HomeMy WebLinkAbout38 - Funding for Back Bay Science CenterCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 38
June 22, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Dave Kiff, Assistant City Manager
949 - 644 -3002 or dkiff(a) city. newport- beach. ca. us
Robert Burnham, City Attorney
949 - 644 -3131 or rb urn ham (a) city. newport- beach. ca. us
SUBJECT: Agreements and Funding for the Back Bay Science Center (formerly
known as the Marine Studies Center) on Shellmaker Island.
RECOMMENDATION:
1. Authorize the City Manager to execute a Cooperative Agreement between the City of
Newport Beach, the County of Orange and the Department of Fish and Game; and
2. Authorize the City Manager to execute a Construction Agreement between the City of
Newport Beach and the Department of Fish and Game; and
3. Authorize the City Manager, upon a favorable determination by the City Attorney or
the State Lands Commission, to allocate up to three years' revenue (roughly
$315,000) from two Newport Bay Accounts towards the City's commitment to share in
the funding of the construction of the Back Bay Science Center.
BACKGROUND:
The City Council has consistently supported the concept of developing, in cooperation
with the Department of Fish and Game (DFG) and the County of Orange, a facility on
Shellmaker Island that would serve as a center for water quality and ecosystem
education as well as water quality testing and research (the Back Bay Science Center).
The proposed Back Bay Science Center include a County- operated water quality lab,
facilities for DFG personnel involved in the management of the Upper Newport Bay
Ecological Reserve, space and exhibits for estuarine, ecosystem and water quality
education and research programs, a wetland demonstration marsh and ecological
interpretive stations. The City has taken the lead role in the planning /design of the Back
Bay Science Center using Oil Spill Settlement Proceeds designated for that purpose.
The City Council has taken the following actions relative to the Back Bay Science Center:
• In 2000, the City Council included the Back Bay Science Center in the list of
projects for which the City was seeking approval from the Trustee Agencies
responsible for monitoring use of the American Trader Oil Spill litigation
proceeds (Oil Spill Funds);
• On April 24, 2001, the City Council directed staff to proceed with the
planning and design of the Back Bay Science Center;
• On June 22, 2001, the City Council requested State funding for the Back
Bay Science Center;
• On October 9, 2001, the City Council authorized the City Manager to
proceed with specific contracts relating to design, construction, and the
placement of a temporary water quality lab on Shellmaker Island;
On September 9, 2003, the City Council authorized Ron Yeo Architects to
prepare final plans and specifications for the Back Bay Science Center;
• On September 23, 2003, the City Council received a comprehensive update
on the status of the Back Bay Science Center including the presentation of
a model of the project developed by Ron Yeo Architects.
• On November 25, 2003, the City Council authorized the City Manager to
execute a cooperative agreement between the City, DFG and the County.
The Cooperative Agreement the City Council approved in November 2003 (November
Draft) contained a detailed description of the Back Bay Science Center and the
"Demonstration Marsh ", described the financial commitments of each party relative to
constructing the project and established construction priorities if the Parties do not
collectively have funds adequate to complete the entire project. The November Draft
obligated the City to contribute, first to any shortfall in funding for the County water quality
lab and second to any shortfall in funding for the DFG facilities, funds in the Upper
Newport Bay Restoration Fund and the Land Bank Fund that were established pursuant
to SB 573 (Johnson, 1997).
The Restoration Fund and the Land Bank Fund ( "Newport Bay Accounts ") collectively
receive 20% of 80% of the tidelands - related revenue (estimated to be roughly $666,000
in FY 04 -05) paid by leaseholders at the Beacon Bay residences. Collectively, the
Newport Bay Accounts receive about $105,600 each year. Revenues from these
accounts can only be used for activities and purchases that benefit the Upper Newport
Bay, including the Back Bay Science Center. Staff is currently working with the State
Lands Commission and with Senator Ross Johnson to determine how revenue in both
Newport Bay Accounts can legally be used for projects like the BBSC.
Rent from Beacon Bay Residences on Tidelands $ 660,000
Amount to Tidelands O & M Fund or Tideland Capital
Fund (80% of Rent) $ 528,000
Amount to UNB Restoration Fund $ 52,800
Amount to Land Bank Fund $ 52,800
Total Amount to Newport Bay Accounts Annually $ 105,600
The November Draft specified that the City's funding commitment was contingent on a
State Lands Commission staff determination that the expenditures would be consistent
with SB 573. The Cooperative Agreement also committed the City to advance
approximately $100,000 in site improvement costs to be repaid by UCI consistent with
their lease with DFG.
DISCUSSION:
The Back Bay Science Center project has taken some twists and turns since the City
Council's approval of the November Draft. The following is a summary of the more
important developments:
• The Public Works Department and Building Department engaged in extensive
discussions with the County relative to the "mat foundation" designed to support
the structures and provide, in the opinion our geotechnical consultant and staff,
more than adequate security to personnel in the event of a major earthquake.
• The Coastal Commission unanimously approved a Coastal Development Permit
for the Back Bay Science Center.
• The County determined that they would require a long term lease to ensure their
right of access and occupancy rather than rely on the Cooperative Agreement.
• The County, City and DFG engaged in extensive discussions regarding the terms
and conditions of leases between the parties that would enable everyone to feel
comfortable committing funds to the project with the Parties agreeing, subject to
approval of their respective legislative bodies, to use two leases to accomplish
their objectives — a lease between DFG and the City and a lease between the City
and the County.
• On March 23, 2004, the City Council authorized staff to advertise for bids to
construct the project and no bids were received at the 10:00 a.m. June 8, 2004 bid
opening date (one late bid was opened by staff, with the consent of the bidder, and
the amount of the bid for Phase 1 of the Project, not including offices or storage for
DFG, exceeded available funding by approximately $1,000,000).
• The Back Bay Science Center partners have submitted a grant request to the
State Coastal Conservancy in the sum of $1,730,000 and we hope the request will
be considered at either their June 3& or September 301h meeting.
• The November Draft has been revised on numerous occasions and the most
current draft (June Draft) is substantially different than the draft considered by the
City Council in November 2003.
• The City and County are co- sponsoring pending legislation (AB 425, Campbell,
2004) that will enable the City to use Beacon Bay lease revenue to pay for
ongoing maintenance and operation of the Back Bay Science Center and allow the
City and County to transfer tidelands between the two agencies subject only to
State Lands Commission approval.
The following is a summary of the differences between the November Draft and the June
Draft of the Cooperative Agreement and the additional obligation the City is assuming
pursuant to the Interagency Construction Agreement:
• Access to, and occupancy of, the Back Bay Science Center would be governed by
the Cooperative Agreement and two leases — one between the City and DFG
(City /DFG Lease) and a second lease between the City and County (County
Sublease) that covers the site and structure housing the County water quality lab
• The County Sublease would obligate the County to pay 31 percent of site
maintenance costs and obligate the City, among other things, to ensure the
structure against damage due to earthquake and fire in the same manner as other
City buildings.
• The City /DFG Lease would, among other things, obligate the City to maintain the
BBSC and the onsite improvements (estimated annual cost of $30,000) with DFG
obligated to fund "minor capital improvements" (DFG term) such as re- roofing.
• The City assumes the obligation to manage the construction of the Back Bay
Science Center project.
The June Draft of the Cooperative Agreement does commit the City to assume a greater
financial and administrative burden than contemplated by the November Draft. However,
staff continues to believe that the Back Bay Science Center is a worthwhile project and
that construction and operation of the facility will be a significant benefit to the residents
of Newport Beach and Orange County. Assuming the City Council authorizes execution
of the June Draft of the Cooperative Agreement and the Interagency Construction
Agreement, staff will make every effort to obtain bids for construction that conform to
available funding and ensure that this facility is constructed in accordance with the
Coastal Development Permit and approved plans.
Environmental Review: A Mitigated Negative Declaration was prepared pursuant to the
provisions of CEQA and approved by DFG on September 23, 2003
Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act
(72 hours in advance of the public meeting at which the City Council considers the item).
Submitted by:
f�
Miff, Assistant Cify Manager
bert Burnham, City Attorney
DRAFT 06/22/04
COOPERATIVE AGREEMENT
for the
BACK BAY SCIENCE CENTER
(Shellmaker Island)
This Cooperative Agreement (Agreement) is made and entered into as of the _
day of 2004 by and between the City of Newport Beach (City), the County
of Orange (County), the University of California at Irvine (UCI) and the California
Department of Fish and Game (DFG) (each a Party and, together, the Parties).
PURPOSE
The purpose of this Agreement is to document the progress, intentions and
commitments of each Party with respect to the planning, funding and construction of the
Back Bay Science Center project described in Section 1 of this Agreement.
RECITALS
A. DFG is the owner of Shellmaker Island (Shellmaker) within the 752 -acre Upper
Newport Bay Ecological Reserve (Reserve). Shellmaker is generally shown on
Exhibit A. The primary purpose of the Reserve is to protect rare and endangered
wildlife, aquatic organisms and critical habitat, and specifically to preserve and
enhance a coastal salt marsh ecosystem.
B. Fish and Game Code Section 1585 authorizes DFG to construct facilities and
conduct programs in ecological reserves it selects to provide natural history
education and recreation if those facilities and programs are compatible with the
protection of the biological resources of the reserve.
C. Shellmaker is the Reserve's main public outreach location. The general public and
numerous students of all ages visit the Reserve year -round to study its terrestrial
and aquatic environments.
EXHIBIT A
D. DFG, the County and the City is each actively involved in efforts to improve the
water quality in the Reserve, Newport Bay and its watersheds, as well as to preserve
and enhance the diverse species and habitats of the Reserve.
E. A tidal channel separates Shellmaker into two portions, the smaller of which
(designated as Lower Shellmaker Island on Exhibit A) contains a roughly 2 -acre
upland area improved with: (i) an existing Marine Studies Center which houses
educational programs developed through DFG's partnerships with the County
Department of Education and various school districts; (ii) offices, maintenance and
storage sheds and support facilities utilized by DFG personnel.and volunteers; (iii) a
temporary water quality lab operated by the County; and (iv) facilities for rowing
equipment storage and student athletic rowing training (UCI Crew Facility) operated
by UCI pursuant to the Ground Lease dated 2004, between DFG
and UCI (UCI Lease).
F. DFG, the City, the County, UCI, the California Wildlife Foundation (CWF) and the
Newport Bay Naturalists and Friends (NBNF) are parties to the Memorandum of
Understanding for the Shellmaker Island Marine Studies Center (MOU) dated as of
August 2, 2002, memorializing the commitment of those parties to work
collaboratively towards the establishment of a Back Bay Science Center (referred to
in the MOU as the Marine Studies Center) on Shellmaker. Those parties have been
working cooperatively and have completed, or are in the process of completing, the
Short Term Objectives identified in Section V of the MOU.
