appear in a prominent location at the
top of the page(s);
2. Printed name of Grantee on company letterhead;
3. Grantee's business address, including P.O. Box, City, State, and
Zip Code;
4. Name of the CDFW Region/Division being billed;
5. The invoice date and the time period covered; i.e., the term "from"
and "to";
6. This Agreement number and the sequential number of the invoice
(i.e., Qxx96xxx-Invoice 1);
Page 15 of 17
15-129
Q1996008
NEWPORT BAY CONSERVANCY
7. The invoice must be itemized using the categories and following
the format of the Budget;
8. The total amount due. This should be in a prominent location in
the lower right-hand portion of the last page and clearly
distinguished from other figures or computations appearing on
the invoice. The total amount due shall include all costs incurred
by Grantee under the terms of this grant;
9. The original signature of Grantee; and
10. Grantee must provide supporting documentation for the invoice
and actual receipts.
Page 16 of 17
15-130
Q1996008
NEWPORT BAY CONSERVANCY
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of Grantor date set forth below the signature.
AUTHORIZED AGENT FOR GRANTEE
By:
Signature:
Printed Nam - Josie Bennett
Title: Newport Bay Conservancy Board Secretary
.. •ittee Chair
J i � ORIGIN
o � �
- • ' • . • / -
This Agreement is exempt from DGS -OLS approval, per SCM 4,06.
Page 17 of 17
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15-131
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b — NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1 9960 08
Newport Bay Conservancy
1. APPROVAL: This Agreement is of no force or effect until signed by both Parties and approved by
CDFW or Grantor. Grantee 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 this Agreement is binding on either of the Parties.
3. ASSIGNMENT: This Agreement is not assignable by Grantee, either in whole or in part, without the
consent of the CDFW in the form of a formal written amendment.
4. AUDIT: Grantee agrees that CDFW, the Department of General Services (DGS), 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. Grantee
agrees to maintain such records for possible audit for a minimum of three (3) years after final
payment, unless a longer period of records retention is stipulated. Grantee 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, Grantee agrees
to include a similar right of the State to audit records and interview staff in any subcontract related
to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code, CCR Title 2, Section
1896).
5. INDEMNIFICATION: Grantee agrees to indemnify, defend and save harmless the State of
California, CDFW, its officers, agents and employees from any and all claims and losses accruing
or resulting to any and all of Grantee's employees or agents, 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 accruing or resulting to any person, firm or corporation who may be injured or damaged by
Grantee in the performance of this Agreement.
6. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any
dispute.
7. INDEPENDENT CONTRACTOR: Grantee, and the agents and employees of Grantee, in the
performance of this Agreement, shall act in an independent capacity and not as officers or
employees or agents of CDFW. Grantee acknowledges and promises that CDFW is not acting as
an employer to any individuals furnishing services or work pursuant to this Agreement.
NON-DISCRIMINATION CLAUSE: During the performance -of this Agreement, Grantee and its
subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee
or applicant for employment because of sex, race, color, ancestry, religious creed, national origin,
physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age
(over 40), marital status, and denial of family care leave. Grantee and subcontractors shall ensure
that the evaluation and treatment of their employees and applicants for employment are free from
such discrimination and harassment. Grantee and subcontractors shall comply with the provisions
Page 1 of 6
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15-132
�. CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b — NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Nky
Newport Bay Conservancy
of the Fair Employment and Housing Act (Gov. Code §12990 (a -f) et seq.) and the applicable
regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.).
The applicable regulations of the Fair Employment and Housing Commission implementing
Government Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California
Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as
K set forth in full. Grantee 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.
Grantee shall include the nondiscrimination and compliance provisions of this clause in all
subcontracts to perform work under the Agreement.
9. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is
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.
10. LICENSES AND PERMITS (If Applicable): Grantee is responsible for obtaining all licenses and
permits required by law for accomplishing any work required in connection with this Agreement.
Costs associated with permitting may be reimbursed under this Agreement only if approved in the
budget detail and payment provisions section.
11. RIGHTS IN DATA: Grantee agrees that all data, plans, drawings, specifications, reports, computer
programs, operating manuals, notes and other written orgraphic work produced in the performance
of this Agreement, are subject to the rights of the State as set forth in this section. The State shall
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,
Grantee may copyright the same, except that, as to any work which is copyrighted by Grantee, the
State reserves a royalty -free, nonexclusive and irrevocable license to reproduce, publish, and use
such work, or any part thereof, and to authorize others to do so.
12. CONTINGENT FUNDING: It is mutually understood between the Parties that this Agreement may
have been written before ascertaining the availability of State appropriation of funds for the mutual
benefit of both Parties in order to avoid program and fiscal delays which would occur if this
Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available pursuant to the
California State Budget Act for the fiscal year(s) covered by this Agreement for the purposes of this
program. In addiiion, this Agreement is subject to any additional restrictions, limitations, or
conditions enacted by the Legislature of any statute enacted by the Legislature which may affect
the provisions, terms or funding of this Agreement in any manner.
It is mutually agreed that if the Legislature does not appropriate sufficient funds for the Agreement,
the State has the option to terminate the Agreement under the termination clause or to amend the
Agreement to reflect any reduction of funds. CDFW has the option to invalidate the contract under
the 30 -day cancellation clause or to amend the Agreement to reflect any reduction in Grant Funds.
Page 2 of 6
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15-133
�, CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 'Ib-- NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
13. RIGHT TO TERMINATE:
a. This agreement may be terminated by mutual consent of both parties or by any party upon thirty
(30) days written notice and delivered by USPS First Class or in person.
b. In the event of termination of this Agreement, Grantee shall immediately provide CDFW an
accounting of all funds received under this Agreement and return to CDFW all Grant Funds
received underthis Agreement which have not been previously expended to provide the services
outlined within this Agreement.
c. Any such termination of this Agreement shall be without prejudice to any obligations or liabilities
of either party already accrued prior to such termination. CDFW shall reimburse Grantee for all
allowable and reasonable costs incurred by it for the Project, including foreseeable and
uncancellable obligations. Upon notification of termination from CDFW, Grantee shall use its
reasonable efforts to limit any outstanding financial commitments.
14. CONFIDENTIALITY OF DATA: Grantee shall protect from disclosure all information made available
by CDFW. Grantee shall not be required to keep confidential any data or information which is
publicly available, independently developed by Grantee, or lawfully obtained from third parties.
Written consent of CDFW must be obtained prior to disclosing information under this Agreement.
16.DISCLOSURE REQUIREMENTS: Any document or written report prepared in whole or in part
pursuant to this Agreement shall contain a disclosure statement indicating that the document or
written report was prepared through an Agreement with CDFW. The disclosure statement shall
include this Agreement number and dollar amount of all Agreements and subcontracts relating to
the preparation of such documents or written reports. The disclosure statement shall be contained
in a separate section of the document or written report.
If Grantee or any subcontractor(s) are required to prepare multiple documents or written reports,
the disclosure statement may also contain a statement indicating that the total Agreement amount
represents compensation for multiple documents or written reports. Grantee shall include in each
of its subcontracts forwork under this Agreement, a provision which incorporates the requirements
stated within this section.
16. USE OF SU BCONTRACTOR(S): If Grantee desires to accomplish part of the services through the
use of one (1) or more subcontractors, the following conditions must be met:
a. Grantee shall submit any subcontracts to CDFW for inclusion in the grant file;
b. The Agreement between the primary Grantee 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, CDFW Grant Manager shall be notified immediately, in
writing.
Page 3 of 6
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15-134
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b —NON -PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
Grantee shall ensure any subcontract in excess of $100,000 entered into as a result of this
Agreement contains all applicable provisions stipulated in this Agreement.
MPOTENTIAL SUBCONTRACTORM: Nothing contained in this Agreement or otherwise shall
create any contractual relation between CDFW, and any subcontractor(s) and no subcontract shall
relieve Grantee of its responsibilities and obligations hereunder. Grantee agrees to be as fully
responsible to CDFW for the acts and omissions of its subcontractor(s) and of persons directly
employed or indirectly employed by any of them as itis for the acts and omissions of persons directly
employed by Grantee. Grantee's obligation to pay its subcontractor(s) is an independent obligation
from CDFW's obligation to make payments to Grantee. As a result, CDFW shall have no obligation
to pay or to enforce the payment of any monies to any subcontractor.
18.TRAVEL AND PER DIEM ('rf applicable): Grantee agrees to pay reasonable travel and per diem
to its employees under this Agreement. The reimbursement rates shall not exceed those amounts
identified in the California Department of Human Resources travel reimbursement guidelines. No
travel outside the State of California shall be reimbursed unless prior written authorization is
obtained from CDFW.
19.LIABILITY INSURANCE (as applicable): Unless otherwise specified in the Agreement, upon
submitting a signed Agreement to the State, Grantee shall also furnish to the State either proof of
self-insurance or a cerdficate of insurance stating that there is liability insurance presently in effect
for Grantee of not less than $1,000,000 per occurrence for bodily injury and property damage liability
combined. Grantee agrees to make the entire insurance policy available to the State upon request.
The certificate of insurance will include provisions a, b, and c, in their entirety:
a. The insurer will not cancel the insured's coverage without thirty (30) days prior written notice to
the State;
b. The State of California, its officers, agents, employees, and servants are included as additional
insured, by insofar as the operations under this Agreement are concerned; and
c. The State will not be responsible for any premiums or assessments on the policy.
Grantee agrees that the bodily injury liability insurance herein provided for, shall be in effect at all
times during the term of this Agreement. In the event said insurance coverage expires at any time
or times during the term of this Agreement, Grantee agrees to provide, prior to said expiration date,
a new certificate of insurance evidencing insurance coverage as provided for herein for not less
than the remainder of the term of this Agreement, or for a period of not less than one (1) year_ New
certificates of insurance are subject to the approval of the DGS, and Grantee agrees that no work
or services shall be performed prior to giving of such approval. In the event Grantee fails to keep in
effect, at all times, insurance coverage as herein provided, the State may, in addition to any other
remedies it may have, terminate this Agreement upon occurrence of such event.
CDFW will not provide for, nor compensate Grantee for any insurance premiums or costs for any
type or amount of insurance; The insurance required above, shall cover all Grantee supplied
Page 4 of 6
(Rev. 0511 0/2 0 1 9)
15-135
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b — NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
personnel and equipment used in the performance of this Agreement. When applicable, if
subcontractors performing work under this Agreement do not have insurance equivalent to the
above, Grantee's liability shall provide such coverage for the subcontractor, except for coverage for
error, mistake, omissions, or malpractice, which shall be provided by the subcontractor if such
insurance is required by the State.
20. GRANTEE STAFF REQUIREMENTS: Grantee represents that it has or shall secure at its own
expense, all staff required to perform the services described in this Agreement. Such personnel
shall not be employees of or have any contractual relationship with CDFW or any other
governmental entity.
21. PROPERTY ACQUISITIONS AND EQUIPMENT PURCHASES: Property, exclusive of real
property, as used in this exhibit shall include the following:
a. Equipment —Tangible property (including furniture and electronics) with a unit cost of $5,000 or
more and a useful life of four (4) years or more. Actual cost includes the purchase price plus all
costs to acquire, install, and prepare the equipment for its intended use.
b. Furniture, including standard office furnishings including desks, chairs, bookcases, credenzas,
tables, etc.
c. Portable Assets, including items considered `highly desirable' because of their portability and
value, e.g., calculators, computers, printers, scanners, shredders, cameras, etc.
d. Electronic Data Processing (EDP) Equipment, including 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.
Grantee may purchase property under this Agreement only if specified in the budget detail and
payment provisions section. All property purchased by Grantee is owned by Grantee. CDFW does
not claim title or ownership to the property but, requires Grantee to maintain accountability for all
property purchased with grant funds.
Title or ownership to property with a unit cost of $5,000 or more may be retained by Grantee or
Grantor upon end of the grant cycle; final disposition will be coordinated by CDFW s Grant Manager.
Before property purchases made by Grantee are reimbursed by CDFW, Grantee shall submit paid
Grantee receipts identifying the Grant Agreement Number, purchase price, description of the
item(s), serial number(s), model number(s), and location, including street address where property
will be used during the term of this Agreement. Said paid receipts shall be attached to Grantee's
invoice(s).
Page 5 of 6
(Rev. 0511012019)
15-136
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1 b — NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
Grantee shall keep, and make available to Grantor, adequate and appropriate records of all property
purchased with the Grant Funds.
Prior written authorization by the CDFW Grant Manager shall be required before Grantee will be
reimbursed for any property purchases not specified in the budget. Grantee shall provide to CDFW
Grant Manager, all particulars regarding the necessity for such property and the reasonableness of
the cost.
Property will only be considered for purchase approval if no other equipment owned by the applicant
is available and suitable for the project.
Grant Funds cannot be used to reimburse the project for equipment obtained prior to the beginning
of the grant term.
Grant Funds cannot be used for property if specifically prohibited in the authorizing legislation or
restricted in the terms, of the program.
Should this Agreement be cancelled for any reason, any property purchased with grant funds shall
be returned to Grantor.
State policies and procedures applicable to procurement with nonfederal funds, shall apply to
procurement by Grantee under this Agreement, provided that procurements conform to applicable
State law and the standards identified in this exhibit. These include, but are not limited to: statutes
applicable to State agencies; statutes applicable to State colleges and universities; public works
projects; the California Constitution governing University of California contracting, the State
Administrative Manual; statutes applicable to specific local agencies; applicable city and county
charters and implementing ordinances including policies and procedures incorporated in local
government manuals or operating memoranda.
Page 6 of 6
(Rev. 05/10/2019)
15-137
EXHIBIT D
INSURANCE REQUIREMENTS
A. Provision of Insurance. Without limiting NBC's indemnification of City, and prior to
commencement of Work, NBC 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, NBC agrees to provide insurance
in accordance with the 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.
B. 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.
C. Coverage Requirements.
Workers' Compensation Insurance. NBC 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.
a) NBC shall submit to City, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of City, its elected and appointed
officers, employees, agents, volunteers, representatives, the City Council,
boards and commissions, and any person or entity owning or otherwise in
legal control of the property upon which NBC performs the Restoration.
b) In the event NBC has no employees requiring the NBC to provide Workers'
Compensation insurance, NBC shall so certify to City in writing prior to
City's execution of this Agreement.
2. General Liability Insurance. NBC shall maintain commercial general 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. If a general aggregate limit applies, either the
general aggregate limit shall apply separately to this project/location (ISO CG
25 03 or 25 04) or the general aggregate limit shall be twice the required
occurrence limit.
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page D-1
15-138
The policy shall cover liability arising from products and completed operations,
property damage, bodily injury, personal and advertising injury, premises,
operations, sexual abuse and molestation with defense cost included, and
liability assumed under an insured contract (including the tort liability of
another assumed in a business contract) with no endorsement or modification
limiting the scope of coverage for liability assumed under a contract.
