HomeMy WebLinkAbout10-04-27- PSA with LSA for Environmental Monitoring ServicesCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 21
April 27, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
Jaime Murillo, Associate Planner
949 - 644 -3209, jmurillo(a�newportbeachca.aov
Public Work's Department
Stephen Badum, Public Work's Director
949 - 644 -3311, sbadum(a.newportbeachca.aov
SUBJECT: CIVIC CENTER & PARK DEVELOPMENT PROJECT- APPROVAL OF
PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES,
INC., FOR BIOLOGICAL, CULTURAL, AND PALEONTOLOGICAL
MONITORING SERVICES
ISSUE
Should the City authorize a Professional Services Agreement with LSA Associates, Inc.
(LSA) to provide the required biological, cultural, and paleontological monitoring during
the grading and excavation phase of the Civic Center & Park construction?
RECOMMENDATION
Approve a Professional Services Agreement with LSA Associates, Inc., (Attachment CC
No. 1) for biological, cultural, and paleontological monitoring and authorize the Mayor
and City Clerk to execute the Agreement.
DISCUSSION
Background
On November 24, 2009, the City Council adopted Resolution No. 2009 -087 certifying
Environmental Impact Report (EIR) ER2009 -001 (SCH No. 2009041010) and adopting
a Mitigation Monitoring and Reporting Program (MMRP) for the Civic Center & Park
Development Plan project.
PSA with LSA Associates, Inc.
April 27, 2010
Page 2
The EIR for the project identified a number of potentially significant construction impacts
that would be avoided or substantially lessened with the adoption of mitigation
measures which were included in the adopted MMRP for the project. Certain mitigation
measures (listed in Attachment No. CC 2) were adopted to avoid or minimize biological,
cultural, and paleontological impacts during construction. These mitigation measures
include pre- construction bird surveys and the use of monitors during grading.
Proposal
LSA is the environmental consulting firm that prepared the EIR for the project, including
the initial Biological Resource Assessment, Archeological Resource Assessment, and
Paleontological Resources Assessment reports for the project site. B ased on their
familiarity with the project site and previous experience with the project, staff requested
a proposal from LSA to provide the required surveys and monitoring during
construction.
The proposed work includes: 1) preconstruction meetings with the City and Contractor;
2) pre- construction bird surveys; 3) biological resource monitoring; 3) review of final
landscape and irrigation plans; 4) archeological monitoring; 5) paleontological
monitoring; 6) preparation of monitoring reports; and 7) City coordination and project
management.
In addition to LSA's familiarity and previous experience with the project site, staff
recommends the use of LSA due to their extensive experience in the field of biological
and cultural resources, their proximity to the site (Irvine office), and their ability to
dedicate full -time monitors during the extensive grading period.
For cost containment, LSA is proposing the use of a single qualified monitor trained to
monitor both archeological and paleontological resources, rather than the use of two
separate monitors. Where feasible, the monitor will be cross - trained to conduct
biological observation, which results in a savings of approximately $24,000 over
contracting with a separate biological consulting firm. Staff also negotiated with LSA to
reduce all hourly fees by $5 /hour and to reduce the number of hours a Field Director is
needed to manage monitoring efforts by 50 percent, resulting in an additional savings to
the City in the amount of $15,400, for a total savings of $39,400.
The proposed cost for the professional services is a "not to exceed" amount of
$108,160.00 on a time and materials basis per the attached proposal.
Staff confirmed with C.W. Driver and Sirius Environmental that the LSA proposal is
competitive based on their experience with sub - consultant rates. For verification, staff
also received another proposal from Glenn Lukos Associates (GLA) for the pre -
construction bird surveys and the biological monitoring in the amount of $49,990
M
PSA with LSA Associates, Inc.
April 27, 2010
Page 3
($28,890 more than LSA for the biological services). Staff also investigated the costs of
other cultural resource consultants and found that their hourly fees were comparable.
Environmental Review
The City Council's approval of this item does not require environmental review. An
Environmental Impact Report (SCH No. 2009041010) was prepared for the Civic Center
& Park Development Plan project and was certified by the City Council on November
24, 2009.
Public Notice
This agenda item has been noticed according to the Ralph M. Brown Act (72 hours in
advance of the public meetings at which the City Council considers the item).
Funding Availability
There are sufficient funds available in the following account:
Account Description
Newport Beach Civic Center
Prepared by:
aime Murillo
Associate Planner
Attachments:
Account Number
7410- C1002009
Submitted by:
Amount
$ $108,160
$ 108,160
CC1 Professional Services Agreement
CC2 Applicable Mitigation Measures
F:\l1SERS \PLN\Shared\PA's \PAs - 2009\PA2009- 043 \City Hall EIRVvlitigation Monitoring\Construction Monitoring \CC rpt 20100427
LSA PSA.docx
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ATTACHMENT NO. CC 1
Professional Services Agreement
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PROFESSIONAL SERVICES AGREEMENT WITH
LSA ASSOCIATES, INC. FOR
BIOLOGICAL, CULTURAL & PALEONTOLOGICAL MONITORING OF
NEWPORT BEACH CIVIC CENTER & PARK DEVELOPMENT PROJECT
THIS AGREEMENT is made and entered into as of this day of
2010, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and LSA ASSOCIATES, INC., a California Corporation whose address is 20
Executive Park, Suite 200, Irvine, California, 92614 ( "Consultant'), 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 is planning to design and construct a new City Civic Center and Park
Development Project.