G. In furtherance of the MOU, DFG and the City entered into the Interagency
Agreement for Planning and Design Services for a Marine Studies Center at Upper
Newport Bay Ecological Reserve dated as of May 1, 2002, as amended February 1,
2003 (Interagency Planning Agreement).
H. A Negative Declaration for the Back Bay Science Center (BBSC) project to replace
existing facilities for educational /interpretive programs, water quality testing, and
office staff, and including trails, wetlands rehabilitation and ancillary parking and
utilities (Project) was prepared pursuant to the provisions of the California
Environmental Quality Act. On September 30, 2003, DFG filed a Notice of
Determination for the Project with the State Clearinghouse.
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DFG submitted a Coastal Development Permit (CDP) application for the Project,
Application No. 5 -03 -451, to the California Coastal Commission (CCC) and, on
March 17, 2004 the CCC unanimously approved the CDP subject to numerous
conditions (the CCC conditions are attached as Exhibit B).
J. CWF, on behalf of DFG pursuant to the American Trader Agreements identified in
Section 4, below, entered into a Master Services Agreement with Coastal Resources
Management to prepare a conceptual wetlands restoration plan for the rehabilitation
of degraded wetlands along the southerly edge of Shellmaker (Demonstration Marsh
Area).
K. Proposed conceptual plans, preliminary plans and working drawings for the Project
based on the needs identified by DFG, County and City (together, the BBSC Parties)
as well as the proposed educational, scientific and research functions of the BBSC
have been prepared by Ron Yeo, FAIA Architect, Inc. and the City Public Works
Department and submitted to the Parties.
L. DFG and the City are finalizing an Interagency Agreement for the City to construct
the Project (Interagency Construction Agreement).
M. In order to achieve the Objectives set forth in Section III of the MOU, the Parties
believe that the BBSC should serve as: (i) the site for a public educational facility for
estuarine, water quality and watershed issues; (ii) the site of a County -wide water
quality analysis laboratory; (iii) the focal point of watershed and water quality
education /research programs developed by the Parties in cooperation with other
interested parties such as the CCC and local educators; (iv) a base for monitoring
the health of the ecosystems of Newport Bay and the Reserve and the collection,
assembly and communication of scientific data regarding the status of the Reserve
to interested parties; and (v) an outdoor laboratory for research into, and public
education regarding, the ecology, management, research and the restoration of
wetlands and upland habitat.
N. A Wildlife Conservation and Restoration Program (WCRP) grant administered by the
U.S. Department of Interior, U.S. Fish and Wildlife Service pursuant to Title IX of the
Commerce, Justice, State Appropriations Act for Fiscal Year 2001 provides to DFG
an apportionment of funds to support wildlife conservation, wildlife conservation
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education and wildlife- associated recreation projects focused on animal species of
greatest conservation need. DFG earmarked a portion of these funds allocated in
Federal Fiscal Year 2001 to the BBSC Project for wildlife conservation education.
Guidelines for the use of WCRP funds are set forth in Exhibit C.
O. The Parties currently anticipate that the BBSC will offer research, educational,
academic and interpretive programs involving scientists, educators and volunteers
from the Parties, and other interested parties such as CCC, Orange Coast College
(OCC), NBNF, Newport Mesa School District (NMSD) and local educators and
community organizations that support improved water quality and /or enhanced
ecology of Newport Bay and the Reserve, such as the following:
(i) Programs designed to educate students about the importance of
protecting and enhancing the habitats and quality of water in the Reserve,
Newport Bay and tributary watersheds;
(ii) Extensive water quality testing of numerous public recreational and
sensitive habitat areas in and around coastal Orange County;
(iii) Water quality research programs for university students and, if feasible,
high school students who have displayed special skills and interest;
(iv) DFG facilities designed to provide a base and support for public education
and the management and operation of the Reserve and other public lands;
(v) A Demonstration Marsh Area that will serve as a "restoration research lab"
for students and biologists; and
(vi) A center for compilation, communication and analysis of data on the
physical and biological resources of Newport Bay, the Reserve and
tributary watersheds.
P. DFG and the City have completed a number of tasks that are integral to the
establishment of the BBSC including:
(i) Preparation of a Back Bay Science Center Interpretive Plan that provides
a framework for implementing the outreach and education components of
the Project; and
V.
(ii) Preparation, with the assistance of CCC staff, local educators and
consultants, of a curriculum to be used to implement the educational
programs to be offered at the BBSC.
Q. The UCI Lease requires UCI to pay its proportionate share of, or to perform as part
of possible future Improvements (as defined in the UCI Lease) to the UCI Crew
Facility, certain site improvements which are a part of the Project. This Agreement
includes provisions which are necessary to coordinate the provisions of the UCI
Lease pertaining to such site improvements with the funding and construction of the
Project.
R. The Parties have obtained preliminary cost estimates for constructing the Project in
accordance with the Plans and have identified funds available for the construction of
the Project. As of the date of this Agreement, however, the available funds identified
by the Parties are insufficient to construct the entire Project.
S. The City and DFG have identified other possible funding sources and intend to
actively pursue contributions from those sources, and others, in an effort to obtain
sufficient funds to construct the entire Project.
T. The Parties have determined that the planning and permitting of the Project should
proceed as if sufficient funding has been obtained to construct the entire Project
and, if adequate funding is not obtained prior to the City's award of the contract to
construct the Project, construction of the Project should proceed in phases.
U. The Parties have reviewed and considered the various laws related to the exercise
of land use jurisdiction over Shellmaker and have determined that DFG is not
required to obtain City land use approvals, however, DFG is required to obtain a
Coastal Development Permit from CCC. DFG will voluntarily obtain a building permit
from the City in light of the Interagency Planning Agreement; the City's provision of
police, fire and other municipal services to the BBSC and the City's participation in
the Project as described in this Agreement.
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
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1. PROJECT DESCRIPTION
The Parties agree that the following represents a detailed description of the Project as
of the date of this Agreement and that the Project description set forth below is
consistent with the provisions of the Negative Declaration for the Project. Each of the
Project components described below is generally shown on the proposed Project site
plan attached as Exhibit D. The Project consists of the following:
(A) A permanent enclosed structure comprised of three new buildings
containing a total of four wings, as depicted on Exhibit D, totaling approximately
13,000 gross square feet that will contain space and amenities: (i) to conduct
educational and interpretive programs for students in grades K -12; (ii) for an
estuarine research and resource center for students and teachers of local
schools and universities; (iii) for a "state -of- the -art' water quality testing facility to
be operated and maintained by the County; and (iv) for administrative offices and
equipment storage for DFG staff as well as volunteers. The structure will be set
back from the wetlands in accordance with the plans approved by the CCC and
buffered as required by the conditions described in Exhibit B. Existing
structures will be removed and relocated or demolished with the exception of the
modular building which houses the existing Marine Studies Center, which will be
relocated during construction for use by DFG. The permanent enclosed structure
will incorporate energy saving designs and materials and will be no more than 16
feet high except for a small entry feature that will be approximately 28 feet above
grade.
(B) Outdoor educational program improvements on Shellmaker, including
hands -on interpretive elements, research areas, testing areas, tanks, aquaria
and tide pool exhibits. The existing trail system will be enhanced and signed, will
be separated from the wetlands by appropriate buffers and will include several
.,spur" trails leading to small observation /teaching areas. The Demonstration
Marsh Area will be enlarged to approximately 10,000 square feet and restored.
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The existing native planting area, greenhouse, and amphitheater will be
refurbished.
(C) Site improvements including upgrading water, sewer, electrical and
telephone service to the BBSC, under grounding electrical service, grading,
formalizing the existing 67 -space parking area in a manner that — in comparison
to the existing condition — reduces potential water quality impacts, relocating the
entry gate, adding signage and installing low level outdoor lighting solely for
purposes of security.
2. PROJECT FUNCTIONS
The Parties desire the Project, upon completion, to provide following functions (the
name of the Party presently identified as primarily responsible for performing or
supervising the function is in parentheses after the description):
(A) Educational programs, including displays, exhibits and teaching stations;
offices and storage for biologists, enforcement staff and volunteers to facilitate
DFG operation and management of the Reserve and performance of the DFG
functions identified in this Agreement, including the compilation of data, reports
and studies related to the Reserve (DFG).
(B) Restoration of wetlands along the south side of Shellmaker and the
ongoing use of the Demonstration Marsh Area as a venue for "hands on"
research and analysis designed to develop information and techniques that will
help enhance the habitat in the Reserve (DFG, in cooperation with the City, UCI,
and other interested parties).
(C) Community outreach in various forms including development and
maintenance of a water quality and water conservation website and data base, a
center for training volunteers to become docents or to perform habitat
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enhancement and to serve as a forum for other educational programs and
activities (DFG and City).
(D) Water quality testing and analysis of samples taken from selected sites in
Orange County at rivers, lakes and storm drains and within the Pacific Ocean,
harbors and estuaries including locations in Newport Harbor, Upper Newport
Bay, Huntington Harbor and Dana Point Harbor, as well as testing, monitoring
and research projects relative to the identification of water quality and water
pollution problems and solutions (County).
(E) Water quality testing, education and awareness programs and projects for
middle school, high school and college students, including exhibits and special
programs (City and County — with assistance from DFG and other interested
parties such as OCC, UCI and NMSD).
3. PROJECT PHASING
(A) The County has established and is operating a temporary water quality lab
on Shellmaker under a sublease with the City effective February 3, 2003. The
City leases the portion of Shellmaker on which the temporary facility which
houses the water quality lab is located under a lease with DFG effective
December 17, 2002. City has installed a temporary structure within the area
leased from DFG and the County has staffed and equipped the temporary water
quality lab. The BBSC Parties agree that, in the event construction of the
building that will house the County's water quality lab (designated as OC Water
Quality Lab /Stor on Exhibit D) is delayed beyond the term of the current lease
between the City and DFG, the holdover provision of that lease shall apply.
(B) A preliminary cost estimate to construct the Project in accordance with the
Plans is attached as Exhibit E. The Parties acknowledge that actual costs may
vary from the attached estimate.