3. Automobile Liability Insurance. NBC 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 the Contractor arising out of or
in connection with Work to be performed under this Agreement, including
coverage for any automobile (Code 1), or if Contractor has non -owned
automobile, hired, or rented vehicles (Code 8), and non owned automobiles
(Code 9) in an amount not less than one million dollars ($1,000,000) combined
single limit each accident for bodily injury and property damage.
D. Other Insurance Requirements. The policies are to contain, or be endorsed to contain,
the following provisions:
Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this agreement shall be endorsed to waive subrogation against
City, its elected and appointed officers, employees, agents, volunteers,
representatives, the City Council, boards and commissions, and any person
or entity owning or otherwise in legal control of the property upon which
Contractor performs the Class or Program or shall specifically allow
Contractor or others providing insurance evidence in compliance with these
requirements to waive their right of recovery prior to a loss. Contractor hereby
waives its own right of recovery against City, and shall require similar written
express waivers from each of its subcontractors.
2. Additional Insured Status. All liability policies including general liability excess
liability,
provide
officers,
boards
legal coi
Program
nd automobile liability, but not including professional liability, shall
it be endorsed to provide that City and its elected and appointed
employees, agents, volunteers, representatives, the City Council,
rid commissions, and any person or entity owning or otherwise in
trol of the property upon which Contractor performs the Class or
shall be included as insureds under such policies.
3. 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.
4. Notice of Cancellation. All policies shall provide City with thirty (30) days notice
of cancellation (except for nonpayment for which ten (10) days notice is
required) or nonrenewal of coverage for each required coverage.
5. Subcontractors. NBC shall require and verify that all subcontractors maintain
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page D-2
15-139
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.
E. Additional Agreements Between the Parties. The parties hereby agree to the
following:
Evidence of insurance. NBC 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 contract. City reserves
the right to require complete, certified copies of all required insurance policies,
at any time.
2. 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 NBC sixty (60) days advance written notice of such change.
If such change results in substantial additional cost to the NBC, the City and
NBC may renegotiate NBC's compensation.
3. Enforcement of Contract Provisions. NBC acknowledges and agrees that any
actual or alleged failure on the part of the City to inform Contractor of non-
compliance with any requirement imposes no additional obligations on the City
nor does it waive any rights hereunder.
4. Requirements not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided by
any insurance. Specific reference to a given coverage feature is for purposes
of clarification only as it pertains to a given issue and is not intended by any
party or insured to be all inclusive, or to the exclusion of other coverage, or a
waiver of any type. If the contractor maintains higher limits than the minimums
shown above, the City requires and shall be entitled to coverage for higher
limits maintained by NBC. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to the
City.
5. Self-insured Retentions. Any self-insured retentions must be declared to and
approved by the 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.
6. City Remedies for Non Compliance. If NBC or any subcontractor fails to
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page D-3
15-140
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 NBC'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 NBC or reimbursed by NBC upon
demand.
7. Timely Notice of Claims. NBC shall give City prompt and timely notice of
claims made or suits instituted that arise out of or result from NBC's
performance under this Agreement, and that involve or may involve coverage
under any of the required liability policies.
8. NBC's Insurance. NBC 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 Restoration.
Newport Bay Naturalists and Friends DBA Newport Bay Conservancy, Big Canyon, Phase 2A Page D-4
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ATTACHMENT C
State of California - Natural Resources AgencV GAVIN NEWSOM, Governor
DEPARTMENT OF FISH AND WILDLIFE CHARLTON H. BONHAM, Director
P.O. Box 944209
Sacramento, CA 94244-2090
www.wildlife.ca.gov
PROPOSITION 1 WATERSHED RESTORATION GRANT PROGRAM
BIG CANYON HABITAT RESTORATION AND ADAPTATION PROJECT—PHASE 2
GRANT AGREEMENT NUMBER — Q1 996008
GRANTOR: State of California, acting by and through
The California Department of Fish and Wildlife
P.O. Box 944209
Sacramento, CA 94244-2090
GRANTEE. Newport Bay Conservancy
600 Shellmaker Road
Newport Beach, CA 92660
SECTION 'I — LEGAL BASIS OF AWARD
The California Department of Fish and Wildlife (CDFW or Grantor) developed the
Watershed Restoration Grant Program in response to the Water Quality, Supply, and
Infrastructure Improvement Act of 2094 (Proposition 1). Proposition 1 amended the
California Water Code (CWC) to add article, Section 79737, authorizing the Legislature
to appropriate funds to CDFW to fund multi -benefit ecosystem and watershed restoration
and protection projects.
Pursuant to Fish and Game Code Section 1501.5(b), Grantor is authorized to enter into
this Grant Agreement (Agreement) and to make an award to Newport Bay Conservancy
(Grantee) for the purposes set forth herein. Grantee accepts the grant on the terms and
conditions of this Agreement. Accordingly, Grantor and Grantee (Parties) hereby agree
as follows:
SECTION 2 — GRANT AWARD
2.01 Grant: In accordance with the terms and conditions of this Agreement, including
Section 5.06 - General Terms and Conditions, Grantor shall provide Grantee with
a maximum of $638,740.00 (Grant Funds) to financially support and assist
Grantee's implementation of _Big Canyon Habitat Restoration and Adaptation
Project - Phase 2 (Project).
2.02 Term: The term of this Agreement is August 1, 2019, or upon Grantor approval,
whichever is later, through March 15, 2023.
SECTION 3 -- ELIGIBLE USES OF GRANT
Only Grantee expenditures that are necessary to implement the Project, comply with
applicable federal and State of California law, and made in accordance with Section 6 -
(Template v.07/24/2019)
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Project Statement and Section 9— Budget and Payment asset forth within this Agreement
are eligible for reimbursement from the Grant Funds.
SECTION 4 - GRANTEE'S REPRESENTATIONS AND WARRANTIES
Grantee represents and warrants to Grantor as follows:
4.01 Existence and Power: Grantee is a non-public entity validly existing, and in good
standing under the laws of California. Grantee has full power and authority to
transact the business in which it is engaged and full power, authority, and legal
right to execute and deliver this Agreement and incur and perform its obligations
hereunder.
4.02 Binding Obligation: This Agreement has been duly authorized, executed and
delivered on behalf of Grantee and constitutes the legal, valid, and binding
obligation of Grantee, enforceable in accordance with the Agreement's terms.
SECTION 5 - GRANTEE'S AGREEMENTS
5.01 Purpose; This Agreement is entered into by the Parties for the purpose of
providing financial support to Grantee to complete the Project, specifically the
activities identified within Section 6 — Project Statement.
6.02 Prosect: Grantee shall.complete activities as set forth in Section 6 — Project
Statement.
5.03 Use of Project Funds: Grantee agrees that only Grantee expenditures that are
necessary to implement the Project, comply with applicable federal and State of
California law, and made in accordance with Section 6 -- Project Statement and
Section 9 — Budget and Payment as set forth within this Agreement are eligible for
reimbursement from the Grant Funds. Grantee acknowledges that it may not
transfer Grant Funds between or among budget line items without written approval
from the CDFW Grant Manager in accordance with Section 9 -- Budget and
Payment.
5.04 Eligibility of Funds: In the event that the California Budget Act does not provide
sufficient appropriations to allow Grantor to fund the Project at the level specified
in Section 2 — Grant Award and Section 9 — Budget and Payment of this
Agreement, Grantor reserves the right to modify this Agreement to reflect a
reduction in available funds, as an alternative to termination.
5.05 Submission of Reports: Grantee shall comply with the format, content, and
timing requirements set out in Section 8 -- Reports. Failure to submit timely and
accurate reports shall be considered evidence of non-compliance with this
Agreement and shall permit termination of this Agreement by Grantor.
5.06 General Terms and Conditions: Non -Public Entities General Grant Provisions
(Exhibit 1.b) is attached hereto and made a part of this Agreement.
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5.07 Amendments: This Agreement may only be amended in accordance with Section
5.06 — General Terms and Conditions. Grantee shall submit any request to amend
any term of this Agreement in writing to the CDFW Grant Manager no later than
120 days prior to the end of the term of this Agreement. Grantee must include an
explanation of and justification for any such request.
5.08 Acknowledgement of Credit: Grantee shall include signage, to the extent
practicable, informing the public that the Project received funds through the
California Department of Fish and Wildlife from the Water Quality, Supply, and
Infrastructure Improvement Act of 2014 (Proposition 1, CWC § 79707 (g)). Further,
Grantee shall include appropriate acknowledgement of credit to the Watershed
Restoration Grant Program and its implementing agency, the California
Department of Fish and Wildlife, for Grantor's financial support when using any
data and/or information developed under this Agreement (e.g., in posters, reports,
publications, presentations).
5.09 Labor Code Requirements; Prevailing Wage: State grants may be subject to
California Labor Code requirements, which include prevailing wage provisions.
Certain State grants administered by the CDFW are not subject to Chapter 1
(commencing with Section 1720) of Part 7 of Division 2 of the Labor Code. For
more details, please refer to California Fish and Game Code Section 1501.5 and
the Department of Industrial Relations website at hftp://www.dir.ca.gov. Grantee
shall pay prevailing wage to all persons employed in the performance of any part
of the Project if required by law to do so.
5.10 Environmental Compliance: Grantee shall not proceed with on the ground
implementation until California Environmental Quality Act compliance and all
necessary permits and consultations are secured and Grantee has received a
Notice to Proceed letter from the CDFW Grant Manager. Written permission must
be obtained from landowner(s) for access to perform grant work; copies of such
permission shall be provided to the CDFW Grant Manager.
5.11 California Business and Professions Code: As may be necessary, Grantee
shall be responsible for obtaining the services of appropriately licensed
professionals to comply with the applicable requirements of the California Business
and Professions Code including but not limited to Section 6700 et seq.
(Professional Engineers Act) or Section 7800 et seq. (Geologists and
Geophysicists Act).
If Grantee fails to perform in accordance with the compliance provisions of this
Agreement, Grantor shall have sole discretion to delay, interrupt, or suspend the
work for which the Grant Funds are supplied.
SECTION 6 - PROJECT STATEMENT
6.01 Introduction: The Project will confer benefits to the entire Upper Newport Bay by
restoring transitional habitat through removal of non-native vegetation, restoration
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of hydrological functioning and establishment of native plant communities that will
promote biodiversity, improve water quality, enhance flood protection and
resilience to sea level rise and other stressors, and provide and support critical
habitat for endangered species.
While restoration of Big Canyon entails multiple phases, this project focuses on
implementation of Phase 2A, a 9.24 acre area of Big Canyon that is heavily
impacted by invasive species, stream and flood plain erosion, degraded creek
water quality by pollution from groundwater seepage, increased peak -flows during
storm events, and year-round urban dry weather flows. Degraded habitat and high
selenium concentrations at Big Canyon critically impapt the Upper Newport Bay
estuary making restoration of Big Canyon a priority for regional stakeholders.
6.02 Objectives: Specific objectives of this Project are to:
1. Remove exotics and invasive plants;
2. Create wetland habitat to greatly enhance and improve the resilience of the
restored ecosystem;
3. Restore connectivity between Big Canyon Creek channel and floodplain;
4. Improve water quality of Big Canyon Creek; and
5. Restore, enhance, and improve resilience of riparian and upland habitats.
6.03 Project Description
6.03.1 Location: Grantee will implement the Project on approximately 9.24
acres of publicly owned land located at the Big Canyon Nature Park
between Upper Newport Bay and the City of Newport Beach at
33.630580 latitude, -117.884160 longitude in Orange County, California
(Property).
6.03.2 Project Site Access: Grantee shall cause the Landowner(s) to give
Grantor, and Grantee's [its/their] employees and agents written
permission to access the Property at least once every 12 months from
the date of Grantor's Notice to Proceed until 25 years after the term of
this Agreement (as set out in Section 2 -- Grant Award) ends for
purposes of inspections and monitoring. Such access shall be
reasonably acceptable to the Landowner(s) and the requester following
written or verbal request to Grantee. Grantee shall provide a copy of the
access agreement to Grantor to include in Grantor's Agreement file prior
to Grantee beginning any work at the Project site(s).
6.03.3 Materials and Equipment: Property acquisitions and equipment
purchases must be consistent with Section 5.06 — General- Terms and
Conditions. Field supplies such as transect tapes, PVC, quadrat
materials, bags, stakes, coir fiber, and weeding tools along with personal
protection equipment such as boots, eyewear, and gloves will be
purchased by Grantee for the Restoration Coordinator, Field Technician,
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and Grantee volunteers. Permanent signage and plant materials (e.g.,
bulk seed and container plants) will be purchased by Grantee.
6.03.4 Project Implementation: Consistent with Grantee's proposal for the
Project, Grantee will complete the following tasks in accordance with
Section 6.03.6 — Schedule of Due Dates and Deliverables:
Task 1 -- Proiect Management and Administration
Grantee will provide technical and administrative services associated
with performing and completing the work for this Project, including
managing this Agreement, assuring all permits are finalized, delivering
the final landowner access agreement, administering subcontracts,
invoicing and payments, drafting and finalizing progress and final
reports, and data management.
Subtask 1.1 — Data Management
Grantee Restoration Coordinator will coordinate data management
activities. Grantee, its subcontractors and collaborators shall be
responsible for ensuring that data collection, data acquisition, and/or
data development activities will incorporate the standards expressed
in CDFW's Scientific Integrity Policy
(https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentlD=l 54775&inline)
and Scientific Data Governance Policy. Grantee shall submit a Data
Management Plan. The CDFW Grant Manager will provide the Data
Management Plan form upon Grant execution.
Grantee and its subcontractors and/or collaborators are responsible
for ensuring that project data are collected using peer -approved
methods, undergo a quality control and accuracy assessment
process, include metadata that meet CDFW's minimum standards
(https://www.wildlife._ca.gov/Data/BIOS/Metadata) and include
documentation of the methods and quality assessments utilized, and
are properly stared and protected until the Project has been
completed and data have been delivered to as required under this
Grant Agreement.
All scientific data collection efforts are required to include metadata
files or records indicating at a minimum:
1. Who collected the data;
2. When the data was collected;
3. Where the data was collected;
4. How the data was collected (description of methods and
protocols);
5. The purposes for which the data was collected;
6. Definitions of variables, fields, codes, and abbreviations used in
the data, including units of measure;
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7. The terms of any landowner access agreement(s), if applicable;
8. References to any related Department permits or regulatory
actions;
9. Peer review or statistical consultation documentation; and
10. Data licensing and disclaimer language.
All data and associated metadata collected by or created under this
Agreement are a required deliverable of this Agreement. All data
deliverables should be budgeted for and included in the Project
timeline as a part of this Agreement. A condition of final payment on
this Agreement shall include the delivery of all related data assets.
