HomeMy WebLinkAbout2023-7 - Approving the Big Canyon Habitat Restoration Project Phase 3, Approving a License Agreement and Memorandum of Understanding with the California Department of Fish and Wildlife, and Authorizing Submittal of an Application to the California CoastalRESOLUTION NO. 2023-7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH, CALIFORNIA, APPROVING THE
BIG CANYON HABITAT RESTORATION PROJECT
PHASE 3, APPROVING A LICENSE AGREEMENT AND
MEMORANDUM OF UNDERSTANDING WITH THE
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
AND AUTHORIZING SUBMITTAL OF AN APPLICATION
TO THE CALIFORNIA COASTAL COMMISSION
(PA2022-034)
WHEREAS, Section 200 of the City of Newport Beach ("City") Charter vests the
City Council with the authority to make and enforce all laws, rules and regulations with
respect to municipal affairs subject only to the restrictions and limitations contained in the
Charter and the State Constitution, and the power to exercise, or act pursuant to any and
all rights, powers, and privileges, or procedures granted or prescribed by any law of the
State of California;
WHEREAS, Big Canyon Nature Park is an approximately sixty (60) acre park
located between Jamboree Road to the east and Back Bay Drive to the west, and bounded
by residential communities to the North and South along the creek bluffs, approximately one
(1) mile north of Pacific Coast Highway, located within the City of Newport Beach ("Big
Canyon");
WHEREAS, Big Canyon is a valuable natural resource, wildlife habitat, and
recreational destination that includes coastal scrub, riparian scrub, riparian forest, alkali -
saline wetland, and freshwater emergent wetland habitats native to Southern California and
worthy of continuous protection, conservation, and management efforts to preserve it;
WHEREAS, large areas of the Big Canyon creek and native riparian habitat have
been overtaken by non-native invasive species, and urbanization has resulted in the
degradation of water quality due to upstream development and selenium laden groundwater
seepage, upstream grazing and agricultural activities, year-round dry weather flows,
invasive plants and insects, and decades old dredge and fill material placed within the lower
canyon marsh plain and riparian areas resulting in the ponding of water and reduced
floodplain connectivity;
WHEREAS, Big Canyon is listed as an impaired waterbody for selenium and is
subject to a regulatory imposition of a total maximum daily load, and in 2009 the Central
Orange County Integrated Regional and Coastal Watershed Management Plan listed
restoration of Big Canyon as a key project for implementing restoration objectives in Upper
Newport Bay;
Resolution No. 2023-7
Page 2 of 6
WHEREAS, the Newport Bay Naturalists and Friends, a California non-profit public
benefit corporation doing business as Newport Bay Conservancy ("Conservancy"), is the
recipient of grants from, including but not necessarily limited to, the Ocean Protection
Council and private corporate donor(s), which provides funds for the restoration of Big
Canyon;
WHEREAS, the Conservancy has led ongoing restoration projects within Big
Canyon with the cooperation of the City and the California Department of Fish and Wildlife
("CDFVV');
WHEREAS, the restoration is being conducted in phases with the completion of
Phase 1 taking place in July 2017 and the completion of Phase 2 in June of 2021;
WHEREAS, Phase 3 of the restoration in Big Canyon will remove existing selenium
impacted saltwater, eliminate invasive plants, regrade the site to extend saltwater influence
from the back bay, replant with native plants to restore riparian and upland habitats, restore
historical salt marsh and establish transitional wetlands that will allow for upslope migration
and resiliency to long term sea level rise, restore tidal marsh to further reduce selenium
bioavailability found naturally within marine deposits in the watershed, maintain positive
drainage during low flows, address mosquito breeding habitat, and incorporate fuel
modification on surrounding sloping parcels to reduce fire risks to nearby homes ("Project");
WHEREAS, the Project will both conserve, restore, protect, or enhance, and assist
in the recovery of California native fish and wildlife, and the habitat upon which they depend,
and restore or provide habitat for California native fish and wildlife;
WHEREAS, the Conservancy has coordinated with the Wildlife Conservation
Board, Ocean Protection Council, and the United States Fish & Wildlife Service/State
Coastal Conservancy, with respect to the Project, all of whom have expressed support;
WHEREAS, the Project will be located at 1950 Back Bay Drive, Assessor's Parcel
Numbers ("APN") 440-092-76, 440-092-77, 440-092-79, and 440-132-53 ("City Area"), and
a portion of which is owned by CDFW, APN 440-092-75, and 440-132-27 ("CDFW Area");
WHEREAS, the Project will be conducted by CDFW, and will require access over
and upon the City Area, and will require use of the City's Big Canyon access road off
Jamboree Road;
Resolution No. 2023-7
Page 3 of 6
WHEREAS, the City and CDFW desire to enter into a License Agreement and
Memorandum of Understanding to authorize CDFW to enter upon the City Area, and to use
the Big Canyon access road off Jamboree Road, to carry out the work required for the
Project, and additionally, to establish the terms and conditions upon which CDFW will carry
out the work;
WHEREAS, the plans for the Project are in conformance with the 2014 guidelines
of the Big Canyon Resource and Recreation Management Plan and consistent with the
requirements of the Natural Community Conservation Plan/Habitat Conservation Plan for
the Central and Coastal sub -region of Orange County;
WHEREAS, the Project is located within the Open Space (OS) Zoning District and
Coastal Zoning District and designated Open Space (OS) by the General Plan Land Use
Element and Coastal Land Use Plan;
WHEREAS, the Project is consistent with the Open Space (OS) designation which
provides areas to maintain and protect the community's natural open space resources;
WHEREAS, a public meeting was duly noticed and held by the City of Newport
Beach Parks, Beaches, and Recreation Commission ("PBRC") on October 4, 2022, in the
City Hall Council Chambers, 100 Civic Center Drive, Newport Beach, California. A notice
of time, place and purpose of the public meeting was given in accordance with California
Government Code Section 54950 et seq. ("Ralph M. Brown Act"). Evidence both written
and oral, was presented to, and considered by, the PBRC;
WHEREAS, at the conclusion of the item, the PBRC recommended City Council
approval of the Project;
WHEREAS, a public meeting was duly noticed and held by the City Council on
January 24, 2023, in the City Hall Council Chambers, 100 Civic Center Drive, Newport
Beach, California. A notice of time, place and purpose of the public meeting was given in
accordance with the Ralph M. Brown Act. Evidence, both written and oral, was presented
to, and considered by, the City Council at this public hearing; and
WHEREAS, the Project site is bisected by jurisdictional boundaries between
Newport Beach and the California Coastal Commission, and in accordance with Newport
Beach Municipal Code Section 21.50.025 (Projects Bisected by Jurisdictional Boundaries),
the City desires to assist in a consolidated application for a Coastal Development Permit to
the California Coastal Commission for the Project.