F:3
(C) The BBSC Parties have agreed that, if they do not have sufficient funds to
construct the entire Project prior to the City's notice inviting bids, the notice
inviting bids and related documents shall require bidders to submit bids for
Project alternatives or additions, and the Project will be constructed in up to three
phases. If the Project is to be phased, the following priorities shall govern the
City's award of the contract for construction and the phasing of the Project (in
order of priority):
(i) The first phase (Phase 1) shall include at least the following
elements:
a. The site improvements described in Section 1(C); and
b. The building that will house the County's water quality lab
and DFG storage (designated as OC Water Quality Lab /Stor
on Exhibit D ; and
C. The building that will ultimately house the Teaching Lab and
DFG exhibits (designated as Teach. Lab on Exhibit D); and
d. The Demonstration Marsh Area.
Phase 1 will proceed only when and if available funds are sufficient
to construct at least the elements identified in items (a) - (d) of this
Section 3(C)(i) unless the BBSC Parties, each in its discretion,
otherwise agree in writing.
(ii) The second phase (Phase 2) shall include at least the building that
will ultimately serve as permanent DFG and volunteer office space
and as a small meeting or conference space (designated as Admin
Building on Exhibit B). Provided, however, that the Admin Building
will be constructed in Phase 1 if sufficient funds are available to
construct the elements identified in items (a) - (d) of Section 3(C)(i),
above, as well as the Admin Building. Phase 2, if necessary, will
proceed as soon as sufficient funds are available to construct the
elements identified in this Section 3(C)(ii).
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(iii) The third phase (Phase 3) shall include the exhibits and
improvements necessary to fully implement the educational
programs described in Section 1(B) of this Agreement. Provided,
however, that such exhibits and improvements will be constructed
in an earlier phase (Phase 1 or Phase 2) if sufficient funds are
available to construct all elements required to be included in such
earlier phase (and in any phase prior to such phase). Phase 3, if
required, will proceed as soon as sufficient funds are available to
construct the element identified in this Section 3(C)(iii).
4. PROJECT CONSTRUCTION FUNDING
The following represents the specific funding commitments of the Parties relative to the
construction of the Project:
(A) The County has earmarked, and through this Agreement commits, $1.23
million from the National Tobacco Settlement Revenue allocated by the
Orange County Board of Supervisors to the construction of the OC Water
Quality Lab /Stor Building, in accordance with the final building and site
development plans to be approved by the Parties, and by reference
incorporated herein, and the County's portion of site improvement costs.
Disbursement of these funds will be governed by the provisions of this
Agreement and the County Sublease (as defined below) with the
understanding that the City will advance, for a period up to 180 days, any
funds that the County is required to pay pursuant to this Agreement. The
County's commitment is contingent on the approval and execution of a
sublease with the City (County Sublease) for the approximate 3,980
square foot OC Water Quality Lab wing (Lab Wing) of the OC Water
Quality Lab /Stor Building. The County Sublease shall be subject to the
reasonable approval of DFG; the consideration shall be the $1.23 million
contributed by County to the construction of the Project, including site
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improvements, and the County's participation in the Project Functions as
specified in Section 2 of this Agreement. The County Sublease shall have
a term of 30 years with provisions to extend the term of the lease for two
(2) additional five -year (5 -year) periods on the same terms and conditions;
shall require the County to operate and maintain the interior of the Lab
Wing at all times in good condition and repair; and shall require the
County to pay its proportionate share of costs, in the amount of thirty -one
percent (31%) of the total costs (including capital costs) to operate and
maintain the BBSC site, structures and improvements and such other
terms and conditions not in conflict with the City Lease (as defined below)
on which the County and City agree. The County Sublease shall grant the
County during the sublease term reasonable access to, and non - exclusive
use of, the Parking Common Area (as defined below) and other exterior
areas of Shellmaker which are part of the BBSC. In no event shall the
County's funding commitment for the proposed construction exceed $1.23
million without the expressed written consent of the Orange County Board
of Supervisors.
(B) DFG has earmarked, and through this Agreement commits, funding from
two sources (American Trader Oil Spill Settlement Agreement and WCRP
Grant) in the amount of $1,235,000 as set forth below. DFG's
commitment is contingent upon satisfaction of the conditions to the
funding commitments of the County and the City set forth in this
Agreement.
(i) A total of $250,000 provided through the American Trader Oil Spill
Settlement Agreement, including $133,170 already expended on behalf of
DFG and remaining funds in the amount of $116,830, have been or will be
applied toward construction of the Project and disbursed in accordance
with the California Wildlife Foundation Environmental Education and
Public Access Trust Fund American Trader Oil Spill Agreement dated April
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25, 2001, as well as the Supplemental Memorandum of Understanding,
dated May 4, 2000 (together, the American Trader Agreements), among
DFG, the California Department of Parks and Recreation, the Cities of
Huntington Beach and Newport Beach and the County.
(ii) A total of $985,000 from the WCRP Grant, including $369,600
obligated in the Interagency Planning Agreement and remaining funds in
the amount of $615,400 to be applied toward construction of the Project
through the Interagency Construction Agreement. Use of these funds is
subject to the WCRP Guidelines set forth in Exhibit C. Payment of these
funds will be governed by existing State contracting procedures.
(iii) DFG has been working with the Wildlife Conservation Board (WCB) to
attempt to secure additional funding to be used towards construction of
the Demonstration Marsh Area. The WCB is scheduled to consider a
proposed allocation for this purpose at its May 13, 2004 public meeting.
Commitment and disbursement of funds by WCB is governed by the policy
and procedures of WCB.
(C) City has expended approximately $500,000 in funds from the American
Trader Oil Spill Settlement towards the planning, design and environmental
analysis of the Project and the development of educational programs for the
BBSC. City commits, through this Agreement, to contribute to the construction of
the Project all of the funds available in the Upper Newport Bay Restoration Fund
(established pursuant to SB 573) as of June 1, 2004 based on a determination by
State Lands Commission staff, or an amendment of SB 573, that use of those
funds for the purposes specified in this Subsection is consistent with the intent of
S6573. To the extent that the City is able to ascertain the differential between
the actual cost of any Project component and the contributions of the Parties,
these funds shall first be committed (first priority) to fund the difference, if any,
between the actual cost of (a) construction of the OC Water Quality Lab /Stor
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Building and the County's portion of site improvement costs (as set forth below),
and (b) the $1.23 million committed by the County. Assuming funds remain after
the "first priority" and subject to the execution of a lease of the Lab Wing
reasonably acceptable to DFG and the City (City Lease), the City commits the
balance to fund the difference, if any, between: (a) the actual cost of the Teach
Lab Building and other structures intended for use by DFG and DFG's portion of
site improvement costs (as set forth below), and (b) the $1,235,000 committed by
DFG. In the event the City is unable to determine if there is a difference between
funds committed and the cost of any Project component, the funds shall simply
be allocated to defray Project construction costs. In no event shall the City's
funding commitment pursuant to this Section 4(C) exceed the then current
balance in the Upper Newport Bay Restoration Fund without the express consent
of the City Council of the City of Newport Beach.
The City Lease shall require the City to maintain and repair the BBSC structures
(other than minor capital improvements such as roof replacement),
improvements and site (except for the Parking Common Area maintenance for
which UCI is responsible under the UCI Lease) at all times in good condition and
repair; to maintain the insurance set forth in Exhibit F and shall include such
other terms and conditions as the City and DFG agree. The City Lease shall
grant the City during the lease term reasonable access to, and non - exclusive use
of, those portions of Shellmaker (other than DFG work stations and storage
areas) that are part of the BBSC Project and to which access is necessary for the
City to perform its obligations under this Agreement or the City Lease.
(E) The Parties have estimated site improvement costs at approximately
$949,000, as set forth in Exhibit E. The Parties have determined, and hereby
agree, that the site improvement costs shall be borne as follows:
(i) The costs to improve the 67 -space parking area (Parking Common
Area) in accordance with CDP 5 -03 -451 and the Final Plans (as defined in
Section 6, below) shall be borne as follows:
13
(a) UCI shall be responsible for one - third;
(b) County and City together shall be responsible for one - third,
to be paid from available funds identified in Sections 4(A) and (C), above; and
(c) DFG and City together shall be responsible for one - third, to
be paid from available funds identified in Sections 4(B) and (C), above.
(ii) The costs of the site improvements other than the Parking Common
Area shall be borne as follows:
(a) UCI shall be responsible for the costs of utility lines and
other facilities in proportion to the estimated proportionate use by UCI of those
utilities and facilities as provided in Article 7 of the UCI Lease;
(b) The balance of the site improvement costs (excluding the
Parking Common Area addressed immediately above) shall be borne as follows:
(1) County and City shall be responsible for one -half, to
be paid from available funds identified in Sections 4(A) and
(C), above; and
(2) DFG and City shall be responsible for one -half, to be
paid from available funds identified in Section 4(B) and (C),
above.
(F) Article 3 of the UCI Lease allows UCI to improve the Parking Common
Area in accordance with applicable plans, permits, approvals and best
management practices for the Project which is the subject of this Agreement, if
and when UCI constructs Improvements (as defined in the UCI Lease) on
Shellmaker. If UCI improves the Parking Common Area (which shall be done in
accordance with CDP 5 -03 -451, including the CCC conditions in Exhibit B, and
the UCI Lease), then despite the contrary provisions of this Agreement, County,
City and DFG each agrees that applicable funds earmarked under this
Agreement, in the amount for which the applicable Party is responsible under
Section 4, shall be paid to UCI (or such third party as UCI may designate) as UCI
incurs such costs.
14
5. PRECONSTRUCTION COMMITMENTS
The City and DFG shall use their respective good faith efforts to obtain sufficient funds
to construct the entire Project prior to the City's award of the construction contract for
the Project (or Phase I, if the Project is phased). The City shall be the Party with primary
responsibility for this funding effort. The City and DFG agree to actively pursue
additional funding from federal, state and local agencies as well as the private sector.
The City agrees to seek contributions to the BBSC Project from the State Coastal
Conservancy, Irvine Ranch Water District, the Santa Ana Regional Water Quality
Control Board (and the State Water Resources Control Board), the Orange County
Sanitation District and the Orange County Water District. The City and DFG will also
endeavor to identify non -profit organizations and environmental groups that may be
sources of funding. Finally, the City and DFG will contact, and if requested make
presentations to, individuals, organizations and businesses in Orange County and
Southern California that desire to contribute, or have previously contributed, to facilities
such as the BBSC. City and DFG shall provide each other with copies of any
documents or material used in conjunction with seeking funding and shall coordinate on
the text and graphics used prior to their distribution. Funds contributed to the BBSC
shall be used for the purpose(s) specified by the funding source or, if no specific use is
identified, in the order of priority specified in Section 3 of this Agreement.
6, PROJECT CONSTRUCTION COMM ITMENTSIPROCEDURES
The BBSC Parties have made the following commitments, and agreed on the following
procedures, with respect to construction of the Project.