C. City desires to engage Consultant to provide biological, cultural and
paleontological monitoring services for the new City Civic Center and Park
Development Project ( "Project').
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member of Consultant for purposes of Project, shall be Lloyd
Sample.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth. in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31st day of December, 2010, 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. The
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City may elect to delete certain tasks of the Scope of Services at its sole
discretion.
3. TIME OF PERFORMANCE
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. The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
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 to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for
performance in writing to the Project Administrator 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.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
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 One Hundred Eight Thousand, One Hundred Sixty Dollars and
no /100 ($108,160.00) 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.
4.1 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) days after approval of the monthly invoice by City staff.
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4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing
in advance by City. Unless otherwise approved, such costs shall be
limited and include nothing more than the following costs incurred by
Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 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
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 NICOLE DUBOIS
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.
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.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. STEVE
BADUM shall be the Project Administrator and shall have the authority to act for
City under this Agreement. The Project Administrator or his authorized
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representative shall represent City in all matters pertaining to the services to be
rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. 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.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards to new
facilities or facilities to be rehabilitated.
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. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City. By
delivery of completed work, Consultant certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in 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, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
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9. HOLD HARMLESS
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, 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, any work performed
or services provided under this Agreement including, without limitation, defects in
workmanship or materials or Consultant's presence or activities conducted on
the Project (including the negligent and/or willful acts, errors and /or omissions of
Consultant, its principals, officers, agents, employees, vendors, suppliers,
consultants, subcontractors, 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
Consultant 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. This indemnity shall apply
to all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. 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 or to
exercise a measure of control over Consultant shall mean only that Consultant
shall follow the desires of City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or
interest in the work to be performed. City agrees to cooperate with the
Consultant on the Project.
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12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points
in order to ensure the Project proceeds in a manner consistent with City goals
and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her
duly authorized designee 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, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. 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.
D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability
Insurance for his or her employees in accordance with the laws of
the State of California. In addition, Consultant shall require each
subcontractor to similarly maintain Workers' Compensation
Insurance and Employer's Liability Insurance in accordance with
the laws of the State of California for all of the subcontractor's
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employees. Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least
thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree
to waive all rights of subrogation against City, its officers, agents,
employees and volunteers for losses arising from work performed
by Consultant for City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the 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 for
each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which
covers the services to be performed in connection with this
Agreement in the minimum amount of one million dollars
($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
L The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
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iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either
party except after thirty (30) calendar days (10 calendar days
written notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional 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.
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 cotenancy,
which shall result in changing the control of Consultant. Control means fifty
percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more
of the assets of the corporation, partnership or joint-venture.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the
work outlined in the Scope of Services. The subconsultants authorized by City to
perform work on this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in
this Agreement shall create any contractual relationship between City and
subcontractor nor shall it create any obligation on the part of City to pay or to see
to the payment of any monies due to any such subcontractor other than as
otherwise required by law. The City is an intended beneficiary of any work
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performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and the 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
Each and every report, draft, map, record, plan, document and other writing
produced (hereinafter "Documents'), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and
City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
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.
18. 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 authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the work 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
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invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or his /her designee
with respect to such disputed sums. Consultant shall be entitled to receive
interest on any withheld sums at the rate of return that City earned on its
investments during the time period, from the date of withholding of any amounts
found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24, CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially
affected by the work performed under this Agreement, and (2) prohibits such
persons from making, or participating in making, decisions that will foreseeably
financially affect such interest.
If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold
harmless City for any and all claims for damages resulting from Consultant's
violation of this Section.
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25. NOTICES
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
Consultant to City shall be addressed to City at:
With a copy to:
Attn: Steve Badum, Director
Public Works Department
City of Newport Beach
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3311
Fax: 949 - 644 -3308
Attn: William Hahn
C.W. Driver. Inc.
15615 Alton Parkway, Ste. 150
Irvine, CA 92618
Phone: 949 - 261 -5100
Fax: 949 - 261 -5167
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Lloyd Sample
LSA Associates, Inc.
20 Executive Park, Suite 200
Irvine, CA 92614
Phone: (949) 553 -0666
Fax: (949) 553 -8076
26. TERMINATION
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.
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Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
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.
27. COMPLIANCE WITH ALL LAWS
Consultant shall at its own cost and expense comply with all statutes,
ordinances, regulations and requirements of all governmental entities, including
federal, state, county or municipal, whether now in force or hereinafter enacted.
In addition, all work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
28. WAIVER
A waiver by either party of any breach, of any term, covenant or condition
contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29. 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. 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.
31. 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.
12 19
32. 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.
33. 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.
34. 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.
35. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
13 19
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
O CE Fii,, THE �CITY ATTORNEY:
By � k6t D
e nie Mulvihill, N
Assistant City Attorney [41
ATTEST:
By:
Leilani I. Brown,
City Clerk
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Keith D. Curry,
Mayor
LSA ASSOCIATES, INC.:
Ew
0
Robert H. McCann,
President
James Baum,
Chief Financial Officer
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
14 go
E XHIBITA �I
ai.
L A LSA ASSOCIATES. INC.
20 EXECUTIVE PARK. SUITE 200 96Y.5'v9.Ufi64 TEL
IRVINE. CALIFORNIA 92616 94 Y. 55180]6 FAX
April 1, 2010
Mr. Jaime Murillo, Associate Planner
City of Newport Beach Planning Department
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
RIVERSIDE
AERKELEY FRESNO ROCKLIN
CARL 5 RAa PALM SPRLUCS SAN LUIS OBiSPO
FORT COLLINS POINT RICHMOND SOUTH SAN FRANCISCO
Subject: Proposal for Biological, Cultural, and Paleontological Monitoring
Dear Mr. Murillo:
LSA Associates, Inc. (LSA) is pleased to submit this proposal to provide Biological and Cultural
Monitoring Services for the recently approved City Hall and Park Development Plan Project (Civic
Center Project). This proposal is based on our understanding of the project, the certified
Environmental Impact Report (EIR), familiarity with the project site based on site surveys and
previous monitoring, and conversations with you.
LSA looks forward to the opportunity to provide Biological and Cultural Monitoring Services to the
City of Newport Beach (City) and to further its work experience with the City. Nicole Dubois will be
the Project Manager for this work effort, and Mona DeLeon will be the Principal in Charge. Jim
Harrison will be the Task Manager for all Biological Monitoring Services, and Lloyd Sample will be
the Task Manager for all Cultural (Archaeological and Paleontological) Monitoring Services.
Based on the schedule provided by C.W. Driver and the City, the current grading for the project is
anticipated to take 5 months (May through September 2010). For this proposal, construction has been
estimated to occur over 110 days (5 months at 22 working days per month). For cost containment,
monitors used for the project will be trained to monitor for both cultural and paleontological
resources. In addition, where feasible, the cultural /paleontological monitors will be trained to conduct
biological observation.
LSA can assure the City that it will respond to any relevant issues or concerns that may arise and will
present options consistent with your goals and priorities for the project. Thank you in advance for
your consideration of this proposal. Although every effort has been made to anticipate your needs,
LSA welcomes the opportunity to discuss strategy and this scope of work. If you have any questions,
please contact either Lloyd Sample or Steve Conkling at (949) 553 -0666.
Sincerely,
LSA ASSO IATES, I
Steve C g d mple
` 1 zinc' Project Manager
04 101 /l0 «H: \NicoleD \Files \Proposal DOculnen(STNn Proposal for Monimring.doco
PLANNING I ENVIRONMENTAL SCIENCES I DESIGN
01
LSA ASSOCIATCS, INC. PROPOSAL FOR BIOLOGICAL AND CDLTVRAL RIONITORINC SERVICES
APRIL 3010 CITY HALL AND PARK DEVELOPMENT PLAN PROJECT
INTRODUCTION
LSA's Natural Resources staff is known for outstanding expertise in the evaluation, management,
and restoration of biological resources. The staff of scientists prepares biological resource inventories,
constraints analyses, and impact assessments. LSA's extensive experience in wetlands analysis,
special- status species evaluation, and environmental permitting is respected by both clients and
regulatory agency staff. LSA designs habitat restoration plans and mitigation banks, implements and
monitors revegetation programs, and facilitates successful completion of permitting assignments. The
extensive use of geographic information system (GIS) and global positioning system (GPS) software
and data has become a regular part of LSA's work.
LSA's Natural Resources staff is the single largest technical discipline within LSA, with 35
professional staff members in four Southern California offices. With over 70 biologists statewide,
LSA can always consult internally with someone who has dealt with and overcome similar complex
issues.
LSA has managed and monitored numerous habitat restoration and habitat creation projects until
being released from further obligations by the resource agencies, including the United States Army
Corps of Engineers (Corps), California Department of Fish and Game (CDFG), and the United States
Fish and Wildlife Service ( USFWS). LSA has experience with habitat restoration and mitigation sites
ranging in area from less than 1 acre to several hundred acres. The projects address habitat types
ranging from desert scrub to coastal wetlands. The professional staff has a broad base of hands -on
experience to effectively address and correct problems encountered during implementation. .
LSA's Cultural Resources staff provides field surveys, testing, laboratory services, resource
evaluation, historical assessments, and monitoring expertise.
PROPOSAL
Task 1: Preconstruction Meeting
This task provides for a preconstruction meeting between the City, the City's Construction
Contractor, and LSA's biological and cultural /paleontological monitors. This meeting is expected to
occur on site and is not expected to last more than 3 hours including travel time. The purpose of the
meeting is for LSA's monitors to review and discuss the construction monitoring schedule and
requirements with the City and the City's construction contractors, so as to be in compliance with the
conditions specified in the Final EIR (FEIR).
