HomeMy WebLinkAbout07 - Newport Bay Trash Wheel — Approval of PSACITY OF
NEWPORT BEACH
City Council Staff Report
TO:
FROM:
PREPARED BY:
PHONE:
TITLE:
ABSTRACT:
March 24, 2020
Agenda Item No. 7
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
John Kappeler, Senior Engineer,
jkappeler@newportbeachca.gov
949-644-3218
Newport Bay Trash Wheel — Approval of Professional Services
Agreement with Burns & McDonnell Engineering Company, Inc.
The Newport Bay Trash Wheel project will provide a trash wheel collecting vessel that
can capture garbage flowing down San Diego Creek from inland Orange County into
Newport Bay. Staff requests approval of a Professional Services Agreement with Burns
& McDonnell Engineering Company, Inc. to prepare construction documents and obtain
regulatory permits and approvals for the project.
RECOMMENDATION:
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) Approve a Professional Services Agreement with Burns & McDonnell Engineering
Company, Inc. at a not -to -exceed amount of $464,925, and authorize the Mayor and
City Clerk to execute the agreement; and
c) Approve Budget Amendment No. 20-041 appropriating $224,925 in increased
expenditures from the Upper Bay Reserve unappropriated fund balance to the Public
Works, Tidelands Maintenance account (10001-980000-17X12) for the Newport Bay
Water Wheel project 17X12.
FUNDING REQUIREMENTS:
The current Capital Improvement Program budget includes $300,000 for the design of the
Newport Bay Water Wheel project. The source of these funds is a grant from the Ocean
Protection Council (OPC). Through the terms of the grant agreement, $280,000 is
allocated for design and permitting and $20,000 for geotechnical work.
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If the approved, the budget amendment appropriates an additional $224,925 in increased
expenditures from the Upper Bay Reserve unappropriated fund balance. A portion of the
requested funds, $184,925, will be combined with the existing $280,000 budgeted for
design and permitting to fund the total not -to -exceed amount of $464,925. The remaining
portion requested, $40,000, will be combined with the $20,000 budgeted for geotechnical
services.
Table 1: Fundinq for Proiect Desiqn and Geotechnical Services
Funding Source
Design Services
Burns & McDonnell
Geotechnical
Services On-call
Total
OPC Grant Funds
$280,000
$20,000
$300,000
Upper Bay Reserve Funds
$184,925
$40,000
$224,925
Total
$464,925
$60,000
$524,925
The Upper Bay Reserve Fund, also referred to as the Upper Newport Bay Restoration
Fund, is a type of State Tideland funds. As outlined in the Senate Bill establishing the
funds, the use is reserved for use "by the City for Upper Newport Bay environmental
restoration and improvement on tide and submerged lands for the preservation,
maintenance, and enhancement of the lands in their natural state and the reestablishment
of the natural state of the lands so that they may serve as ecological units for scientific
study, as open space, and as environments which provide food and habitat for birds and
marine life, and which favorably affect the scenery and climate of the area." Staff feels
that this project is in keeping with these guidelines. (See Attachment D)
DISCUSSION:
San Diego Creek is the largest creek entering Newport Bay and contributes approximately
80% of the freshwater flow into the bay. Every year, large volumes of trash and debris
enter the bay from the creek. A large portion of this trash/debris is deposited on the
vegetated inter -tidal areas around Upper Bay, the beaches at the Newport Dunes, and
around the lower harbor. Some of the trash and debris exits the Harbor Jetty into the
open ocean with a portion deposited on beaches along the Balboa Peninsula and Big
Corona.
The amount of trash and vegetation debris entering the bay has not been directly
measured. The City's log boom deployed at North Star Beach captures 20-80 tons of
trash and debris annually. About 20 percent of the mass is trash with the remainder
debris. Volunteers pick up trash in the upper bay and harbor during various events
throughout the year including Coastal Cleanup day, Earth Day, Martin Luther King Day,
and the Underwater Clean Up. "Help Your Harbor" does monthly cleanups, with
"Surfrider" and "Zero Trash Newport" also performing monthly cleanups. Volunteers do
not pick up reeds and other organic debris. The total mass of trash (with no reeds) picked
up by volunteers may be in the range of 20-30 tons annually. However, the trash and
debris that remains is considerable and it can be safely estimated that the amount of trash
and debris entering the bay is well over 100 tons annually, perhaps exceeding 300 tons
during a very wet year.
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At the July 2016 meeting of the Water Quality/Tidelands Committee, Pat Fuscoe, Fuscoe
Engineering, reviewed options (including booms, skimmers, and "Bandalong" litter trap)
for capturing trash in San Diego Creek. He concluded that a trash wheel at the mouth of
San Diego Creek, supplemented with installation of several trash booms upstream of the
Highway 405, were the best options for reducing trash loading from the creek into the
bay.
The concept for the Newport Bay Trash Wheel Project is based on a device successfully
operating in Baltimore Maryland's Inner Harbor. The Baltimore trash wheel is a moored
vessel that uses booms to move trash to the trash wheel where rotating trash rakes
convey the trash onto a conveyor belt that moves the trash up and into a dumpster. The
trash rakes and the conveyor belts are powered by the creek's current and solar power.
Once the dumpster is full, a towboat transports the dumpster barge to an unloading ramp.
In 2017, the Water Quality Tidelands Committee, chaired by Council Member Dixon,
identified the trash wheel project as a Committee priority. Fuscoe prepared a technical
memorandum for the trash wheel project that became the basis for a 2018 grant
application to the State of California Ocean Protection Council (OPC). The City was
subsequently successful in securing one of the two grants awarded last year at an amount
of $1.68 million for the design and construction of the Trash Wheel. The grant application
received support from Newport Bay Conservancy, Surfrider Foundation Newport Beach,
Help Your Harbor, and Orange County Coastkeeper. The project has also received
support from the California Department of Fish and Wildlife and State Coastal
Conservancy.
The City's proposed project has a special challenge: the loaded dumpster cannot be
towed from San Diego Creek to the unloading ramp at the Newport Dunes due to a
concrete breakwater obstruction located at the mouth of San Diego Creek. Instead, the
dumpster will sit on a short, elevated rail system in the creek, which will be winched
landside when full. Landside, a standard front -loading garbage truck will directly dump
the contents of the 8 -cubic yard dumpster into the truck body. The project design must
incorporate features to safely and securely operate and transport the trash landside
without leakage or loss of trash during windy and/or storm conditions. As the project will
be highly visible, project aesthetics are critical. In addition to providing detailed
construction documents for this unique project, regulatory agencies staff may require
detailed supplementary analyses before approving permits or providing other approvals.
This project will require a Coastal Development Permit from the California Coastal
Commission, and permits from the Army Corps of Engineers, California Department of
Fish & Wildlife, and the Regional Water Quality Control Board. Due to the proposed
location of the Trash Wheel within San Diego Creek, easements are also required with
the landowner, the Irvine Company, and Orange County Flood Control.