(A) City will process building and related permits necessary to construct the
Project structures and site improvements, as set forth in final building and
site development plans to be approved by the Parties (together, the Final
Plans). City will process the plans and issue permits as appropriate
without charge. DFG shall promptly execute all documents which the fee
15
owner of the Project site is legally required to sign to obtain a building
permit. Any changes the City may request to the Final Plans approved by
the Parties shall be consistent with this Agreement and shall be subject to
the prior written approval of DFG. Any changes the City may request to
the Final Plans for the OC Water Quality Lab /Stor Building and site
improvements shall also be subject to the prior written approval of the
County. Such approval will not be unreasonably withheld or delayed.
DFG and the County each agrees to expedite its review of any changes to
the Final Plans which the City may request during construction, and to
respond to such request in a timely manner.
(B) The City, DFG and the County will otherwise fully cooperate with one
another, and with any resource agency, with respect to any resource
agency approval or permit required to construct or maintain any
component of the BBSC Project.
(C) Once City issues a building permit, City shall obtain bids for the
construction of the Project (including those phases of the Project for which
funds are then committed and available to fund construction, or for which
funds may become committed and available prior to City's award of the
contract) in accordance with the Final Plans approved by the BBSC
Parties, this Agreement and the Interagency Construction Agreement.
Once bids are received, City shall process the bids and award a contract
for the construction of all (or one or more specified phases) of the BBSC
Project in accordance with relevant provisions of law, this Agreement and
the Interagency Construction Agreement. In the event of any conflict
between this Agreement and the Interagency Construction Agreement,
then as between DFG and the City, the Interagency Construction
Agreement shall govern.
16
(D) City will retain a construction manager to assist the architect during the
construction of the Project. The construction manager will be the point of
contact for the BBSC Parties with respect to questions or comments
regarding the manner, means, status or timing of construction and City will
cause the construction manager to routinely inspect construction, test
materials and provide progress reports to the BBSC Parties.
7. OPERATING AGREEMENT
The BBSC Parties shall enter into a BBSC Operating Agreement (Operating
Agreement) that would become effective when construction of Phase 1 (or the entire
Project, if phasing is unnecessary) is complete. Upon the approval and execution of the
Operating Agreement by all of the Parties, the Operating Agreement shall be attached
to this Agreement as Exhibit G. The BBSC Parties anticipate that the Operating
Agreement will cover at least the following topics:
(A) The creation of a BBSC Work Group for Facilities that would include the
City, as Property Manager, and the Project Administrators (as defined in
Section 12) or their designees and that would be responsible to identify
facility needs, to plan and implement property maintenance, and to plan
and implement capital projects and improvements in order to protect and
preserve the useful life and function of the BBSC facilities.
(B) Defining the role and responsibilities of the City as the Property Manager
for the BBSC site and facilities to include but not limited to the
Chairperson for the Work Group for Facilities, Manager /Administrator for
the crews or contractors employed in property maintenance, restoration
and /or improvement, and Financial Manager for the preparation of an
annual budget and administration of operational expenses.
17
(C) Defining the role, responsibilities and limitations of the County for the
operation and maintenance of the interior portions of the water quality
laboratory to include but not limited to cleaning, electrical and lighting,
mechanical - heating / air conditioning / ventilation (HVAC), fire
suppression system / fire extinguishers and plumbing, security - alarm
systems, locks and lock systems, structural - interior finishes, support
systems - data network and telephone, and alterations, and for
contributing a proportionate share (31 %) of the expenses for maintenance
of the exterior of the BBSC facilities and the BBSC site as set forth in the
County Sublease.
(D) Creating a BBSC Work Group for Programs that would include the Project
Administrators (as defined in Section 12, below) or their designees and
other parties as deemed appropriate by the Project Administrators and
would be responsible to plan educational programs, plan and coordinate
the involvement of volunteers, make recommendations to the Work Group
for Facilities regarding facilities items that would enhance the educational
programs and opportunities, define hours of operation; specify facility and
site access (including volunteers) and security, monitor public use,
information and data sharing, public education and outreach. The BBSC
Work Group for Programs would also be responsible for the development,
evaluation and delivery of educational programs, materials and exhibits
and the extent to which the programs or exhibits should be modified to
better achieve the educational objectives of the BBSC.
(E) Defining the role and responsibilities of the DFG as the Program Manager
for the BBSC site and facilities and Chairperson of the Work Group for
Programs and describing DFG's obligations relative to maintenance of the
BBSC structures.
(F) Coordinate the educational efforts of the County relative to developing an
exterior interpretive panel on water quality testing, designing water quality
related curriculum, training educational personnel, assisting with higher
Im
level classes held in their teaching facility and staffing a demonstration
booth at special events such as Earth Day.
(G) The management of volunteers, educators and students who are involved,
or wish to become involved, in the educational or research programs of
the BBSC.
(H) The establishment of an endowment or other source(s) of long -term
funding to maintain and enhance the BBSC Project.
8. UCI CREW FACILITY
City and County each agrees to cooperate with UCI relative to the use of, and any
redevelopment and /or reconstruction of, the UCI Crew Facility pursuant to the UCI
Lease.
9. COOPERATION
(A) The Parties acknowledge that the planning, funding, construction and operation
of the Project are complex matters that will require ongoing cooperation and good faith
effort on the part of each Party. Accordingly, the Parties agree to put forth a good faith
effort and to cooperate with one another to ensure that each performs in a manner
consistent with the terms and conditions of this Agreement including, without limitation,
the Project Functions described in Section 2.
(B) The BBSC Parties presently desire that the Back Bay Science Center and the
Project Functions will continue for the foreseeable future. DFG agrees that the long
term involvement of the City and County in the operation of the Project and their
provision of Project Functions is important to the success of the Project. Accordingly,
subject to a determination that the City and the County have performed this Agreement,
the Operating Agreement and, as applicable, the City Lease or County Sublease, and
following the request of City and County made within 12 months prior to the expiration
19
of the term of the City Lease, DFG will consider extending the term of the City Lease or
taking such other action as may be appropriate to enable the City and the County to
continue their involvement in the operation of the Project and their provision of Project
Functions. City and County acknowledge and agree, however, that nothing in this
Agreement is intended to or constitutes a right or option to renew or extend the City
Lease.
10. REMEDIES
If a Party defaults in the performance of any of its obligations under this Agreement, the
sole remedy of the other Parties shall be to seek specific performance against the
defaulting party.
11. OTHER AGREEMENTS
This Cooperative Agreement is intended to supplement, not supplant the previous
agreements referenced in this Agreement and its Exhibits. If any provision of a prior
agreement among the Parties, or between any two or more of the Parties, conflicts with
this Cooperative Agreement then, as between or among the affected Parties, this
Cooperative Agreement shall take precedence.
12. PROJECT ADMINISTRATORS
The Parties have each designated a `Project Administrator" to perform certain activities
under this Agreement, and to ensure that the Project is carried out in accordance with
this Agreement. The Project Administrators shall be the following:
20
Newport Beach — H. Bludau, City Manager
3300 Newport Boulevard, Newport Beach, CA 92658 -8915
Phone — (949) 644 -3000
Fax — (949) 644 -3020
E -mail hbludau�D_ city. newport- beach. ca. us
DFG — Regional Manager, South Coast Region
4949 Viewridge Avenue, San Diego, CA 92123
Phone - (858) 467 -4210
Fax - (858) 467 -4239
E -mail craysbro0)dfg.ca.gov
County - County of Orange
Manager, HCA/Facilities Acquisition and Management
405 W. 5`h Street, Suite 610
Santa Ana, CA 92701
Phone — (714) 834 -5158
Fax — (714) 834 -7695
e -mail ggray @HCA.co.orange.ca.us
UCI - Richard Demerjian,
Phone -
Fax -
E -mail rgdemeriCD_uci.edu
A Party may change its Project Administrator at any time by written notice to the other
Parties given in accordance with Section 13.
21
13. NOTICE
Notices and other communications under this Agreement shall be made in writing and
may be given by delivery in person, by mail or by receipt- confirmed facsimile to the
Parties addressed to their respective above - listed Project Administrators.
14. TERM: TERMINATION
This Agreement becomes effective upon execution by each of the Parties to the
Agreement and shall continue in effect until terminated in writing by the mutual consent
of the Parties.
15. AMENDMENT
This Agreement may only be amended in writing and upon execution by all of the
Parties to this Agreement.
16. SEVERABILITY
If any part of this Agreement is determined to be invalid or in violation of the law, all
other parts not so determined shall remain in full force and effect.
17. APPROPRIATIONS
Any provision of this Agreement which calls for an expenditure of funds by DFG is
subject to the availability of appropriated funds for such purpose.
18. EXHIBITS
The following Exhibits are attached to this Agreement and incorporated by reference:
Exhibit A - Vicinity Map from Coastal Commission Staff Report.
Exhibit B - CCC conditions.
22
Exhibit C - Guidelines for the use of WCRP funds.
Exhibit D — Site plan
Exhibit E - Preliminary estimate of Project construction costs.
Exhibit F - Insurance.
Exhibit G - Operating Agreement (to be attached upon completion).
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first
above written.
APPROVED AS TO FORM:
OFFICE OF THE COUNTY COUNSEL
ORANGE COUNTY, CALIFORNIA
Deputy
RECOMMENDED FOR APPROVAL:
Health Care Agency
ffis
1.11
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS BEEN
DELIVERED TO THE CHAIRMAN OF
THE BOARD.
DARLENE J. BLOOM
Clerk of the Board of Supervisors
of Orange County, California
COUNTY
COUNTY OF OF
BY:
Chairman, Board of Supervisors
23
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY
CITY OF NEWPORT BEACH
m
APPROVED AS TO FORM:
DATE:
CITY OF NEWPORT BEACH
m
Mayor of Newport Beach
DEPARTMENT OF FISH & GAME
m
Regional Director
24
SATE OF CALIFORNIA
S •. AVDARD AGREEMENT
STD 213 (Rev 09/01)
AGREEMENT NUMBER
P0380039
1. This Agreement is entered into between the State Agency and the Contractor named below:
STATE AGENCY'S NAME
Department of Fish and Game
CONTRACTOR'S NAME
City of Newport Beach
2. The term of this
Agreement is: April 1, 2004 through April 1, 2006
3. The maximum amount $ 615,400.00
of this Agreement is: Six hundred fifteen thousand four hundred dollars and no cents
4. The parties agree to comply with the terms and conditions of the following exhibits which are by this reference made a
part of the Agreement.
