HomeMy WebLinkAbout07 - Resource & Recreation Mgmt. Plan for Buck GullyCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 7
October 9, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Dave Kiff, Assistant City Manager
9491644 -3002 or dkiff @city.newport- beach.ca.us
SUBJECT: A Resource and Recreation Management Plan (RRMP) for Buck
Gully; Contract with Irvine Ranch Conservancy (IRC)
ISSUE:
Should the City hire IRC, a non - profit outside organization to help the City develop and
implement a Resource and Recreation Management Plan (RRMP) for City -owned open
space in Buck Gully, in compliance with the Orange County Central Coastal Natural
Community Conservation Plan (NCCP)?
RECOMMENDATION:
Authorize the Mayor to enter into a Professional Services Agreement (PSA)
substantially similar to the attached draft. PSA with the Irvine Ranch Conservancy (IRC)
to develop and implement an RRMP for Buck Gully.
DISCUSSION:
On July 1, 2005, the City took title to the five "view parks" along Newport Coast Drive
and San Joaquin Hills Road and the open space resources of Buck Gully from the
County of Orange (see attached map). Inland of 5t" Avenue, the Gully is publicly
owned. Coastward of 5t" Avenue, private property owners on adjacent streets own the
land in the Gully all the way to the centerline of the streambed, except for limited
easements in the area.
About Buck Gully, the NCCP, and NROC. The 254 -acre Buck Gully is zoned as
Open Space, Passive and is part of the Orange County Central Coastal NCCP area.
Being within the NCCP means that the land is protected habitat that has been set -aside
in perpetuity as mitigation land in exchange for development elsewhere. NCCP lands
must be managed in a speck manner to preserve their natural resources, as described
in the NCCP Implementation Agreement (to which the City is a signatory).
NROC is a non - governmental organization formed to manage the Central Coastal
NCCP lands per the NCCP Implementation Agreement. Each party that owns land
within — or that serves a regulatory role — in the NCCP is entitled to be a voting member
RRMP for Buck Gully
October 9, 2007
Page 2
of NROC. Please see a separate Agenda Item associated with the October 9, 2007
Council meeting for more information about NROC.
About the RRMP. Compatible public access and recreation as well as infrastructure
maintenance and fire/fuels management is allowed in NCCP lands if it is first planned
and managed. By accepting Buck Gully in fee and by becoming a signatory to the
NCCP Implementation Agreement, the City has legally committed to manage the land in
a certain way. "Management" includes the following elements (which are detailed in the
Central Coastal NCCP Chapters 4 and 5):
• Long -term Adaptive Biotic Resource Management and Monitoring;
• Habitat Restoration and Enhancement;
• Fire Management;
• Public Access and Recreation; and
• Maintenance of Existing Infrastructure consistent with the terms of the NCCP.
The following uses are potentially allowable in the Gully, subject to the terms of the
NCCP.
• Biological Research and Monitoring;
• Invasive species (plant and animal) removal or control;
• Habitat mitigation for permitted destruction of habitats outside the NCCP Reserve
areas;
• Fire and fuels management;
• Recreation and public access including hiking on designated trails;
• Park administrative and interpretive facilities;
• Construction, operation and maintenance of new facilities to support permitted uses;
• Activities related to provision and operation of existing or permitted new
infrastructure; and
• Emergency activities.
Today, Buck Gully needs managing. Much of the area is overgrown with invasive plant
species, and native vegetation communities are unbalanced, resulting in an abundance
of such plants as poison oak and artichoke thistle. Irrigation seepage from adjacent
developed areas (Harbor Ridge, Spyglass, Newport Ridge, Newport Coast) as well as
direct storm water runoff have significantly increased average water flows in Buck
Gully's streambed, causing rapid growth of vegetation (which increases fuel loads for
wildfires) along with soil erosion and slope instability. Water in the canyon also contains
pollutants, leading to Buck Gully Creek's designation as "water quality limited" on the
Federal Clean Water Act's §303(d) list.