Design, Construction and Operation/Maintenance Cost Considerations
As the proposed Trash Wheel will be the first of its kind built on the west coast, there is
some uncertainty on what studies and analyses the regulatory agencies will require as
part of the permit applications.
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As such, the not -to -exceed limit of $464,925 in the proposed agreement with Burns &
McDonnell Engineering Company, Inc. includes $60,000 to prepare additional studies if
needed.
The concept -level estimate for construction cost is $1.6 million, but could range a bit
higher due to the leading edge nature of this project. With 10% contingency, the
construction budget would be about $1.8 million. However, at the initial concept design
level, a higher construction contingency is prudent. If City Council approves the proposed
agreement, staff will initially limit the consultant's scope to focus on preparing a detailed,
high confidence, cost estimate. This will entail some detailed analysis of some of the
project elements so that costs can be accurately ascertained. Staff proposes coming back
to City Council to report on the detailed cost estimate and obtain confirmation that Council
remains comfortable with continuing to move forward with the detailed design.
The OPC grant allocates $1.38 million for construction. To supplement the higher
anticipated construction cost, staff will submit a grant application in April 2020 for an
additional $500,000 for the project's construction from OCTA's Measure M2 -Tier 1
program. As part of the grant application package, a resolution passed by City Council
authorizing submission of the grant application is necessary. City Council consideration
to approve the authorizing resolution would be a separate Council action.
Staff met with OCTA on March 3, 2020 and verified that the Trash Wheel is eligible for
construction grant funding. Based on the meeting, City staff believes the grant application
will be favorably received by the OCTA grant reviewers with a very good chance for
funding. Grant awards would be announced in fall with formal agreements signed at the
end of the year. Staff would report to Council on the Measure M award as soon as it is
announced. A 20% City cash match would be required with the Measure M grant award.
The match could be funded from the Upper Bay Reserve Fund. There are also other
funding opportunities that staff is exploring; however, it is too early to assess if these
potential sources are viable. Table 2 summarizes the projected funding sources for
project's design/geotechnical work and construction.
Table 2: Summary of Fundina for Desian and Construction
Funding Source
Design Funding
Construction
Funding
Total
OPC Grant Funds
$300,000
$1,380,000
$1,680,000
Measure M Grant Funds
(projected award)
$0
$500,000
$500,000
Upper Bay Reserve Funds
$224,925
$100,000
$324,925
Total
$524,925
$1,980,000
$2,504,925
The expected useful lifetime of the trash wheel is 20 -years. Maintenance costs are
estimated at $12,000 for annual operations and maintenance, and $15,000 for dumpster
unloading, for a total of $27,000 annually. Costs would be higher for a long rain season.
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Newport Bay Trash Wheel — Approval of Professional Services Agreement with Burns &
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Cost/Benefit Considerations
During the first year of operation, the trash wheel may remove 25-50 tons per year. As
staff becomes more familiar with the operation, removal rates may double. As a
comparison, the Baltimore Trash Wheel removes 400 tons annually in a larger watershed.
Assuming a removal rate of 50 tons per year and an overall cost of $3 million for design,
construction and operation/maintenance, the removal cost is estimated to be in the range
of $3,000 to $5,000 per ton. As a comparison, the cost of trash removed in catch basin
screen inserts is estimated to be in the range of $10,000 to $20,000 per ton. For the trash
captured at the Santa Ana -Delhi Channel (SAD) Diversion, the cost of trash removed may
be in the range of $50,000 to $60,000 per ton. Note that the catch basin screen inserts
and SAD Diversion project are full capture systems; the trash wheel only removes
floatable trash. The SAD Diversion project also has a water reuse component.
Design Consultant Selection
In October 2019, staff issued a Request for Proposals (RFP) to solicit proposals for
engineering, design and permitting of the project. Two proposals were received, from
Burns & McDonnell and Moffatt & Nichol. As shown in Table 3, senior staff reviewed and
scored the proposals and selected Burns & McDonnell based in part on demonstrating a
clearer understanding of the project's challenges. The recommended consultant
successfully provided professional engineering services for the Big Canyon Phase 1
project completed in 2017.
Table 3: Pr000sal Scores
Proposer
Total Score
Overall Rank
Burns & McDonnell
89.3
1
Moffatt and Nichol
87.0
2
Staff requests City Council approval of the Professional Services Agreement with Burns
& McDonnell Engineering Company, Inc. at a not -to -exceed amount of $464,925.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find the professional services agreement with Burns
& McDonnell 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 September 25, 2018, adopted Resolution No. 2018-67 (Attachments D),
a resolution of the City Council of the City of Newport Beach adopting Mitigated Negative
Declaration No. ND2018-002, (SCH 2018081013), prepared for the Newport Bay Water
Wheel (PA2018-153), pursuant to the California Environmental Quality Act, State CEQA
Guidelines and City Council Policy K-3.
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NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Location Map
Attachment B — Professional Services Agreement
Attachment C — Budget Amendment
Attachment D — Tide and Submerged Lands - A3 SB 573
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ATTACHMENT A
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ATTACHMENT B
PROFESSIONAL SERVICES AGREEMENT
WITH BURNS & MCDONNELL ENGINEERING COMPANY, INC. FOR
ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR THE
NEWPORT BAY TRASH WHEEL PROJECT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 24th day of March, 2020 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"),
and BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation
("Consultant"), whose address is 140 S. State College Boulevard, Suite 100, Brea,
California 92821, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide professional engineering, design and
construction management services for the City's proposed trash wheel project
("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2023, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
ffA
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this Agreement
and Consultant shall perform the Services in accordance with the schedule included in
Exhibit A. In the absence of a specific schedule, the Services shall be performed to
completion in a diligent and timely manner. The failure by Consultant to strictly adhere to
the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of Billing
Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Four Hundred Sixty Four
Thousand Nine Hundred Twenty Five Dollars and 00/100 ($464,925.00), without prior
written authorization from City. No billing rate changes shall be made during the term of
this Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the specific
task in the Scope of Services to which it relates, the date the Services were performed,
the number of hours spent on all Work billed on an hourly basis, and a description of any
reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar
days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses specifically
identified in Exhibit B to this Agreement or specifically approved in writing in advance by
City.
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4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the Project,
but which is not included within the Scope of Services and which the parties did not
reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated David Pohl to be its Project
Manager. Consultant shall not remove or reassign the Project Manager or any personnel
listed in Exhibit A or assign any new or replacement personnel to the Project without the
prior written consent of City. City's approval shall not be unreasonably withheld with
respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project any
of its personnel assigned to the performance of Services upon written request of City.