Resolution No. 2023-7
Page 4 of 6
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
Section 1: The City Council hereby approves the Big Canyon Habitat Restoration
Project - Phase 3, as depicted in the plans attached hereto as Exhibit "A" and incorporated
herein by this reference.
Section 2: The City Council hereby authorizes the City Manager to execute a
License Agreement and Memorandum of Understanding with the CDFW, in substantial
conformance with the agreement attached hereto as Exhibit "B" and incorporated herein by
this reference, subject to approval as to form by the City Attorney, to authorize CDFW to
enter upon the City's portion of the Project area and carry out the Project.
Section 3: The City Council hereby authorizes City staff to, as necessary or
convenient, assist in the preparation of an application and serve as applicant or co -applicant
for the issuance of a Coastal Development Permit from the California Coastal Commission
for the Project.
Section 4: Pursuant to Section 15051(d) of the California Code of Regulations,
Title 14, Division 6, Chapter 3 ("CEQA Guidelines"), the City is serving as the lead agency
on the Project.
The City Council hereby finds that the Project is statutorily exempt under the
California Environmental Quality Act ("CEQA") pursuant to Section 21080.56 of the
California Public Resources Code and Sections 15307 and 15308 of the California Code of
Regulations, Title 14, Division 6, Chapter 3 ("CEQA Guidelines"). California Public
Resources Code Section 21080.56 exempts projects that conserve, restore, protect, or
enhance, and assist in the recovery of California native fish and wildlife, and the habitat upon
which they depend, and projects that restore or provide habitat for California native fish and
wildlife. The Project will replace existing degraded habitat and create long-term benefits to
climate resiliency, biodiversity, and sensitive species recovery by restoring historic salt
marsh and freshwater riparian habitat which had been filled in the 1950's and 1960's.
Resolution No. 2023-7
Page 5 of 6
Additionally, the Project will restore the historic salt marsh and freshwater riparian
habitat which will benefit a variety of California wildlife, including but not limited to, the
California Gnatcatcher (Polioptila californica), yellow warbler (Setophega petechia), Least
Bell's vireo (Vireo Bellii pusillus), and the light-footed Ridgeways rail (Rallus longirostris
levipes), Song Sparrow (Melospiza melodia), California Towhee (Melozone crissalis), and
the Wrentit (Chamaea fasciata). As required by California Public Resources Code Section
21080.56(e), the City has obtained the written concurrence of the Director of CDFW by letter
dated May 4, 2022, which is attached hereto as Exhibit "C" and incorporated herein by this
reference.
Section 5: The City Council hereby directs City staff to file a Notice of Exemption
for the Project in accordance with California Public Resources Code Section 21080.56(g).
Section 6: The recitals provided in this resolution are true and correct and are
incorporated into the operative part of this resolution.
Section 7: If any section, subsection, sentence, clause or phrase of this
resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not
affect the validity or constitutionality of the remaining portions of this resolution. The City
Council hereby declares that it would have passed this resolution, and each section,
subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or
more sections, subsections, sentences, clauses or phrases be declared invalid or
unconstitutional.
Resolution No. 2023-7
Page 6 of 6
Section 8: This resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this 24th day of January, 2023.
ATTEST:
Leilani I. Brown
City Clerk
c�Foa%
APPROVED AS TO FORM:
CITY TTORNEY'S OFFICE
A r n C. Harp
City Attorney
Attachment(s): Exhibit "A" - Project Plans for Phase 3
Exhibit "B" - License Agreement and Memorandum of
Understanding
Exhibit "C" - CEQA Exemption Concurrence Letter
Exhibit "A"
Project Plans for Phase 3
r--1 Project Boundary
® Habitat Enhancement
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Scrub Rehabilitation
TemporaryAccess
Existing Trail
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Habitat
Alkali Meadow
High Salt Marsh
High Salt Marsh (Temporary Impact)
Intertidal Mudflat
Low Salt Marsh
Mid Salt Marsh
Mulefat Scrub
Restored Riparian Corridorr Connects
with Phases 1 & 2
NEW UPGRADED ACCESIWITH
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EXISTING LEVEE NOTCHED TO
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BRIDGE OVER SPILLWAY
EDUCATIONAL
SIGNAGE
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EDUCATIONAL SIGNAGE
UPGRADED EXISTING TRAILS FOR
CONSTRUCTION, OPERATIONS,
AND MAINTENANCE ROADS
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EXISTING TRAIL BRIDGE
- WILL BE REMOVED FOR ,
SALT MARSH RESTORATION
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4-14
Exhibit "B"
License Agreement and Memorandum of Understanding
4-15
LICENSE AGREEMENT AND MEMORANDUM OF UNDERSTANDING
BETWEEN THE CITY OF NEWPORT BEACH
AND THE CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
FOR THE BIG CANYON COASTAL HABITAT RESTORATION AND ADAPTATION
PROJECT - PHASE 3
This License Agreement and Memorandum of Understanding ("Agreement") is
made and entered into as of this day of , 2023 ("Effective Date"),
by and between the City of Newport Beach, a California municipal corporation and charter
city ("City" or "Licensor"), and the California Department of Fish and Wildlife, a State
agency under the California Natural Resources Agency ("CDFW' or "Licensee"), and is
made with reference to the following:
RECITALS
A. Big Canyon Nature Park is an approximately sixty (60) acre park located between
Jamboree Road to the east and Back Bay Drive to the west, and bounded by
residential communities to the North and South along the creek bluffs,
approximately one (1) mile north of Pacific Coast Highway, located within the City
of Newport Beach ("Big Canyon").
B. Big Canyon is owned in part by the City, and owned in part by CDFW, as depicted
on Exhibit "A" attached hereto and incorporated herein by this reference.
C. Big Canyon is a valuable natural resource, wildlife habitat, and recreational
destination that includes coastal scrub, riparian scrub, riparian forest, alkali -saline
wetland, and freshwater emergent wetland habitats native to Southern California
and worthy of continuous protection, conservation, and management efforts to
preserve it.
D. Large areas of the Big Canyon creek and native riparian habitat have been
overtaken by non-native invasive species, urbanization has resulted in the
degradation of water quality due to upstream development and selenium laden
groundwater seepage, upstream grazing and agricultural activities, year-round dry
weather flows, invasive plants and insects, and decades old dredge and fill
material placed within the lower canyon marsh plain and riparian areas, resulting
in the ponding of water and reduced floodplain connectivity.