Waterways on the §303(d) list are slated for the eventual development of Total
Maximum Daily Loads (TMDLs). TMDLs mandate specific water quality improvements
over time.
The Newport Beach Fire Department currently considers Buck Gully to be one of the
highest risk areas for wildfire in the community due to its heavy vegetation loads and its
proximity to homes. A fuel management or fuel modification plan for Buck Gully will be
integral to protecting the larger community (including Corona del Mar, Spyglass, Harbor
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RRMP for Buck Gully
October 9, 2007
Page 3
View, and Newport Coast) in the years ahead and to minimize both the risk of fire and
impacts to protected habitat areas.
The Central Coastal NCCP states that Fuel Modification Zones (FMZs) are not a
permitted use within the NCCP Reserve area with the exception of limited and identified
areas adjacent to already developed areas located in immediate proximity to the
Reserve boundary. The NCCP species that fire management and fuel modification
must meet the criteria established by the NCCP signatories via an agreement on
common fuel modification and fire management policies.
To comply with these policies, the City needs to complete an approved RRMP for the
Buck Gully area. In addition to NROC, the RRMP must be reviewed and approved by
the state and federal wildlife regulatory agencies who oversee implementation of the
NCCP. An approved RRMP is required should the City desire to do any management
of Buck Gully, including fireffuel modification, habitat management and /or the provision
of recreational and public access opportunities. Without an RRMP in place, any fuel
modification policies that the City may wish to implement in Buck Gully cannot be
achieved.
In addition to the community- and fire- related needs, Buck Gully has recognized. habitat
and natural resource values, as well as recreation potential. Several endangered or
listed species reside there, as do natural communities that help those species thrive.
An existing but long- overgrown trail running the entire length of the parcel leading inland
from 5th Avenue could provide an ideal. public access point for area residents, in a
controlled manner, to enjoy this urban -open space interface.
This Agenda Item asks that the City start managing Buck Gully effectively to meet our
NCCP requirements, to address wildfire risk, and to expand the recreational and natural
resource values of the area. To date, the only activity the City has done in the parcel is
some brush clearance close to homes in Spyglass. As time goes on, without
appropriate management by the City, the risk grows both of wildfire and that we will be
out of compliance with our legal obligations under NCCP.
The City does not currently have the in -house expertise necessary to do this
management. One strong private- sector alternative is the Irvine Ranch Conservancy
(IRC, formerly the Irvine Ranch Land Reserve Trust). IRC has specific expertise in
preparing RRMPs under the NCCP — IRC's knowledge of the property and of the natural
resources of Buck Gully, its non - profit status, and its working relationships with relevant
landowners, agencies and experts who can contribute to RRMP preparation make it a
unique contractor. The IRC has recently assisted the City of Irvine in successfully
completing and obtaining agency approval for its RRMP for the Irvine Southern Open
Space Preserve.
About IRC. IRC is a non - profit, non - advocacy organization established by Donald Bren
of The Irvine Company to ensure that the permanently protected wildlands and parks of
the former Irvine Ranch are stewarded and enjoyed in perpetuity. Among other things,
the IRC coordinates research and habitat restoration efforts, as well as providing public
access and educational programs within the Reserve lands.
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RRMP for Buck Gully
October 9, 2007
Page 4
IRC has a professional staff of land managers, scientists and public program experts.
The organization is headed by Michael O'Connell, former Southern California regional
director for The Nature Conservancy. Among the projects that Mike oversaw at the
Nature Conservancy is TNC's involvement in both the Central Coastal NCCP and the
Irvine Ranch wildlands.
Discussions with IRC culminated in the attached Management Agreement describing
the terms. under which the IRC would assist the city in preparing the RRMP and, if
consented to when the RRMP is done, manage the land for the City. If the City decides
not to affirmatively cancel that provision of the Agreement, the Agreement term would
be ten (10) years, with an option to extend. The Agreement contains a termination
clause, without penalty, in the case that either party wishes to end the Agreement for
any reason.