Geospatial data must be delivered in an industry -standard geospatial
data format where applicable and documented with metadata in
accordance with the CDFW Minimum Metadata Standards.
Data related to observation, occurrence or distribution of state or
federal special status species or California Native Plant Society listed
species shall be reported to the California Natural Diversity Database
(CNDDB) using the online field survey form or other digital method.
The following Project information shall be uploaded by Grantee to
Project Tracker (http://ptrack.ecoatias.org1) in EcoAtlas
(http://www.ecoatias.org/): Project name, Project proponent and
contact information, Project boundary [GIS polygon], Proposition 1
funding details, pertinent dates, activity type, and habitat types and
amounts.
Water quality data generated by the Project will be collected in a
manner that is compatible and consistent with the California
Environmental Data Exchange Network (CEDEN,
httpalwww.ceden.org_I) (CWC §79704). Grantee shall upload
relevant data to CEDEN and provide a receipt of successful data
submission, generated by CEDEN, to the CDFW Grant Manager
prior to submitting a Final Invoice.
Task 2 -- Mobilization/Demobilization and Site Preparation
Surveys and construction for the proposed project will be subcontracted
to Surveying contractor or Construction contractor, which will be
determined later by Grantee. Prior to construction, biological, cultural,
and geotechnical surveys will be performed by Surveying contractor. A
construction survey will also be conducted by Construction contractor to
determine markers and reference points that will guide construction
activities. A Stormwater Pollution Prevention Plan (SWPPP) is required
prior to construction and will also be developed by Construction
contractor. Task 2 deliverables will include full details on mobilization
and demolition activities in quarterly and final reports along with copies
of the construction surrey and draft and final versions of the SWPPP.
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Task 3 — Removal of Invasive Vegetation
Construction contractor will first remove the invasive peppertrees and
other invasive plants. In the peppertree areas, 6.83 acres will undergo
extensive clearing and grubbing. Some clearing will be carried out
outside the peppertree monoculture area to allow for stream restoration
in two segments of the creek where the channel has been locally incised.
Invasive plants will be selectively removed from an additional 2.4 -acre
riparian area. The total area of clearing, grubbing and selective
vegetation removal is 9.24 acres. Removal and clearing of peppertrees
and other exotics will involve shredding smaller limbs and foliage and
chipping the large trunks and stems. The small limbs and foliage will
require off-site disposal along with the peppertree seed. Where feasible,
chipped material will be used for on-site trails to reduce off-site hauling.
Where root mass from invasive trees provides stabilization of the stream
bank, stabilizing of the creek will be implemented as discussed in Task
4 below.
Task 4 - Stream and Wetland Restoration
Following clearing and removal of invasive species, the site will be
graded by Construction contractor to pull back incised channel banks to
achieve gentler bank slopes, reconnecting the channel with its
floodplain. The areas adjacent to the riparian corridors will be graded to
extend the flood inundation at higher storm flows and provide conditions
suitable for a wetter alkali meadow habitat. This will allow for a gradual
transition from creek channel to floodplain wetlands to upland coastal
scrub. The cleared and graded areas will be replanted with native
coastal vegetation by Construction contractor. The Project will restore a
mosaic of woody and herbaceous riparian vegetation along the creek
corridor, wet alkali and high alkali meadow communities adjacent to the
riparian corridor, and coastal sage scrub transitional habitat at higher
elevations. The plant palette for these habitats will be tolerant of the high
salinity soils that dominate the project area.
There are two creek segments totaling 680 feet within the project area
where the channel is severely incised. Along the two incised creek
segments, the channel bank will be pulled back by Construction
contractor to create a gentler slope to provide connectivity between the
channel and floodplain and support riparian vegetation. Within these
segments, existing mature peppertrees have been established with
extensive root systems that provide stabilization of the creek banks.
To provide bank stabilization where needed after the peppertrees are
removed, Construction contractor will reconstruct and stabilize the bank
by adding vegetated soil lifts. Encapsulated vegetated soil lifts planted
with native riparian shrubs (e.g., mulefat, sandbar willow) will be used to
construct and protect the banks, and to provide erosion control. Each lift
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will be encapsulated in coir fiber that will biodegrade over the first two to
three years, once the incorporated native riparian vegetation has
established. This technique was used successfully in Phase 1. Within
the upstream segment, the bank stabilization efforts will extend into
areas of existing woody riparian mixed with invasive plants. In these
areas, the extent of bank stabilization and grading has been limited to
minimize disturbance of native plants but may include clearing of 0.5
acres to reconnect the flood way and stabilize creek banks.
Outside of the incised creek reaches, additional reaches will also be
regarded by Construction contractor to pull back the existing channel
banks and reconnect the floodplain, where appropriate. The grading will
create a gentle slope where riparian vegetation will be planted within a
45 -65 -foot -wide riparian corridor, reducing bank erosion and improving
water quality through natural filtration and 'infiltration. Outside the
riparian corridorand within areasdesignated for peppertree removal, the
site will be graded to level out depressions from peppertree root mass
removal to reduce unnatural ponding and restore wet alkali meadow
hydrology. In addition, Construction contractor will regrade a scour pond
formed by wet weather flows from the storm drain outlet to reduce
mosquito breeding habitat.
Task 5 - Revegetation and Habitat Restoration
Prior to site replanting, Construction contractor will install temporary
irrigation followed by soil amendments that will include a mixture of
woody mulch, gypsum, and compost. Native vegetation will be
established by transplanting one -gallon container plants, installing live
stakes, and hydroseeding where appropriate. Revegetation will be
conducted by Construction contractor or the California Conservation
Corps or'the certified community local conservation corps. A 120 -day
plant establishment and maintenance period will begin after
revegetation is complete. As -built drawings will be developed exhibiting
the final outcomes of the project and submitted as a deliverable.
Descriptions of key milestones associated with project activities for
Tasks 3, 4, and 5 (e.g., clearing, grubbing, grading, erosion control, and
revegetation) will be included in the quarterly and final reports.
Task 6 - Construction Inspection
The City of Newport Beach and Surveying contractor will perform project
inspections and construction monitoring with assistance from Grantee.
Inspections and monitoring will ensure that Construction contractor is
achieving the quality, accuracy, and progress that are specified for the
project and that all requirements for the permits and grant agreements
are satisfied. Results of inspections and monitoring will be summarized
in the quarterly and final reports.
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Task 7 - Long -Term Management
Grantee, in collaboration with the City of Newport Beach and Surveying
contractor, will develop a long-term management plan for the proposed
restoration project based on the guidelines outlined in Big Canyon
Nature Park Resource and Recreation Management Plan prepared by
Dudek and Irvine Ranch Conservancy in 2016. Implementation of the
long-term management plan will begin after Construction contractor
successfully completes the 120 -day plant establishment and
maintenance period. A Field Technician will be hired by Grantee who
will work with the Restoration Coordinator and Grantee volunteers to
monitor the project area and implement the long-term management
plan. Deliverables associated with this Task include draft and final
versions of the long-term management plan. As implementation of the
long-term management will begin immediately after the 120 -day plant
establishment and maintenance period in completed, results of these
efforts will be summarized within quarterly and final progress reports
completed by the Restoration Coordinator through the duration of this
Agreement. Data collected during the quantitative and qualitative
assessments will be uploaded to the EcoAtlas Project and the California
Natural Diversity Database each year.
6.03.5 Long -Term Maintenance: Grantee shall ensure that the Project and
Property are properly operated, used, and maintained consistent with
the purposes (as stated in Section 6.01 — Introduction) and objectives
(as stated in Section 6.02 — Objectives) of the Project for 25 years
beyond the term of this Agreement. Grantor will not fund long-term
maintenance activities outside of the term of this Agreement.
6.03.6 Schedule of Due Dates and Deliverables:
Task
Description
--
Deliverables
Estimated Completion
Dates
1
Project
Quarterly Progress
Due within 30 days
Management and
Reports
following each calendar
Administration
quarter (September,
December, March, June
Monthly Invoices
Due .within 30 days
following each month
Copies of Executed
Due within 30 days of
Subcontracts
executing agreements
with each subcontractor
Submit Project Data
March 15, 2023
Draft Final Report
February 15, 2023
Final Report
March 15, 2023
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Task
Description
Deliverables
Estimated Completion
Dates
Project Close-out
March 15, 2023
Summary Report
Final Invoice
March 31, 2023
2
Mobilization/Demo
Draft and Final SWPPP
October 15, 2020
bilization and Site
Preparation
Construction SurveyOctober
15, 2020
Mobilizationldemobilizati
Due with the Quarterly
on update that can be
Progress Reports
within quarterly report(s)
3
Removal of
Updates within Quarterly
Due with the Quarterly
Invasive
and Final Reports
and Final Progress
Vegetation
Reports
4
Stream and
Updates within Quarterly
Due with the Quarterly
Wetland
and Final Reports
and Final Progress
Restoration
Reports
5
Revegetation and
Updates within Quarterly
Due with the Quarterly
Habitat
and Final Reports
and Final Progress
Restoration
Reports
As -built drawings
February 15, 2023
6
Construction
Results of inspection
Reference Task 1 -
Inspection
and monitoring included
Quarterly and Final
as updates within
Progress Reports
Quarterly and Final
completion dates
Reports
7
Long-term.
Draft Long-term
September 15, 2021
Management
Management Plan
Final Long-term
October 15, 2021
Management Plan
Analysis of quantitative
Due with the Quarterly
data
and Final Progress
Reports
Post construction,
Due with the Quarterly
qualitative and
and Final Progress
quantitative
Reports
assessments
SECTION 7 - CONTACTS
The point of contact may be changed at any time by either party by providing a 10 day
advance written notice to the other party. The Parties hereby designate the following
points of contact during the Term of this Agreement:
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CDFW Grant Manager:
Grantee Project Manager:
Name:
Craig Zeff
Name:
Amanda Swanson
Title:
Environmental Scientist
Title:
Restoration Coordinator
Address:
P.O. Box 944209
Sacramento, CA 94244
Address:
600 Shellmaker Rd.
Newport Beach, CA 92660
Phone:
916 445-0604
1 Phone:
949 439-5801
Email:
I Craig. zeffwildlife.ca. ov
I Email:
Amanda. swansonQnewportbay.org
Direct all administrative inquiries to:
CDFW Grant Coordinator:
Grantee Project Coordinator:
Name:
Keng Saefon
Name:
Heather Cieslak
Title:
Associate Governmental
Program Analyst
Title:
Operations Director
Address:
P.O. Box 944209
Sacramento, CA 94244
Address:
600 Shellmaker Road
New ort Beach, CA 92660
Phone:
916 445-5350
Phone:
949 923-2269
Email:
I Ken .saefon wildlife.ca. ov
Email:
Heather.cieslak@_newportbay.org
SECTION 8 - REPORTS
8.01 Progress Reports: Grantee shall submit Quarterly Progress Reports that comply
with the requirements below to the CDFW Grant Manager. The CDFW Grant
Manager will provide Grantee with a sample Progress Report upon request.
Requirements:
1. Grantee name, the Project title, this Agreement number, and dates progress
report covers;
2. Activities and tasks performed and/or completed, a summary of progress to
date including progress since the last report, and a brief outline of upcoming
work scheduled for the subsequent quarter;
3. Documentation of all subcontractor activities;
4. Updates on progress towards meeting project objectives, output and
outcome performance measures;
5. Document delivery of any intermediate work products;
6. Costs incurred during the subject period, total of costs incurred to date, and
the remaining balance;
7. Any problems encountered while performing the tasks and proposed
solutions, timeline for resolution, and status of previously unresolved
problems; and
8. Quarterly progress reports will be submitted electronically in PDF or
Microsoft Word compatible format and conform to the template provided.
8.02 Draft and Final Reports: Grantee shall submit a Draft Final Report and Final
Report by the dates listed in Section 6.03.6 — Schedule of Due Dates and
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Deliverables. Grantee shall submit a Draft Final Report, at least 30 days prior to
Grantee's submission of the Final Report. The report shall summarize the life of
the Agreement and describe the work and results pursuant to Section 6 — Project
Statement. The Draft and Final Reports will be submitted, electronically, to the
CDFW Grant Manager upon completion of the Project tasks. The CDFW Grant
Manager will provide Grantee a sample Final Report template, upon request.
8.03 Proiect Close -Out Summary Report. Grantee shall prepare and submit a Project
Close -Out Summary Report, to the CDFW Grant Manager, in either PDF or
Microsoft Word compatible format by the date listed in Section 6.03.6 --- Schedule
of Due Dates and Deliverables. Grantee's Project Close -Out Summary Report
must summarize the Project's accomplishments consistent with the Watershed
Restoration Grants Program goals. Grantee shall include a Final Invoice with the
Project Close -Out Summary Report. The CDFW Grant Manager will provide
Grantee with a Project Close -Out Summary Report template, upon request.
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SECTION 9 - BUDGET AND PAYMENT
9.01 Budget Details and Funding Summary: Grantor will provide an amount not to
exceed $638,740.00 as detailed in the Line Item Budget Detail (Budget) below.
Grantee or its partners will provide up to $1,195,365.95 in funds or in-kind
services as cost share to complete tasks described in Section 6 - Project
Statement. Grantee will provide Grantor accurate records of all cost share with
Grantee's Final Invoice.
Field Supplies: transect tapes, PVC, quadrat materials,
bags, weeding tools, and Personal Protection Equipment $1,500.00
boots, eyewear, gloves, etc.
Plant materials: bulk seed, container plants $71,446.00
Permanent signage $4,000.00
Subtotal Operating Expenses: General $76,946.00
Surveying contractor —surveys, review of documentation, $65,000.00
su ort with construction monitoring
Construction contractor-- Clearing, grubbing, earthwork,
erosion control, fine grading and soil prep, hydroseed, $310,860.00
mulchin , irrigation installment
California Conservation Corps or Certified Local Corps —
selective tree removal, branch/limb removal infected with, $133,723.00
PHSB, planting container p1polyants
Subtotal Operating Expenses: Subcontractors $509,690
Equipment item I $Q.00
Subtotal Operating Expenses: Equipment 1 $0.00
Indirect Charge Rate 7.148% $8,616.00
(Applies to Sections A + B only)
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Any changes or modifications to a fund source below must be promptly reported
to CDFW Grant Manager, in writing.
Funding Sources Summary
Source of. Funds Cash In -"Kind Total
CDFW Proposition 1 Grant $638,740.00 $31,381.00 $670,121.00
Proaram
USFWS (via CA State Coastal
Conservancy)
$969,555.00
$0.00
$969,555.00
California State Coastal
Conservancy
$80,436
$30,445.00
$110,881.00
City of Newport Beach
$0.00
$35,000.00
$35,000.00
Newport Bay Conservancy
$0.00
$48,548.95
$48,548.95
Total Project Cost
$1,688,731.00
$145,374.95
$1,8341105.95
9.01.1 Budaet Flexibility: Grantee must submit all budget line item revision
requests, in writing, to the CDFW Grant Manager, prior to implementing
any changes. All proposed budget changes require prior approval from
the CDFW Grant Manager, regardless of budgetary impact.