E. Big Canyon is listed as an impaired waterbody for selenium and is subject to a
regulatory imposition of a total maximum daily load, and in 2009 the Central Orange
County Integrated Regional and Coastal Watershed Management Plan listed
restoration of Big Canyon as a key project for implementing restoration objectives in
Upper Newport Bay.
F. The Newport Bay Naturalists and Friends, a California non-profit public benefit
corporation doing business as Newport Bay Conservancy ("Conservancy"), is the
recipient of grants from, including but not necessarily limited to, the Ocean Protection
4-16
Council and private corporate donor(s), which provides funds for the restoration of
Big Canyon ("Grant").
G. The Conservancy has led an ongoing restoration project within Big Canyon, the Big
Canyon Coastal Habitat Restoration and Adaptation Project, with the cooperation of
the City and CDFW, with the restoration being conducted in phases, Phase 1
completed in July 2017, and Phase 2 completed in June of 2021.
H. Restoring the historic salt marsh and freshwater riparian habitat will benefit a
variety of California wildlife, including but not limited to, the California Gnatcatcher
(Polioptila californica californica), Song Sparrow (Melospiza melodia), California
Towhee (Melozone crissalis), and the Wrentit (Chamaea fasciata).
The Big Canyon Coastal Habitat Restoration and Adaptation Project - Phase 3
("Project"), will remove existing selenium impacted saltwater, eliminate invasive
plants, regrade the site to extend saltwater influence from the back bay, replant
with native plants to restore riparian and upland habitats, restore historical salt
marsh and establish transitional wetlands that will allow for upslope migration and
resiliency to long term sea level rise, restore tidal marsh to further reduce selenium
bioavailability found naturally within marine deposits in the watershed, maintain
positive drainage during low flows, address mosquito breeding habitat, and
incorporate fuel modification on surrounding sloping parcels to reduce fire risks to
nearby homes.
J. The Project will be located at 1950 Back Bay Drive, Assessor's Parcel Numbers
("APN") 440-092-76, 440-092-77, 440-092-79, and 440-132-53 ("City Area"), and
a portion of which is owned by CDFW, APN 440-092-75, and 440-132-27 ("CDFW
Area"), as depicted on Exhibit "B" which is attached hereto and incorporated herein
by reference.
K. The Project will be conducted by CDFW, and will require access over and upon
the City Area and use of the City's Big Canyon access road off of Jamboree Road
("License Area").
L. The City and CDFW agree that the City will serve as the lead agency for the Project
under the California Environmental Quality Act ("CEQA"), and that the City will
assist with the application for a Coastal Development Permit from the California
Coastal Commission either by serving as the applicant, co -applicant, or otherwise
as may be necessary or desirable.
M. In consideration of the mutual promises and obligations contained in this
Agreement, the receipt and sufficiency of which is hereby acknowledged, City
desires to grant CDFW permission to enter and use the License Area to carry out
the Project in conformance with the terms of the Grant, and CDFW desires to
accept the same and to carry out the Project in conformance with the terms of the
Grant on the following terms and conditions.
California Department of Fish and Wildlife Page 2
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NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. LICENSE
1.1 For the duration of this Agreement, City hereby grants a revocable, non-
exclusive license to CDFW, including its agents, contractors, subcontractors, and
consultants when acting on behalf of CDFW, to enter upon, over and under and
temporarily occupy and use the License Area in order to carry out the Project in
accordance with the terms and conditions of the Grant and this Agreement ("License").
1.2 The License includes posting of signs, subject to approval of the City's
License Administrator, as reasonably necessary or required to notify the public of the
work, for safety purposes, as required by the terms of the Grant, or other such lawful
purpose.
1.3 No grant of an easement or other interest in land is intended by this
Agreement.
1.4 Nothing herein shall be construed to give CDFW any right to hold over or to
continue possession of the License Area after the expiration or termination of this
Agreement.
1.5 The License granted herein is subject to the terms, covenants and
conditions hereinafter set forth, and CDFW covenants, as a material part of the
consideration for this License, to keep and perform each term, covenant and condition of
this Agreement.
2. TERM
Unless terminated earlier as set forth herein, the term of this Agreement shall
commence on the Effective Date and shall continue until completion of the Project or
December 31, 2024, whichever occurs first. The City shall have the option to extend the
term of this Agreement for successive periods of one (1) year each as needed to allow
for completion of the Project by providing written notice to CDFW.
3. THE PROJECT
3.1 CDFW shall undertake and diligently pursue to completion the Project, the
Big Canyon Coastal Habitat Restoration and Resiliency Project - Phase 3, in substantial
conformance with the plans approved by City, which are on file with the City and
incorporated herein by this reference.
3.2 CDFW shall comply will all applicable federal and state laws regarding
public works projects, including but not limited to, competitive bidding, bonding, and
prevailing wages.
California Department of Fish and Wildlife Page 3
sm
3.3 CDFW shall be solely responsible for cooperating with the Conservancy to
ensure the Project is conducted in full compliance with the terms and conditions of the
Grant, including but not limited to, bookkeeping, reporting, deliverables, deadlines,
management, operations, and all other aspects of the Grant.
3.4 CDFW shall comply with all applicable federal and state contracting
requirements. All expenditures made with federal award money, if any, including
subcontracts, are subject to the Uniform Guidance, Title 2 in the Code of Federal
Regulations, Subtitle A, Chapter II, part 200 (2 CFR 200). Additionally, non-federal entities
are subject to 2 CFR 200.317, General Procurement Standards, through 2 CFR 200.327,
Contract Provisions, when expending funds under a federal award.
4. CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA)
The Big Canyon restoration has been conducted in successive phases through the
mutual cooperation of two public agencies, the City and CDFW, in concert with a non-
profit, the Conservancy, providing Grant funding for the restoration work. Pursuant to
Section 15051(d) of the CEQA Guidelines, 14 Cal Code Regs §§15000-15387, City and
CDFW agree that the City shall serve as the lead agency on the Project for purposes of
CEQA. Furthermore, City and CDFW agree that the City is additionally authorized to
serve as the lead agency for the Project pursuant to Section 15051(b)(1) of the CEQA
Guidelines which states that the lead agency will normally be the agency with general
governmental powers, such as a city rather than an agency with a single or limited
purpose, and Section 15051(c) of the CEQA Guidelines which states that the agency
which will act first on the project in question will normally be the lead agency.