Environmental Review: City Council's approval of this action is not subject to CEQA,
but the RRMP will require environmental review.
Public Notice: This agenda item has been noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Funding Availability: The City's FY 2007 -08 budget set aside $170,000 for the RRMP.
The RRMP may call out speck capital projects (invasives removal, trail construction,
fuel management, etc) that will have to be budgeted in the FY 2008 -09 (or later) budget.
None of these projects are required per se, and the Council should use the RRMP to
determine funding priorities at a later date. The estimated cost of annual management
when the RRMP is done will depend upon IF the City decides to take this service further
and the specific Scope of Work that the City directs IRC (or another provider) to do.
Submitted by:
Dav iff
Assistant City Manager
Attachments: Map of Affected Properties
Draft Management Agreement with IRC, including Scope of Services
14
-46
Exhibit A -- Map of Affected Properties
RRMP for Buck Gully
October 9, 2007
Page 5
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Exhibit B - Management Agreement
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October 9, 2007
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Exhibit 8 will be distributed on Friday, October 50.
Agenda Item No.
October 9, 2007
Buck Gully Open Space Reserve
MANAGEMENT AGREEMENT
between
THE CITY OF NEWPORT BEACH
and
IRVINE RANCH CONSERVANCY
ARTICLE II TERM OF AGREEMENT 3
2.1 Initial Term 3
2.2 Option to Extend 4
ARTICLE III
TABLE OF CONTENTS
3.1
Fees 4
3.2
Page
ARTICLE I
MANAGEMENT SERVICES
1
1.1
Management Engagement
1
1.2
Standards of Performance
2
1.3
Manager's Project Director; Manager's Agents
2
1.4
Professional Work Product
3
ARTICLE II TERM OF AGREEMENT 3
2.1 Initial Term 3
2.2 Option to Extend 4
ARTICLE III
MANAGER'S COMPENSATION 4
3.1
Fees 4
3.2
Annual Adjustments 4
3.3
Payments 4
3.4
Other Adjustments to Management Fee 5
3.5
Reimbursable Expenses 5
3.6
Payment Upon Termination 5
ARTICLE IV
SCOPE OF SERVICES 5
4.1
Duties of Manager 5
4.2
Progress Reports and Meetings 5
4.3
Modification of Management Services 5
4.4
Compliance with Laws and Agreements 6
4.5
Employees 7
4.6
Legal Action 7
4.7
Approval of Collateral Materials 7
4.8
Ownership of Improvements 8
4.9
Additional Land 8
4.10
City's Rights Reserved 8
ARTICLE V
INSURANCE 8
5.1
Insurance Types 8
5.2
Other Insurance Requirements 9
ARTICLE VI
INDEMNIFICATION 9
6.1
Indemnification by Manager 9
6.2
Indemnification by City 9
6.3
General 9
ARTICLE VII LIENS 10
ARTICLE VIII TERMINATION 10
8.1 Termination without Cause 10
8.2 Termination for Cause 11
8.3 Obligations Upon Termination 11
a
ARTICLE IX
GENERAL PROVISIONS
12
9.1
Independent Contractor
12
9.2
Notices
12
9.3
Attorneys' Fees
12
9.4
Waiver of Jury Trial
13
9.5
Mediation
13
9.6
Assignment
13
9.7
Amendments and Written Consents
13
9.8
Counterparts
13
9.9
Governing Law
13
9.10
Remedies Cumulative
13
9.11
Nonwaiver
13
9.12
Severability
14
9.13
No Third -Party Beneficiaries
14
9.14
Incorporation of Exhibits
14
9.15
Oral Agreements
14
9.16
Approvals
14
9.17
Press Releases and Press Relations
14
9.18
Authorization
14
9.19
Time
14
9.20
Nonliability of Officials and Employees
15
9.21
Entire Agreement
15
LIST OF EXHIBITS
A Depiction of Managed Lands as of Effective Date
B Depiction of Managed Lands and Additional Lands
C Basic Management Services
D Schedule 1 — Preserve Management Schedule of Services
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is made and entered
into effective as of , 2007 (the "Effective Date") by and between the CITY OF
NEWPORT BEACH, a California municipal corporation ( "City'), and the IRVINE RANCH
CONSERVANCY, a California nonprofit corporation ( "Manager').