Exhibit A — Scope of Work 2 pages
Exhibit B — Budget Detail and Payment Provisions 3 pages
. Exhibit C — General Terms and Conditions GTC 304
Exhibit D — DFG Additional Provisions 7 pages
Exhibit E - Federal Provisions 3 pages
Items shown with an Asterisk ('), are hereby incorporated by reference and made part of this agreement as if attached hereto.
These documents can be viewed at htto://www.ols das.ca.00v /Standard +Lanaua9e /default htm
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
CONTRACTOR
CONTRACTOR'S NAME (d other than an individual, state whethera corporation, partnership, etc.)
City of Newport Beach
BY
Q
PRINTED NAME AND TITLE OF PERSON SIGNING
3300 Newport Boulevard, P.O. Box 1768
Newport Beach, CA 92658 -8915
AGENCY NAME
STATE OF CALIFORNIA
of Fish and Game
BY (Authonzed Signature)
PRINTED NAME AND TITLE OF
Renee Renwick,
ADDRESS
1416 9`h Street
Sacramento, CA 95814
DATE SIGNED(Do not ryt,0
not type)
Director; Administration
`.11 b t rf i i,
r 69 4 tt,
California Department of General
Services Use Only
❑ Exempt per:
City of Newport Beach
P0380039
Page 1 of 3
EXHIBIT.' —SCOPE OF WORK
(DF,G EXA 04/03)
1. The Contractor agrees to provide the State Department of Fish and Game (DFG) construction work as
described herein:
The Contractor is responsible for construction of a Back Bay Science Center (BBSC) and site
improvements to support environmental conservation and education, and water quality improvements
at Shellmaker Island, Upper Newport Bay Ecological Reserve.
2. These services shall be performed at Shellmaker Island, Upper Newport Say Ecological Reserve, in
Orange County, California.
3. The Contractor shall perform services on an "as needed" basis as determined by the Contract
Manager.
4, The Project Officials during the term of this agreement will be:
DFG Contract Managers
Name:
Ms. Kari Lewis
Name:
Ms. Terri Stewart
Title:
Senior Wildlife Biologist
Title:
Senior Biologist Supervisor
Address:
Department of Fish and Game
Address:
Department of Fish and Game
Lands & Facilities Branch
South Coast Region
1812 Ninth Street
4949 Viewridge Avenue
Sacramento, CA 95814
San Diego, CA 92123
Phone:
(916) 445 -3789
Phone:
(858) 467 -4209
Fax:
(916) 445 -4058
Fax:
(858) 467 -4235
E -mail:
KLewis @dfg.ca.gov
E -mail:
TStewart @dfg.ca.gov
City's Contract Manager
Name:
Mr. Lloyd Dalton
Title:
Engineer
Address:
'City of Newport Beach
3300 Newport Boulevard, P.O. Box 1768
Newport Beach, CA 92658 -8915
Phone:
(949) 644 -3328
Fax:
(949) 644 -3308
E-mail:
Idalton @ city. newport- beach.ca. us
Scope of Work
A. Background and Obiectives
The Back Bay Science Center (BBSC) is a cooperative project undertaken by DFG, the City and
The County of Orange (each a party and together, the Parties). The Parties entered into a
Memorandum of Understanding on August 2, 2002, defining the project and formalizing their
commitment to establishment of the BBSC (then known as the Marine Studies Center).
The City, under contract #P0180115 with DFG and with contributions of City funds, has prepared
plans and specifications for construction of the BBSC and site improvements. The Parties have
entered into a Cooperative Agreement for the planning, funding and construction of the BBSC.
The Cooperative Agreement documents the intentions of the parties, including, but not limited to
funding commitments and phasing of construction and site improvements for the BBSC.
City of Newport Beach
P0380039
Page 2 of 3
EXHIBIT A — SCOPE OF WORK (Continued)
(DFG EXA 04103)
DFG contributions of funding for the project are from a Wildlife Conservation and Restoration
Grant Program (WCRP) administered by the U.S. Fish and Wildlife Service. Due to requirements
of the WCRP, planning and construction elements of the project are funded with separate and
sequential interagency agreements.
B. Work to be Performed
All construction and site improvements, and actions needed to undertake them are subject to the
approval of DFG.
If inadequate funding exists to construct the entire BBSC and site improvements as defined in the
final plans and specifications approved by DFG, work shall proceed in accordance with the
phasing plan documented in the Cooperative Agreement. Prior to the initiation of work under this
agreement, the City shall verify with the DFG Contract Managers that adequate funds are
available to complete at least Phase I of the project as defined in the Cooperative Agreement.
The BBSC and related site improvements shall be constructed in accordance with final plans and
specifications approved by DFG, a Final Initial Study and Negative Declaration for BBSC dated
September 23, 2003, and the Cooperative Agreement between the Parties.
The City shall retain a project manager to oversee and manage the construction of the BBSC and
related site improvements at Shellmaker Island. The City shall employ the project manager 30
days prior to commencement of construction.
The City shall construct a Teaching Lab and Storage Wing, and implement site improvements in
accordance with final plans and specifications approved by DFG. Work performed under this
agreement will yield no less than a completed Teaching Lab, Storage Wing and necessary site
improvements.
The City shall perform the work necessary to conduct surveys, change orders, requests for
information, inspections, permitting, preparation of as built plans and to obtain approvals of plans,
specifications and drawings.
The City shall obtain written or signed approvals from DFG South Coast Region staff on design or
construction amendments which alter the function of any aspect of the BBSC or the site as
defined in the final approved plans and specifications of the BBSC. DFG staff authorized to
approve such amendments are Ms. Terri Stewart and Mr. John Scholl. in the event neither
Ms. Stewart nor Mr. Scholl is available, Ms. Kari Lewis is also authorized to approve such
amendments.
The City shall meet with DFG Contract Managers upon execution of this contract and as
necessary throughout the term of the contract.
C. Schedule of Completion Dates
Estimated
Activity Completion Date
Approve Building Plans April 5, 2004
Obtain Building Permits April 14, 2004
Submit Plans to Coastal Commission April 15, 2004
; F.l5iT .> — SCOPE OF WORK (Continued)
;DFG EXA 04/03)
Activity
Request for Bids
Bids Due and Opened
Award Construction Contract
Notify Contractor of Approval to Proceed
Begin Construction
Complete Construction
D. Reports
City of Newport Beach
P0380039
Page 3 of 3
Estimated
Completion Date
April 30, 2004
June 1, 2004
June 22, 2004
July 30, 2004
August 1, 2004
April 1, 2006
The City shall submit monthly progress reports to DFG Contract Managers outlining the activities
performed under this contract and raising any issues needing resolution.
EXHIBIT B — BUDGET DETAIL AND PAYMENT PROVISIONS
(DFG EXB 05103)
1. Invoicing and Payment
A. For construction services satisfactorily rendered, and upon receipt and approval of the
invoices, the State agrees to compensate the Contractor for actual expenditures
incurred in accordance with the rates specified herein. Invoices shall be
submitted to :
Contract Manager: Katherine Sirk
Region /Division: LFB /Engineering
Address: 1812 9th Street, Ste. 100, Sacramento, Ca 95814
B. The original and one (1) approved copy of the invoice will be forwarded to the
Department of Fish and Game's Accounting Claims Section by the Contract Manager.
Payment of any invoice will be made only after receipt of a complete, adequately
supported, properly documented and accurately addressed invoice. Failure to use the
address exactly as provided above, may result'in the return of the invoice to the
Contractor. All invoices must be approved by the Contract Manager.
C. The Contractor may request monthly payments in the amount of ninety percent (90 %)
of the overall percentage of task completion and material in place. Final payment
including previous amounts withheld may be requested within thirty (30) days after
completion of the work and its acceptance by the State.
D. The invoice shall contain the following information:
1. The word "Invoice" should appear in a prominent location at the top of the
page(s);
2. Printed name of the Contractor;
3. Business address of the Contractor including P.O. Box, City, State, and Zip
Code;
4. Name of the Region /Division of the Department of Fish and Game being
billed;
5. The date of the invoice and the time period covered;
6. The number of the agreement upon which the claim is based, and;
7. An itemized account of the services for which the Department of Fish and
Game is being billed. Include all of the following:
a. The time period covered by the invoice, i.e., the term "from" and "to ";
b. A description of the services performed;
c. The method of computing the amount due
EXHIBIT B — BUDGET DETAIL AND PAYMENT PROVISIONS (Continued)
(DFG EXB 05103)
d. The total amount due. This should be in a prominent location in the
lower right -hand portion of the last page and clearly distinguished from
other figures or computations appearing on the invoice; the total amount
due shall include all costs incurred by the Contractor under the terms of
this agreement; and
e. The original signature of the Contractor (not required of established firms
or entities using preprinted letterhead invoices
2. Prompt Payment Clause
Payment will be made in accordance with, and within the time specified in Government Code
Chapter 4.5, commencing with Section 927.
3. Budget Flexibility
Subject to the prior review and approval of the Contract Manager, line item shifts of up to
$25,000 or ten percent of the annual contract total, whichever is less, may be made up to a
cumulative maximum of $50,000 per fiscal year. Line item shifts may be proposed /requested
by either the State or the Contractor in writing and must not increase or decrease the total
contract amount allocated per fiscal year..
City of Newport Beach
P0380039
Page 3 of 3
EXHIBIT B — BUDGET DETAIL & PAYMENT PROVISIONS (Continued)
(DFG EXB 05103)
Budget Detail
Item
Number
Approximate
Quantity
Items of Work Description
Unit
Price
Item
Total
Construct a Back Bay Science Center (BBSC) in
accordance with this agreement consisting of no
less than a completed Teaching Lab, Storage Wing
and related site improvements: Retain a project
manager to oversee and manage construction.
1
1 Job
Perform all work necessary to conduct surveys,
Flat Fee
$615,400
change orders, requests for information,
inspections, permitting, preparation of as built plans
and to obtain approvals of plans, specifications and
drawings. Meet with Contract Managers as
needed.
TOTAL
$615,400
Partnership Contributions Summary:
TOTAL
Cost Estimate for Completion of all Phases of the Back Bay Science Center
Using DFG Funding and Partnership Contributions
ITEM
Construction:
AMOUNT
Water Quality Lab, Restrooms and Storage .................... ..............................$ 1,256,000
TeachingLab ........................................................... ..............................$ 477,000
Administrative Offices ................................................ ..............................$ 510,000
SiteWork ................................................................ ..............................$ 949,000'
Construction Management and Inspection ................................ ..............................$ 193,000
Relocate Existing DFG Modular Units ...................................... ..............................$ 25,000
TOTAL ....................$ 3,410,000
Total Cost to DFG ............................................................. ..............................$ 615,400
EXHIBIT D — DFG ADDITIONAL PROVISIONS Page 7 of 7
(DFG -AP Rev. 04104)
EXCISE TAX: The State of California is exempt from federal excise taxes, and no payment will
be made for anv taxes levied on employees' wages. The State will pay for any applicable State
of California or local sales or use taxes on the services rendered or equipment or parts supplied
pursuant to this Agreement. California may pay any applicable sales and use tax imposed by
another state.