Consultant warrants that it will continuously furnish the necessary personnel to complete
the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project Manager
and any other assigned staff shall be equipped with a cellular phone to communicate with
City staff. The Project Manager's cellular phone number shall be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. City's
Public Works Director or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all existing
relevant information on file at City. City will provide all such materials in a timely manner
so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with community professional standards
and with the ordinary degree of skill and care that would be used by other reasonably
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competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties"), from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), and which relate (directly or indirectly) to the
negligence, recklessness, or willful misconduct of the Consultant or its principals, officers,
agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone
employed directly or indirectly by any of them or for whose acts they may be liable, or any
or all of them.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the sole
negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in
this indemnity shall be construed as authorizing any award of attorneys' fees in any action
on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and
liability regardless of whether any insurance policies are applicable. The policy limits do
not act as a limitation upon the amount of indemnification to be provided by the
Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
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limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
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16. SUBCONTRACTING
The subcontractors and subconsultants authorized by City, if any, to perform Work
on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for
all acts and omissions of any subcontractors or subconsultants. Nothing in this
Agreement shall create any contractual relationship between City and any subcontractors
or subconsultants nor shall it create any obligation on the part of City to pay or to see to
the payment of any monies due to any such subcontractors or subconsultants other than
as otherwise required by law. City is an intended beneficiary of any Work performed by
the subcontractors and subconsultants for purposes of establishing a duty of care
between the subcontractors, subconsultants, and City. Except as specifically authorized
herein, the Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents, subcontractors and subconsultants, in the course of
implementing this Agreement, shall become the exclusive property of City, and City shall
have the sole right to use such materials in its discretion without further compensation to
Consultant or any other party. Additionally, all material posted in cyberspace by
Consultant, its officers, employees, agents, subcontractors and subconsultants, in the
course of implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 CADD data delivered to City shall include the professional stamp of the
engineer or architect in charge of or responsible for the Work. City agrees that Consultant
shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage conditions
or duration; or (c) any use by City, or anyone authorized by City, of CADD data for
additions to this Project, for the completion of this Project by others, or for any other
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Project, excepting only such use as is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a
CD, and should comply with the City's digital submission requirements for improvement
plans available from the City's Public Works Department. The City will provide Consultant
with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall
be transmitted to City in formats compatible with Microsoft Office and/or viewable with
Adobe Acrobat.
17.4 All improvement and/or construction plans shall be prepared with indelible
waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six
inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to
City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting
("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90)
days after finalization of the Project. For more detailed requirements, a copy of the City
of Newport Beach Standard Design Requirements is available from the City's Public
Works Department.
18. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents the
Consultant's judgment as a design professional and is supplied for the general guidance
of City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the accuracy of
such opinions as compared to Consultant or contractor bids or actual cost to City.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
20. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including costs,
contained in Consultant's Documents provided under this Agreement.
21. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3) years,
or for any longer period required by law, from the date of final payment to Consultant
under this Agreement. All such records and invoices shall be clearly identifiable.
Burns & McDonnell Engineering Company, Inc. Page 7
7-14
Consultant shall allow a representative of City to examine, audit and make transcripts or
copies of such records and invoices during regular business hours. Consultant shall allow
inspection of all Work, data, Documents, proceedings and activities related to the
Agreement for a period of three (3) years from the date of final payment to Consultant
under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
25.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
Burns & McDonnell Engineering Company, Inc. Page 8
7-15
26. NOTICES
26.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
26.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
26.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: David Pohl
Burns & McDonnell Engineering Company, Inc.
140 S. State College Boulevard, Suite 100
Brea, CA 92821
27. CLAIMS
27.1 Unless a shorter time is specified elsewhere in this Agreement, before
making its final request for payment under this Agreement, Consultant shall submit to
City, in writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27.2 To the extent that Consultant's claim is a "Claim" as defined in Public
Contract Code section 9204 or any successor statute thereto, the Parties agree to follow
the dispute resolution process set forth therein. Any part of such "Claim" remaining in
dispute after completion of the dispute resolution process provided for in Public Contract
Code section 9204 or any successor statute thereto shall be subject to the Government
Claims Act requirements requiring Consultant to file a claim in strict conformance with the
Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim"
as defined in Public Contract Code section 9204 or any successor statute thereto,
Burns & McDonnell Engineering Company, Inc. Page 9
7-16
Consultant shall be required to file such claim with the City in strict conformance with the
Government Claims Act (Government Code sections 900 et seq.).
28. TERMINATION
28.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
29. PREVAILING WAGES
29.1 Pursuant to the applicable provisions of the Labor Code of the State of
California, not less than the general prevailing rate of per diem wages including legal
holidays and overtime Work for each craft or type of workman needed to execute the
Work contemplated under the Agreement shall be paid to all workmen employed on the
Work to be done according to the Agreement by the Consultant and any subcontractor or
subconsultant. In accordance with the California Labor Code (Sections 1770 et seq.), the
Director of Industrial Relations has ascertained the general prevailing rate of per diem
wages in the locality in which the Work is to be performed for each craft, classification, or
type of workman or mechanic needed to execute the Agreement. A copy of said
determination is available by calling the prevailing wage hotline number (415) 703-4774,
and requesting one from the Department of Industrial Relations. The Consultant is
required to obtain the wage determinations from the Department of Industrial Relations
and post at the job site the prevailing rate or per diem wages. It shall be the obligation of
the Consultant or any subcontractor or subconsultant under him/her to comply with all
State of California labor laws, rules and regulations and the parties agree that the City
shall not be liable for any violation thereof.
29.2 Unless otherwise exempt by law, Consultant warrants that no contractor,
subcontractor or subconsultant was listed on the bid proposal for the Services that it is
not currently registered and qualified to perform public work. Consultant further warrants
that it is currently registered and qualified to perform "public work" pursuant to California
Burns & McDonnell Engineering Company, Inc. Page 10
7-17
Labor Code section 1725.5 or any successor statute thereto and that no contractor,
subcontractor or subconsultant will engage in the performance of the Services unless
currently registered and qualified to perform public work.
30. STANDARD PROVISIONS
30.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
30.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
30.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
30.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
30.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
30.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
30.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
30.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
30.9 Controllinq Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
Burns & McDonnell Engineering Company, Inc. Page 11
7-18
30.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor,
subconsultant, employee or applicant for employment because race, religious creed,
color, national origin, ancestry, physical handicap, medical condition, marital status, sex,
sexual orientation, age or any other impermissible basis under law.
30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
30.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Burns & McDonnell Engineering Company, Inc. Page 12
7-19
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: 6.9. ►7 • o -Ln
By: A
A r n C. Harp
Ci Attorney
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Will O'Neill
Mayor
CONSULTANT: Burns & McDonnell
Engineering Company, Inc., a Missouri
Corporation
Date:
By:
Renita M. Mollman
Vice President
Date:
By:
Stephen Kane
Vice President
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Burns & McDonnell Engineering Company, Inc. Page 13
7-20
EXHIBIT A
SCOPE OF SERVICES
ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR NEWPORT
BAY TRASH WHEEL PROJECT
The Consultant shall complete the following the tasks:
REVIEW TECHNICAL REPORT & SITE VISIT
The Consultant shall review the Technical Report (Attachment A to the RFP) and
conduct a site visit to assess the site conditions at the location proposed for the Trash
Wheel. The Consultant's project manager, civil design engineer, structural engineer, and
permit lead shall attend the site visit.