Informal Budget adjustments between existing line items may be
permitted. Any revision to the Line Item Budget Detail must comply with
Section 5.09 — Amendments. Considerations for informal Budget
adjustments, if granted, must include:
1. Revisions which are consistent with the purpose, objectives, and
description of the Project as detailed in Section 6 - Project
Statement;
2. Revisions that do not increase or decrease the total Agreement
amount;
3. Revisions that do not substitute key personnel; and
4. Line item shifts within a budget category (e.g. Field Supplies to
Travel) up to $25,000 or 10% of the Agreement amount,
whichever is less.
Formal Budget adjustments will be considered by the Grantor, with prior
approval from the CDFW Grant Manager. An amendment to the
Agreement is required if a formal Budget adjustment is approved.
Considerations for formal amendments, if granted, include:
1. Shifting Grant Funds between budget categories (e.g. Personnel
Services to Operating Expenses);
2. Increasing or decreasing the total Agreement amount;
Page 14 of 17
15-155
Q1996008
NEWPORT BAY CONSERVANCY
3. Substituting key personnel; or
4. Line item shifts within a budget category (e.g. Field Supplies to
Travel) that exceeds $25,000 or 10% of the Agreement amount,
whichever is less.
9.02 Payment Provisions
9.02.1 Disbursements: Grantorwill disburse Grant Funds to Grantee not more
frequently than monthly in arrears, upon receipt of an original itemized
invoice and any required mandatory documentation as identified in
Section 6.03.6 — Schedule of Due Dates and Deliverables.
Grant disbursements will be mailed to the following Grantee address:
Grantee Name: Newport Bay Conservancy
Attention: Amanda Swanson
Address: 600 Shellmaker Road
Newport Beach, CA 92660
9.02.2 Invoice Documentation: Each invoice for payment - must be
accompanied by a written description, not to exceed two pages in length,
of Grantee's performance under this Agreement since the time the
previous such report was prepared. The report shall describe the types
of activities and specific accomplishments during the period for which
the payment is being made rather than merely listing the number of
hours worked during the reporting period. The Final Invoice must include
a budget summary of all cost share expenditures by fund source, as
applicable. The CDFW Grant Manager will provide. Grantee with a
sample invoice template upon request. The Final Invoice is due in
accordance with Section 6.03.6 — Schedule of Due Dates and
Deliverables. The invoice package must be either mailed hard copy or
electronic submission to CDFW Grant Manager contact located in
Section 7 -- Contacts.
Requirements: The invoice shall contain the following information:
1. The word "Invoice" should appear in a prominent location at the
top of the page(s);
2. Printed name of Grantee on company letterhead;
3. Grantee's business address, including P.O. Box, City, State, and
Zip Code;
4. Name of the CDFW Region/Division being billed;
5. The invoice date and the time period covered; i.e., the term "from"
and "to";
6. This Agreement number and the sequential number of the invoice
(i.e., Qxx96xxx-Invoice 1);
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Q1996008
NEWPORT BAY CONSERVANCY
7. The invoice must be itemized using the categories and following
the format of the Budget;
8. The total amount due. This should be in a prominent location in
the lower right-hand portion of the last page and clearly
distinguished from other figures or computations appearing on
the invoice, The total amount due shall include all costs incurred
by Grantee under the terms of this grant;
9. The original signature of Grantee; and
10. Grantee must provide supporting documentation for the invoice
and actual receipts.
Page 16 of 17
15-157
Q1996008
NEWPORT BAY CONSERVANCY
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of Grantor date set forth below the signature.
AUTHORIZED AGENT FOR GRANTEE
Signature:
Printed Nam ` Josie Bennett
Title: Newport Bay_Conservancy Board Secretary
Restoration Committee Chair
Date: 4 l
cALIO' LAE R D ILDLIFE
Signa
Prin d e: Va inda Roberts
Tit 'iiDes--,.06hratims
ate:
This Agreement is exempt from DGS -OLS approval, per SCM 4.05.
Page 17 of 17
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15-158
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT lb — NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
1. APPROVAL: This Agreement is of no force or effect until signed by both Parties and approved by
CDFW or Grantor. Grantee 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 this Agreement is binding on either of the Parties.
3. ASSIGNMENT: This Agreement is not assignable by Grantee, either in whole or in part, without the
consent of the CDFW in the form of a formal written amendment.
4. AUDIT: Grantee agrees that CDFW, the Department of General Services (DGS), 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. Grantee
agrees to maintain such records for possible audit for a minimum of three (3) years after final
payment, unless a longer period of records retention is stipulated.. Grantee 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, Grantee agrees
to include a similar right of the State to audit records and interview staff in any subcontract related
to performance of this Agreement. (Gov. Code §8546.7, Pub. Contract Code, CCR Title 2, Section
1896).
5. INDEMNIFICATION: Grantee agrees to indemnify, defend and save harmless the State of
California, CDFW, its officers, agents and employees from any and all claims and losses accruing
or resulting to any and all of Grantee's employees or agents, 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 accruing or resulting to any person, firm or corporation who may be injured or damaged by
Grantee in the performance of this Agreement.
6. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any.
dispute.
7. INDEPENDENT CONTRACTOR: Grantee, and the agents and employees of Grantee, in the
performance of this Agreement, shall act in an independent capacity and not as officers or
employees or agents of CDFW. Grantee acknowledges and promises that CDFW is not acting as
an employer to any individuals furnishing services or work pursuant to this Agreement.
8. NON-DISCRIMINATION CLAUSE: During the performance -of this Agreement, Grantee and its
subcontractors shall not unlawfully discriminate, harass, or allow harassment against any employee
or applicant for employment because of sex; race, color, ancestry, religious creed, national origin,
physical disability (including HIV and AIDS), mental disability, medical condition (e.g., cancer), age
(over 40), marital status, and denial of family care leave. Grantee and subcontractors shall ensure
that the evaluation and treatment of their employees and applicants for employment are free from
such discrimination and harassment. Grantee and subcontractors shall comply with the provisions
Page 1 of 6
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15-159
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b — NONPUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
of the Fair Employment and Housing Act (Gov. Code §12990 (a -f) et seq.) and the applicable
regulations promulgated there under (California Code of Regulations, Title 2, Section 7285 et seq.).
The applicable regulations of the Fair Employment and Housing Commission implementing
Government Code Section 12990 (a -f), set forth in Chapter 5 of Division 4 of Title 2 of the California
Code of Regulations, are incorporated into this Agreement by reference and made a part hereof as
if set forth in full. Grantee 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.
Grantee shall include the nondiscrimination and compliance provisions of this clause in all
subcontracts to perform work under the Agreement.
9. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is
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.
10. LICENSES AND PERMITS (If Applicable): Grantee is responsible for obtaining all licenses and
permits required by law for accomplishing any work required in connection with this Agreement.
Costs associated with permitting may be reimbursed under this Agreement only if approved in the
budget detail and payment provisions section.
11. RIGHTS IN DATA: Grantee 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 shall
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,
Grantee may copyright the same, except -that, as to any work which is copyrighted by Grantee, the
State reserves a royalty -free, nonexclusive and irrevocable license to reproduce, publish, and use
such work, or any part thereof, and to authorize others to do so.
12. CONTINGENT FUNDING: It is mutually understood between the Parties that this Agreement may
have been written before ascertaining the availability of State appropriation of funds for the mutual
benefit of both Parties in order to avoid program and fiscal delays which would occur if this
Agreement were executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available pursuant to the
California State Budget Act for the fiscal year(s) covered by this Agreement for the purposes of this
program. In addition, this Agreement is subject to any additional restrictions, limitations, or
conditions enacted by the Legislature of any statute enacted by the Legislature which may affect
the provisions, terms or funding of this Agreement in any manner.
It is mutually agreed that if the Legislature does not appropriate sufficient funds. for the Agreement,
the State has the option to terminate the Agreement under the termination clause or to amend the
Agreement to reflect any reduction of funds. CDFW has the option to invalidate the contract under
the 30 -day cancellation clause or to amend the Agreement to reflect any reduction in Grant Funds.
Page 2 of 6
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, . CALIFORNIA DEPARMENT OFFISH AND WILDLIFE
EXHIBIT 1b-- NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
13. RIGHT TO TERMINATE:
a. This agreement may be terminated by mutual consent of both parties or by any party upon thirty
(30) days written notice and delivered by USPS First Class or in person.
b. In the event of termination of this Agreement, Grantee shall immediately provide CDFW an
accounting of all funds received under this Agreement and return to CDFW all Grant Funds
received under this Agreement which have not been previously expended to provide the services
outlined within this Agreement.
c. Any such termination of this Agreement shall be without prejudice to any obligations or liabilities
of either party already accrued prior to such termination. CDFW shall reimburse Grantee for all
allowable and reasonable costs incurred by it for the Project, including foreseeable and
uncancellable obligations. Upon notification of termination from CDFW, Grantee shall use its
reasonable efforts to limit any outstanding financial commitments.
14. CONFIDENTIALITY OF DATA: Grantee shall protect from disclosure all information made available
by CDFW. Grantee shall not be required to keep confidential any data or information which is
publicly available, independently developed by Grantee, or lawfully obtained from third parties.
Written consent of CDFW must be obtained prior to disclosing information under this Agreement.
16.DISCLOSURE REQUIREMENTS: Any document or written report prepared in whole or in part
pursuant to this Agreement shall contain a disclosure statement indicating that the document or
written report was prepared through an Agreement with CDFW. The disclosure statement shall
include this Agreement number and dollar amount of all Agreements and subcontracts relating to
the preparation of such documents or written reports. The disclosure statement shall be contained
in a separate section of the document or written report.
If Grantee or any subcontractor(s) are required to prepare multiple documents or written reports,
the disclosure statement may also contain a statement indicating that the total Agreement amount
represents compensation for multiple documents or written reports. Grantee shall include in each
of its subcontracts for work under this Agreement, a provision which incorporates the requirements
stated within this section.
16. USE OF SUBCONTRACTOR(S): If Grantee desires to accomplish part of the services through the
use of one (1) or more subcontractors, the following conditions must be met:
a. Grantee shall submit any subcontracts to CDFW for inclusion in the grant file;
b. The Agreement between the primary Grantee 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, CDFW Grant Manager shall be notified immediately, in
writing.
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MMA CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b — NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
Grantee shall ensure any subcontract in excess of $100,000 entered into as a result of this
Agreement contains all applicable provisions stipulated in this Agreement.
17.POTENTIAL SUBCONTRACTOR(S): Nothing contained in this Agreement or otherwise shall
create any contractual relation between CDFW, and any subcontractor(s) and no subcontract shall
relieve Grantee of its responsibilities and obligations hereunder. Grantee agrees to be as fully
responsible to CDFW 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 Grantee. Grantee's obligation to pay its subcontractor(s) is an independent obligation
from CDFW's obligation to make payments to Grantee. As a result, CDFW shall have no obligation
to pay or to enforce the payment of any monies to any subcontractor.
18.TRAVEL AND PER DIEM (if applicable): Grantee agrees to pay reasonable travel and per diem
to its employees under this Agreement. The reimbursement rates shall not exceed those amounts
identified in the California Department of Human Resources travel reimbursement guidelines. No
travel outside the State of California shall be reimbursed unless prior written authorization is
obtained from CDFW.
19. LIABILITY INSURANCE (as applicable): Unless otherwise specified in the Agreement, upon
submitting a signed Agreement to the State, Grantee shall also furnish to the State either proof of
self-insurance or a certificate of insurance stating that there is liability insurance presently in effect
for Grantee of not less than $1,000,000 per occurrence for bodily injury and property damage liability
combined. Grantee agrees to make the entire insurance policy available to the State upon request.
The certificate of insurance will include provisions a, b, and c, in their entirety:
a. The insurer will not cancel the insured's coverage without thirty (30) days prior written notice to
the State;
b. The State of California, its officers, agents, employees, and servants are included as additional
insured, by insofar as the operations under this Agreement are concerned; and
c. The State will not be responsible for any premiums or assessments on the policy.
Grantee agrees that the bodily injury liability insurance herein provided for, shall be in effect at all
times during the term of this Agreement. In the event said insurance coverage expires at any time
or times during the term of this Agreement, Grantee agrees to provide, prior to said expiration date,
a new certificate of insurance evidencing insurance coverage as provided for herein for not less
than the remainder of the term of this Agreement, or for a period of not less than one (1) year. New
certificates of insurance are subject to the approval of the DGS, and Grantee agrees that no work
or services shall be performed prior to giving of such approval. In the event Grantee fails to keep in
effect, at all times, insurance coverage as herein provided, the State may, in addition to any other
remedies it may have, terminate this Agreement upon occurrence of such event.
CDFW will not provide for, nor compensate Grantee for any insurance premiums or costs for any
type or amount of insurance; The insurance required above, shall cover all Grantee supplied
Page 4 of 6
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15-162
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b -- NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
Q1996008
Newport Bay Conservancy
personnel and equipment used in the performance of this Agreement. When applicable, if
subcontractors performing work under this Agreement do not have insurance equivalent to the
above, Grantee's liability shall provide such coverage for the subcontractor, except for coverage for
error, mistake, omissions, or malpractice, which shall be provided by the subcontractor if such
insurance is required by the State.
20.GRANTEE STAFF REQUIREMENTS: Grantee represents that it has or shall secure at its own
expense, all staff required to perform the services described in this Agreement. Such personnel
shall not be employees of or have any contractual relationship with CDFW or any other
governmental entity.
21. PROPERTY ACQUISITIONS AND EQUIPMENT PURCHASES: Property, exclusive of real
property, as used in this exhibit shall include the following:
a. Equipment —Tangible property (including furniture and electronics) with a unit cost of $5,000 or
more and a useful life of four (4) years or more. Actual cost includes the purchase price plus all
costs to acquire, install, and prepare the equipment for its intended use.
b. Furniture, including standard office furnishings including desks, chairs, bookcases, credenzas,
tables, etc.
c. Portable Assets, including items considered `highly desirable' because of their portability and
value, e.g., calculators, computers, printers, scanners, shredders, cameras, etc.
d. Electronic Data Processing (EDP) Equipment, including 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.
Grantee may purchase property under this Agreement only if specified in the budget detail and
payment provisions section. All property purchased by Grantee is owned by Grantee. CDFW does
not claim title or ownership to the property but, requires Grantee to maintain accountability for all
property purchased with grant funds.