Task 2: Conduct Preconstruction Bird Surveys
In the event that project construction or grading activities are scheduled to occur within the active
breeding season for birds (i.e., February 15— August 31), a nesting bird survey will be conducted by a
qualified and experienced LSA biologist within 7 days of the commencement of scheduled clearing
and grubbing of vegetation or other activities involving disturbance of native (e.g., coastal sage scrub
[CSS]) habitat on site. Concurrently, the LSA biologist will also locate any California gnatcatchers
and/or cactus wrens that may occur within 100 feet (ft) of the designated construction area. This
proposal assumes no more than one such survey. In addition, the City will notify the USFWS and
HANicoleDTilesTroposal Docunrenls\CNB Proposal for Moniroring.doc PO4/01/10))
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LEA ASSOCIATES, INC, PROPOSAL FOR BIOLOCICAL AND CULTURAL MONITORING SERVICES
APRIL RSIP CITY HALL AND PARK DEVELOPMENT PLAN PROJECT
CDFG at least 7 days prior to commencement of clearing and grubbing activities. If active nesting of
birds is observed within 100 ft of the designated construction area prior to construction, LSA will
determine the appropriate buffer distance based on the specific nesting bird species and circumstances
involved, and the construction contractor will immediately demarcate the buffer perimeter around the
active nest.
If active nesting occurs, the LSA biologist will need to briefly revisit the site to definitively verify
that the birds have fledged from the nest. Once this has been determined, the buffer may be removed
by the construction contractor. LSA anticipates up to three separate site visits to verify the completion
of nesting.
The locations of any California gnatcatchers, cactus wrens, and /or active bird nests will be clearly
mapped and provided to the City for inclusion on its construction/grading plans, and a brief
memorandum or letter documenting the results of the preconstruction bird survey will also be
provided to the City.
Task 3: Biological Resources Monitoring
An LSA biologist will monitor the installation of protective orange snow fence along the entire
construction perimeter of the area to be preserved in place, including the jurisdictional drainages,
primarily to ensure that the fence is installed at the appropriate location outside of the Corps and
CDFG jurisdictional limits. Monitoring the fence installation is estimated to take no more than one
work day (up to 9 hours including travel time) to complete.
The biological monitor will also be present during the clearing and grubbing of vegetation
(particularly CSS) occurring within 300 ft of the orange snow fencing. The City has indicated a total
of 10 working days to complete these clearing and grubbing activities. For purposes of this proposal
and commensurate with the proposed budget, LSA assumes 8 hours of monitoring per work day and I
additional hour of round trip travel time to and from the site per day.
Following the clearing and grubbing activities, LSA will monitor grading work occurring within 300
It of the orange snow fence. The Construction Contractor has estimated that there will be a total of 60
work days during which grading is likely to occur within 300 ft of the orange snow fence. LSA has
allocated up to a total of 72 hours for an LSA biologist to visit the site periodically during those 60
days of grading to check on the condition of the area and coordinate with the contractor. When the
LSA biologist is not present on site during those 60 days, an LSA archaeologist/paleontologist, cross -
trained in biology and made aware of the pertinent biological issues, will monitor grading within 300
ft of the fence, this monitoring is already included under the scope and budget for the proposed
archaeological /paleontological monitoring work. Utilizing one monitor to cover both biological and
archaeological /paleontological concerns, particularly when the clearing and grubbing is complete,
will result in a significant cost savings of approximately $24,000 to the City.
An LSA biological monitor will be present during removal of invasive exotic plants in the drainages
within the area of preservation. This is expected to take one working day (up to 9 hours including
travel time) to complete. The biological monitor will also be present during the installation of
pedestrian footbridges and construction of trails /footpaths in the area of preservation. LSA has
allocated up to two working days (up to 18 hours including travel time) for this monitoring work.
H:\NicoleD \fileslProposal Documents \CNn Proposal for Monitoring.doc 44/01 1101
aq
LEA ASSOCIATES. INC. PROPOSAL FOR BIOLOGICAL AND CULTURAL MONITORING SERVICES
APRIL 1414 CITY HALL AND PARK DEVELOPMENT PLAN PROJECT
At the completion of all construction activities in the central parcel, the biological monitor will
conduct a final inspection of the area prior to the removal of the orange snow fence. This site visit is
not expected to last longer than 2 hours total, including travel time to and from the site. The
biological monitor will, as necessary, maintain direct contact with the City representative throughout
the construction process.
Task 4: Review Final Landscape and Irrigation Plans
A qualified LSA biologist will review the final landscape plans (including the proposed planting
palette) and the irrigation plans to verify that the native habitat in the preserved area will not be
adversely affected by the surrounding landscaping and irrigation activities. LSA has allocated up to
16 hours for this review. Brief documentation in the form of an email and/or marked -up copy of the
plans will be provided to the City.