RECITALS
A. City owns an open space parcel of land of approximately 245 acres located within the City
of Newport Beach known as "Buck Gully" which is part of the Orange County Central Coast
Natural Communities Conservation Plan ( "NCCP ") Reserve and is depicted on Exhibit A
attached hereto (the "Managed Lands ").
B. City desires to provide public access to the Managed Lands while protecting the natural
and biotic resources therein, and desires to retain a manager to (i) assist in the development
and implementation of plans and policies regarding the provision of such access, the long -term
protection of natural resources, the performance of habitat restoration and other matters relating
to the operation of the Managed Lands and trail systems located therein, and (ii) manage and
administer the Managed Lands in accordance with the policies adopted by City for the operation
of such property.
C. Manager is a nonprofit entity engaged in, among other things, preserving, restoring and
managing natural resources and providing public access and educational programs on the
Nature Reserve of Orange County in Orange County, California. The Buck Gully Open Space
Reserve is included in the Nature Reserve of Orange County.
D. City desires to retain Manager to manage the Managed Lands in accordance with the
terms of this Agreement, and Manager desires to perform such services for City.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the terms, conditions,
covenants and obligations contained herein, City and Manager agree as follows:
ARTICLE I
MANAGEMENT SERVICES
1.1 Management Engagement.
(a) City hereby engages Manager to perform, for all of the Managed
Lands, the management services identified on Exhibit B attached hereto (the "Basic
Management Services "), together with any additional services as agreed to from time to time
pursuant to Section 4.3 below (the "Additional Management Services "). The Basic
Management Services and Additional Management Services are collectively referred to herein
as the "Management Services." Manager agrees to perform the Management Services
commencing on the Commencement Date specified in Section 2.1 below, all in accordance with
and subject to the terms and conditions of this Agreement.
(b) City hereby designates the City Manager or the City Manager's
designee to represent City as its agent ( "City's Agent') under this Agreement. All written
communications given to or by such representative under this Agreement shall be deemed as
given to or by City. City may change City's Agent at any time and from time to time by delivery
of written notice to Manager.
1.2 Standards of Performance. Manager and City acknowledge that they are
entering into this Agreement in good faith. Each party agrees to use its reasonable efforts, skill
and judgment in all matters arising under this Agreement, and to cooperate in good faith with
the other party. Manager agrees to perform its duties and obligations in an efficient, expeditious
and professional manner, consistent with the terms and provisions of Article V below and the
parameters of the scope of Management Services.
1.3 Manager's Protect Director: Manager's Agents
(a) Manager hereby designates its Executive Director as its project
director under this Agreement (the "Project Director'). Manager hereby designates its Senior
Field Ecologist as project manager responsible to represent Manager as its agent for the day -to-
day provision of the Management Services (the "Project Manager'). All written
communications given to or by the Project Manager with respect to such day -to -day operation of
the Managed Lands pursuant to this Agreement shall be deemed given to or by Manager.
Amendments to this Agreement, including but not limited to modifications of the Management
Services or any Exhibit hereto, shall require the written approval of the Project Director, it being
understood that the Project Manager does not have the power to make such decisions. The
Project Director and Project Manager may be changed from time to time by Manager; provided,
however, that Manager shall consult in good faith with City prior to any replacement of the
Project Manager.