Title or ownership to property with a unit cost of $5,000 or more may be retained by Grantee or
Grantor upon end of the grant cycle; final disposition will be coordinated by CDFW's Grant Manager.
Bbfore property purchases made by Grantee are reimbursed by CDFW, Grantee shall submit paid
Grantee receipts identifying the Grant Agreement Number, purchase price, description of the
item(s), serial number(s), model number(s), and location, including street address where property
will be used during the term of this Agreement. Said paid receipts shall be attached to Grantee's
invoice(s).
Page 5 of 6
(Rev. 0511012019)
15-163
CALIFORNIA DEPARMENT OF FISH AND WILDLIFE
EXHIBIT 1b — NON-PUBLIC ENTITIES GENERAL GRANT PROVISIONS
NEW
Q1996008
Newport Bay Conservancy
Grantee shall keep, and make available to Grantor, adequate and appropriate records of all property
purchased with the Grant Funds.
Prior written authorization by the CDFW Grant Manager shall be required before Grantee will be
reimbursed for any property purchases not specified in the budget. Grantee shall provide to CDFW
Grant Manager, all particulars regarding the necessity for such property and the reasonableness of
the cost.
Property will only be considered for purchase approval if no other equipment owned by the applicant
is available and suitable for the project.
Grant Funds cannot be used to reimburse the project for equipment obtained prior to the beginning
of the grant term.
Grant Funds cannot be used for property if specifically prohibited in the authorizing legislation or
restricted in the terms. of the program.
Should this Agreement be cancelled for any reason, any property purchased with grant funds shall
be returned to Grantor.
State policies and procedures applicable to procurement with nonfederal funds, shall apply to
procurement by Grantee under this Agreement, provided that procurements conform to applicable
State law and the standards identified in this exhibit. These include, but are not limited to: statutes
applicable to State agencies; statutes applicable to State colleges and universities; public works
projects; the California Constitution governing University of California contracting, the State
Administrative Manual; statutes applicable to specific local agencies; applicable city and county
charters and implementing ordinances including policies and procedures incorporated in local
government manuals or operating memoranda.
Page 6 of 6
(Rev. 0511012019)
15-164
ATTACHMENT D AGREEMENT NUMBER AM. NO.
STATE OF CALIFORNIA 18-142
STANDARD AGREEMENT TAXPAYERS FEDERAL EMPLOYER
Std.2 (Grant - Rcv 01/18) IDENTIFICATION NO.
33-0545786
THIS AGREEMENT, made and entered into this day of
in the State of California, by and between State of California, through its duly elected or appointed, qualified and acting
TITLE OF OFFICER ACTING FOR STATE AGENCY
Executive Officer State Coastal Conservancy hereafter called the Conservancy, and
GRANTEE'S NAME
Newport Bav Naturalists and Friends dba Newport Bav Conservancv hereafter called the Grantee.
The Grantee, for and in consideration of the covenants, conditions, agreements, and stipulations of the Conservancy hereinafter expressed, does hereby agree
as follows:
SCOPE OF AGREEMENT
Pursuant to Chapter 6 of Division 21 of the California Public Resources Code, the State Coastal Conservancy ("the
Conservancy") hereby grants to the Newport Bay Naturalists and Friends dba Newport Bay Conservancy ("the
grantee") a sum not to exceed $1,049,991 (one million forty-nine thousand nine hundred ninety-one dollars), subject
to this agreement. The grantee shall use these funds to complete the following project ("the project") at Big Canyon
Nature Park in Newport Beach, CA in the County of Orange, as shown on Exhibit 1 , which is incorporated by
reference and attached.
The provisions on the following pages constitute a part of this agreement.
IN WITNESS WHEREOF, this agreement has been executed by the parties hereto, upon the date first above written.
STATE OF CALIFORNIA
GRANTEE
AGENCY
GRANTEE (If other than an individual, state whether a corporation, partnership, etc.)
State Coastal Conservancy
Newport Bay Naturalists and Friends dba Newport
Ba Conservanc
BY (Authorized Signature)
BY (Authorized Signature)
,CS
A!S
PRINTED NAME AND TITLE OF PERSON SIGNING
PRINTED NAME AND TITLE OF PERSON SIGNING
Samuel Schuchat, Executive Officer
Randall English, President
ADDRESS & PHONE NUMBER
ADDRESS & PHONE NUMBER
1515 Clay Street, 10th Floor
P.O. Box 10804
Oakland, CA 94612 Phone: 510 286-1015
Newport Beach, CA 92658 Phone: (949) 933-9654
AMOUNT ENCUMBERED BY THIS
PROGRAM/CATEGORY (CODE AND TITLE)
FUND TITLE/PROP NO.
DOCUMENT
Local Assistance
Water Quality,Supply, P ) (Pro 1
1 certify that this
$1,049,991.00
Federal Trust Fund Authority
agreement is exempt
from Department of
PRIOR AMOUNT ENCUMBERED
FUND ITEM
CHA
STATUTE
FISCAL YEAR
General Services'
FOR THIS AGREEMENT
PTER
approval.
$-0-
3760-101-0890 =
$969,555.00
14
2017
17/18
(F 19AP00153/ 15.614)(USFW S)
3760-101-608300007(B5862) =
$15,436.00
14
2017
17/18
3760-101-608300007(B5862) =
$65,000.00
23
2016
16/17
Erlinda Corpuz
Procurement and
Contracts Manager
TOTAL AMOUNT ENCUMBERED
PROJECT NAME
TO DATE
$1,049,991.00
Big Canyon Creek Restoration
/ hereby certify upon my own personal knowledge that budgeted funds are available for the period and purpose of the expenditure stated above.
SIGNATURE OF ACCOUNTING OFFICER
DATE
❑ GRANTEE ❑ ACCOUNTING ❑ PROJECT MANAGER ❑ CONTROLLER ❑ STATE AGENCY
15-165
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 2
SCOPE OF AGREEMENT (Continued)
The grantee will prepare final designs and implement restoration of 11 acres of coastal
sage upland, riparian, and freshwater marsh habitats as Phase 2A of the for the Big
Canyon Creek Restoration and Adaptation Project, within the 60 -acre Big Canyon Nature
Park. Specifically, the grantee will remove a dense, invasive Brazilian peppertree forest,
lay back Big Canyon Creek's banks to address incision and reconnect the creek to the
floodplain, and restore native habitats that are resilient to the newly -arrived invasive
beetle Polyphagous Shot Hole Borer. The project will also enhance public access and
education with improved trails and closure of illegal trails, as provided in the project
description of the mitigated negative declaration for the for the Big Canyon Creek
Restoration and Adaptation Project.
The grantee shall carry out the project in accordance with this agreement and a work
program, as provided in the "WORK PROGRAM" section, below. The grantee shall
provide $109,145 (one hundred nine thousand one hundred forty-five dollars) and any
funds beyond those granted under this agreement which are needed to complete the
project.
CONDITIONS PRECEDENT TO CONSTRUCTION AND DISBURSEMENT
The grantee shall not begin construction of the project and the Conservancy shall not be
obligated to disburse any funds unless and until the following conditions precedent have
been met:
1. The board of directors of the grantee has adopted a resolution designating positions
whose incumbents are authorized to negotiate and execute this agreement and
amendments to it on behalf of the grantee.
2. The Executive Officer of the Conservancy ("the Executive Officer") has approved in
writing:
a. A work program for the project, as provided in the "WORK PROGRAM" section,
below.
b. A plan for installation of signs and acknowledgment of Conservancy support, as
provided in the "SIGNS AND ACKNOWLEDGMENT" section, below.
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Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 3
CONDITIONS PRECEDENT TO CONSTRUCTION AND
DISBURSEMENT(Continued)
c. All contractors that the grantee intends to retain in connection with the project.
The grantee must provide written evidence to the Conservancy that each
contractor has complied with the bonding requirements described in the
"BONDING" section, below.
3. The grantee has provided written evidence to the Conservancy that:
a. All permits and approvals necessary to the completion of the project under
applicable local, state and federal laws and regulations have been obtained.
b. The grantee has provided for required insurance coverage, including additional
insured endorsement, as described in the "INSURANCE" section, below.
4. The grantee and the Conservancy and, if any portion of the property on which the
project will be constructed is not owned by the grantee, then the owner of that
property], have entered into, and the grantee has recorded, an agreement to protect the
public interest in the improvements or facilities constructed under this agreement, as
required by Public Resources Code section 31116(c).
5. Additionally, no Conservancy funds shall be disbursed until the grantee has provided
the Executive Officer with evidence that all other public funds available for the
project have been expended.
6. The grantee has completed and returned to the Conservancy the Federal Sub-Awardee
Questionnaire.
Notwithstanding the above, the grantee may begin to prepare plans, specifications and
engineering work upon meeting conditions precedent no. 1 and no. 2, and upon the
Executive Officer's review and approval of a separate work program (tasks, budget and
timeline) and approval of any contractors that the grantee will retain to perform the work.
15-167
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 4
ADDITIONAL GRANT CONDITIONfS]
The grantee shall also meet the following conditions:
1. n carrying out the project, the grantee shall ensure compliance with all applicable
impact avoidance, minimization and mitigation measures and monitoring and
reporting requirements for the project identified in the Big Canyon Coastal
Habitat Restoration and Adaptation Project Phase 2A Initial Study and
Mitigated Negative Declaration, and the Mitigation Monitoring and Reporting
Program and the National Environmental Policy Act.
Prior to the release of funds for construction, the grantee shall provide evidence of
completion of the following:
2. Wetland and Riparian Area Monitoring Plan. A plan to collect and report
monitoring data in a manner that is compatible and consistent with the Statewide
Wetland and Riparian Area Monitoring Program framework (currently available
at
http://www.my)yaterquality.ca.gov/monitoring council/wetland workgroup/index
.html).
3. Baseline Condition Report. A "Level 2" baseline wetland and riparian assessment
utilizing the California Rapid Assessment Method (CRAM) within the year prior
to the beginning of project construction, unless otherwise agreed upon in writing
by the Conservancy and the grantee. (More information is available at
http://www.cramwetlands.org/). The baseline CRAM assessment's budget and
timeline shall be included in the grantee's approved Work Plan. The CRAM
assessment shall be completed by a certified CRAM practitioner and the data shall
be uploaded at http://www.cramwetlands.org/.
4. The Publication of Project Information. The grantee shall upload project
information, including periodic monitoring data, to the project tracker for
"EcoAtlas", an online database and web -based viewer of stream and wetland
maps, restoration information, and monitoring results (currently available at
http://ptrack.ecoatlas.org/), to track project information and aggregate data.
5. Plan for Completion of Post -Construction CRAM Assessment. A budget and
timeline for the collection of at least one additional CRAM assessment following
construction of the project and prior to the completion date of the grant agreement
in order to document the change in wetland condition at the project site.
15-168
Newport Bay Naturalists and Friends dba Newport Bay Conservancy
Grant Agreement No. 18-142
Page 5
ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT
In carrying out the project, the grantee acknowledges that the Conservancy is disbursing
$969,555 from the USFWS National Coastal Wetlands Conservation (NCWC) Grant,
attached as Exhibit 2 to this agreement and incorporated by reference. The grantee shall
comply with all applicable terms and conditions that may be required by the NCWC grant
(attached as exhibit B) to the Conservancy or that may be necessary to enable the
Conservancy to comply with terms and conditions of the grants, including the following:
Compliance with all applicable terms and conditions of the NCWC Grant agreement
with the Conservancy, which is attached as Exhibit 2 to this agreement including, but
not limited to compliance with the USFWS Financial Assistance Award Terms and
Conditions, for awards effective as of January 1, 2017 (available at
http://www.fws.gov/grants/atc.html).
2. Compliance with NEPA, Section 7 of the ESA, Magnuson -Stevens Fishery
Conservation and Management Act, the Bald and Golden Eagle Protection Act, and
Section 106 of the NHPA.
3. U.S. Department of the Interior PA Certifications Regarding Debarment, Suspension
and Other Responsibility Matters, Drug -Free Workplace Requirements (DOI 2010
form), available at http://www.doi.gov/archive/nbc/formsmgt/forms/di20lO.pdf.
4. Provide information, reports and forms required of the Conservancy by the NCWC
Grant, including the following:
a. Information necessary to report under the Federal Funding Transparency Act by
completing the Federal Funding Transparency Act Reporting form attached as
Exhibit C.
b. Lobbying Certification (www.grants.gov Lobbying Form), available at
h!tp:H!gpplyQ7. rg ants.gov/apply/forms/sample/GG_LobbyingForm-Vl.l.pdf.
Assurances: Construction Programs (SF 424D), available at
http://gpplyQ7.grants.gov/qpply/forms/sqmple/Mandatory v/gpply/forms/sample/Mandatory SF424D-VI.l.pdf.
d. Financial status reports (accounting for funds — Standard Form (SF) 425) as and
when specified in the NCWC Grant award letter (page 3, under the heading
"Reporting Requirements").
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ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT (Continued)
Performance reports, as and when specified in the NCWC Grant award letter
(page 3, under the heading "Reporting Requirements") Also see 2 C.F.R. §
§200.327 et seq. The grantee is encouraged to submit federal reporting data in
metric units of measurement to facilitate federal reporting of program
accomplishments.
f. Conflict of Interest Disclosures and Other Mandatory Disclosures, as required in
the NCWC Grant award letter (page 4, under the headings "Conflict of Interest
Disclosures" and "Other Mandatory Disclosures").
5. Funds must be used consistent with the applicable provisions of the Buy American
Act (41 USC 10a, et seq.).
6. Compliance with the requirements of the federal Administrative Requirements found
at 2 C.F.R. Part 200, Subparts A through D (http://www.ecfr.gov/cgi-bin/text-
idx?SID=66fleac60ecb3f2fcd992313ae9775dc&node=pt2.1.200&rgn=div5). These
requirements include, but are not limited to, the following:
a. Record retention and access requirements related to record under 2 CFR §200.333
et seq.
b. Procurement Standards, found at 2 CFR § §200.317– 200, which require the
grantee to: use specified methods of procurement (§200.320); take all specified
affirmative steps to assure that minority businesses, women's business enterprises,
and labor surplus area firms are used when possible (§200.321); perform a cost or
price analysis in connection with every procurement action in excess of the
Simplified Acquisition Threshold, currently $150,000, but periodically adjusted
for inflation. (§200.323); and to incorporate into any procurement contract the
contracts must contain the applicable provisions described in Appendix II to Part
200— Contract Provisions for non -Federal Entity Contracts Under Federal
Awards (2 CFR §200.326).
Cost Principles found at 48 CFR § 1, Subpart 31.2, found at
hgps://www. ecfr. gov/cgii-
bin/textidx?c=ecfr&SID=d7b71 a950c5af733acOa257c 19fc578c&rg_ n=div6&view
=text&node=48 :1.0.1.5.3 0.2&idno=48.