Task 5: Cultural Resources Monitoring
Cultural resources are typically contained in the first 6 ft of soil. Within the project area, only limited
areas with a potential to contain cultural resources are present. LSA archaeologists will be present
during ground- disturbing excavations to monitor for cultural resources. For budgetary purposes, LSA
has assumed that 10 percent of total project grading (11 days) will be spent in clearing and grubbing
of the type that might impact cultural resources. Consistent with Mitigation Measure 4.6.2 in the
City's Final EIR for this project, LSA will follow monitoring and reporting procedures specified in
the Archaeological Monitoring Plan (AMP) for the project.
Task 6: Paleontological Resources Monitoring
LSA paleontologists will be present during ground - disturbing excavations to monitor for fossil
resources. Paleontological resources can be located throughout the area that is to be graded,
regardless of the depth of grading, because the sediments are site are paleontologically sensitive
sediments (i.e., Middle Pleistocene marine and terrestrial sediments as well as Middle Miocene
Monterey Formation sediments). Paleontological monitors will be required for the remaining 99 days
of project grading. Consistent with Mitigation Measure 4.6.4 in the City's Final EIR for this project,
LSA will follow monitoring and reporting procedures specified in the Paleontological Resources
Impact Mitigation Program (PRIMP) for the project.
Task 7: Cultural and Paleontological Resources Monitoring Reports
Since both cultural and paleontological resources may be present within the project area, and since
monitors from both disciplines will be present during project construction, a report discussing the
results of the monitoring efforts for each discipline will need to be prepared, consistent with the
requirements of Mitigation Measures 4.6.2 and 4.6.4 in the City's certified Final EIR for this project.
After completion of monitoring efforts, a Cultural Resources monitoring report, detailing the methods
used and results obtained from monitoring, will be prepared following the standard guidance provided
by the Office of Historic Preservation. Completion of this report and its submittal to the Regional
H:1Nicole[AHLSs\ProposaI DocumenIACNB Proposal for Moniloring.doc u04 /01 /1N
5
LSA ASSOCIATES. INC. PROPOSAL FOR BIOLOGICAL AND CULTURAL MONITORING SERVICES
APRIL 20IB CITY HALL AND PARK DEVELOPMENT PLAN PROJECT
Information Center signifies completion of Mitigation Measure 4.6.2. This proposal assumes that no
cultural resources will be encountered during monitoring. If cultural resources are encountered, a
budget amendment may be necessary to address the discovery.
After completion of paleontological monitoring efforts, a report detailing the methods used and
results obtained from monitoring will be prepared. Completion of this report and its submittal to the
City signifies completion of Mitigation Measure 4.6.4. This proposal assumes that no fossils will be
encountered during monitoring. If paleontological resources are encountered, a budget amendment
may be necessary to address the discovery.
Task 8: City Coordination and Project Management
LSA will coordinate closely with and maintain regular communication with the Construction
Contractor and City staff in order to complete the tasks as quickly and efficiently as possible and to
allow City staff to remain informed as to the work currently being conducted by LSA and as to the
associated work schedule. During intense or active periods of work, LSA will communicate
periodically with City staff via telephone. Other than the preconstruction site meeting identified in
Task 2 above, LSA does not anticipate the need to attend any meetings as part of the scope of work
identified above. LSA specifies 10 hours for coordination regarding biological monitoring tasks, and
12 hours for coordination regarding cultural and paleontological monitoring tasks.
BUDGET
LSA proposes to accomplish Tasks 1 -8 as described above for an estimated fee of $108,160, as
shown in Table A. The breakdown of this fee is roughly $21,100 for biological monitoring and
$77,120 for cultural and paleontological monitoring.
LSA fees are charged on an hourly basis, consistent with the Schedule of Standard Contract
Provisions and Billing Rates, which is provided in Appendix A. This amount will not be exceeded
without your authorization. LSA will aggressively identify strategies for reducing the overall work
effort while maintaining the City's objectives and the legal adequacy of the work products.
As you are aware, this proposal is based on the estimated hourly grading schedule provided by C.W.
Driver. In the event actual grading activities exceed 110 days (5 months at 22 working days per
month), or the number of hours of work per day exceeds 8 hours, LSA may seek a budget augment.
Table A: Budget
TASK
BUDGET
Task l: Preconstruction Meeting
$1,080
Task 2: Conduct Preconstruction Bird Surveys
$4,500
Task 3: Biological Construction Monitoring 40 hours per week, 5 days/week, 10 days)
$14,200
Task 4: Review Final Landscape and Irrigation Plans
$2,400
Task 5: Cultural Resource Monitoring 40 hours per week, 5 days/week, 11 days)
$7,600
Task 6: Paleontological Resource Monitoring 40 hours per week, 5 days/week, 99 days)
$69,520
Task 7: Cultural and Paleontological Resources Monitoring Reports
$4,600
Task 8: ity Coordination and Project Management
$3,060
Reimbursable Ex enses
$1,200
TOTAL
$108160
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LSA ASSOCIATES. INC.