2. MEET WITH CLEARWATER MILLS
The Consultant shall coordinate and meet with the Clearwater Mills Trash Wheel
designers ("Clearwater Mills") on the same day as the scheduled site visit to review the
preliminary design and collaborate on the conceptual design (Task 3) of the pilings, trash
conveyance, off -haul, power, monitoring and security systems. The collaboration with
Clearwater Mills shall include detailed discussions of operational experience, best
practices and lessons learned from the existing installations in Baltimore. It is assumed
Clearwater Mills shall attend the site visit and provide the design and operation
information at that time.
3. PREPARE CONCEPT PLAN
The Consultant shall prepare a concept plan of the trash wheel and railway system
based on the concept prepared for the Mitigated Negative Declaration (MND) and
Technical Memorandum as described in the RFP and its attachments. The concept shall
focus on critical issues that include: site layout, site access, truck movement, rail and
winch system, roll -off container movement, tidal impacts to the trash wheel, site grading
and retaining walls, site security, meeting power requirements, irrigation water source,
control and monitoring instrumentation, and screening/aesthetics. The Consultant shall
develop the concept plan to include the design for a pivoting and telescoping gangway,
and for a hopper to positively convey trash from the conveyor into the dumpster
considering expected windy and raining conditions. Clearwater Mills shall provide the
concept plan drawings for the Trash Wheel (floating portion) for inclusion in the concept
design plan set which shall include a plan sheet, elevation/sections, and detail sheets
equivalent to a 20% design level. Clearwater Mills shall provide input on the rail and winch
system, hopper, roll -off container movement, trash wheel, site security, power
requirements, control and monitoring instrumentation to the Consultant. During this
phase, The Consultant shall consult with the City on related issues such as control of free
liquid and waste collection logistics.
Burns & McDonnell Engineering Company, Inc. Page A-1 7-21
4. ASSIST STAFF WITH STAKEHOLDER MEETINGS
The Consultant shall assist the City staff at meetings with Orange County Flood
Control District ("OCFCD") and the Irvine Company to discuss the concept plan. With the
help of the Consultant's team member, Clearwater Mills, shall prepare meeting materials
(presentation exhibits and PowerPoint Slides) that include the concept plans showing the
footprint of the project, pilings within the floodway, proposed waste collection, conveyance
and transport. The Consultant shall also provide presentation materials that address likely
permit issues and concerns raised during the MND process. The Consultant shall provide
the City with the meeting presentation materials prior to this meeting for review and input.
The OCFCD (or other agencies) will not require HEC -RAS modeling, or any other
detailed channel modeling.
5. ASSIST STAFF PRESENTATIONS
The Consultant shall attend up to five (5) meetings. The Consultant's project
manager and design engineer shall attend the meetings. Clearwater Mills shall participate
in up to two (2) meetings in Newport Beach and the remaining by conference call with the
City to provide updates on design progress, issues and coordination with the design team.
6. PERFORM SITE TOPOGRAPHIC SURVEYS
The Consultant shall perform site topographic surveys to represent field conditions
and provide horizontal and vertical controls for the project. The Consultant shall contact
Orange County Watersheds to obtain the latest bathymetric information. A licensed
professional land surveyor ("PLS") shall be subcontracted to survey the site, provide
topographic contours and survey shots on key features, and to provide boundary survey
information, benchmarks and project control points. The PLS shall tie in the provided
bathymetry data into a survey base file (AutoCAD 2019) for use in the design.
7. REVIEW GEOTECHNICAL REPORT
The geotechnical report will be prepared by others and is not part of this scope of
work. The Consultant shall review the geotechnical report provided by the City. The
geotechnical consultant will provide a report on the liquefaction loading subject and
parameters for the 30% design and the final geotechnical report based on the
geotechnical field investigation for the 60% design.
8. PREPARE A DETAILED DRAINAGE ANALYSIS
The Consultant shall prepare a drainage analysis for the site with
recommendations for preventing pollutants from entering San Diego Creek. The
Consultant shall consider the water quality storm and larger design storms when
evaluating how fugitive waste or other pollutants may escape the system and wash back
into San Diego Creek. From this evaluation, the Consultant shall design controls in
accordance with the City's drainage standards to minimize or prevent any such pollution
that could result from the project.
Burns & McDonnell Engineering Company, Inc. Page A-2 7.22
9. PREPARE DETAILED PILE DESIGN ANALYSES
The Consultant shall prepare a pile design analyses for the Trash Wheel assembly
and associated rail system. The system shall consider short duration, high intensity
storms that coincide with tides at Median Higher High Water ("MHHW") and Median Lower
Low Water ("MLLW"). The Consultant shall provide the structural engineering calculations
for the Trash Wheel guide piles; trash container piles and frame; anchoring system for
trash boom; and retaining walls to support fill and pavement for truck "turn -out." The
Consultant shall design the piles in the slope that supports the stairway access system.
The steel stringers, steps, landings or mid -platforms and railing shall be provided in
design/build format. Clearwater Mills shall coordinate with the Consultant regarding the
design requirements for the trash wheel (floating portion) and regarding the pile design
for the Trash Wheel assembly.
10. PREPARE CONSTRUCTION DOCUMENTS
Based on the approved concept design, the Consultant shall prepare construction
documents (drawings, special provisions and engineer's estimate) and periodically
submit documents to City staff for review and comments (50%, 75%, 95% and Final).
Major project components shall include:
• Site grading and creating a new, paved 14 -foot wide access road, including
a concrete pad for pickup and drop-off of roll -off trash containers and proposed
trail improvements.
• Shore -side unloading facilities including railway and winch system, stairwell
and gangway.
�rash
Clearwater Mills shall provide the design performance requirements of a
Wheel (floating portion of a Trash Wheel equipment) including the floating
platform, water wheel, conveyor belt hopper, and floating booms. Clearwater Mills
shall provide recommendations regarding roll -off container with sled, system
controls, solar panels and battery banks to the Consultant for the design and
construction documents. The interfaces between the Consultant and Clearwater
Mills shall be between the fixed container and the trash wheel conveyor system,
the piles designed by the Consultant (the piles shall have a field -constructed
location tolerance that the Trash Wheel design shall need to allow for), and the
landing of the gangway on the floating deck of the Trash Wheel. The Consultant
shall work with the City to meet standard City contracting requirements that may
include not specifying a specific brand of trash wheel and providing performance
requirements that meet the objectives of a trash wheel device without requiring a
specific type.