(b) Manager may either retain employees or subcontract with others
to perform all or a portion of the Management Services. Manager shall be solely responsible for
hiring, supervising, paying the wages of and training all of Manager's officers, directors,
employees, staff members, consultants, volunteers, agents, suppliers, contractors,
subcontractors, representatives, and all other persons acting by or through any of the foregoing
(collectively, "Manager's Agents ") in performing the Management Services. Manager shall at
all times exercise reasonable care and diligence to ensure that Manager's Agents perform their
respective obligations hereunder or under their respective contract in a competent and
professional manner. Manager shall be responsible to City and third parties for the acts and
omissions of Manager's Agents. The term "Manager's Agents" shall not, however, include any
member of the general public present on the Managed Lands for any purpose, including without
limitation, for the purpose of attending or participating in a guided tour or other open public
access program included in the Management Services.
(c) Manager shall from time to time have field personnel on the
Managed Lands as part of the Management Services. Manager's field personnel are not
intended to, and shall not, provide police, security, crime prevention or similar services. All such
services shall at all times remain the sole responsibility of the City of Newport Beach Police
Department and the personnel retained by such Police Department (the "Police Department').
Neither the Police Department nor any of its employees, agents or contractors shall be
Manager's Agents for any purposes whatsoever under this Agreement, nor shall Manager be
responsible to any extent for supervising the Police Department or any of its employees, agents
or contractors. Manager shall have no responsibility whatsoever for paying any compensation or
for providing any facilities, insurance or any other benefits to the Police Department or any of its
5
employees, agents or contractors. Manager's Agents shall have no responsibility whatsoever for
providing police, security, crime prevention or similar services, other than to report any
suspicious activity they observe on the Managed Lands to the Police Department or to other
appropriate authorities. Manager's Agents shall not interfere with the activities carried out by
the Police Department on the Managed Lands.
1.4 Professional Work Product
(a) All work product generated by Manager pursuant to this
Agreement shall be the joint property of City and Manager. For purposes of this Agreement, the
term "work product' shall mean any and all draft and final reports, studies and plans, including
but not limited to all drawings, graphics and other materials that are part of such reports or
plans. Manager shall furnish City duplicates of all work product upon request. Neither party
shall attribute any work product to the other party without the other party's prior consent.
Neither party shall unreasonably withhold or delay its consent under this Section.
(b) The parties agree that public access to and use of the Managed
Lands shall be provided under the name and auspices of either the "Buck Gully Open Space
Reserve" or simply as a part of the "Irvine Ranch wildlands and parks." City acknowledges that
Manager owns, or has been granted the right to use, certain marks, namely the trademark,
service mark and collective membership mark "The Irvine Ranch Land Reserve" and the various
versions of Manager's logo used by Manager. City further recognizes and acknowledges the
ownership (or right to use) of such marks by Manager and the validity of those marks and every
registration thereof, and shall not at any time use, nor permit the use of, any such marks, or of
Manager's name, logo or any other property of Manager in connection with any materials,
advertising, product or service of any kind (other than the use of Manager's name in records,
correspondence or other writings simply in order to refer to or report on this Agreement,
Manager or Manager's role with respect to the Managed Lands) without the explicit prior written
consent of Manager. Manager hereby explicitly consents to the non - exclusive, nontransferable
use of such marks by City, in the forms and styles approved by Manager, in connection with the
promotion of the Managed Lands for open space use during the term of this Agreement. City
hereby acquires no right, title, interest or claim of ownership in or to the marks, except as
expressly granted herein. City hereby grants Manager non - exclusive, nontransferable use of the
City logo in connection with promotion of activities on the Managed Lands for the term of this
Agreement.
ARTICLE II
TERM OF AGREEMENT
2.1 Initial Term. The initial term of this Agreement (the "Term") shall
commence on 2007 (the "Effective Date ") , and shall continue until midnight on
December 31, 2017, unless sooner terminated as provided in Article IX.