LSA IN -HOUSE DIRECT EXPENSES
LACOWcontract.doc «12116109,,
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Unit Cost
8.5 x 11
B/W
$0.10 per page
-Reproduction
Reproduction
8.5 x 11
Color
$1.00 per page
Reproduction
(11 x 17 )
B/W
$0.16 per page
Reproduction
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$2.50 per page
CD Production
$5.00 per CD
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Mileage
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$0.50 per mile
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$0.65 per mile
GPs Unit
$100.00 per day
Sound Meter
$75.00 per day
Aerial Photos
$200.00 per photo
LACOWcontract.doc «12116109,,
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ATTACHMENT NO. CC 2
Applicable Mitigation Measures
30
Applicable Mitigation Measures
PDF BIO -1: Removal of Invasive Exotic Plants. Invasive exotic plant species (e.g., myoporum, castor
bean, pampas grass) associated with the wetland /riparian habitat shall be removed, and mulefat and
willow cuttings and other appropriate lant species shall be installed.
PDF BIO -2: Native Plants. The landscaping palette to be used on site shall include the use of
native plant species in addition to drought tolerant, ornamental, and turf species. The landscaping
palette shall also prohibit the use of invasive exotic plants (i.e., those plant species rated as "High" or
"Moderate" in the California Invasive Plant Council's [Cal-IPCI Invasive Plant Inventory).
MM 4.5.2: Migratory Bird Treaty Act. In the event that project construction or grading activities should
occur within the active breeding season for birds (i.e., February 15— August 15), a nesting bird survey
shall be conducted by the designated project biologist prior to commencement of construction activities.
If active nesting of birds is observed within 100 feet (ft) of the designated construction area prior to
construction, the construction crew shall establish an appropriate buffer around the active nest. The
designated project biologist shall determine the buffer distance based on the specific nesting bird
species and circumstances involved. Once the designated project biologist verifies that the birds have
fledged from the nest, the buffer may be removed. Prior to commencement of grading activities or
issuance of any building permits, the City of Newport Beach Director of Planning, or designee, shall
verify that all project grading and construction plans include specific documentation regarding the
requirements of the Migratory Bird Treaty Act (MBTA), that preconstruction surveys have been
completed and the results reviewed by staff, and that the appropriate buffers (if needed) are noted on
the plans and established in the field with orange snow fencing.
MM4.5.3: Wetland /Riparian Habitat Enhancement. Prior to the commencement of grading activities
associated with the central parcel, the City of Newport Beach (City) Director of Planning, or designee,
shall verify that grading plans require the installation of orange snow fencing along the entire
construction perimeter of the jurisdictional drainages. The City of Newport Beach Director of Planning, or
designee, shall also verify that the City has contracted a qualified, experienced biologist to be present on
site when the orange snow fence is installed to ensure that it is installed at the appropriate location
outside of the United States Army Corps of Engineers (ACOE) and the California Department of Fish
and Game (CDFG) jurisdictional limits. The orange snow fencing shall be maintained and left in place
until all construction activities in the Central Parcel are complete. The biological monitor shall be present
during any grading or vegetation removal activities occurring within 300 feet of the orange snow fencing.
Prior to removal of the orange snow fencing at the completion of construction activities in the central
parcel, the biological monitor shall conduct a final inspection of the area. The biological monitor shall, as
necessary, maintain direct contact with the City representative throughout the construction process.
MM4.5.4: Orange County Central and Coastal Subregion NCCP /HCP. Prior to commencement of
grading activities, the City of Newport Beach (City) shall comply with the terms and conditions of the
Orange County Central and Coastal Subregion Natural Communities Conservation Plan /Habitat
Conservation Plan (NCCP /HCP) Implementation Agreement and construction minimization measures
identified in the NCCP. The following five minimization measures, as outlined in the NCCP, are designed
to reduce potential impacts associated with native habitat and associated general wildlife and are
applicable to the proposed project site-
1 . To the maximum extent practicable, no grading of coastal sage scrub (CSS) habitat that is
occupied by nesting gnatcatchers shall occur during the breeding season (February 15 —July
15). It is expressly understood that this provision and the remaining provisions of these
"construction- related minimization measures" are subject to public health and safety
considerations. These considerations include unexpected slope stabilization, erosion control
measures, and emergency facility repairs. In the event of such public health and safety
circumstances, landowners or public agencies /utilities shall provide the United States Fish
and Wildlife Service /California Department of Fish and Game (USFWS /CDFG) with the
maximum practicable notice (or such notice as is specified in the NCCP /HCP) to allow for
capture of gnatcatchers, cactus wrens, and any other CSS Identified Species that are not
otherwise flushed and shall carry out the following measures only to the extent as
practicable in the context of the public health and safety considerations.
3 i
2. Prior to the commencement of grading operations or other activities involving significant soil
disturbance, all areas of CSS habitat to be avoided under the provisions of the NCCP /HCP
shall be identified with temporary fencing or other markers clearly visible to construction
personnel. Additionally, prior to the commencement of grading operations or other activities
involving disturbance of CSS, a survey shall be conducted to locate gnatcatchers and
cactus wrens within 100 feet of the outer extent of projected soil disturbance activities, and
the locations of any such species shall be clearly marked and identified on the
construction /grading plans.