5. COASTAL DEVELOPMENT PERMIT
The Project site is bisected by jurisdictional boundaries between the City and the
California Coastal Commission. In accordance with Newport Beach Municipal Code Section
21.50.025 (Projects Bisected by Jurisdictional Boundaries), the City desires to assist in a
consolidated application for a Coastal Development Permit to the California Coastal
Commission for the Project. The parties agree that the City shall assist in the preparation
of an application for a Coastal Development Permit ("CDP") to the California Coastal
Commission as may be required for the Project. The parties agree that the City may be
the applicant or a co -applicant with CDFW and/or the Conservancy on the application for
issuance of a CDP as may be necessary for issuance of the CDP.
6. INDEPENDENT ENTITIES
This Agreement forms no partnership, joint venture, or other association of any
kind. CDFW and the City are not acting as the agent of the other in any respect, and
each is an independent contracting entity with respect to the terms, covenants, and
conditions set forth in this Agreement.
California Department of Fish and Wildlife Page 4
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7. COOPERATION
Each party shall cooperate with and provide reasonable assistance to the other
party to the extent consistent with and necessary to implement this Agreement. Upon the
request of a party at any time, the other party shall promptly execute, with
acknowledgement or affidavit if reasonably required, and file or record the required
instruments and writings and take any actions as may be reasonably necessary to
implement this Agreement or to evidence or consummate the transactions contemplated
by this Agreement.
8. CONSIDERATION
The parties agree that CDFW shall be authorized to use the License Area for the
purposes set forth herein at no cost. The parties agree that the benefit that will accrue to
the citizens of the City through the Project performed in accordance with the Grant is
commensurate with the value to CDFVV's use of the License Area.
9. USE OF THE LICENSE AREA
9.1 CDFW and its agents, contractors, subcontractors, and consultants use of
the License Area shall be limited to the terms and conditions of this Agreement.
9.2 CDFW shall submit its work schedule, including intended days and hours of
operation within the License Area, to the City's License Administrator for approval, which
approval shall not be unreasonably withheld. CDFW agrees that all of its activities shall
be held solely during approved days and hours of operation, subject to exceptions made
on a case -by -case basis upon the prior written approval of the City's License
Administrator in his or her sole discretion.
9.3 CDFW agrees to accept the License Area in an "as is" condition, and that
no representations with respect to the condition or improvements of the License Area
have been made except as specifically set forth in this Agreement.
9.4 Use of the License Area by CDFW is non-exclusive and City may permit
other persons or entities to utilize portions of the License Area, provided that such use
does not interrupt or unreasonably interfere with the essential operation of the Project.
9.5 CDFW shall keep the City's License Administrator informed of CDFW's use
of the License Area, and such use shall be subject to the approval of the City's License
Administrator which approval shall not be unreasonably withheld.
10. PURPOSE OF LICENSE
The purpose of this Agreement is to provide for the entry and temporary use and
occupation of the License Area to carry out the Project in compliance with the Project
plans, the terms of the Grant, and this Agreement. Except as otherwise provided in this
Agreement, use of any area outside the License Area will not be allowed unless prior
permission is given in writing by the City. CDFW agrees to use the License Area only for
California Department of Fish and Wildlife Page 5
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the activities described herein, and not to use or permit the use of the License Area for
any other purpose without first obtaining the prior written consent of City, which consent
may be withheld in City's sole discretion. Acceptable activities include any work
necessary to perform the Project consistent with the Project plans and the terms of the
Grant.
11. CONDITIONS OF LICENSE
CDFW shall comply with the following conditions:
11.1 CDFW shall be solely responsible for entering into an agreement with the
Conservancy for allocation of Grant funds to pay for the costs of the Project.
11.2 CDFW may delegate its duties under this Agreement to the Conservancy,
subcontractors, or other agents, as necessary or convenient, to the extent authorized by
law. Any such delegation shall not constitute an assignment of this Agreement, and
CDFW shall remain solely responsible for all duties, covenants, conditions, and
performance of this Agreement, including the completion of the Project.
11.3 CDFW shall ensure that any and all required licenses, permits and
certifications are obtained and maintained.
11.4 CDFW shall work with adjacent property owners to reach agreement over
the use of land outside of the License Area if such use is needed.
11.5 CDFW shall coordinate use of the License Area to avoid conflict with any
other activities that may be in operation at or within the License Area during the term of
this Agreement.
11.6 CDFW shall obtain the prior written approval of the City's License
Administrator before undertaking any modifications in the operation of the Project which
may affect allocation of space, operating hours, or the relationship with other programs
operating at the License Area.
11.7 No improvements to the License Area are permitted, other than those set
forth in this Agreement.
11.8 CDFW shall be responsible for maintaining the License Area during the term
of this Agreement, including, but not limited to, the routine removal of any foreign material,
waste, and debris.
11.9 CDFW shall use best efforts to keep and maintain the License Area in good
condition, and to not cause unnecessary damage or harm to the License Area, at its sole
cost and expense.
11.10 CDFW agrees that the License Area shall not be used to promote, directly
or indirectly, any political party, political candidate, or political activity, except as permitted
by law.
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11.11 CDFW shall report in writing to City immediately after discovery of the loss
or theft of any items of capital equipment. For stolen items, CDFW shall contact the local
law enforcement agency and submit a copy of the police report to City.
11.12 City may, but shall not be required to, enter upon the License Area at any
time for any reason, including but not limited to, inspecting the License Area for
compliance with the terms of this Agreement, the terms of the Grant, and with all
applicable Federal, State and local (including those of the City) government regulations.
Upon reasonable request, CDFW shall provide a representative to accompany City during
inspections who shall have sufficient knowledge and authority to provide information and
answer questions about CDFW's activities in the License Area.
11.13 CDFW's representatives shall meet with the City upon prior reasonable
request to discuss operational issues concerning use of the License Area.
11.14 CDFW shall promptly pay, when due, all bills, debts, liabilities and
obligations incurred by CDFW in connection with the Project and CDFW's occupation and
use of the License Area.
11.15 CDFW shall comply with all of the terms and conditions of this Agreement
12. TERMINATION
12.1 This Agreement maybe terminated during the term in the following manner
1) By CDFW: At any time, without cause, by giving at least thirty (30) days
advance written notice of termination to City, provided that CDFW shall promptly
restore the License Area to its condition prior to the commencement of any work
caused by CDFW in the Subject Area in furtherance of the Project, or to the
reasonable satisfaction of City;
2) By City: At any time, without cause, prior to the award of any public
contract by CDFW to perform work in furtherance of the Project, by giving at least
thirty (30) days advance written notice of termination to CDFW; or
3) By Default: If, after written notice of default to CDFW of any of the terms
or conditions of this Agreement, CDFW or its agents, contractors, subcontractors
or consultants fails to cure or correct any default of this Agreement within ten (10)
business days of receipt of written notice, City may immediately terminate this
Agreement by delivering written notice of termination to CDFW.