2. AVAILABILITY OF FUNDS: Work to be performed under this agreement is subject to availability
of funds through the State's normal budget process.
3. LICENSES AND PERMITS: The Contractor shall be an individual or firm licensed to do business
in California and shall obtain at his/her expense all license(s) and permit(s) required by law for
accomplishing any work required in connection with this contract.
If you are a Contractor located within the State of California, a business license from the
city /county in which you are headquartered is necessary; however, if you are a corporation, a
copy of your incorporation documents /letter from the Secretary of State's Office can be submitted.
If you are a Contractor outside the State of California, you will need to submit to the Department
of Fish and Game a copy of your business license or incorporation papers for your respective
state showing that your company is in good standing in that state.
In the event any license(s) and /or permit(s) expire at any time during the term of this contract,
Contractor agrees to provide the Department of Fish and Game a copy of the renewed license(s)
and /or permit(s) within 30 days following the expiration date. In the event that the Contractor fails
to keep in effect at all times all required license(s) and permit(s), the State may, in addition to any
other remedies it may have, terminate this contract upon occurrence of such event.
RIGHTS IN DATA: The Contractor agrees that all data, plans, drawings, specifications, reports,
computer programs, operating manuals, notes and other written or graphic work produced in the
performance of this Agreement are subject to the rights of the State as set forth in this section.
The State shall have the right to reproduce, publish, and use all such work, or any part thereof, in
any manner and for any purposes whatsoever and to authorize others to do so. If any such work
is copyrightable, the Contractor may copyright the same, except that, as to any work which is
copyrighted by the Contractor, the State reserves a royalty -free, nonexclusive and irrevocable
license to reproduce, publish and use such work, or any part thereof, and to authorize others to
do so.
SETTLEMENT OF DISPUTES: Unless otherwise provided in this agreement, any dispute
concerning a question of fact arising under this agreement which cannot be resolved informally
shall be decided by the following two -step procedure.
The Contractor must provide written notice of the particulars of such disputes to the Contract
Manager or his /her duly appointed representative. The Contract Manager must respond in writing
within ten (10) working days of receipt of the written notice of dispute. Should the Contractor
disagree with the Contract Managers decision, the Contractor may appeal to the second level.
Pending the decision on appeal, the Contractor shall proceed diligently with the performance of
this agreement in accordance with the Contract Manager's decision.
The second level appeal must indicate why the Contract Manager's decision is unacceptable,
attaching it to the Contractors original statement of the dispute which supporting documents,
along with a copy of the Contract Manager's response. This letter shall be sent to the
Department of Fish and Game, Deputy Director, or his /her duly appointed representative. The
second level appeal must be filed within fifteen (15) working days upon receipt of the Contract
Manager's decision. Failure to submit an appeal within the period specified shall constitute a
waiver of all such rights to an adjustment of this agreement. The Deputy Director or designee
shall meet with the Contractor to review the issues raised. A written decision signed by the
Deputy Director or designee shall be returned to the Contractor within fifteen (15) working days of
the receipt of the appeal. The decision of the Deputy Director or his /her designee will be final.
EXHIBIT D — DFG ADDITIONAL PROVISIONS (Continued) Page 2 of 7
(DFG -AP Rev. 04104)
6. PROPERTY ACQUISITIONS: Property, as used in this section, shall include:
a. Equipment — Tangible property (including furniture) with a unit cost of $500.00 or more
and a useful life of four (4) years or more. Actual cost includes the purchase price plus
all costs to acquire, install and prepare the equipment for its intended use.
b. Furniture — Standard office furnishings including desks, chairs, bookcases, credenzas,
tables, etc.
c. Portable Assets— Items considered "highly desirable" because of their portability and
value; e.g., calculators, typewriters, Dictaphones, cameras and microscopes.
d. Electronic Data Processing (EDP) Equipment— All computerized and auxiliary automated
information handling including system design and analysis, conversion of data, computer
programming, information storage and retrieval, voice, video and data communications,
requisite system controls, simulation and all related interactions between people and
machines.
The Contractor may purchase property under this Agreement only if specified in Exhibit "B"
(Budget Detail and Payment Provisions). Any property purchased by the Contractor with funds
provided under this Agreement shall be the property of the State during the customary
depreciable life thereof. The Contractor shall promptly report any such purchase to the Contract
Manager and to the State's Property Officer (Property Officer). Should this Agreement be
terminated for any reason, or upon expiration and failure to negotiate hereof, all such property
shall be returned to the State within the timeframe negotiated between the Contractor and the
State.
Prior written authorization by the Contract Manager shall be required before the Contractor will be
reimbursed for any property purchases not specified in the Budget. The Contractor shall provide
to the Contract Manager all particulars regarding the necessity for such property and the
reasonableness of the cost.
Before property purchases made by the Contractor are reimbursed by the State, the Contractor
shall submit paid vendor receipts identifying the Agreement number, purchase price, description
of the item, serial number, model number, and location including street address where property
will be used during the term of this Agreement. Said paid receipts shall be attached to
Contractor's invoices.
The Contractor shall keep adequate and appropriate records of all property purchased with
Agreement funds and at the time of purchase prepare a Property Purchased with State Funds
report and submit one copy to the Contract Manager and one copy to the Property Officer. A
copy must be retained by the Contractor.
The State reserves the right at any time to evaluate the cost of property and reimburse at an
amount equal to costs reflected in but not limited to Agreements the State Department of General
Services, Procurement Division has negotiated with vendors who supply the same type of
property.
All property shall be tagged after acquisition by the Contractor in accordance with instructions
provided. The purpose of tagging assets is to designate the assets as belonging to the State.
Whenever property is lost, stolen, or destroyed, the Contractor shall immediately report the loss,
theft or destruction to the local law enforcement agency (or the California Highway Patrol (CHP) if
the crime occurs on either state -owned or state leased property) and to the Contract Manager
and prepare a Property Survey Report. In the case of stolen property, the Contractor shall also
complete a CHP Report of Crime on State Property form (Std. 99), obtain a copy of the law
enforcement agency's report and submit these to the Contract Manager. The Contractor shall
adjust their property records and retain a copy of the Property Survey Report as documentation.
EXHIBIT D — DFG ADDITIONAL PROVISIONS (Continued) Page 3 of 7
(DFG -AP Rev. 04104)
Losses of State property due to fraud or embezzlement shall be reported in the same manner as
described above. The Contractor shall be charged with any loss and damages to State property
due to the Contractor's negligence.
Contractor shall, at the request of the State, submit an inventory of property furnished or
purchased under the terms of this Agreement. Such inventory will be required not more
frequently than annually.
Upon termination, expiration or failure to negotiate renewal of this Agreement, all property
purchased with Agreement funds shall promptly be returned to the State. The Contractor shall
prepare an Inventory of State Furnished Property report and submit to the State and shall at that
time query the Contract Manager as to the State's requirements, including the manner and
method, in returning said property to the State. Final disposition of such property shall be at
State expense in accordance with instructions from the Contract Manager to be issued
immediately after receipt of the final inventory.
State policies and procedures applicable to procurement with nonfederal funds shall apply to
procurement by Contractor under this Agreement provided that procurements conform to
applicable State law and the standards identified in this section. These include but are not limited
to statutes applicable to State agencies, statutes applicable to State college and university public
works projects, the California Constitution governing University of California contracting, the State
Administrative Manual (SAM), statutes applicable to specific local agencies, applicable city and
county charters and implementing ordinances including policies and procedures incorporated in
local government manuals or operating memoranda.
7. INCOME RESTRICTIONS: The Contractor agrees that any refunds, rebates, credits, or other
amounts (including any interest thereon) accruing to or received by the Contractor under this
Agreement shall be paid by the Contractor to the State, to the extent that they are properly
allocable to costs for which the Contractor has been reimbursed by the State under this
Agreement
8. CONFIDENTIALITY OF DATA: All financial, personal, technical, and other data and information
relating to the California State Department of Fish and Game operations which are designated
confidential by the California State Department of Fish and Game and made available to the
Contractor in order to carry out this Agreement, or which becomes available to the Contractor in
carrying out this Agreement, shall be protected by the Contractor for the protection of the
Contractor's data and information are deemed by the California State Department of Fish and
Game's confidential information, such methods and procedures may be used, with written
consent of the California State Department of Fish and Game, to carry out the intent of this
paragraph. The Contractor shall not be required under the provisions of this paragraph to keep
confidential any data or information which is or becomes publicly available, is already rightfully in
the Contractor's possession, is independently developed by the contractor outside the scope of
this Agreement or is rightfully obtained from third parties.
9. RIGHT TO TERMINATE: The State reserves the right to terminate this agreement subject to 30
days written notice to the Contractor. Contractor may submit a written request to terminate this
agreement only if the State should substantially fail to perform its responsibilities as provided
herein.
However, the agreement can be immediately terminated for cause. The term "for cause" shall
mean that the Contractor fails to meet the terms, conditions, and /or responsibilities of the
contract. In this instance, the contract termination shall be effective as of the date indicated on
the State's notification to the Contractor.
The Contractor shall not incur any new obligations beyond the date of termination and shall
cancel all outstanding obligations relating to this contract. The State shall reimburse the
Contractor for any reasonable non - cancelable project costs properly incurred by the Contractor
prior to termination date.
EXHIBIT D — DFG ADDITIONAL PROVISIONS (Continued) Page 4 of 7
(DFG -AP Rev. 04104)
This agreement may be suspended or cancelled without notice, at the option of the Contractor, If
the Contractor or State's premises or equipment are destroyed by fire or other catastrophe, or so
substantially damaged that it is impractical to continue service, or in the event the Contractor is
unable to render service as a result of any action by any governmental authority.
10. DVBE PARTICIPATION AND REPORTING REQUIREMENTS: (when required) The
Contractor agrees to use the DVBE subcontractors or suppliers originally identified by the
Contractor unless the Contractor requests substitution in writing beforehand to the Contract
Manager and the Contract Manager has approved such substitution. At a minimum, the request
must include:
a. A written explanation of the reason for the substitution; and
b. The identity of the person or firm substituted.
The request and the Contract Manager's approval is not to be construed as an excuse for
noncompliance with any other provision of law, including but not limited to the subletting and
subcontracting Fair Practices Act or any other Agreement requirements relating to the substitution
of subcontractors.