3. A monitoring biologist, acceptable to USFWS /CDFG, shall be on site during any clearing of
CSS. The City of Newport Beach Director of Planning or designee shall advise
USFWS /CDFG at least 7 calendar days (and preferably 14 calendar days) prior to the
clearing of any habitat occupied by Identified Species to allow USFWS /CDFG to work with
the monitoring biologist in connection with bird flushing /capture activities. The monitoring
biologist shall flush Identified Species (avian or other mobile Identified Species) from
occupied habitat areas immediately prior to brush - clearing and earth - moving activities. If
birds cannot be flushed, they shall be captured in mist nets, if feasible, and relocated to
areas of the site to be protected or to the NCCP /HCP Reserve System. It shall be the
responsibility of the monitoring biologist to assure that Identified bird species will not be
directly impacted by brush - clearing and earth - moving equipment in a manner that also
allows for construction activities on a timely basis.
4. Following the completion of initial grading /earth movement activities, all areas of CSS
habitat to be avoided by construction equipment and personnel shall be marked with
temporary fencing or other appropriate markers clearly visible to construction personnel. No
construction access, parking, or storage of equipment or materials will be permitted within
such marked areas.
5. CSS identified in the NCCP /HCP for protection and located within the likely dust drift radius
of construction areas shall be periodically sprayed with water to reduce accumulated dust on
the leaves as recommended by the monitorina bioloaist.
MM4.6.11: Archaeological and Native American Monitors. Prior to commencement of any
grading activity on site, the City shall retain an archaeological monitor and a Native American monitor to
be selected by the City after consultation with interested Tribal and Native American representatives.
Both monitors shall be present at the pregrade conference in order to explain the cultural mitigation
measures associated with the project. Both monitors shall be present on site during all ground -
disturbing activities (to implement the project Monitoring Plan) until marine terrace deposits are
encountered. Once marine terrace deposits are encountered, archaeological and Native American
monitoring is no longer necessary, as the marine deposits are several hundred thousand years old,
MM 4.6.2: Archaeological Monitoring Plan and Accidental Discovery. Prior to commencement of
any grading activity on site, the City shall prepare a Monitoring Plan. The Monitoring Plan shall be
prepared by a qualified archaeologist and shall be reviewed by the City of Newport Beach Director of
Planning. The Monitoring Plan should include at a minimum: (1) a list of personnel involved in the
monitoring activities; (2) a description of how the monitoring shall occur; (3) a description of frequency of
monitoring (e.g., full -time, part-time, spot checking); (4) a description of what resources may be
encountered; (5) a description of circumstances that would result in the halting of work at the project site
(e.g., what is considered a "significant' archaeological site); (6) a description of procedures for halting
work on site and notification procedures; and (7) a description of monitoring reporting procedures. If any
significant historical resources, archaeological resources, or human remains are found during
monitoring, work should stop within the immediate vicinity (precise area to be determined by the
archaeologist in the field) of the resource until such time as the resource can be evaluated by an
archaeologist and any other appropriate individuals. Project personnel shall not collect or move any
archaeological materials or human remains and associated materials. To the extent feasible, project
activities shall avoid these deposits. Where avoidance is not feasible, the archaeological deposits shall
be evaluated for their eligibility for listing in the California Register of Historic Places. If the deposits are
not eligible, avoidance is not necessary. If the deposits are eligible, adverse effects on the deposits must
32.
be avoided, or such effects must be mitigated. Mitigation can include, but is not necessarily limited to:
excavation of the deposit in accordance with a data recovery plan (see California Code of Regulations
Title 4(3) Section 5126.4(b)(3)(C)) and standard archaeological field methods and procedures;
laboratory and technical analyses of recovered archaeological materials; production of a report detailing
the methods, findings, and significance of the archaeological site and associated materials; curation of
archaeological materials at an appropriate facility for future research and/or display; an interpretive
display of recovered archaeological materials at a local school, museum, or library; and public lectures
at local schools and /or historical societies on the findings and significance of the site and recovered
archaeological materials.
It shall be the responsibility of the City Department of Public Works to verify that the Monitoring Plan is
implemented during project grading and construction. Upon completion of all monitoring/
mitigation activities, the consulting archaeologist shall submit a monitoring report to the City of Newport
Beach Director of Planning and to the South Central Coastal Information Center summarizing all
monitoring /mitigation activities and confirming that all recommended mitigation measures have been
met. The monitoring report shall be prepared consistent with the guidelines of the Office of Historic
Preservation's Archaeological Resources Management Reports (ARMR): Recommended Contents and
Format. The City of Newport Beach Director of Planning or designee shall be responsible for reviewing
any reports produced by the archaeologist to determine the appropriateness and adequacy of findings
MM 4.6.3: Archaeological Site Avoidance. Grading and excavation in the vicinity of existing
archaeological sites CA -ORA- 167/1117 and CA -ORA -1461 shall be avoided. To achieve level surfaces
for proposed project paths, clean (culturally sterile) soils shall be used to cap and protect the sites.