12.2 Subject to acceptance by the City, all improvements located upon the
License Area shall become part of, included in, and appurtenant to the License Area.
12.3 At the expiration or termination of this Agreement, all of CDFW's equipment
or materials remaining in the License Area shall be removed from the License Area at
CDFW's sole cost. CDFW's equipment or materials that are not removed by CDFW within
thirty (30) days of the expiration or termination of this Agreement may be removed by City
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and disposed of by City without any compensation due to CDFW. CDFW shall be
responsible for the cost of any removal and disposal and for any repairs to the License
Area caused by such removal.
13. ADMINISTRATION
13.1 This Agreement will be administered by the City's Public Works
Department. City's Public Works Director, or designee, shall have the authority to act for
City under this Agreement ("City's License Administrator"). The City's License
Administrator or their authorized representative shall represent City in all matters
pertaining to this Agreement.
13.2 CDFW shall designate in writing to City representatives who shall be
responsible for the day-to-day operation of the Project, and for maintenance, cleanliness,
and general order of the License Area.
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14.1 CDFW and its agents, contractors, subcontractors, and consultants shall
use due care to protect the License Area and restore it to its original condition, or to the
conditions required by this Agreement, to the reasonable satisfaction of the City when the
License Area is not in use by CDFW.
14.2 CDFW shall be responsible for the security, repair, and maintenance of the
License Area to the extent the License Area is utilized by CDFW or its agents.
14.3 CDFW and its agents, contractors, subcontractors, and consultants shall
cause all construction and maintenance activities to be conducted in a good and
workmanlike manner commensurate with community professional standards and with the
ordinary degree of skill and care that would be used by other reasonably competent
practitioners of the same discipline under similar circumstances. All work shall be
performed by qualified and experienced personnel. Upon completion of work, CDFW
shall provide City with evidence reasonably satisfactory to City of such completion. By
delivery of completed work, CDFW certifies that the work conforms to the requirements
of this Agreement, the terms of the Grant, all applicable federal, state and local laws, and
legally recognized professional standards.
14.4 City shall not be responsible for any Project expenses, labor, equipment,
supplies, work, liens, taxes, or any other cost of any nature whatsoever incurred in
furtherance of, arising out of, related to, or in connection with the Project. CDFW shall
fully reimburse and indemnify City for any such costs.
14.5 Except to the extent of the City's sole negligence or willful misconduct, City
shall not be liable for any injury or damage arising out of, in connection with, or related to
the Project or the Grant. CDFW shall be solely responsible for all loss or damage to the
License Area and to any persons, property, equipment, materials or goods that is caused
by, arises out of, or is in connection with or related to the Project whether completed by
CDFW or its agents, contractors, subcontractors, and consultants. CDFW shall fully
California Department of Fish and Wildlife Page 8
4-23
compensate and indemnify City for any loss or damage suffered by City in proportion to
the extent to which CDFW or its agents caused or contributed to the loss or damage.
14.6 City shall not be liable to CDFW for any injury or damage to CDFW arising
out of or in connection with acts of god such as earthquakes, floods, fire, pandemic or
disease, or other natural disaster.
14.7 CDFW, on behalf of itself and its employees, agents, contractors,
subcontractors, and consultants, 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, attorney's fees,
disbursements and court costs) of every kind and nature whatsoever (individually, a
Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to any breach of the terms and conditions of this Agreement by CDFW or its
agents, or any work or services performed or provided by CDFW or it agents, including,
without limitation, defects in workmanship or materials, or CDFW's or its agents' presence
or activities that relate in any way to this Agreement (including the negligent and/or willful
acts, errors and/or omissions of CDFW, employees, vendors, agents, suppliers, and
anyone employed directly or indirectly by any of them or for whose acts they may be liable
or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed
to require CDFW to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity
shall be construed as authorizing any award of attorney's fees in any action on or to
enforce the terms of this Agreement.
14.8 In addition to its indemnity obligations set forth herein, CDFW shall
indemnify, defend, and hold harmless Indemnified Parties from and against any Claim
seeking to attack, set aside, void, or annul the approval of this Agreement or the plan or
approvals for the project (including without limitation any actions taken pursuant to CEQA
with respect thereto), and any subsequent approval of any agreement or permit granted
in furtherance of the Project. Said indemnity obligation shall include payment of
reasonable attorney's fees, expert witness fees, City staff costs (including overhead), and
court costs. City shall promptly notify CDFW of any such Claim and City shall cooperate
with CDFW in the defense of such Claim. CDFW shall not be responsible to indemnify,
defend, and hold City harmless from such Claim until CDFW is so notified, and if City fails
to cooperate in the defense of a Claim CDFW shall not be responsible to defend,
indemnify, and hold harmless City during the period that City so fails to cooperate or for
any losses attributable thereto. City shall be entitled to retain separate counsel to
represent City against the Claim and the City's reasonable defense costs for its separate
counsel shall be included in CDFW's indemnity obligation, provided that such counsel
shall reasonably cooperate with CDFW in an effort to minimize the total litigation
expenses incurred by CDFW. In the event either City or CDFW recovers any attorney's
fees, expert witness fees, costs, interest, or other amounts from the party or parties
asserting the Claim, CDFW shall be entitled to retain the same (provided it has fully
California Department of Fish and Wildlife Page 9
4-24
performed its indemnity obligations hereunder). No settlement of any Claim against
Indemnified Parties shall be executed without the written consent of both the City and
CDFW.
14.9 This duties in this Section shall apply to all claims and liability regardless of
whether any insurance policies are applicable. Insurance policy limits shall not act as a
limitation upon the amount of indemnification to be provided by CDFW.
Ii11AIIIIIIIIIIIIIIIIzRII1:7_l►[a]:4
Without limiting CDFW's indemnification of City, and prior to commencement of
work, CDFW and its agents, contractors, subcontractors, and consultants shall obtain 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.
16. PROHIBITION AGAINST ASSIGNMENT AND TRANSFER
This Agreement and the License granted herein shall not be assigned or
transferred without the prior written approval of City which approval may be withheld in
the City's sole discretion.