2.2 Option to Extend. Subject to the provisions of this Section 2.2, City
shall have the option to extend the Term of this Agreement for an additional ten (10) years by
providing written notice to Manager of City's intention to extend on or before [January 1, 2016].
Upon receipt of such notice, City and Manager shall commence negotiations as to any changes
to this Agreement that will be applicable during the extended term, and shall complete such
negotiations on or before [July 1, 2016]. If the parties are unable to agree on the terms
I
applicable during the proposed extension, then this Agreement shall terminate on the expiration
date specified in Section 2.1 above without any further action by either party.
ARTICLE III
MANAGER'S COMPENSATION
3.1 Fees. Manager shall be paid an annual management fee in an equal
amount to: (a) with respect to the first year of this Agreement from the Effective Date through
June 30, 2008 (the RRMP's development phase), One Hundred Fifty -Eight Thousand Six
Hundred Twenty Five Dollars ($158,625), and (b) with respect to each fiscal year commencing
July 1, 2008 (RRMP Implementation Phase), Two Hundred Three Thousand Four Hundred
Twenty -Five Dollars ($203,425), as, in all cases, adjusted in accordance with the following
provisions of this Article (the "Management Fee "). Management Fee includes 25°% indirect
costs.
3.2 Annual Adjustments. Commencing on July 1, 2008 and continuing
through the end of the term, the then current Management Fee shall be adjusted on an annual
basis on July 1 of each remaining year of the Term as follows: The then current Management
Fee shall be increased on July 1 each year by the greater of (a) the amount of the increase in
the "Consumer Price Index — Urban Consumers (Los Angeles- Riverside- Orange County, CA
area); base 1982 -84 = 100" as published by the United States Department of Labor, Bureau of
Labor Statistics (the "Index") for the March 1 to March 1 period just completed, or (b) three
percent (3° %) of the current annual Management Fee. In the event that the U.S. Department of
Labor discontinues publication of the Index, or varies the method of calculation of same, then
Manager and City shall agree on a substitute index or procedure that reasonably reflects and
monitors changes in consumer prices.
3.3 Payments. City shall pay the Management Fee to Manager in four (4)
equal quarterly installments payable on or before July 1, October 1, January 1 and April 1 of
each year of the Term. City shall pay the first quarterly payment of the Management Fee to
Manager on or before November 1, 2007.
3.4 Other Adjustments to Management Fee. In addition to changes in the
Management Fee as a result of annual adjustments as described in Section 3.2 above, the
Management Fee may be adjusted:
(a) Based upon changes in the scope of the Management Services as
provided in Section 4.3 below; or
(b) Due to increases in costs of providing the Management Services
in excess of the greater of the increase in the Consumer Price Index described in Section 3.2 or
three percent (3° %), if and as approved by the City Council. Manager may at any time prepare a
request for such an increase in the Management Fee, in form and substance approved by City's
Agent, whereupon it shall be the obligation of the City Council to act upon such request within
sixty (60) days from the date such request was submitted by Manager.
In the event of any adjustment to the Management Fee, the adjusted Management Fee will be
considered the Management Fee for the next scheduled annual adjustment made in accordance
with Section 3.2.
3.5 Reimbursable Expenses. In addition to the Management Fee, Manager
shall be reimbursed for all of its costs and expenses incurred in performing services, if any,
beyond the Management Services as authorized by City's Agent in writing.
3.6 Payment Upon Termination. In the event of termination of this Agreement
prior to the expiration date in Section 2.1 above, Manager shall be entitled to that portion of the
Management Fee earned to the date of termination. If the termination is effective on a day other
than the last day of a calendar quarter, the quarterly payment will be prorated based on the
basis of a ninety- one -day calendar quarter. In addition, Manager shall be entitled to all other
amounts owing to Manager as specified in Section 8.3 (a) below.