Failure to adhere to at least the level of participation for DVBE proposed by the Contractor may
be cause for Agreement termination and recovery of damages under the rights and remedies due
the State.
11. DISCLOSURE REQUIREMENTS: Any document or written report prepared in whole or in part
pursuant to this Agreement shall contain a disclosure statement indicating that the document or
written report was prepared through an Agreement with the State. The disclosure statement shall
include the Agreement number and dollar amount of all Agreements and subcontracts relating to
the preparation of such documents or written reports. The disclosure statement shall be
contained in a separate section of the document or written report.
If the Contractor or subcontractor(s) are required to prepare multiple documents or written
reports, the disclosure statement may also contain a statement indicating that the total
Agreement amount represents compensation for multiple documents or written reports.
The Contractor shall include in each of its subcontracts for work under this Agreement a provision
which incorporates the requirements stated within this Section.
12. USE OF SUBCONTRACTORS: If the Contractor desires to accomplish part of the services
through the use of one or more subcontractors then the following conditions must be met:
1) The Contractor shall submit any subcontracts to the State for prior approval;
2) The Agreement between the primary Contractor and the subcontractor must be in
writing;
3) The subcontract must include specific language which establishes the rights of the
auditors of the State to examine the records of the subcontractor relative to the
services and materials provided under the contract; and
4) Upon termination of any subcontract, the State shall be notified immediately in
writing.
Further, any subcontract in excess of $10,000 entered into as a result of this agreement shall
contain all applicable provisions stipulated in this agreement.
13. POTENTIAL SUBCONTRACTOR: Nothing contained in this Agreement or otherwise shall create
any contractual relation between the State and any subcontractors, and no subcontract shall
relieve the Contractor of its responsibilities and obligations hereunder. The Contractor agrees to
be as fully responsible to the State for the acts and omissions of its subcontractors and of
persons directly employed or indirectly employed by any of them as it is for the acts and
omissions of persons directly employed by the Contractor. The Contractor's obligation to pay its
subcontractors is an independent obligation from the State's obligation to make payments to the
Contractor. As a result, the State shall have no obligation to pay or to enforce the payment of any
moneys to any subcontractor.
EXHIBIT D — DFG ADDITIONAL PROVISIONS (Continued) Page 5 of 7
(DFG -AP Rev. 04104)
14. TRAVEL AND PER DIEM: Contractor agrees that all travel and per diem paid its employees
under this Agreement shall be at rates not to exceed those amounts paid to the State's
represented employees under collective bargaining agreements currently in effect. No travel
outside the State of California shall be reimbursed unless prior written authorization is obtained
from the State.
15. NOVATION: If the Contractor proposes any novation Agreement, the State shall act upon the
proposal within 60 days after receipt of the written proposal. The State may review and consider
the proposal, consult and negotiate with the Contractor, and accept or reject all or part of the
proposal. Acceptance or rejection may be made orally within the 60 -day period, and confirmed in
writing within five days. No novation shall become operative or otherwise binding on the State
pursuant to this paragraph in the absence of a formal Agreement amendment which has been
approved in accordance with all applicable State policy, laws and procedures.
16. PRIORITY HIRING CONSIDERATIONS: (agreements over $200,000) The Contractor agrees to
give priority consideration in filling vacancies in positions funded by the agreement to qualified
recipients of aid under Welfare and Institutions Code Section 11200.
17. LIABILITY INSURANCE: (when required) When Contractor submits a signed contract to the
State. Contractor shall furnish to the State a certificate of insurance, stating that there is liability
insurance presently in effect for the Contractor of not less than $1,000,000 per occurrence for
bodily injury and property damage liability combined.
The certificate of insurance will include provisions a, b, and c, in their entirety:
a. That the insurer will not cancel the insured's coverage without 30 days prior
written notice to the State.
b. That the State of California, its officers, agents, employees, and servants are
included as additional insured, buy only insofar as the operations under this
contract are concerned.
c. That the State will not be responsible for any premiums or assessment on
the policy.
Contractor agrees that the bodily injury liability insurance herein provided for shall be in effect at
all times during the term of this contract. In the event said insurance coverage expires at any
time or times during the term of this contract, Contractor agrees to provide prior to said expiration
date, a new certificate of insurance evidencing insurance coverage as provided for herein for not
less than the remainder of the term of the contract, or for a period of not less than one year. New
certificates of insurance are subject to the approval of the Department of General Services, and
the Contractor agrees that no work or services shall be performed prior to the giving of such
approval. In the event that the Contractor fails to keep in effect at all times insurance coverage
as herein provided, the State may, in addition to any other remedies it may have, terminate this
contract upon occurrence of such event.
The Department of Fish and Game will not provide for nor compensate the Contractor for any
insurance premiums or costs for any type or amount of insurance.
The insurance required above shall coverall Contractor supplied personnel and equipment used
in the performance of this Agreement. If subcontractors performing work under this Agreement
do not have insurance equivalent to the above, Contractor liability shall provide such coverage for
the subcontractor, except for coverage for error, mistake, omissions, or malpractice, which shall
be provided by the subcontractor if such insurance is required by the State.
EXHIBIT D — DFG ADDITIONAL PROVISIONS (Continued) Page 6 of 7
(DFG -AP Rev. 04104)
18. WORKER'S COMPENSATION INSURANCE: (when required) Contractor certifies and is aware
of the provisions of Section 3700 of the Labor Code which requires every employer to be insured
against liability for Workers' Compensation or to undertake self- insurance in accordance with the
provisions of that Code, and Contractor affirms to comply with such provisions before
commencing the performance of the work of this contract.
19. COMPUTER SOFTWARE: Contractor certifies that it has appropriate systems and controls in
place to ensure that state funds will not be used in the performance of this contract for the
acquisition, operation or maintenance of computer software in violation of copyright laws.
20. INSPECTION: The State, through any authorized representatives, has the right at all reasonable
times to inspect or otherwise evaluate the work performed or being performed hereunder
including subcontract supported activities and the premises in which it is being performed. If any
inspection or evaluation is made by the State of the premises of the Contractor or a
subcontractor, the Contractor shall provide and shall require his subcontractors to provide all
reasonable facilities and assistance for the safety and convenience of the State representatives in
the performance of their duties. All inspections and evaluations shall be performed in such a
manner as will not unduly delay the work.
21. FORCE MAJEURE: Neither party shall be liable to the other for any delay in or failure of
performance, nor shall any such delay in or failure of performance constitute default, if such delay
or failure is caused by "Force Majeure ". As used in this section, "Force Majure" is defined as
follows: Acts of war and acts of god such as earthquakes, floods, and other natural disasters
such that performance is impossible.
22. FORCED, CONVICT, AND INDENTURED LABOR: No foreign -made equipment, materials, or
supplies furnished to the state pursuant to this contract may be produced in whole or in part by
forced labor, convict labor, or indentured labor. By submitting a bid to the State or accepting a
purchase order, the Contractor agrees to comply with this provision of the contract. This
requirement does not apply to public works contracts.
23. CONSULTANT— STAFF EXPENSES: The Contractor represents that it has or shall secure at its
own expense, all staff required to perform the services described in this Agreement. Such
personnel shall not be employees of or have any contractual relationship with the California State
Department of Fish and Game or any other governmental entity.
24. CONTRACTOR'S DUTIES, OBLIGATIONS AND RIGHTS: The Contractor is hereby apprised
that California Public Contract Code sections 10355 through 10382 are applicable and relative to
the Contractor's duties, obligations, and rights in performing the agreement.
25. EVALUATION OF CONTRACTOR: (over $5,000) Performance of the Contractor under this
Agreement will be evaluated. The evaluation shall be prepared on a Contract/Contactor
Evaluation Sheet (Std. 4), and maintained in the Agreement file.
If Contractor did not satisfactorily perform the work or service, a copy of the negative evaluation
form will be submitted to the Contractor and the Department of General Services, Legal Division,
within fifteen (15) days of the completion of the evaluation. The Contractor will have thirty (30)
days to prepare and send statements defending its performance under the agreement. The
evaluation of the Contractor shall not be a public record.
EXHIBIT D — DFG ADDITIONAL PROVISIONS (Continued) Page 7 of 7
(DFG -AP Rev. 04104)
26. PROGRESS REPORTS OR MEETINGS (when required): Contractor shall submit progress
reports or attend meetings with State personnel not more often than monthly to allow the State to
determine if the Contractor is on the right track, whether the project is on schedule, provide
communication to interim findings, and afford occasions for airing of difficulties or special
problems encountered so that remedies can be developed quickly. At the conclusion of this
agreement, Contractor shall hold a final meeting with the State during which Contractor shall
present his findings, conclusions, and recommendations.
27. Legal Contracts (only)
In accordance with (Public Contract Code Section (10353.5) the Contractor shall:
• Agree to adhere to legal cost and billing guidelines designed by the State Agency
• Adhere to litigation plans designated by the State Agency
• Adhere to case phasing of activities designated by the State Agency
• Submit and adhere to legal budgets as designated by the State Agency
• Maintain legal malpractice insurance in an amount not less than the amount designated
by the State Agency
• Submit to legal bill audits and law firm audits if requested by the State Agency. The
audits may be conducted by employees and designees of the State Agency or by any
legal cost control providers retained by the State Agency for this purpose.
• Submit to a legal cost and utilization review, as determined by the State Agency.
EXHIBIT E - DFG FEDERAL PROVISIONS
(DFG FP Revised 04/03)
Utilization of Small Minority. and Women's Businesses: The Contractor agrees that affirmative steps will
be taken to assure that qualified small, minority, and women's businesses are used when possible as
sources of supplies, construction and services in the performance of grant assisted Agreements and
subcontracts. Affirmative steps taken shall include the following:
a. Include qualified small, minority, and women's businesses on solicitation lists;
b. Assuring that small, minority, and women's businesses are solicited whenever they are
potential sources;
C. Dividing total requirements, when economically feasible, into smaller tasks or quantities to permit
maximum participation of small, minority, and women's businesses;
d. Establishing delivery schedules, where the requirements of the work permit, which will encourage
participation by small, minority, and women's businesses;
e. Using the services and assistance of the Small Business Administration, the Minority Business
Development Agency of the U.S. Department of Commerce, and the State Office of Small Business
and DVBE Certification; and
If the Contractor awards subcontracts, requiring the subcontractor to take the affirmative steps in
paragraphs a. through e. of this Section.
Disclosure Requirements: Any document or written report prepared in whole or in part pursuant to this
Agreement shall contain a disclosure statement indicating that the document or written report was
prepared through Agreement with the State. The disclosure statement shall include the Agreement
number and dollar amount of all Agreements and subcontracts relating to the preparation of such
documents or written reports. The disclosure statement shall be contained in a separate section of the
document or written report.