17. CONFLICT OF INTEREST
CDFW and its employees, agents, contractors, subcontractors, and consultants
may be subject to the provisions of the California Political Reform Act of 1974 ("Act"),
which (a) requires such persons to disclose any financial interest that may foreseeably
be materially affected by the work performed under this Agreement, and (b) prohibits such
persons from making, or participating in making, decisions that will foreseeably financially
affect such interest. If subject to the Act, CDFW and its employees, agents, contractors,
subcontractors, and consultants shall conform to all requirements of the Act.
Notwithstanding Section 9.1.3, failure to conform to the requirements of the Act
constitutes a material breach and is grounds for immediate termination of this Agreement
by City. CDFW shall indemnify and hold harmless City for any and all claims for damages
resulting from a violation of this Section.
18. NOTICE
18.1 All notices, demands, requests or approvals 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. All
notices, demands, requests or approvals from CDFW to City shall be addressed to City
at:
Public Works Department
City of Newport Beach
California Department of Fish and Wildlife
Page 10
4-25
Attn: Public Works Director
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
18.2 All notices, demands, requests or approvals from City to CDFW shall be
addressed to CDFW at:
California Department of Fish and Wildlife
Attn: Amanda Swanson, PhD,
Orange County Reserve Manager
600 Shell maker Road, Newport Beach, CA 92660
19. EQUAL OPPORTUNITY — NONDISCRIMINATION
CDFW and its agents, contractors, subcontractors, and consultants shall comply
with Title VI and VII of the Civil Rights Act of 1964, as amended; the Age Discrimination
Act of 1973, as amended; the Age Discrimination Act of 1975, as amended; Title II of the
Americans with Disabilities Act of 1990; California Civil Code Section 51 et seq., as
amended, California Government Code Section 12940(c), (h), (I), (i), and (j); and other
applicable federal and state laws, as well as their implementing regulations, and any other
law pertaining to Equal Employment Opportunity Affirmative Action and Discrimination as
each may now exist or be hereafter amended. CDFW shall not discriminate against any
employee, or applicant for employment and shall not withhold any services, benefits or
facilities to any participant on the basis of an ethnic group identification, race, color,
national origin or ancestry, religion, age, sex, marital status, political belief, religious
creed, disability, or medical condition.
20. PREVAILING WAGES
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 Project
contemplated under this Agreement shall be paid to all workmen employed on the Project
to be done according to this Agreement by CDFW and any subcontractor. 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
Project is to be performed for each craft, classification, or type of workman or mechanic
needed to execute this 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. CDFW is required to cause wage determinations from
the Department of Industrial Relations to be posted at the job site listing the prevailing
rate or per diem wages. It shall be the obligation of CDFW or any subcontractor 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.
California Department of Fish and Wildlife Page 11
4-26
21. BONDING
For the duration of the Project, CDFW shall require the provision and maintenance
of both of the following: (1) a Faithful Performance Bond in the amount of one hundred
percent (100%) of the total amount to be paid for the Project; and (2) a Labor and
Materials Payment Bond in the amount of one hundred percent (100%) of the total amount
to be paid for the Project. The Faithful Performance Bond and Labor and Materials
Payment Bond shall be issued by insurance organizations or sureties (1) currently
authorized by the Insurance Commissioner to transact business of insurance in the State
of California, (2) listed as an acceptable surety in the latest revision of the Federal
Register Circular 570, and (3) assigned a Policyholders' Rating A- (or higher) and
Financial Size Category Class VI I (or larger) in accordance with the latest edition of Best's
Key Rating Guide: Property -Casualty.
22. LIENS
CDFW shall not permit to be imposed, recorded or enforced against the License
Area or any portion thereof or any structure or improvement thereon any mechanics,
materialmen's, contractors or other liens arising from, or any claims for damages growing
out of, any work or repair, construction or alteration of improvements in connection with
this Agreement. In the event any lien or stop notice is imposed or recorded on the License
Area, and such lien or stop notice arises out of, is related to or connected with, or based
on, CDFW conduct, CDFW shall pay or cause to be paid all such liens, claims or demands
before any action is brought to enforce the same against the License Area.
Notwithstanding the foregoing, if CDFW in good faith contests the validity of any such
lien, claim or demand, then CDFW may, at its sole expense, defend against such lien,
claim or demand provided that CDFW provides City full defense and indemnity therefrom,
and provided CDFW shall pay and satisfy any adverse judgment that may be rendered in
connection therewith before any enforcement against City or the License Area.
23. HAZARDOUS SUBSTANCES
23.1 "Hazardous Substance" means: (i) any substance, product, waste or other
material of any nature whatsoever which is or becomes listed, regulated, or addressed
pursuant to the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. Section 9601 et seq. ("CERLCA"); the Hazardous Materials Transportation
Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42
U.S.C. Section 6901 et seq. "RCRA"); the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California
Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the
California Hazardous Substance Account Act, Health and Safety Code Sections 25330
et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety
Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et
seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste
of Concern and Public Safety Act, Health and Safety Code Sections 25169.5 et seq.;
California Health and Safety Code Sections 25501 et seq. (Hazardous Materials
Response Plans and Inventory); or the Porter -Cologne Water Quality Control Act, Water
California Department of Fish and Wildlife Page 12
4-27
Code Sections 13000 et seq., all as they, from time -to -time may be amended or re -
codified, (the above -cited statutes are here collectively referred to as the "Hazardous
Substances Laws") or any other Federal, State or local statute, law, ordinance, resolution,
code, rule, regulation, order or decree regulating, relating to, or imposing liability or
standards of conduct concerning, any hazardous, toxic or dangerous waste, substance
or material, as now or at any time hereafter in effect; (ii) any substance, product, waste
or other material of any nature whatsoever which may give rise to liability under any of
the above statutes or under any statutory or common law theory, including but not limited
to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any
reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos.
23.2 CDFW and its agents, contractors, subcontractors, and consultants shall
not use, occupy, or permit any portion of the License Area to be used or occupied in
violation of any Hazardous Substance laws.
23.3 CDFW does not, and shall not, authorize any third party to use, generate,
manufacture, maintain, permit, store, or dispose of any Hazardous Substances in
violation of applicable laws on, under, about or within the License Area.
23.4 Notwithstanding the foregoing, CDFW is not responsible or liable for any
Hazardous Substances that are brought on to the License Area, through migration or
other means, by third -parties not associated with CDFW or CDFW's use of the License
Area.
23.5 In addition to the indemnification duties of CDFW set forth elsewhere in this
Agreement, CDFW shall indemnify, defend, and hold harmless the Indemnified Parties
from and against any and all Claims, including, but not limited to, any repair, cleanup,
detoxification, or preparation and implementation of any remedial, response, closure or
other plan of any kind or nature which the City may sustain or incur, or which may be
imposed upon it, arising from or attributable to CDFW and its agents storage or deposit
of Hazardous Substances in violation of applicable laws. This section is intended to
operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section
9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold
harmless, and indemnify City for any claim pursuant to the Hazardous Substance laws or
the common law.