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ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT (Continued)
7. The grantee shall comply with federal Davis Bacon Act and the Department of Labor
regulations concerning the Davis -Bacon Act and other federal and state wage and
hour laws. When required by the Davis -Bacon Act, the Department of Labor's (DOL)
government -wide implementation of the Davis -Bacon Act, or by Federal program
legislation, all laborers and mechanics employed by contractors or subcontractors to
work on construction contracts in excess of $2,000 financed by Federal assistance
funds must be paid wages not less than those established for the locality of the project
(prevailing wage rates) by the DOL. Non-federal entities must include in their
construction contracts a requirement that the contractor or subcontractor comply with
the requirements of the Davis -Bacon Act and the DOL regulations. In addition, the
grantee must comply with Pres. Executive Order 11246 of September 24, 1965,
entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of
October 13, 1967, and as supplemented in Department of Labor regulations (41 CFR
chapter 60)(all construction contracts awarded in excess of $10,000); the Copeland
"Anti -Kickback" Act (18 U.S.C. 874) as supplemented in Department of Labor
regulations (29 CFR part 3) (for contracts for construction or repair); and Sections
103 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-
330) as supplemented by Department of Labor regulations (29 CFR part 5)
(construction contracts awarded in excess of $2,000, and in excess of $2500 for other
contracts which involve the employment of mechanics or laborers).
8. The grantee shall comply with the requirements specified in 2 CFR Part 25, requiring
that the grantee register and maintain current its Central Contractor Registration and
obtain a Data Universal Numbering System (DUNS) identification number. On
execution of this Agreement, the grantee shall provide the Conservancy with its
current DUNS number.
9. The grantee shall comply with the requirements specified in 2 CFR Part 175,
prohibiting specified acts involving "trafficking in persons" by the grantee or its
employees during the term of the federal grant, as required by the Trafficking Victims
Protection Act (TVA, 22 U.S. C. 7101, et seq.). The grantee, its employees, sub -
recipients under this award, and subrecipients' employees may not engage in severe
forms of trafficking in persons during the period of time that the award is in effect;
procure a commercial sex act during the period of time that the award is in effect; or
use forced labor in the performance of the award or subawards.( "Severe forms of
trafficking in persons," "commercial sex act," and "coercion" have the meanings given
the TVPA, (22 U.S.C. 7102) The U.S. Fish and Wildlife Service may unilaterally
terminate this award, without penalty, if a sub -recipient that is a private entity -
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ADDITIONAL CONDITIONS RELATED TO FEDERAL GRANT (Continued)
a. Is determined to have violated an applicable prohibition in paragraph 9; or
b. Has an employee who is determined by the agency official authorized to terminate
the award to have violated an applicable prohibition in paragraph 9 through
conduct that is either—
i. Associated with performance under this award; or
ii. Imputed to the subrecipient using the standards and due process for imputing
the conduct of an individual to an organization that are provided in 2 CFR part
180, "OMB Guidelines to Agencies on Governmentwide Debarment and
Suspension (Nonprocurement)," as implemented by U.S Fish and Wildlife
Service.
TERM OF AGREEMENT
This agreement shall take effect when signed by both parties and received in the offices
of the Conservancy together with the resolution described in the "CONDITIONS
PRECEDENT TO CONSTRUCTION AND DISBURSEMENT" section of this
agreement. An authorized representative of the grantee shall sign the first page of the
originals of this agreement in ink.
This agreement shall run from its effective date through February 28, 2041 ("the
termination date") unless otherwise terminated or amended as provided in this agreement.
However, all work shall be completed by March 31,2021 ("the completion date"). The
grantee shall submit a final Request for Disbursement no later than February 28, 2021.
AUTHORIZATION
The signature of the Executive Officer of the Conservancy on this agreement certifies
that at its May 16, 2019 meeting, the Conservancy adopted the resolution included in the
staff recommendation attached as Exhibit 3. This agreement is executed under that
authorization.
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Standard Provisions
WORK PROGRAM
Before beginning construction, the grantee shall submit a detailed work program to the
Executive Officer for review and written approval of its consistency with the purposes of
this grant agreement. The work program shall include:
Construction plans and specifications: which have been certified by a licensed
architect or registered engineer, or approved by the grantee's Public Works Director.
2. A schedule of completion for the project specifically listing the completion date for
each project component and a final project completion date.
3. A detailed project budget. The project budget shall describe all labor and materials
costs of completing each component of the project, including the grantee's labor and
materials costs and costs to be incurred under a contract with any third party retained
by the grantee for work under this agreement. For each project component, the project
budget shall list all intended funding sources, including the Conservancy and
USFWS' grant, the grantee's required contribution and all other sources of monies,
materials, or labor. The grantee shall review the plans on-site with Conservancy staff.
If all or any part of the project to be funded under this agreement will be performed by
third parties ("contractors") under contract with the grantee, then the grantee shall, prior
to initiating any contractor selection process, submit the selection package, including any
applicable construction plans and specifications that have been certified or approved as
described above, to the Executive Officer for review and written approval as to
consistency with the purposes of this grant agreement. Upon approval by the Executive
Officer, the grantee shall proceed with the contractor selection process. Prior to final
selection of a contractor, the grantee shall submit to the Executive Officer for written
approval the names of all contractors that the grantee intends to hire. The grantee shall
then comply with the above paragraph regarding submission and approval of a work
program prior to construction.
disbursing $969,555 from the USFWS National Coastal Wetlands Conservation (NCWC)
Grant, attached as Exhibit 2 to this agreement and incorporated by reference. The work
program may be modified without amendment of this agreement upon the grantee's
submission of a modified work program and the Executive Officer's written approval of
it. However, if this agreement and the work program are inconsistent, the agreement
shall control.
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SIGNS AND ACKNOWLEDGMENT
Prior to beginning the project, the grantee shall submit a plan to the Executive Officer for
the installation of signs and acknowledgment of Conservancy support. Except as the
Executive Officer agrees otherwise, the plan shall commit the grantee to mention the
Conservancy's support in its project -related press releases, contacts with the media, and
social media postings, and on its website.
The grantee shall install and maintain a sign or signs visible from the nearest public
roadway identifying the project, acknowledging Conservancy assistance and displaying
the Conservancy's logo, and directing the public to the project]. The Conservancy shall
provide to the grantee specifications for the signsThe signs shall also acknowledge
funding from the Water Quality, Supply, and Infrastructure Improvement Act of 2014
(Proposition 1) by using the official logo prepared by the California Natural Resources
Agency, which the Conservancy has available in various file formats.] The grantee may
incorporate the required information into other signs as approved by the Executive
Officer. In special circumstances, where the placement of signs or the general
specifications are inappropriate, the Executive Officer may approve alternative, more
appropriate methods for acknowledging the sources of funding. The grantee shall
submit plans describing the number, design, placement and wording of the signs, or the
specifications of a proposed, alternative method. The Conservancy will withhold final
disbursement until the signs are installed as approved by the Conservancy.
If the grantee intends to use any contractors on any portion of the project to be funded
under this agreement, construction shall not begin until each contractor has furnished a
performance bond in favor of the grantee and in favor of the Conservancy, individually or
as a co -obligee, in the following amounts: for faithful performance, one hundred percent
(100%) of the contract value; and for labor and materials, one hundred percent (100%) of
the contract value. This requirement shall not apply to any contract for less than $20,000.
Any bond furnished under this section shall be executed by an admitted corporate surety
insurer licensed in the State of California.
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COSTS AND DISBURSEMENTS
When the Conservancy determines that all "CONDITIONS PRECEDENT TO
CONSTRUCTION AND DISBURSEMENT" have been fully met, the Conservancy shall
disburse to the grantee, in accordance with the approved project budget, a total amount
not to exceed the amount of this grant, as follows:
The withholding for this agreement is five percent. The Conservancy shall disburse
funds for costs incurred to date, less five percent, upon the grantee's satisfactory progress
under the approved work program, and upon the grantee's submission of a "Request for
Disbursement" form, which shall be submitted no more frequently than monthly but no
less frequently than quarterly. The Conservancy shall disburse the five percent withheld
upon the grantee's satisfactory completion of construction and compliance with the
"PROJECT COMPLETION" section, below, and upon the Conservancy's acceptance of
the project.
The Conservancy will reimburse the grantee for expenses necessary to the project when
documented by appropriate receipts. The Conservancy will reimburse travel and related
expenses at actual costs not to exceed the rates provided in Title 2, Division 1, Chapter 3,
Subchapter 1, Article 2 of the California Code of Regulations ("CCR"), except that
reimbursement may be in excess of these rates upon documentation that these rates are
not reasonably available to the grantee. Reimbursement for the cost of operating a
private vehicle shall not, under any circumstance, exceed the current rate specified by the
State of California for unrepresented state employees as of the date the cost is incurred.
The Conservancy will reimburse the grantee for other necessary expenses if those
expenses are reasonable in nature and amount taking into account the nature of the
project, its location, and other relevant factors.
The grantee shall request disbursements by filing with the Conservancy a fully executed
"Request for Disbursement" form (available from the Conservancy). The grantee shall
include in the form its name and address, the number of this agreement, the date of the
submission, the amount of the invoice, the period during which the work was actually
done, and an itemized description, including time, materials, and expenses incurred of all
work done for which disbursement is requested. Hourly rates billed to the Conservancy,
and specified in the approved work program budget shall be equal to the actual
compensation paid by grantee to employees, which may include employee benefits. The
form shall also indicate cumulative expenditures to date, expenditures during the
reporting period, and the unexpended balance of funds under the grant agreement.
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COSTS AND DISBURSEMENTS (Continued)
An authorized representative of the grantee shall sign the forms. Each form shall be
accompanied by:
1. All receipts and any other source documents for direct expenditures and costs that the
grantee has incurred.
2. Invoices from contractors that the grantee engaged to complete any portion of the
work funded under this agreement and any receipts and any other source documents
for costs incurred and expenditures by any such contractor, unless the Executive
Officer makes a specific exemption in writing.
3. A supporting progress report summarizing the current status of the project and
comparing it to the status required by the work program (budget, timeline, tasks, etc.)
including written substantiation of completion of the portion of the project for which
the grantee is requesting disbursement.
The grantee's failure to fully execute and submit a Request for Disbursement form,
including attachment of supporting documents, will relieve the Conservancy of its
obligation to disburse funds to the grantee until the grantee corrects all deficiencies.
EXPENDITURE OF FUNDS AND ALLOCATION OF FUNDING AMONG
BUDGET ITEMS
The total amount of this grant may not be increased except by written amendment to this
agreement. The grantee shall expend funds consistent with the approved project budget.
Expenditure on items contained in the approved project budget, other than overheard and
indirect costs, may vary by as much as ten percent without prior approval by the
Executive Officer, provided that the grantee first submits a revised budget to the
Conservancy and requests disbursement based on the revised budget. Any deviation
greater than ten percent, and any deviation that shifts funds from approved budget items
into an overhead or indirect costs category, must be identified in a revised budget
approved in advance and in writing by the Executive Officer. The Conservancy may
withhold payment for items which exceed the amount allocated in the project budget by
more than ten percent and which have not received the approval required above. Any
increase in the funding for any particular budget item shall mean a decrease in the
funding for one or more other budget items unless there is a written amendment to this
agreement.
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PROJECT COMPLETION
Within thirty days of completion of construction of the project, the grantee shall supply
the Conservancy with evidence of completion by submitting a final report which
includes:
1. A report certifying completion of the project according to the approved work
program, including photographs documenting project completion.
2. Documentation that signs are installed as required by the "SIGNS AND
ACKNOWLEDGMENT" section of this agreement.
3. A fully executed final "Request for Disbursement."
4. A final inspection report by a licensed architect or registered engineer or the grantee's
Public Works Director, and a copy of "as built" drawings of the completed project.
5. Evidence that the following activities have been completed:
a. Post -Construction Condition Report. A "Level 2" CRAM wetland or riparian
assessment following project construction and prior to the project completion
date. An updated budget (including an identified funding source) and timeline for
the post -construction "Level 2" CRAM assessment required in the
ADDITIONAL GRANT CONDITIONS section, above. The CRAM assessment
shall be completed by a certified CRAM practitioner and the data shall be
uploaded at http://www.cramwetlands.org/.
b. Update Project Information. All relevant project information has been updated in
the project tracker on EcoAtlas (currently available at http://ptrack.ecoatlas.org/)
to reflect completion of the project.
Within thirty days of grantee's submission of the above, the Conservancy shall determine
whether the grantee has satisfactorily completed the project. If so, the Conservancy shall
issue to the grantee a letter of acceptance of the project. The project shall be deemed
complete as of the date of the letter.
EARLY TERMINATION, SUSPENSION AND FAILURE TO PERFORM
Before the project has commenced, either party may terminate this agreement for any
reason by providing the other party with seven days notice in writing.
Before the project is complete, the Conservancy may terminate or suspend this agreement
for any reason by providing the grantee with seven days notice in writing. In either case,
the grantee shall immediately stop work under the agreement and take all reasonable
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EARLY TERMINATION, SUSPENSION AND FAILURE TO PERFORM
(Continued)
measures to prevent further costs to the Conservancy. The Conservancy shall be
responsible for any reasonable and non -cancelable obligations incurred by the grantee in
the performance of this agreement prior to the date of the notice to terminate or suspend,
but only up to the undisbursed balance of funding authorized in this agreement. Any
notice suspending work under this agreement shall remain in effect until further written
notice from the Conservancy authorizes work to resume.
If the grantee fails to complete the project as required, or fails to fulfill any other
obligations of this agreement prior to the termination date, the grantee shall be liable for
immediate repayment to the Conservancy of all amounts disbursed by the Conservancy
under this agreement. The Conservancy may, at its sole discretion, consider extenuating
circumstances and not require repayment for work partially completed. This paragraph
shall not be deemed to limit any other remedies the Conservancy may have for breach of
this agreement.
Before the project is complete, the grantee may terminate this agreement for any reason
by providing the Conservancy with seven days notice in writing and repaying to the
Conservancy all amounts disbursed by the Conservancy under this agreement . The
Conservancy may, at its sole discretion, consider extenuating circumstances and allow
early termination without repayment for work partially completed.
The parties expressly agree to waive, release and relinquish the recovery of any
consequential damages that may arise out of the termination or suspension of this
agreement under this section.
The grantee shall include in any agreement with any contractor retained for work under
this agreement a provision that entitles the grantee to suspend or terminate the agreement
with the contractor for any reason on written notice and on the same terms and conditions
specified in this section.
OPERATION AND MAINTENANCE
The grantee shall use, manage, maintain and operate the project throughout the term of
this agreement consistent with the purposes for which the Conservancy's grant was made.