• The Consultant shall assume the use of locally available water and the use
of a water truck and operator to provide temporary irrigation. This approach would
accommodate the small footprint of the area of revegetation (estimated to be less
than half an acre) and utilize the newly installed access road and truck turnaround.
The project schedule anticipates construction to be completed in November
Burns & McDonnell Engineering Company, Inc. Page A-3 7-23
timeframe right before the raining season. This approach shall be presented in the
permit documents. Should permit negotiation result in a requirement of a designed
temporary irrigation system, upon approval of an amendment to this Agreement,
the Consultant shall complete a design of a temporary irrigation system including
installation of an irrigation line on site with backflow preventer, master irrigation
valve, and flow sensor with telemetry cable.
• The Consultant shall prepare construction documents that include a
landscape plan using native plants that is prepared by a California registered
landscape architect. The native plant palette shall use the biological survey data
completed for the MND (Stantec, 2018) and the Consultant's expertise in re-
establishing coastal sage environments. If required and approved by an
amendment to this Agreement, a Habitat Mitigation and Monitoring Plan ("HMMP"),
shall be provided. This plan may be a permit condition that can also be prepared
prior to construction and therefore not required for the permit application. No off-
site mitigation will be required and the mitigation for the temporary disturbance of
the defined habitat types in the MND shall be addressed through re -vegetation with
native vegetation of all distributed areas on-site (approximately less than half an
acre).
• The Consultant shall include design features to secure the site including
fencing and security cameras. The scope includes the availability of adequate
electrical service on-site for the security system, lighting, and potentially winch
system (if not solar powered by Trash Wheel battery bank). In addition, the
Consultant shall provide the design for the basic security system that includes two
cameras basic remote integration via cellular service provider, fencing, a manually
operated gate, and lighting.
• The Consultant shall evaluate the removal of existing pile remnants at the
project site.
• The Consultant shall work with the City to provide the design interpretive
signage.
11. IDENTIFY, PREPARE, AND PROCESS PERMITS
The Consultant shall provide the technical reports and materials to the City's
Community Development Department for preparation and submittal of the permit
applications. The City will prepare the permit applications and submit the applications for
review by the resource and regulatory agencies. Application filing fees and public noticing
fees, such as printing, mailing, and newspaper ad costs, will be paid directly by the City.
The Consultant shall provide technical support to the City as needed to respond to
comments from agency staff. The Consultant shall provide the technical reports and
materials to the City to prepare the applications and process the following permits:
�efter
US Army Corps of Engineers ("USACE") Section 404 of Clean Water Act,
of Permission, and Section 106 (Cultural)
• Regional Water Quality Control Board (Santa Ana Region) 401 Certification
Burns & McDonnell Engineering Company, Inc. Page A-4
7-24
California Department of Fish and Wildlife (CDFW")
The Consultant shall provide the technical reports and materials for the City to
prepare the California Coastal Commission ("CCC") Coastal Development Permit ("CDP")
package for submittal. The Consultant shall provide technical support to the City who will
prepare the public notice, and draft responses to additional information requests from
CCC staff, and draft sections of the CCC Staff Report.
The proposed project is located within submerged tidelands granted by the
California State Lands Commission ("CSLC") to the City of Newport Beach; however, the
CSLC does not have leasing authority for surface structures on lands granted to the City
so it is assumed that no lease with the CSLC shall be required. Preparation of plans or
submittals to comply with "Prior to Issuance Conditions" from the CCC CDP is not
included in this scope of work. The extent of documentation or reporting required shall
depend on regulatory agency discretion. The City prepared a Mitigated Negative
Declaration to comply with the California Environmental Quality Act ("CEQA") so it is
assumed that no additional CEQA analysis shall be required. This scope assumes that
all previous survey reports shall be provided and that no additional focused surveys shall
be necessary. Additionally, implementation of any mitigation requirements are not
included in this scope of work or cost estimate. Development of any building permit
applications or coordination with local agencies regarding building or other ministerial
permits is not included in this scope of work. A Coastal Hazards and Sea Level Rise
Analysis shall not be required. Development of special and additional environmental
studies, mitigation, construction water quality monitoring, or acoustical noise monitoring
plans, if ultimately needed, are not included in this scope of work.
12. PREPARE AND PROCESS TEMPORARY AND PERMANENT EASEMENT
DOCUMENTS
The Consultant shall prepare and process temporary and permanent easement
documents with the Irvine Company, owner of the property containing the creek and creek
bank. This task shall be executed together with our subcontracted PLS.
13. PREPARE AND PROCESS ENCROACHMENT AND EASEMENT DOCUMENTS
FOR THE COUNTY OF ORANGE
The Orange County Flood Control District has an easement from The Irvine
Company to convey flood flows in San Diego Creek. The Consultant shall prepare and
process encroachment and easement documents with the County of Orange for access
along the access road to the construction site, access onto the project site, and access
to the Trash Wheel location in the creek.
14. PREPARE OPERATIONS AND MAINTENANCE PLAN
The Consultant shall prepare an Operation and Maintenance manual for the City's
use in operating the site. Clearwater Mills shall provide operations and maintenance
recommendations specific to the Trash Wheel floating portion for incorporation into an
overall site Operations and Maintenance Manual.
Burns & McDonnell Engineering Company, Inc. Page A-5
7-25
EXHIBIT B
SCHEDULE OF BILLING RATES
ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR NEWPORT
BAY TRASH WHEEL PROJECT
01 Upgraded Temporary
Burns & McDonnell Engineering Company, Inc. Page B-1 7-26
Total
B\IrD
B\IcD
Project Tasks
Hours
Labor
Expenses
Total Cost
Design .:
,Task
1
.11
1 Review Reports/She Visit
24
$
5,436
$ 1,840
$
7,236
Task 2 Coordination Clearwater Mills
14
S
3,048
S -
$
3,048
Task 3 Concept Design
156
S
30,584
S
$
30,584
Task 4 Stakeholder Meetings
40
S
9,768
S
$
9,768
Task 5 Progress Meetings
38
S
8,756
$ 1,800
S
10,556
Task 6 Topo Survey Coordination
4
S
778
S -
$
778
Task 7 Geotechnical Invest/Rpt Coord
4
S
778
S
$
778
Task 8 Drainage Analysis
48
S
8,656
$
$
8,656
Task 9 Pile Design Coord
8
$
1,556
S
$
1,556
Task 10 Construction Documents
771
$ 145,295
$
S 145,295
Permits
172
S
30,304
1 ,304
Task 11 USACE 404 and Section 106
54
S
9,468
S
$
9,468
401 Certification
44
$
7,644
S
$
7,644
Coastal Development Permit
74
$
13,192
$ -
$
13,192
Task 12 Irvine Company Permanent Easement
1
6
$
1,458
$ -
$
1,458
Task 13 OC Flood Control District Easement
4
$
966
$ -
$
966
01 Upgraded Temporary
Burns & McDonnell Engineering Company, Inc. Page B-1 7-26
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury by
disease in accordance with the laws of the State of California, Section 3700
of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its City Council, boards
and commissions, officers, agents, volunteers and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The policy
shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Burns & McDonnell Engineering Company, Inc. Page C-1 7-27
D. Professional Liability (Errors & Omissions) Insurance. Consultant shall
maintain professional liability insurance that covers the Services to be
performed in connection with this Agreement, in the minimum amount of
one million dollars ($1,000,000) per claim and two million dollars
($2,000,000) in the aggregate. Any policy inception date, continuity date,
or retroactive date must be before the Effective Date of this Agreement and
Consultant agrees to maintain continuous coverage through a period no
less than three years after completion of the Services required by this
Agreement.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its City Council, boards and commissions, officers, agents, volunteers
and employees or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers from
each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but not
including professional liability, shall provide or be endorsed to provide that
City, its City Council, boards and commissions, officers, agents, volunteers
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional_ Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
Burns & McDonnell Engineering Company, Inc. Page C-2 7.28
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days' advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements Not Limiting. Requirements of specific coverage features or
limits contained in this Section are not intended as a limitation on coverage,
limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for
purposes of clarification only as it pertains to a given issue and is not
intended by any party or insured to be all inclusive, or to the exclusion of
other coverage, or a waiver of any type. If the Consultant maintains higher
limits than the minimums shown above, the City requires and shall be
entitled to coverage for higher limits maintained by the Consultant. Any
available insurance proceeds in excess of the specified minimum limits of
insurance and coverage shall be available to the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails
to provide and maintain insurance as required herein, then City shall have
the right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend Consultant's right to proceed until proper
evidence of insurance is provided. Any amounts paid by City shall, at City's
sole option, be deducted from amounts payable to Consultant or reimbursed
by Consultant upon demand.