23.6 Upon expiration or termination of this Agreement, CDFW shall deliver
possession of the License Area in compliance with Hazardous Substance laws.
23.7 If during the term of this Agreement, CDFW becomes aware of (i) any actual
or threatened release of any Hazardous Substances on, in, under, from, or about the
License Area in violation of Hazardous Substance laws; or (ii) any inquiry, investigation,
proceeding, or claim by any government agency or other person regarding the presence
of any Hazardous Substances in violation of Hazardous Substance laws on, in, under,
from or about the License Area, CDFW shall give City written notice of the release or
inquiry within five (5) calendar days after CDFW becomes aware or first has reason to
believe there has been a release or inquiry and shall simultaneously furnish to City copies
California Department of Fish and Wildlife Page 13
of any claims, notices of violation, reports, warning or other writings received by CDFW
that concern the release or inquiry.
23.8 If the presence of any Hazardous Substances brought onto the License
Area by CDFW or its agents, or generated by same during the Term of this Agreement,
results in contamination of the License Area or adjacent properties in violation of
Hazardous Substance laws, CDFW shall promptly take all necessary actions, at CDFW's
sole expense, to remove or remediate such Hazardous Substances in full compliance
with applicable laws. CDFW shall provide notice to City prior to performing any removal
or remedial action. CDFW shall not propose nor agree to any covenant of use restriction
as part of any removal or remediation required as a result of this provision without City's
written consent. CDFW shall pay any costs City incurs in performing CDFW's obligation
to clean-up contamination resulting from CDFW's operations or use of the License Area.
23.9 Should any clean-up of Hazardous Substances for which CDFW is
responsible not be completed prior to the expiration or termination of this Agreement, then
CDFW shall: (i) transfer the amounts required to complete clean-up into an escrow
account, together with City -approved instructions for the disbursement of such amount in
payment of the costs of any remaining clean-up as it is completed, and (ii) if the nature of
the contamination or clean-up required of CDFW is of such a nature as to make the
License Area un-usable for its intended purposes, then CDFW shall be liable to City as a
holdover licensee until the clean-up has been sufficiently completed to make the License
Area suitable for its intended purposes. The estimated cost of the clean-up shall require
approval of the City.
23.10 If City determines, in its reasonable discretion, that CDFW does not have
insurance or other financial resources sufficient to enable CDFW to fulfill its obligations
under this provision, then CDFW shall, at the request of City, procure and thereafter
maintain in full force and effect such environmental impairment liability and/or pollution
liability insurance policies and endorsements, or shall otherwise provide such collateral
or security reasonably acceptable to City as is appropriate to assure that CDFW will be
able to perform its duties and obligations hereunder.
24. STANDARD PROVISIONS
24.1 Recitals. City and CDFW acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
24.2 Compliance with all Laws. CDFW 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 CDFW shall conform to applicable City, county, state
and federal laws, rules, regulations and permit requirements and be subject to approval
of the Project Administrator.
24.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed a waiver of any subsequent breach of the
California Department of Fish and Wildlife Page 14
4-29
same or any other term, covenant or condition contained herein, whether of the same or
a different character.
24.4 Integrated Agreement. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
24.5 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.
24.6 Amendments. This Agreement may be modified or amended only by a
written document executed by both CDFW and City and approved as to form by the City
Attorney.
24.7 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.
24.8 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange.
24.9 Taxes. CDFW acknowledges that the License granted herein may be
subject to possessory interest taxes. CDFW shall have the sole obligation to pay any
taxes, fees and assessments, plus applicable penalties and interest, which may be
imposed by law and arise out of CDFW's License hereunder. CDFW shall indemnify,
defend and hold harmless City against any and all such taxes, fees, penalties or interest
assessed, or imposed against City hereunder.
24.10 No Third Party Rights. The parties do not intend to create rights in or grant
remedies to, any third party as a beneficiary of this Agreement, or of any duty, covenant,
obligation or undertaking established herein.
24.11 No Attorneys' Fees. In the event of any dispute under the terms of this
Agreement, the prevailing party shall not be entitled to attorneys' fees.
24.12 Survival. Sections 12, 14, and 23 of this Agreement shall survive the
termination or expiration of this Agreement.
24.13 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
California Department of Fish and Wildlife Page 15
4-30
24.14 Authoritv. CDFW and CDFW's signatories represent that the signatories
hold the positions set forth below their signatures and that the signatories are authorized
to execute this Agreement on behalf of CDFW and to bind CDFW hereto.
[SIGNATURES ON NEXT PAGE]
California Department of Fish and Wildlife Page 16
4-31
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH, a California
CITY ATTORNEY'S OFFICE municipal corporation
Date: Date:
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
Attachments
Grace K. Leung
City Manager
CALIFORNIA DEPARTMENT OF FISH
AND WILDLIFE
Date:
Amanda Swanson
Orange County Reserve Manager
ATTEST:
Date:
in
APPROVED AS TO FORM:
CDFW GENERAL COUNSEL
Date:
in
[END OF SIGNATURES]
Exhibit A: Depiction of Big Canyon
Exhibit B: Depiction of License Area
Exhibit C: Insurance Requirements
California Department of Fish and Wildlife Page 17
4-32
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California Department of Fish and Wildlife
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EXHIBIT C
INSURANCE REQUIREMENTS
Provision of Insurance. Without limiting CDFW's indemnification of City, and prior
to commencement of work, CDFW 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. CDFW agrees to
provide insurance in accordance with requirements set forth here. If CDFW uses
existing coverage to comply and that coverage does not meet these requirements,
CDFW 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. CDFW 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.
CDFW shall submit to City, along with the certificate of insurance, a Waiver
of Subrogation endorsement in favor of City, its officers, agents, employees
and volunteers.
C. General Liability Insurance. CDFW shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Work 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) with no
endorsement or modification limiting the scope of coverage for liability
assumed under a contract. The commercial general liability insurance must
include coverage for sexual abuse/molestation and corporal punishment.
D. Automobile Liability Insurance. CDFW shall maintain automobile insurance
at least as broad as Insurance Work Office form CA 00 01 covering bodily
injury and property damage for all activities of CDFW arising out of or in
connection with work to be performed under this Agreement, including
California Department of Fish and Wildlife
Page C-1
4-37
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.