The grantee assumes all operation and maintenance costs of these facilities and
structures; the Conservancy shall not be liable for any cost of maintenance, management,
or operation. The grantee may be excused from its obligations for operation and
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OPERATION AND MAINTENANCE (Continued)
maintenance during the term of this agreement only upon the written approval of the
Executive Officer.
For purposes of this agreement, "operation costs" include direct costs incurred for
material and labor needed for operations, utilities, insurance, and similar expenses.
"Maintenance costs" include ordinary repairs and replacements of a recurring nature
necessary to prolong the life of capital assets and basic structures, and the expenditure of
funds necessary to replace or reconstruct capital assets or basic structures.
MITIGATION
Without the written permission of the Executive Officer, the grantee shall not use or
allow the use for mitigation (in other words, to compensate for adverse changes to the
environment elsewhere) of any portion of real property on which the Conservancy has
funded construction. In providing permission, the Executive Officer may require that all
funds generated in connection with any authorized or allowable mitigation on the real
property shall be remitted promptly to the Conservancy. As used in this section,
mitigation includes, but is not limited to, any use of the property in connection with the
sale, trade, transfer or other transaction involving carbon sequestration credit or carbon
mitigation.
INSPECTION
Throughout the term of this agreement, the Conservancy shall have the right to inspect
the project area to ascertain compliance with this agreement.
INDEMNIFICATION AND HOLD HARMLESS
The grantee shall be responsible for, indemnify and hold harmless the Conservancy, its
officers, agents, and employees from any and all liabilities, claims, demands, damages, or
costs, including, without limitation, litigation costs and attorneys fees, resulting from or
arising out of the willful or negligent acts or omissions of the grantee, its officers, agents,
contractors, subcontractors, and employees, or in any way connected with or incident to
this agreement, except for the active negligence of the Conservancy, its officers, agents,
or employees. The duty of the grantee to indemnify and hold harmless includes the duty
to defend as provided in Civil Code section 2778. This agreement supersedes any right
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INDEMNIFICATION AND HOLD HARMLESS (Continued)
the grantee may have as a public entity to indemnity and contribution as provided in Gov.
Code Sections 895 et seq.
The grantee waives any and all rights to any type of express or implied indemnity or right
of contribution from the State, its officers, agents, or employees, for any liability
resulting from, growing out of, or in any way connected with or incident to this
agreement.
Nothing in this agreement is intended to create in the public or in any member of it rights
as a third -party beneficiary under this agreement.
The obligations in this "INDEMNIFICATION AND HOLD HARMLESS" section shall
survive termination of this agreement.
INSURANCE
The grantee shall procure and maintain insurance, as specified in this section, against
claims for injuries to persons and damage to property that may arise from or in
connection with any activities of the grantee or its agents, representatives, employees,
volunteers, or contractors associated with the project undertaken pursuant to this
agreement.
As an alternative, with the written approval of the Executive Officer, the grantee may
satisfy the coverage requirement in whole or in part through: (a) its contractors'
procurement and maintenance of insurance for work under this agreement, if the
coverage otherwise fully satisfies the requirements of this section; or (b) the grantee's
participation in a "risk management" plan, self insurance program or insurance pooling
arrangement, or any combination of these, if consistent with the coverage required by this
section.
The grantee shall maintain property insurance, if required below, throughout the term of
this agreement. Any required errors and omissions liability insurance shall be maintained
from the effective date through two calendar years after the completion date. The grantee
shall maintain all other required insurance from the effective date through the completion
date.
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INSURANCE (Continued)
1. Minimum Scope of Insurance. Coverage shall be at least as broad as:
a. Insurance Services Office ("ISO") Commercial General Liability coverage,
occurrence basis (Form CG 00 01) or comparable.
b. Automobile Liability coverage: ISO Form Number CA 0001, Code 1 (any auto).
c. Workers' Compensation insurance as required by the Labor Code of the State of
California, and Employer's Liability insurance.
2. Minimum Limits of Insurance. The grantee shall maintain coverage limits no less
than:
a. General Liability: $2,000,000 per occurrence for bodily injury,
(Including operations, products personal injury and property damage. If
and completed operations, as Commercial General Liability Insurance or other
applicable) form with a general aggregate limit is used, either
the general aggregate limit shall apply separately
to the activities under this agreement, or the
general aggregate limit shall be twice the required
occurrence limit.
b. Automobile Liability: $1,000,000 per accident for bodily injury and
property damage.
c. Worker's Compensation As required by law with Employer's Liability of
no less than $1,000,000
3. Deductibles and Self -Insured Retentions. Any deductibles or self-insured retentions
must be declared to and approved by the Executive Officer.
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INSURANCE (Continued)
4. Required Provisions Concerning the Conservancy and the State of California.
a. Each insurance policy required by this section shall be endorsed to state that
coverage shall not be canceled by either party, except after thirty days' prior
written notice by first class mail has been given to the Conservancy; or in the
event of cancellation of coverage due to nonpayment, after ten days prior written
notice to the Conservancy. The grantee shall notify the Conservancy within two
days of receipt of notice that any required insurance policy will lapse or be
cancelled At least ten days before an insurance policy held by the grantee lapses
or is cancelled, the grantee shall provide the Conservancy with evidence of
renewal or replacement of the policy.
b. The grantee hereby grants to the State of California, its officers, agents,
employees, and volunteers, a waiver of any right to subrogation which any insurer
of the grantee may acquire against the State of California, its officers, agents,
employees, and volunteers, by virtue of the payment of any loss under such
insurance. Grantee agrees to obtain any endorsement that may be necessary to
effect this waiver of subrogation, but this provision applies regardless of whether
or not the grantee has received a waiver of subrogation endorsement from the
insurer.
The general liability and automobile liability policies are to contain, or be
endorsed to contain, the following provisions:
(i) The State of California, its officers, agents, employees, and volunteers are
to be covered as additional insureds with respect to liability arising out of
automobiles owned, leased, hired or borrowed by or on behalf of the
grantee; and with respect to liability arising out of work or operations,
including completed operations, performed by or on behalf of the grantee
including materials, parts or equipment furnished in connection with the
work or operations.
(ii) For any claims related to this agreement, the grantee's insurance coverage
shall be primary insurance as respects the State of California, its officers,
agents and employees, and not excess to any insurance or self-insurance of
the State of California.
(iii)The limits of the additional insured coverage shall equal the limits of the
named insured coverage regardless of whether the limits of the named
insurance coverage exceed those limits required by this agreement.
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INSURANCE (Continued)
5. Acceptability of Insurers. Insurance shall be placed with insurers admitted to transact
business in the State of California and having a current Best's rating of `B+:VII" or
better or, in the alternative, acceptable to the Conservancy and approved in writing by
the Executive Officer.
6. Verification of Coverage. The grantee shall furnish the Conservancy with original
certificates and amendatory endorsements, or copies of the applicable policy
language, effecting coverage required by this clause. All certificates and
endorsements are to be received and approved by the Executive Officer before work
commences. The Conservancy may require, at any time, complete, certified copies of
all required insurance policies, including endorsements affecting the coverage.
7. Contractors. The grantee shall include all contractors as insureds under its policies or
shall require each contractor to provide and maintain coverage consistent with the
requirements of this section. To the extent generally available, grantee shall also
require each professional contractor to provide and maintain Errors and Omissions
Liability insurance appropriate to the contractor's profession and in a reasonable
amount in light of the nature of the project with a minimum limit of liability of
$1,000,000
8. Premiums and Assessments. The Conservancy is not responsible for premiums and
assessments on any insurance policy.
AUDITS/ACCOUNTING/RECORDS
The grantee shall maintain financial accounts, documents, and records (collectively,
"records") relating to this agreement, in accordance with the guidelines of "Generally
Accepted Accounting Principles" ("GAAP") published by the American Institute of
Certified Public Accountants. The records shall include, without limitation, evidence
sufficient to reflect properly the amount, receipt, deposit, and disbursement of all funds
related to the implementation of the project, and the use, management, operation and
maintenance of the real property]. Time and effort reports are also required. The grantee
shall maintain adequate supporting records in a manner that permits tracing from the
request for disbursement forms to the accounting records and to the supporting
documentation.
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AUDITS/ACCOUNTING/RECORDS (Continued)
Additionally, the U.S. Fish and Wildlife Service, the U.S. Inspector General, the
Conservancy or their agents may review, obtain, and copy all records relating to
performance of the agreement. The grantee shall provide the Conservancy or its agents
with any relevant information requested and shall permit the Conservancy or its agents
access to the grantee's premises upon reasonable notice, during normal business hours, to
interview employees and inspect and copy books, records, accounts, and other material
that may be relevant to a matter under investigation for the purpose of determining
compliance with this agreement and any applicable laws and regulations.
The grantee shall retain the required records for a minimum of three years following the
later of final disbursement by the Conservancy, and the final year to which the particular
records pertain. The records shall be subject to examination and audit by the
Conservancy and the Bureau of State Audits during the retention periods.
If the grantee retains any contractors to accomplish any of the work of this agreement, the
grantee shall first enter into an agreement with each contractor requiring the contractor to
meet the terms of this section and to make the terms applicable to all subcontractors.
The Conservancy may disallow all or part of the cost of any activity or action that it
determines to be not in compliance with the requirements of this agreement.
The grantee shall conduct an audit in accordance with Title 2, Code of Federal
Regulations, Part 200 (2 CFR 200). The audit shall be conducted at least every two
years, completed within twelve months after the end of the grantee's fiscal year, and
submitted to the Conservancy within thirty days after the completion of the audit. The
Conservancy shall provide technical assistance to the grantee, at the grantee's request, for
meeting the requirements of 2 CFR 200.
NONDISCRIMINATION
During the performance of this agreement, the grantee and its contractors shall not deny
the agreement's benefits to any person on 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. The grantee shall insure that the evaluation
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Grant Agreement No. 18-142
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NONDISCRIMINATION (Continued)
and treatment of employees and applicants for employment are free of such
discrimination. The grantee and contractors 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 Conservancy to implement such article. The
grantee shall permit access by representatives of the Department of Fair Employment and
Housing and the Conservancy upon reasonable notice at any time during the normal
business hours, but in no case less than 24 hours' notice, to such of its books, records,
accounts, and all other sources of information and its facilities as said Department or the
Conservancy shall require to ascertain compliance with this clause. The grantee and its
contractors 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.)
The grantee shall include the nondiscrimination and compliance provisions of this clause
in all contracts to perform work under this agreement.
PREVAILING WAGE
Work done under this grant agreement may be subject to the prevailing wage and other
related requirements of the California Labor Code, Division 2, Part 7, Chapter 1, sections
1720-1861. If required bylaw to do so, the grantee shall pay prevailing wage to all
persons employed in the performance of any part of the project and otherwise comply
with all associated requirements and obligations.
The grantee shall review applicable statutory provisions and the regulations adopted
under the provisions and the information available on the Department of Industrial
Relations website (http://www.dir.ca.gov/Public-Works/PublicWorks.html) to determine
its responsibilities. The grantee may also review the Conservancy publication,
Information on Current Status of Prevailing Wage Laws for State Coastal Conservancy
Grantees (March 2015), available from the Conservancy on request, for additional
information.
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DRUG-FREE WORKPLACE
The grantee's signature on this agreement constitutes the certification required by
Government Code Section 8355, which requires that all state grantees provide a drug-free
workplace by doing all of the following:
(1) Publishing a statement notifying employees that the unlawful manufacture,
distribution, dispensation, possession, or use of a controlled substance is prohibited in the
person's or organization's workplace and specifying actions that will be taken against
employees for violations of the prohibition.
(2) Establishing a drug-free awareness program to inform employees about all of the
following:
a. The dangers of drug abuse in the workplace.
b. The person's or organization's policy of maintaining a drug-free workplace.
c. Any available drug counseling, rehabilitation, and employee assistance programs.
d. The penalties that may be imposed upon employees for drug abuse violations.
(3) Requiring that each employee engaged in the performance of the grant be given a
copy of the drug-free workplace statement and that, as a condition of employment on the
grant, the employee agrees to abide by the terms of the statement.
UNION ORGANIZING
By signing this agreement, grantee acknowledges the applicability of Government Code
Sections 16645 through 16649 to this agreement and certifies that no state funds
disbursed by this agreement will be used to assist, promote or deter union organizing. If
grantee makes expenditures to assist, promote or deter union organizing, grantee agrees
to maintain records sufficient to show that no state funds, including the funds provided
under this agreement, have been used for these purposes, and shall provide these records
to the Attorney General upon request.
INDEPENDENT CAPACITY
The grantee, and the agents and employees of grantee, in the performance of this
agreement, shall act in an independent capacity and not as officers or employees or
agents of the State of California.
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Page 23
ASSIGNMENT
Without the written consent of the Executive Officer, the grantee may not assign this
agreement in whole or in part.
TIMELINESS
Time is of the essence in this agreement.
EXECUTIVE OFFICER'S DESIGNEE
The Executive Officer shall designate a Conservancy project manager who shall have
authority to act on behalf of the Executive Officer with respect to this agreement. The
Executive Officer shall notify the grantee of the designation in writing.
AMENDMENT
Except as expressly provided in this agreement, no changes in this agreement shall be
valid unless made in writing and signed by the parties to the agreement. No oral
understanding or agreement not incorporated in this agreement shall be binding on any of
the parties.
SURVIVAL
The obligations in the "INDEMNIFICATION AND HOLD HARMLESS" section,
above, shall survive the termination of this agreement.
LOCUS
This agreement is deemed to be entered into in the County of Alameda.
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TO:
FROM:
ATTACHMENT E
CITY OF
NEWPORT BEACH
City Council Staff Report
January 22, 2019
Agenda Item No. 14
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Robert Stein, Assistant City Engineer, rstein@newportbeachca.gov
Makana Nova, Associate Planner, mnova@newportbeachca.gov
PHONE: 949-644-3322 and 949-644-3249
TITLE: Big Canyon Coastal Habitat Restoration and Adaptation Project —
Phase 2A — Adoption of Mitigated Negative Declaration (MND) and
Approve Project Design
ABSTRACT:
Adoption of a Mitigated Negative Declaration (MND) and Mitigation Monitoring and
Reporting Program (MMRP) in accordance with the California Environmental Quality Act
(CEQA) and approval of the design of the Big Canyon Coastal Habitat Restoration and
Adaptation Project -Phase 2a.
RECOMMENDATION:
a) Adopt Resolution No. 2019-9, A Resolution of the City Council of the City of Newport
Beach, California, Adopting Mitigated Negative Declaration No. ND2018-001 (SCH
No. 2018081098) for the Big Canyon Coastal Habitation Restoration and Adaptation
Project - Phase 2A (PA2018-078), including the Mitigation Monitoring and Reporting
Plan, prepared for the Big Canyon Coastal Habitat Restoration and Adaptation Project
- Phase 2A (PA2018-078), pursuant to the California Environmental Quality Act, State
CEQA Guidelines and City Council Policy K-3; and
b) Approve the design for the Big Canyon Coastal Habitat Restoration and Adaptation
Project — Phase 2A.