Burns & McDonnell Engineering Company, Inc. Page C-3 7-29
G. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. City assumes no
obligation or liability by such notice, but has the right (but not the duty) to
monitor the handling of any such claim or claims if they are likely to involve
City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of the
Work.
Burns & McDonnell Engineering Company, Inc. Page C-4
7-30
cHtiFoaN`P
Department: Public Works
Requestor: Angela Crespi
City of Newport
Beach
BUDGET AMENDMENT
❑ CITY MANAGER'S APPROVAL ONLY
121 COUNCIL APPROVAL REQUIRED
ONE TIME: O Yes ❑ No
Approvals
BA#: 20-041
ATTACHMENT C
Prepared by: Walid Hardi
Finance Director: Date
City Clerk: Date
EXPLANATION FOR REQUEST:
To increase expenditure appropriations from the Tide & Submerged Lands unappropriated fund balance for the ❑ from existing budget appropriations
Newport Bay Water Wheel project. ❑ from additional estimated revenues
El from unappropriated fund balance
Fund # Object Description
100 300000 Tide & Submerged Lands Fund - Fund Balance Control
Increase or (Decrease) $
(5224;925 OO)
Subtotal ($224.925 00)
Fund Balance Change Required
7-31
ATTACHMENT D
Senate Bill No. 573
CHAPTER 317
An act to amend Sections 1 and 2 of Chapter 74 of, and to add
Section 2.5 to, the Statutes of 1978, relating to tide and submerged
lands in the City of Newport Beach.
[Approved by Governor August 18, 1997. Filed with
Secretary of State August 18, 1997.1
LEGISLATIVE COUNSEL'S DIGEST
SB 573, Johnson. City of Newport Beach: tide and submerged
lands.
Existing law grants in trust to the City of Newport Beach all tide
and submerged lands, whether filled or unfilled, bordering upon and
under the Pacific Ocean or Newport Bay, as described, subject to
specified conditions.
The legislative grant requires the city to establish a separate
tidelands trust fund or separate tidelands trust funds as may be
approved by the State Lands Commission and requires the city to
deposit in the fund or funds all money received directly from, or
indirectly attributable to, the granted tide and submerged lands,
including a city tideland capital fund, into which revenues from
Parcels A, B, and C, as described, are required to be deposited, to be
available only for the acquisition of real property that will further the
purposes of the trust.
Existing law creates the Land Bank Fund in the State Treasury,
which is appropriated to the commission for the management and
improvement of public trust lands. The legislative grant requires a
specified percentage of lease revenue from Parcel D, as described,
to be deposited in that fund.
This bill would revise the legislative grant to require the city to
establish a Tideland Capital Fund, a Tideland Operation and
Maintenance Fund, and an Upper Newport Bay Restoration Fund.
The bill would require that 80% of the revenues from Parcels A, B,
and C be deposited in the Tideland Capital Fund and in the Tideland
Operation and Maintenance Fund, allocated as determined by the
city, and would require 10% of those revenues to be deposited in the
Upper Newport Bay Restoration Fund and 10% in the Land Bank
Fund. The bill would prescribe the uses for which the money in the
funds could be expended.
The bill would authorize the city to transfer, subject to commission
approval, city -owned real property not subject to the public trust to
the trust created pursuant to the legislative grant, and to compensate
its general fund for any such transfer, as specified.
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Ch. 317 —2—
The
2—
The bill would require the city, by December 31, 1998, to dedicate
as public trust lands to be held subject to the public trust and the
provisions of the legislative grant, any lands that the commission has
determined have equal or greater value and utility to the public trust
than Parcels A, B, and C and that would provide a satisfactory
substitution.
The bill would make related changes in the legislative grant.
The people of the State of California do enact as follows:
SECTION 1. Section 1 of Chapter 74 of the Statutes of 1978 is
amended to read:
Section 1. There is hereby granted to the City of Newport Beach
and its successors all of the right, title, and interest of the State of
California held by the state by virtue of its sovereignty in and to all
that portion of the tidelands and submerged lands, whether filled or
unfilled, bordering upon and under the Pacific Ocean or Newport
Bay in the County of Orange, which were within the corporate limits
of the City of Newport Beach, a municipal corporation, on July 25,
1919; the same to be forever held by the city and its successors in trust
for the uses and purposes and upon the following express conditions:
(a) The lands shall be used by the city and its successors for
purposes in which there is a general statewide interest, as follows:
(1) For the establishment, improvement, and conduct of a public
harbor; and for the construction, maintenance, and operation
thereon of wharves, docks, piers, slips, quays, ways, and streets, and
other utilities, structures, and appliances necessary or convenient for
the promotion or accommodation of commerce and navigation.
(2) For the establishment, improvement, and conduct of public
bathing beaches, public marinas, public aquatic playgrounds, and
similar recreational facilities open to the general public; and for the
construction, reconstruction, repair, maintenance, and operation of
all works, buildings, facilities, utilities, structures, and appliances
incidental, necessary, or convenient for the promotion and
accommodation of any such uses.