ARTICLE IV
SCOPE OF SERVICES
4.1 Duties of Manager. Manager shall provide the Management Services in an
efficient and professional manner in accordance with the terms, conditions and standards set
forth in this Article. City shall provide Manager with any additional documentation reasonably
necessary to establish Manager's authority to act as required hereunder. Manager shall perform
all Management Services in a prompt and diligent manner in accordance with recognized
standards of the open space reserve management industry and in compliance with such
standards and practices as are prevalent in the geographic area where the Managed Lands are
located. Management Services include light, routine custodial service resulting from everyday
regular, authorized use of the Managed Lands. Management Services do not include heavy
maintenance and for damage resulting from unauthorized use or events such as storms,
vandalism or malicious mischief as described in Exhibit B.
4.2 Progress Reports and Meetings
(a) Manager shall prepare and submit to City no later than the
thirtieth (30th) day of each calendar quarter, in such form as City may reasonably require, a
progress report (the "Progress Report') for the preceding quarter. At a minimum, the Progress
Report shall summarize all activities undertaken by Manager's Agents during such period and
describe the Management Services to be performed by Manager's Agents during the current
quarter. Notwithstanding the foregoing, Manager shall promptly notify City of any information
that is or becomes known to Manager's Agents in the course of the performance of their
respective Management Services concerning facts or events that may materially affect the
Managed Lands.
(b) Manager shall schedule and attend meetings with City to (i)
review management of the Managed Lands and exchange information related thereto, (ii)
submit Collateral Materials (as hereinafter defined) for City's approval, and (iii) assess
compliance of Manager and City with the requirements of this Agreement. Said meetings shall
be held on a periodic schedule as City and Manager reasonably deem necessary, but no less
frequent than quarterly during the first year of the Term.
4.3 Modification of Management Services. At the meetings between City and
Manager described in Section 4.2 above, the parties shall discuss, among other things, whether
the scope of the Management Services should be changed. Any such changes to the scope of
Management Services may be made only upon mutual agreement of City and Manager.
N
(a) Fuel Modification. In the event City from time to time desires to
add any fuel modification or firebreak maintenance to the Management Services, City shall
describe for Manager in writing the specific work (type, location, duration, etc.) in the Managed
Lands which City desires to have Manager perform, and Manager shall thereafter determine
and provide in writing to City the cost (time and materials plus overhead) to perform such work.
Upon approval by City in writing of such cost, said work shall be included in the Management
Services and the Management Fee shall be increased by the cost thereof so approved by the
City.
(b) Other Services. In the event either party desires to otherwise
modify the Management Services, such party (the "Requesting Party') shall notify the other
party (the "Other Party') in writing of any proposed modification (the "Modification Notice "),
and the following procedures shall be followed:
(i) Increases in Management Services. City and Manager
anticipate that the results of the Resource and Recreation Management Plan prepared for the
City with the assistance of Manager as described in Exhibit B (Basic Management Services)
may result in an increase to Management Services. In the event this or any other proposed
modification increases the Management Services, the Requesting Party shall describe in the
Modification Notice such requested additional services and set forth the proposed increase in
the Management Fee to cover such additional services. The Other Party shall notify the
Requesting Party in writing within the Permitted Time (defined below) after receipt of the
Modification Notice whether the Other Party accepts or rejects such proposed modification, and
the Parties shall thereafter respond back and forth to one another's proposals in writing, in each
case within the Permitted Time. If the Parties reach mutual agreement, Manager shall prepare
for execution an amendment to this Agreement setting forth the details of the agreed
modification. Upon approval of such amendment, City shall promptly execute and return one (1)
original of such amendment to Manager.
(ii) Decreases in Management Services. In the event a
proposed modification decreases the . Management Services, the Requesting Party shall
describe in the Modification Notice the services to be deleted and the amount by which the
Management Fee is proposed to be decreased, if any, to reflect such deletion. City and
Manager shall follow the procedures set forth in Section 4.3(a) concerning the acceptance or
rejection of such proposed modification and the preparation of an amendment reflecting such
mutually agreed modification.