FUNDING REQUIREMENTS:
This is a joint project between the City and the Newport Bay Conservancy. Project design
is funded by the Newport Bay Conservancy through a joint license agreement.
If the MND is adopted, the Newport Bay Conservancy, assisted by City staff, will pursue
grant funding for project construction and implementation. A license agreement between
the City and the Newport Bay Conservancy will be considered by the City Council at a
later date if grant funding is secured.
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Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 2a
Adoption of Mitigated Negative Declaration (MND) and Approve Project Design
January 22, 2019
Page 2
DISCUSSION:
The proposed project site, referred to as Phase 2a, is located in the City's Big Canyon
Park between Back Bay Drive and Jamboree Road in the center section of the Big Canyon
Nature Park (the dashed yellow area of the Location Map in Attachment No. CC 2). Over
the past century, the creek and canyon habitat have been impacted by stockpiling and
spreading of bay dredge spoils over the site, streambed erosion, degraded creek water
quality, and the disappearance of native plants and trees. Additionally, the proliferation
and expansion of a Brazilian Pepper Tree grove has overgrown a large area of the
lowlands, greatly reducing the habitat value and becoming a concealment for improper
and/or illegal night time activities.
Phase 2a includes the restoration of historic riparian habitat over the 11.3 -acre site by
removing non-native vegetation and replanting native species, creating a mosaic of native
and sustainable habitats as well as stabilizing the creek and floodplain with erosion
control measures. Additionally, improved/enhanced trails and closure of illegal trails for
public access and education is part of the project. The project also includes maintenance
of the restored habitat area and erosion control measures to ensure that the plants are
established and erosion control features function as designed.
Appropriate management of the natural resources within Big Canyon Park is important to
meet the City's goal of enhancing habitat and recreational resources within existing open
space. The proposed habitat restoration project is planned in coordination with the
Resource and Recreation Management Plan (RRMP) prepared by the Irvine Ranch
Conservancy under contract with the City of Newport Beach for the Big Canyon Nature
Park. The RRMP provides a framework for long term management, habitat restoration,
and recreational improvements of the park.
Phase 1 of the habitat restoration project was completed in mid -2017. Currently, the
Newport Bay Conservancy is pursuing grant funding to implement Phase 2a (proposed
project). Future restoration phases will be proposed as a separate project, as future
funding is available. Potential future restoration efforts within Big Canyon would also be
coordinated with the RRMP.
Harbor. Beaches. and Recreation Commission
The proposed restoration project was brought to the Parks, Beaches and Restoration
Commission on December 4, 2018. The Commission authorized the removal of the
Pepper Trees in accordance with Council Policy G-1 and recommended approval of the
project by City Council.
With adoption of the MND for CEQA compliance, Newport Bay Conservancy, assisted by
City staff, can submit permit applications to the regulatory agencies including the
California Coastal Commission for approval of a Coastal Development Permit. The
Coastal Commission has jurisdiction as the project site is designated as Tidelands Trust.
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Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 2a
Adoption of Mitigated Negative Declaration (MND) and Approve Project Design
January 22, 2019
Page 3
ENVIRONMENTAL REVIEW:
An Initial Study and MND have been prepared in compliance with the California
Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council
Policy K-3.
Based upon the analysis of the Initial Study, the environmental categories within which
the project would have either no impact or less than significant impact were: Aesthetics,
Agricultural/Forestry Resources, Air Quality, Geology/Soils and Seismicity, Greenhouse
Gas Emissions, Hazards and Hazardous Materials, Hydrology/Water Quality, Land Use/
Planning, Mineral Resources, Population/Housing, Public Services, Recreation,
Transportation/Traffic, Tribal Cultural Resources, and Utilities/Service Systems. Based
upon the analysis of the Initial Study, there were no environmental categories within which
the project would have potentially significant unavoidable impacts. Specific mitigation
measures have been included to reduce the potentially significant adverse effects to a
less than significant level for Biological Resources, Cultural Resources, and Noise. A
MMRP has been prepared for consideration and is included with the Final Initial
Study/MND as Exhibit "D" of the draft resolution (Attachment No. CC 1).
The draft Mitigated Negative Declaration was circulated for a 30 -day comment period
beginning on September 4, 2018 and ending on October 5, 2018. Nine public and agency
comment letters were submitted for consideration and are included with responses as
Exhibit "C" of Attachment No. CC 1. Although not required pursuant to CEQA, written
responses have been prepared for each of the comment letters and they will be included
in the Final Initial Study/MND. The errata and final version of the MND are provided as
Exhibit "D" of Attachment No. CC 1.
On the basis of the entire environmental review record, the proposed project, with
mitigation measures, will have a less than significant impact upon the environment and
there are no known substantial adverse effects on human beings that would be caused.
Additionally, there are no long-term environmental goals that would be compromised by
the project, nor cumulative impacts anticipated in connection with the project. The
mitigation measures identified and incorporated in the Mitigation Monitoring and
Reporting Program are feasible and will reduce the potential environmental impacts to a
less than significant level.
NOTICING:
As part of the MND public review process, the City mailed the Notice of Availability and
Intent to Adopt a MND with a detailed description of the project to all property owners
within 300 feet of the project site including the Bluffs Homeowners' Community
Association and the Eastbluff Apartment Owners' Association. Notices were also posted
at the main trail entrances within Big Canyon Park. Additionally, notice of the MND public
review period and process was published in the Daily Pilot.
Since the Notice of Availability announced a Zoning Administrator meeting date of
October 8, 2018, a second notice was prepared and distributed in the manner described
above indicating the January 22, 2019 City Council meeting date.
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Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 2a
Adoption of Mitigated Negative Declaration (MND) and Approve Project Design
January 22, 2019
Page 4
The agenda item was also noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment CC 1 — Resolution Adopting MND No. ND2018-001
Attachment CC 2 — Vicinity Map
Attachment CC 3 — Big Canyon Habitat Restoration and Adaptation Project - Phase 2a
Design Plans
15-191
ATTACHMENT E1
RESOLUTION NO. 2019-9
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ADOPTING MITIGATED
NEGATIVE DECLARATION NO. ND2018-001
(SCH#2018081098) FOR THE BIG CANYON COASTAL
HABITAT RESTORATION AND ADAPTATION PROJECT -
PHASE 2A (PA2018-078)
WHEREAS, Big Canyon Park is located at 1900 Back Bay Drive in the City of
Newport Beach ("City") (Assessor's Parcel No. 440-092-79) and is legally described as
shown in Exhibit "A";
WHEREAS, Big Canyon Park is a valuable natural resource and recreational
opportunity that includes coastal scrub, riparian scrub, riparian forest, alkali -saline
wetland, and freshwater emergent wetland habitats native to Southern California and
worthy of continuous protection, conservation, and management efforts to preserve it;
WHEREAS, large areas of the creek and native riparian habitat of the Big Canyon
Park have been overtaken by non-native invasive species;
WHEREAS, urbanization in the Big Canyon watershed has resulted in increased
peak and sustained peak storm flows which have incised the channel bed and eroded
channel banks in Big Canyon Creek within the Big Canyon Nature Park resulting in
reduced floodplain connectivity and unstable embankments;
WHEREAS, Big Canyon Creek is listed as an impaired waterbody for selenium
and a total maximum daily load ("TMDL") has been established for the creek;
WHEREAS, the 2009 Central Orange County Integrated Regional and Coastal
Watershed Management Plan lists restoration of Big Canyon Nature Park as a key project
for implementing restoration objectives in Upper Newport Bay;
WHEREAS, the proposed Big Canyon Coastal Habitat Restoration and
Adaptation Project — Phase 2A ("Project") is in conformance with the 2014 guidelines of
the Big Canyon Resource and Recreation Management Plan ("RRMP") and is also
consistent with the requirements of the Natural Community Conservation Plan/Habitat
Conservation Plan ("NCCP") for the Central and Coastal sub -region of Orange County in
the event the City elects to incorporate the Big Canyon Nature Park into the NCCP;
WHEREAS, implementation of the Project will: (1) restore historic wetland and
riparian habitat by removing non-native vegetation, restoring the area with native
plantings, (2) stabilize the creek and floodplain, and (3) improve water quality in Big
Canyon Creek and Newport Bay by eliminating stagnant area in Big Canyon Creek;
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Resolution No. 2019-9
Page 2 of 4
WHEREAS, Newport Bay Naturalists and Friends, a California nonprofit
corporation, doing business as Newport Bay Conservancy ("Newport Bay Conservancy"),
has received a grant from the California Ocean Protection Council to prepare construction
documents for the Project;
WHEREAS, the Newport Bay Conservancy has entered into a Revocable License
Agreement dated February 12, 2018 ("License Agreement"), attached hereto and
incorporated herein by reference as Exhibit "B," from the City to perform design tasks and
prepare the construction documents;
WHEREAS, a public meeting was held by the Parks, Beaches, and Recreation
Commission on December 4, 2018, in the City Council chambers, 100 Civic Center Drive,
Newport Beach, California. A notice of time, place, and purpose of the meeting was given
in accordance with the Newport Beach Municipal Code ("NBMC"). Evidence, both written
and oral, was presented to, and considered by, the Parks, Beaches, and Recreation
Commission at this meeting. At this meeting, the Commission recommended City Council
approval of the Project design;
WHEREAS, a public meeting was held by the City Council on January 22, 2019, in
the City Council chambers, 100 Civic Center Drive, Newport Beach, California. A notice of
time, place, and purpose of the meeting was given in accordance with the NBMC. Evidence,
both written and oral, was considered by the City Council at this hearing; and
WHEREAS, after thoroughly considering the mitigated negative declaration
("MND") for the Project, the public testimony, and written submissions of all interested
persons desiring to be heard, the City Council finds the following facts, findings, and
reasons to support adopting the MND:
1. Pursuant to the California Environmental Quality Act ("CEQA"), California
Public Resources Code Sections 21000, et seq., the CEQA Guidelines (14
Cal. Code of Regulations, Sections 15000 et seq.), and City Council Policy
K-3, the Big Canyon Coastal Habitat Restoration and Adaption Project -
Phase 2A ("Project") is defined as a project and as such subject to
environmental review,
2. The City and Newport Bay Conservancy caused to be prepared an Initial
Study/Mitigated Negative Declaration ("MND") in compliance with CEQA,
the State CEQA Guidelines and City Council Policy K-3.
3. Notice of the availability of the draft MND was provided and the draft MND
was made available for public review for a thirty (30) -day comment period
beginning on September 4, 2018 and ending October 5, 2018. Notice of the
Availability of the draft MND was given in accordance with CEQA, the State
CEQA Guidelines, and City Council Policy K-3. Nine (9) comment letters
were received during the thirty (30) -day public review period.
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Resolution No. 2019-9
Page 3 of 4
4. Although not required pursuant to CEQA, written responses to the nine (9)
comments received were prepared. The comments and responses were
considered by the City Council while considering the adoption of the MND.
The comments to the MND and responses to comments do not change the
determinations or represent a significant departure from the original
document that would warrant recirculation of the MND.
5. The Draft MND and the Final MND {which includes the Responses to
Comments, Errata, and Mitigation Monitoring and Reporting Program
("MMRP")) are attached hereto and incorporated herein as Exhibits "C," "D "
and "E," respectively. The documents and all related materials, which
constitute the record upon which this decision was based, are on file with
the City of Newport Beach, Community Development Department, Planning
Division, 100 Civic Center Drive, Bay 1 B, Newport Beach, California 92660.
6. On the basis of the entire environmental review record, the Project, with
mitigation measures, will have a less than significant impact upon the
environment and there are no known substantial adverse effects on human
beings that would be caused. Additionally, there are no long-term
environmental goals that are compromised by the Project, nor cumulative
impacts anticipated in connection with the Project. The mitigation measures
identified by the MND and incorporated in the MMRP are feasible and will
reduce potentia# environmental impacts to a less than significant level.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows..
Section 1: The City Council does hereby adopt MND No. ND2018-401
(SCH#2018081098) attached as Exhibits "C" and "D," and "E" incorporated herein by
reference, which together comprise the MND.
Section 2: The City Councii does hereby direct the Public Works Director and the
Newport Bay Conservancy to incorporate the mitigation measures contained in the MMRP
included in the Final MND that is attached hereto as Exhibit "E" in the plans and
specifications for the Project to be implemented.
Section 3: The recitals provided in this resolution are true and correct,
constitute, in part, the findings of the City Council for the adoption of the attached MND,
and are incorporated in the operative part of this resolution.
Section 4: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
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Resolution No. 2019-9
Page 4 of 4
Section 5: The requirement for environmental review under CEQA is satisfied
by the Draft MND and the Final MND (which includes the City Planning Division's
Responses to Comments) that are attached hereto as Exhibits "C" and "D," respectively.
Section G: This resolution shall take effect immediately upon its adoption by the
City Council and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 22nd day of January, 2019.
Diane B.
Mayor
W4/ 1
i OEM
City Clerk
APPROVED AS TO FORM:
CITY ATTORNEY' 0FFlCE
Aaron C. Harp
City Attorney
Attachments: Exhibit A — Legal Description
Exhibit B — Revocable License Agreement Between the City of
Newport Beach and Newport Bay Naturalists and
Friends DBA Newport Bay Conservancy
Exhibit C — Draft Mitigated Negative Declaration
Exhibit D -- Final Mitigated Negative Declaration
Exhibit E — Mitigation Monitoring and Reporting Program
15-195
EWPo ATTACHMENT F
City of Newport
i Beach
C'41Fo P"\P BA#: 20-033
BUDGET AMENDMENT
Department: Public Works
ONE TIME: ❑� Yes ❑No
Requestor: Angela Crespi
Prepared by: Walid Harding 1 11
❑ CITY MANAGER'S APPROVAL ONLY
Finance Director: Date I - 3 ( `
I] COUNCIL APPROVAL REQUIRED City Clerk: Date
EXPLANATION FOR REQUEST:
To increase revenue estimates and expenditure appropriations to record grant revenue from Newport Bay ❑from existing budget appropriations
Conservancy for restoration work in Big Canyon Nature Park. [2]from additional estimated revenues
❑from unappropriated fund balance
IFUI
Fund # Org Object
138 13801 511050
Fund # Org Object
,138 13801 980000
_ i—
I
t--
Fund # Object Description
20X12 Environmental Contrib CIP - Private Refunds & F
Increase or Decrease $
$1,688,731.00
Subtotal $1,688,731.00
Project Description Increase or (Decrease) $
20X12 Environmental Contrib CIP - Cip Expenditures For GI $1,688,731.00
Subtotal $1,688,731.00
Increase or (Decrease) $
Subtotal
No Change In Fund Balance
15-196