If the Contractor or subcontractor(s) are required to prepare multiple documents or written reports, the
disclosure statement may also contain a statement indicating that the total Agreement amount represents
compensation for multiple documents or written reports.
Any documents which are published by the Contractor shall contain the following statement:
This project has been funded wholly or in part by the federal government . The contents of this
document do not necessarily reflect the views and policies of the federal government, the State, nor
does mention of trade names or commercial products constitute endorsement or recommendation
for use.
The Contractor shall include in each of its subcontracts for work under this Agreement a provision which
incorporates the requirements stated within this Section.
3. Privi : This Agreement is funded in whole or in part by a grant from the federal government. Neither the
United States nor any of its departments, agencies, or employees are, or will be, a party to this
Agreement or any lower tier subcontract nor to any solicitation or request for proposal.
4. Compliance with Federal Regulations:. The Contractor understands that the State is obligated, in
accordance with its assistance Agreement with the federal government to comply with the provisions of
federal regulations contained in Title 40 CFR and any conditions in the grant Agreement and any
amendments thereto. In order to ensure that the State can meet these obligations, the Contractor
warrants, represents, and agrees that it and its subcontractors, employees, and representatives will
comply with (1) all applicable provisions of Title 40 CFR and (2) all general and special conditions
contained in the Agreement.
Page 1 of 3
EXHIBIT E - DFG FEDERAL PROVISIONS (Continued)
(DFG FP Revised 04/03)
5. Copyrights: The Contractor agrees to and does hereby grant to the federal government a royalty-free,
nonexclusive and irrevocable license to reproduce, publish or otherwise use, and to authorize others to
use, for Federal Government purposes:
The copyright in any work developed under this Agreement; and
Any rights of copyright which the Contractor purchases, in whole or in part, with funds provided by
this Agreement.
6. Standards for Financial Management Svstem: The Contractor and all subcontractors shall maintain fiscal
control and accounting procedures which are sufficient to:
Permit preparation of reports required by 40 CFR Part 31 (including those required by 40 CFR Part
31.40 and 31.41) and statutes authorizing the grant.
2. Permit tracing of funds to a level of expenditures adequate to establish that such funds have not
been used in violation of the restrictions and prohibitions of applicable statutes.
A requirement to this effect shall be placed in all subcontracts related to performance of work under this
Agreement.
Applicable Cost Principles: The cost principles for this Agreement are applicable as set forth below:
OMB Circular A -87 for State, local or Indian tribal governments,
OMB Circular A -133 for Audits of States, Local Governments, and Non - Profit Organizations,
OMB Circular A -21 for Educational Institutions, or
48 CFR Part 31 for For - profit organizations.
Funds provided under this Agreement shall not be used for payment of salaries to individual consultants
retained by the Contractor or any subcontractors in excess of the rate for Level 4, Federal Executive
Schedule. The limit expressed herein does not include transportation and subsistence costs for
necessary travel for work required under this Agreement.
8. Contingent Funding: It is mutually understood between the parties that this Agreement may have been
written before ascertaining the availability of congressional appropriation of funds, for the mutual benefit
of both parties in order to avoid program and fiscal delays which would occur if the Agreement were
executed after that determination was made.
This Agreement is valid and enforceable only if sufficient funds are made available to the State by the
United States Government for the fiscal year(s) covered by this Agreement for the purposes of this
program. In addition, this Agreement is subject to any additional restrictions, limitations, or conditions
enacted by the Congress or any statute enacted by the Congress which may affect the provisions, terms,
or funding of this Agreement in any manner.
It is mutually agreed that if the Congress does not appropriate sufficient funds for the Agreement, the
Agreement shall be amended to reflect any reduction in funds. The State has the option to terminate the
Agreement under the termination clause or to amend the Agreement to reflect any reduction of funds.
Environmental Quality: (For Agreements in excess of $100,000) Contractor and subcontractors shall
comply with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air
Act (42 U.S.C.1857(h), Section 508 of the Clean Water Act (33 U.S.C. 1368) Executive Order 11738, and
federal regulations (40 CFR Part 15).
Contractor shail comply with mandatory standards and policies related to energy efficiency which are
contained in the state energy conservation plan issued in compliance with the Conservation Act (Pub.
L.94 -163).
Page 2 of 3
EXHIBIT E - DFG FEDERAL PROVISIONS (Continued)
(DFG FP Revised 04/03)
10. Recycled Paper: Contractor agrees to use recycled paper for all reports which are prepared as a part of
this Agreement and delivered to the State. This requirement does not apply to reports which are prepared
on forms supplied by the federal government. This requirement applies even when the cost of recycled
paper is higher than that of virgin paper.
11. Single Audit Act: To the extent applicable, the Contractor shall be subject to and shall comply with the
provisions and requirements of the Single Audit Act of 1984 (Pub. L. 98.502) and implementing policies,
procedures and guidelines, including applicable circulars issued by the Federal Office of Management
and Budget.
12. Federal Assurances: It is further agreed that by signing this Agreement, the Contractor is subject to
Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title II of the
Americans with Disabilities Act of 1990, The Age Discrimination Act of 1975, Title fX of the Education
Amendments of 1972, and offers all persons the opportunity to participate in programs or activities
regardless of race, color, national origin, age, sex, or disability. Further, it is agreed that no individual will
be turned away from or otherwise denied access to or benefit from any program or activity that is directly
associated with a program of the Department of Fish and Game on the basis of race, color, national
origin, age, sex (in education activities) or disability.
13. Use of Subcontractors: If the Contractor desires to accomplish part of the services through the use of
one or more subcontractors, then the following conditions must be met:
a. The Contractor shall submit any subcontracts to the State for prior approval;
b. The Agreement between the primary Contractor and the subcontractor must be in writing;
c. The subcontract must include specific language which establishes the rights of the auditors of
the State to examine the records of the subcontractor relative to the services and materials
provided under the contract; and
d. Upon termination of any subcontract, the State shall be notified immediately in writing.
Further, any subcontract entered into as a result of this Agreement shall contain all applicable provisions
stipulated in this Agreement.
Page 3 of 3
06/22/2004 15:01 8594674239
State of California - The Resources Agency
SCR SENIOR SFAF Gk 02/03
"n 'I?:': E;) AFTER AG
ARNOLD SCHWARZENEGGER, Governor
INDEPARTMENT OF FISH AND GAME
http://www.dfg.ca.gov
4949 Viewridge Avenue OWMIKI
San Diego, CA 92123
(858) 467 -4201
June 22, 2004
BY FACSIMILE AND U.S. MAIL op 6M
The Honorable Tod W. Ridgeway
and Members of the City Council
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658 -8915
Facsimile: (949) 644 -3020
June 22, 2004 Agenda Item No. 38
Back Bay Science Center
Dear Mayor Ridgeway and Members of the City Council:
The California Department of Fish and Game (Department) respectfully urges your
support for the action items associated with Item Number 38, "Agreements and Funding for the
Back Bay Science Center on Shellmaker Island" located on the Department's Upper Newport Bay
Ecological Reserve. Approval of the three associated actions (execution of the Cooperative
Agreement, execution of the Construction Agreement, and allocation of funding for the
construction of the Back Bay Science Center) is a critical step in the completion of a project that
will be a significant asset for the City, the County of Orange and the Department. The Council's
"approval in concept" of the Cooperative Agreement will allow the Department and City to make
any final changes determined necessary by all the parties and finalize it for approval of all parties
in a timely fashion. Signing of the Construction Agreement is especially urgent since its timely
execution is necessary to encumber the Wildlife Conservation Restoration Program funds the
Department has received from the U.S. Fish and Wildlife Service.
As outlined in the Staff Report, the City of Newport Beach has taken a lead role in the
establishment of the Back Bay Science Center (BBSC) and has been a facilitator for several
partners to reach a level of commitment not typically seen in multi - agency projects. The
Department and City have worked hand in hand on this project for nearly five years now with
partners who include the County of Orange Health Care Agency, the California Coastal
Commission, University of California at Irvine, California Wildlife Foundation, the Newport Bay
Naturalists and Friends and many other stakeholders. Funding to date has come from a variety
of sources including the American Trader Oil Spill Trust Fund (disbursed to both the City and
Department), the National Tobacco Settlement Revenue (County) and grants from the state's
Wildlife Conservation Board and the federal Wildlife Conservation Restoration Program.
Additional funding as described in the City Staff Report will help secure the completion of the
BBSC,
06/22;2004 15:01 8584674239 SCR SENIOR SFAF PAGE 03%03
The Honorable Tod W. Ridgeway
and Members of the City Council
June 22, 2004
Page 2
The BBSC will be a place where students of all ages will be able to learn about the
effects of a watershed on a coastal ecosystem. They will learn first hand about water quality,
estuarine habitat and about the many endangered species that rely on the Upper Newport Bay
Ecological Reserve. They will learn what professionals are doing to enhance and improve the
quality of Newport Bay, and what they can do to help. The partnerships already formed with local
school districts, academic institutions and service organizations will be the foundation for
continued and increased educational and outreach opportunities. The BBSC programs will
satisfy and compliment existing school curriculums for science and will be a place for college and
post - graduate research in the fields of water quality, marine, estuarine and terrestrial biological
science, and where future educators can learn teaching techniques in a natural outdoor
laboratory.
The Department appreciates the role the City has taken in the BBSC project. Under the
leadership of both Bob Burnham, City Attorney and Dave Kiff, Assistant City Manager, the City
has been not only project advocate, but has been facilitator, as mentioned, planner, permit
applicant/agent and, pending bid awards, will be construction manager. The Department wishes
to especially thank Bob and Dave, and Lloyd Dalton as well, for their consistent support for the
Back Bay Science Center Project,
Once again, the Department urges you to approve in concept the two agreements and to
authorize approval of funding for the Back Bay Science Center. Please do not hesitate to call me
if you have questions or comments on the project, or on the Upper Newport Bay Ecological
Reserve. I can be reached at (858) 4674210. You may also direct inquiries to Ms_ Terri
Stewart, Senior Biologist, Supervisor of the South Coast Region's Land Management and
Monitoring Program, who has been the Department's main contact for this project. She can also
be reached at the letterhead address, or by telephone at (858) 467 -4209.
Sincerely,
C. F. R brook
Regional Manager
oc: Department of Fish and Game
Terri Stewart, Senior Biologist, LMMP, San Diego
Karl Lewis, Senior Biologist, LFB, Sacramento
Nancy Templeton, OLA, Sacramento
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t8 MrfiUNBERBBSC dtyNB &00-04.doo