(3) For the preservation, maintenance, and enhancement of the
lands in their natural state and the reestablishment of the natural
state of the lands so that they may serve as ecological units for
scientific study, as open space, and as environments which provide
food and habitat for birds and marine life, and which favorably affect
the scenery and climate of the area.
(b) Except as otherwise provided in this section, the city or its
successors shall not, at any time, grant, convey, give, or alienate the
lands, or any part thereof, to any individual, firm, public or private
entity, or corporation for any purposes whatever; except that the city
or its successors may grant franchises thereon for a period not
exceeding 50 years for wharves and other public uses and purposes
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and may lease the lands, or any part thereof, for terms not exceeding
50 years for purposes consistent with the trust upon which the lands
are held by the state and with the uses specified in this section.
(c) The lands shall be improved without expense to the state;
provided, however, that nothing contained in this act shall preclude
expenditures for the development of the lands for the purposes
authorized by this act, by the state, or any board, agency, or
commission thereof, or expenditures by the city of any funds received
for such purpose from the state or any board, agency, or commission
thereof.
(d) In the management, conduct, operation, and control of the
lands or any improvements, betterments, or structures thereon, the
city or its successors shall make no discrimination in rates, tolls, or
charges for any use or service in connection therewith.
(e) The state shall have the right to use without charge any
transportation, landing, or storage improvements, betterments, or
structures constructed upon the lands for any vessel or other
watercraft or railroad owned or operated by the state.
(f) There is hereby reserved to the people of the state the right to
fish in the waters on the lands with the right of convenient access to
the waters over the lands for such purpose, which rights shall be
subject, however, to such rules and regulations as are necessary for
the accomplishment of the purposes specified in subdivision (a).
(g) Notwithstanding any provision of this section to the contrary,
the city may lease the lots located within Parcels A, B, and C
described in Section 6 of this act for the purposes set forth in this act
and for terms not to exceed 50 years. The consideration to be received
by the city for such leases shall be the fair market rental value of such
lots as finished subdivided lots with streets constructed and all
utilities installed. The form of such leases and the range of
consideration to be received by the city shall be approved by the
State Lands Commission prior to the issuance of any such lease. All
money received by the city from existing and future leases of those
lots shall be deposited in the city tideland trust funds as provided in
Section 2.
(h) With the approval of the State Lands Commission, the city
may transfer portions of the lands granted by this act, or held
pursuant to this act, to the state acting by and through the State Lands
Commission, for lease to the Department of Fish and Game for an
ecological reserve or wildlife refuge, or both, and other compatible
uses to be undertaken by the department; provided, however, that,
if at any time the Department of Fish and Game no longer uses those
portions of the lands so transferred by the city to the state for those
purposes, the lands so transferred shall revert to the city to be held
pursuant to the provisions of this act. Upon approving such a transfer
from the city to the state, the State Lands Commission shall lease the
lands so transferred to the Department of Fish and Game. The public
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Ch. 317 —4—
benefits
4—
benefits shall be the sole consideration to be received by the State
Lands Commission from the Department of Fish and Game for that
lease. Any and all income received by the Department of Fish and
Game from the lands so leased shall be used only in connection with
the department's improvement and administration of the leased
lands.
(i) The city shall establish a separate tidelands trust fund or funds
in such a manner as may be approved by the State Lands
Commission, and the city shall deposit in the fund or funds all money
received directly from, or indirectly attributable to, the granted
tidelands in the city.
0) In accordance with this act, the city, acting either alone or
jointly with another local or state agency, may use revenues accruing
from or out of the use of the granted tidelands or from any additional
trust assets, for any or all of the purposes set forth in this act on public
trust lands within the City of Newport Beach. Those revenues may
be deposited in one or more reserve funds for use in accordance with
the terms and conditions set forth in this act.
(k) As to the accumulation and expenditure of revenues for any
single capital improvement on the public trust lands within the city
involving an amount in excess of two hundred fifty thousand dollars
($250,000) in the aggregate, the city shall file with the State Lands
Commission a detailed description of such capital improvement not
less than 30 days prior to the time of any disbursement therefor or in
connection therewith. The executive officer of the commission shall
notify the city within 30 days from the date of the filing, if the
proposed expenditure raises significant issues. Upon receipt of the
notification, the city shall not make any disbursement in connection
with the proposed expenditure for 60 days or until the commission
has acted on the proposed expenditure, whichever is the shorter
period. Within 60 days of the notification by the executive officer, the
State Lands Commission may determine and notify the city that the
capital improvement is not in the statewide interest and benefit or
is not authorized by the provisions of subdivision 0). The State Lands
Commission may request the opinion of the Attorney General on the
matter; and, if it does so, a copy of the opinion shall be delivered to
the city with the notice of its determination. If the State Lands
Commission notifies the city that the capital improvement is not
authorized, the city shall not disburse any revenue for or in
connection with the capital improvement unless and until it is
determined to be authorized by a final order or judgment of a court
of competent jurisdiction. The city is authorized to bring suit against
the state for the purpose of securing such an order or adjudication,
which suit shall have priority over all other civil matters. Service of
process shall be made upon the Executive Officer of the State Lands
Commission and the Attorney General, and the Attorney General
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shall defend the state in such suit. If judgment be given against the
state in the suit, no costs shall be recovered against it.
(0 On June 30, 1978, and on June 30 of every third fiscal year
thereafter, that portion of the city tideland trust revenues in excess
of two hundred fifty thousand dollars ($250,000) remaining after
deducting current and accrued operating costs and expenditures
directly related to the operation or maintenance of tideland trust
activities shall be deemed excess revenues. However, any funds
deposited in a reserve fund for future capital expenditures or any
funds used to retire bond issues for the improvement or operation of
the granted lands shall not be deemed excess revenue. Capital
improvements of the granted lands for purposes authorized by this
act, including improvements on lands transferred to the state
pursuant to subdivision (h) and paid for by the city, may be
considered as expenditures for the purpose of determining excess
revenues; provided, however, that if made after the effective date of
this act they may be so considered only if made in accordance with
subdivision (k). The excess revenue, as determined pursuant to this
subdivision, shall be allocated as follows: 85 percent shall be
transmitted to the Treasurer for deposit in the General Fund in the
State Treasury, and 15 percent shall be retained by the city for
deposit in the trust fund for use in any purpose authorized by
subdivision 0) of this section.
(m) At the request of the city, the State Lands Commission shall
grant an extension of time, not to exceed 90 calendar days, for filing
any report or statement required by this act, that was not filed due
to mistake or inadvertence.
(n) If the city fails or refuse to file with the State Lands
Commission any report, statement, or document required by any
provision of this act, or any extension period granted pursuant to this
act, or fails or refuses to carry out the terms of this act, the Attorney
General shall, upon the request of the State Lands Commission, bring
such judicial proceedings for correction and enforcement as are
appropriate and shall act to protect any improvements to, or assets
situated upon, the granted lands or diverted therefrom. The State
Lands Commission shall notify the Chief Clerk of the Assembly and
the Secretary of the Senate within 30 days from the date of the
occurrence of the failure or refusal and of actions taken as a result
thereof.