Capping shall be conducted consistent with the provisions of Public Resources Code (PRC) Section
21083.2(b)(3 and 4). Prior to commencement of grading activities, the City of Newport Beach Director of
Public Works shall verify that project grading plans show avoidance of existing cultural sites. The
Director of Public Works shall also verify that grading plans show that the known cultural sites shall be
capped with a minimum of 12 inches of culturally sterile soils from a known source prior to
commencement of any grading activity within 25 feet of these sites. The boundaries of the site shall be
identified by a qualified archaeologist to ensure the entire site has been capped. Precise archaeological
site information is protected from public disclosure by State law. The grading plan shall be clearly
marked to indicate that any cultural resources information on those plans is not for public distribution.
MM 4.6.4: Paleontological Resources Impact Mitigation Program. Prior to commencement of any
grading activity on site, the Director of Planning, or designee, shall verify that a paleontologist, who is
listed on the County of Orange list of certified paleontologists, has been retained and will be on site
during all rough grading and other significant ground- disturbing activities in paleontologically sensitive
sediments. The sensitive sediments that have been identified within the project include the Middle
Pleistocene marine and terrestrial sediments as well as middle Miocene Monterey formation sediments.
A paleontologist will not be required on site if excavation is only occurring in artificial fill.
The paleontologist shall prepare a Paleontological Resources Impact Mitigation Program (PRIMP) for
the proposed project. The PRIMP should be consistent with the guidelines of the Society of Vertebrate
Paleontologists (SVP) (1995) and should include but not be limited to the following:
• Attendance at the pregrade conference in order to explain the mitigation measures associated
with the project.
• During construction excavation, a qualified vertebrate paleontological monitor shall initially be
present on a full -time basis whenever excavation will occur within the sediments that have a
High paleontological sensitivity rating and on a spot -check basis in sediments that have a Low
sensitivity rating. Based on the significance of any recovered specimens, the qualified
paleontologist may set up conditions that will allow for monitoring to be scaled back to part-time
as the project progresses. However, if significant fossils begin to be recovered after monitoring
has been scaled back, conditions shall also be specified that would allow increased monitoring
as necessary. The monitor shall be equipped to salvage fossils and /or matrix samples as they
are unearthed in order to avoid construction delays. The monitor shall be empowered to
temporarily halt or divert equipment in the area of the find in order to allow removal of abundant
33
or
• The underlying sediments may contain abundant fossil remains that can only be recovered
by a screening and picking matrix, therefore, these sediments shall be occasionally be spot -
screened through one - eighth to one - twentieth -inch mesh screens to determine
whether microfossils exist. If microfossils are encountered, additional sediment samples (up to
6,000 pounds) shall be collected and processed through one - twentieth -inch mesh screens to
recover additional fossils. Processing of large bulk samples is best accomplished at a
designated location within the project that will be accessible throughout the project duration but
will also be away from any proposed cut or fill areas. Processing is usually completed
concurrently with construction, with the intent to have all processing completed before, or just
after, project completion. A small corner of a staging or equipment parking area is an ideal
location. If water is not available, the location should be accessible for a water truck to
occasionally fill containers with water.
• Preparation of recovered specimens to a point of identification and permanent preservation. This
includes the washing and picking of mass samples to recover small invertebrate and vertebrate
fossils and the removal of surplus sediment from around larger specimens to reduce the volume
of storage for the repository and the storage cost for the developer.
Identification and curation of specimens into a museum repository with permanent, retrievable
storage, such as the Natural History Museum of Los Angeles County (LACM).
• Preparation of a report of findings with an appended, itemized inventory of specimens. When
submitted to the City of Newport Beach Director of Planning or designee, the report and
inventory would signify completion of the program to mitigate impacts to paleontological
Section 15064.5(e), if human remains are encountered, work within 25 feet of the discovery shall be
redirected and the County Coroner notified immediately. State Health and Safety Code Section 7050.5
states that no further disturbance shall occur until the County Coroner has made a determination of
origin and disposition pursuant to Public Resources Code Section 5097.98. If the remains are
determined to be Native American, the County Coroner shall notify the Native American Heritage
Commission (NAHC), which will determine and notify a most likely descendant (MILD). With the
permission of the City of Newport Beach, the MILD may inspect the site of the discovery. The MILD shall
complete the inspection within 48 hours of notification by the NAHC. The MILD may recommend
scientific removal and nondestructive analysis of human remains and items associated with Native
American burials. Consistent with CCR Section 15064.5(d), if the remains are determined to be Native
American and an MILD is notified, the City of Newport Beach shall consult with the MILD as identified by
the NAHC to develop an agreement for the treatment and disposition of the remains.
Upon completion of the assessment, the consulting archaeologist shall prepare a report documenting
the methods and results and provide recommendations regarding the treatment of the human remains
and any associated cultural materials, as appropriate, and in coordination with the recommendations of
the MILD. The report should be submitted to the City of Newport Beach Director of Planning and the
South Central Coastal Information Center. The City of Newport Beach Director of Planning, or designee,
shall be responsible for reviewing any reports produced by the archaeologist to determine the
appropriateness and adequacy of findings and recommendations.
Newport Beach Civic Center
Cost Timeline
2006 2009 2010 2011 1012
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