E. Pollution Liability Insurance. CDFW shall maintain a policy providing
contractor's pollution liability ("CPL") coverage with a total limit of liability of
no less than $5,000,000 per loss and $5,000,000 in the aggregate per policy
period. Claims -made policies require a 10-year extended reporting period.
The CPL policy shall include coverage for cleanup costs, third -party bodily
injury and property damage, including loss of use of damaged property or
of property that has not been physically injured or destroyed, resulting from
pollution conditions caused by contracting operations. Coverage as
required in this paragraph shall apply to sudden and non -sudden pollution
conditions resulting from the escape or release of smoke, vapors, fumes,
acids, alkalis, toxic chemicals, liquids, or gases, waste materials, or other
irritants, contaminants, or pollutants. The CPL shall also provide coverage
for transportation and off -Site disposal of materials. The policy shall not
contain any provision or exclusion (including any so-called "insured versus
insured" exclusion or "cross -liability" exclusion) the effect of which would be
to prevent, bar, or otherwise preclude any insured or additional insured
under the policy from making a claim which would otherwise be covered by
such policy on the grounds that the claim is brought by an insured or
additional insured against an insured or additional insured under the policy
4. Worker's Compensation Insurance Requirements. The policies are to contain, or
be endorsed to contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation against
City, its elected or appointed officers, agents, officials, employees and
volunteers or shall specifically allow CDFW or others providing insurance
evidence in compliance with these requirements to waive their right of
recovery prior to a loss. CDFW hereby waives its own right of recovery
against City, and shall require similar written express waivers from each of
its subcontractors.
B. Additional Insured Status. All liability policies including general liability,
excess liability and automobile liability, if required, but not including
professional liability, shall provide or be endorsed to provide that City and
its officers, officials, employees, and agents shall be included as insureds
under such policies.
C. Primary and Non-Contributoa. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
California Department of Fish and Wildlife Page C-2
4-38
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. CDFW 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. 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 CDFW sixty (60) calendar days advance
written notice of such change.
C. Enforcement of Agreement Provisions. CDFW acknowledges and agrees
that any actual or alleged failure on the part of City to inform CDFW 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.
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 CDFW or any subcontractor fails to
provide and maintain insurance as required herein, then City shall have the
right but not the obligation, to purchase such insurance, to terminate this
Agreement, or to suspend CDFW's right to proceed until proper evidence
of insurance is provided.
California Department of Fish and Wildlife
Page C-3
4-39
G. Timely Notice of Claims. CDFW shall give City prompt and timely notice of
claims made or suits instituted that arise out of or result from CDFW's
performance under this Contract, and that involve or may involve coverage
under any of the required liability policies. City assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the
handling of any such claim or claims if they are likely to involve City.
H. CDFW's Insurance. CDFW 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.
California Department of Fish and Wildlife Page C-4
M
Exhibit "C"
CEQA Exemption Concurrence Letter
4-41
State of California — Natural Resources Agency GAVIN NEWSOM, Governor '"",•
DEPARTMENT OF FISH AND WILDLIFE CHARLTON H. BONHAM, Director !
Director's Office
Post Office Box 944209
Sacramento, CA 94244-2090
www.wild life.ca.c�av
Figure 3: CEQA SERP Concurrence
Letter dated May 4, 2022
May 4, 2022
Makana Nova, Senior Planner
Planning Division
Community Development Department
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
California Environmental Quality Act Statutory Exemption for Restoration Projects,
Big Canyon Coastal Habitat Restoration and Resiliency Project — Phase 3 (Request
No. 21080.56-2022-003-R5)
Dear Ms. Nova:
I am pleased to inform you as the Director of the California Department of Fish and Wildlife
(CDFW) that I concur with the Lead Agency determination by the City of Newport Beach
that the Big Canyon Coastal Habitat Restoration and Resiliency Project — Phase 3 (Project)
qualifies as a statutorily exempt restoration project under the California Environmental
Quality Act (CEQA). (Pub. Resources Code, § 21080.56, subd. (e).) My concurrence as the
CDFW Director is based on CDFW's independent review of the City of Newport Beach's
request for concurrence, which CDFW received on March 24, 2022. In my opinion, informed
by the best available science and described in the separate CDFW Concurrence, the
Project meets all the qualifying criteria in Public Resources Code section 21080.56,
subdivisions (a) to (d), inclusive.
This concurrence signifies the continued commitment by CDFW and its partners in
advancing the "Cutting the Green Tape" initiative, which is a collaborative effort to increase
the pace and scale of restoration projects in California in a way that protects the
environment and results in long-term net benefits to climate resiliency, biodiversity, and
sensitive species recovery. CDFW stands ready to continue this effort in coordination with
the City of Newport Beach.
CDFW's Concurrence will be posted on our website as provided by Public Resources Code
section 21080.56. If you have any related questions, please contact Brad Henderson,
Cutting the Green Tape Program Manager, at (530) 351-5948, or by email at
Brad. HendersonCa)wildlife. ca.gov.
Sincerely,
C,14
onk�,
Charlton H. Bonham
Director
Conseming CaCfoYnids ViCdfe Since 1870
4-42
Makana Nova, Senior Planner
City of Newport Beach
May 4, 2022
Page 2
ec: Valerie Termini
Chief Deputy Director
California Department of Fish and Wildlife
Wendy Bogdan
General Counsel
Office of the General Counsel
California Department of Fish and Wildlife
Julie Vance
Acting Deputy Director
Ecosystem Conservation Division
California Department of Fish and Wildlife
Ed Pert
Regional Manager
South Coast Region (Region 5)
California Department of Fish and Wildlife
Christian Romberger
Senior Environmental Scientist
South Coast Region (Region 5)
California Department of Fish and Wildlife
Brad Henderson
Environmental Program Manager
Watershed Restoration Grants Branch
California Department of Fish and Wildlife
Alys Arenas
Restoration Manager
Newport Bay Conservancy
4-43
STATE OF CALIFORNIA }
COUNTY OF ORANGE } ss.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the
whole number of members of the City Council is seven; the foregoing resolution, being Resolution
No. 2023-7 was duly introduced before and adopted by the City Council of said City at a regular meeting of
said Council held on the 24th day of January, 2023; and the same was so passed and adopted by the
following vote, to wit:
AYES: Mayor Noah Blom, Mayor Pro Tem Will O'Neill, Council Member Brad Avery, Council
Member Robyn Grant, Council Member Lauren Kleiman, Council Member
Joe Stapleton, Council Member Erik Weigand
NAYS: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of
said City this 25th day of January, 2023.
Leilani I. Brown
City Clerk
Newport Beach, California
®4I I FUV_i0