(o) The State Lands Commission shall, from time to time,
recommend to the Legislature such amendments as it may
determine to be necessary in the terms and conditions of this act.
(p) The State Lands Commission shall, from time to time, institute
a formal inquiry to determine that the terms and conditions of this
act, and amendments thereto, have been complied with in good faith.
(q) On or before December 31 of each year, the State Lands
Commission shall report to the Chief Clerk of the Assembly and to
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Ch. 317 —6—
the Secretary of the Senate the full details of any transaction or
condition reported to the commission pursuant to this act which it
determines to be in probable conflict with this act or with any other
provision of law. Upon request by resolution of either house of the
Legislature, or upon formal request of the State Lands Commission
made only after a noticed public hearing at which the city has been
given an opportunity to express fully any disagreement with the
commission's findings or to describe any extenuating circumstances
causing the violation, the Attorney General shall bring an action in
the Superior Court in the County of Orange to declare that the grant
under which the city holds the tidelands and submerged lands is
revoked for gross and willful violation of this act or any other
provision of law or to compel compliance with the requirements of
this act and any other provision of law.
(r) The city shall cause to be made and filed annually with the
State Lands Commission a detailed statement of receipts and
expenditures by it of all rents, revenues, issues, and profits in any
manner arising after the effective date of this act from the granted
lands or any improvements, betterments, or structures thereon.
(s) The Department of Fish and Game shall establish the funds
and make the deposits required by subdivision (i) of this section and
shall prepare and file statements required by subdivision (r) as to any
lands transferred to the state pursuant to subdivision (h).
(t) The provisions of Chapter 2 (commencing with Section 6701)
of Part 2 of Division 6 of the Public Resources Code shall be applicable
to this section. The provisions of Section 6359 of the Public Resources
Code shall not be applicable to this section.
(u) Notwithstanding any other provision of this act, the city shall
pay to the state all revenues received from the production of oil, gas,
and other minerals derived from or attributable to the real property
described in Section 6 of this act and the real property acquired by
the city pursuant to subdivision (a) of Section 2 of this act. Whenever
practicable, the city shall obtain the mineral rights in real property
acquired pursuant to subdivision (a) of Section 2 of this act.
SEC. 2. Section 2 of Chapter 74 of the Statutes of 1978 is amended
to read:
Sec. 2. (a) The City of Newport Beach shall establish a Tideland
Capital Fund as one of the funds required by subdivision (i) of
Section 1 of this act. The money in the Tideland Capital Fund shall
be used by the city in conformity with the following terms and
conditions:
(1) Expenditures from the fund may be made for the acquisition
of real property that will further the purposes of the trust created by
this act or for capital improvements for those purposes.
(2) The city may make acquisitions of real property by purchase,
gift, or other conveyance, including, but not limited to, the transfer
of city -owned property held in a municipal capacity to the trust
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created by this act. All such real property shall be held by the city in
trust pursuant to this act.
(3) For purposes of this subdivision, acquisition or improvement
of real property by the city for purposes of enhancing the public trust
lands administered by the Department of Fish and Game pursuant
to Chapter 415 of the Statutes of 1975 shall be deemed to be
authorized by, and to be in furtherance of, the trust created by this
act.
(4) The city may expend municipal funds to acquire real property
for purposes specified in this subdivision. The city may transfer
amounts from the Tideland Capital Fund to reimburse municipal
funds for any such expenditures, together with an appropriate
amount of interest on the municipal funds advanced, if the State
Lands Commission gives advance approval of the transaction.
(b) The city shall establish a Tideland Operation and
Maintenance Fund as one of the funds required by subdivision (i) of
Section 1 of this act. The money in the Tideland Operation and
Maintenance Fund shall be used by the city for the operation and
maintenance of the tide and submerged lands granted by this act and
any additional lands and assets that are made subject to the public
trust pursuant to this act in furtherance of the purposes of the trust
created by this act.
(c) The city shall establish an Upper Newport Bay Restoration
Fund as one of the funds required by subdivision (i) of Section 1 of
this act. The money in the Upper Newport Bay Restoration Fund
shall be used by the city for Upper Newport Bay environmental
restoration and improvement on tide and submerged lands described
in paragraph (3) of subdivision (a) or otherwise made subject to the
public trust pursuant to this act and located in Upper Newport Bay,
to do both of the following:
(1) Construct improvements to, or otherwise physically alter,
those public trust lands if the construction or alteration directly
benefits those lands.
(2) Fund environmental documents, planning studies, or
scientific analyses, or experiments directly related to the
improvement or enhancement of the habitat values of those lands
and the water quality of the overlying waters.
(d) (1) Eighty percent of the money received by the city
pursuant to subdivision (g) of Section 1 of this act shall be deposited
in the Tideland Capital Fund described in subdivision (a) and in the
Tideland Operation and Maintenance Fund described in subdivision
(b), the allocation between those funds to be determined by the city.
(2) Ten percent of the money received by the city pursuant to
subdivision (g) of Section 1 of this act shall be deposited in the Upper
Newport Bay Restoration Fund described in subdivision (c).
(3) Ten percent of the money received by the city pursuant to
subdivision (g) of Section 1 of this act shall be deposited in the Land
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Ch. 317 —8—
Bank
8—
Bank Fund created in the State Treasury pursuant to Section 8610 of
the Public Resources Code, available for expenditure by the State
Lands Commission as described in subparagraph (B) of paragraph
(1) of subdivision (f) of Section 4.5 of this act.
(4) The city may deposit in the city funds established pursuant to
subdivisions (a), (b), and (c) any other income from the tide and
submerged lands granted to the city pursuant to this act or from lands
otherwise held in the public trust pursuant to this act that the city
determines to be appropriate and consistent with this act and the
public trust.
SEC. 3. Section 2.5 is added to Chapter 74 of the Statutes of 1978,
to read:
Sec. 2.5. (a) The city may transfer to the trust created by this act,
any city -owned real property not subject to the public trust for the
purposes specified in Section 1 of this act. The city may compensate
the city general fund for the fair market value of the transferred real
property if the transfer and that expenditure of trust funds occur
after January 1, 1998, and the State Lands Commission has given
advance approval of the transaction.
(b) On or before December 31, 1998, the city shall dedicate as
public trust lands, to be held subject to the public trust and the
provisions of this act, any lands that the State Lands Commission has
determined (1) have equal or greater value and utility to the public
trust than the lands described as Parcels A, B, and C in Section 6 of
this act and (2) that the dedication of lands as trust lands will provide
satisfactory substitution for the requirements prescribed in
subdivision (a) of Section 2 of this act as enacted by Chapter 74 of the
Statutes of 1978. Upon a demonstration of necessity, the Executive
Officer of the State Lands Commission may extend that deadline to
not later than December 31, 1999.
n
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