(c) Permitted Time. For purposes of this Section 4.3, City shall have
forty -five (45) calendar days to respond to Manager's proposals, while Manager shall have
twenty (20) calendar days to respond to City's proposals (in either case, the "Permitted Time ").
4.4 Compliance with Laws and Agreements.
(a) Manager shall comply with all federal, state and local laws,
ordinances, regulations, permits and orders now in force or enacted or promulgated hereafter
(individually, a "LaW'; collectively, "Laws") that are related to the performance of the
Management Services, including without limitation, (i) the Natural Communities Conservation
Plan ( "NCCP') implemented among City and local governments and various natural resource
agencies to protect various plant and wildlife communities, (ii) the Federal Endangered Species
Act, (iii) the California Endangered Species Act, and (iv) any law (in each case, a "Hazardous
Materials LaW') concerning wastes, materials, chemicals or other substances (whether in the
form of liquids, solids or gases, and whether or not airborne) that are ignitable, reactive,
K
corrosive, toxic or radioactive, or that are deemed to be pollutants, contaminants or hazardous
or toxic substances under or pursuant to any law, or that are to any extent regulated by, form
the basis of liability under or are otherwise under the authority of any Law (in each case, a
"Hazardous Material').
(b) Manager shall not do anything that may cause any portion of the
Managed Lands to be in violation of any Law. Manager shall use its best efforts to notify City
promptly of any suspected violation of any Law with respect to the Managed Lands owned by
City of which it becomes aware, it being understood that Manager has no obligation to research
any such matters or investigate to discover any such suspected violations, or to provide City
with any form of legal advice, and that the intent of this provision is to ensure that Manager
informs City of suspected violations of Laws with respect to Managed Lands owned by City of
which Manager actually becomes aware.
(c) Manager acknowledges that City may apply for state, federal and
other grants that may be applied towards the costs of preserving and operating the Managed
Lands (the "Grants "). In the event City obtains any of the Grants, City shall promptly provide
Manager with copies of any guidelines and restrictions associated therewith that relate to the
use, operation, or preservation of the Managed Lands (the "Grant Restrictions "), and Manager
shall use its best efforts to comply with the Grant Restrictions.
(d) Nothing in this agreement shall be construed to create in or give to
Manager: (1) the obligations or liabilities or an "owner" or "operator' as those words are defined
and used in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 US Code Sections 9601 et seq.) or any other Hazardous Materials Law,
including (but not limited to) the Hazardous Materials Transportation Act (49 US Code
Sections6901 et seq.); the Hazardous Waste Control Law (California Health & Safety Code
Sections 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety
Code Sections 25300 et seq.); and any rule regulation or other promulgation adopted under any
of the foregoing; (2) the obligations and liabilities of a person described in 42 USC §9607(a)(3);
(3) the obligations of a responsible person under any applicable Hazardous Materials Law; (4)
any obligation, right or permission to investigate, remove, remediate, abate or otherwise clean
up any Hazardous Materials located at or associated with the Managed Lands; or (5) control
over, or any obligation to participate in, the investigation, removal, remediation, abatement or
other clean up of Hazardous Materials in compliance with any Hazardous Materials Law, except
to the extent that the condition was actually caused by Manager or Manager's Agents.
4.5 Employees. Subject to City's rights under Section 1.3(a), all matters
pertaining to the employment, supervision, compensation, promotion and discharge of
Manager's Agents shall be the responsibility of Manager. Manager shall comply with all
applicable governmental requirements relating to workers' compensation, social security,
unemployment insurance, hours of labor, wages, working conditions and other employer- -
employee related matters.
4.6 Legal Action. Manager shall not, in connection with its obligations under
this Agreement, be called upon to, and shall not retain legal counsel to render legal advice or
institute any legal proceedings (including, without limitation, arbitration, judicial reference and
settlement negotiations) on behalf of City.
4.7 Approval of Collateral Materials. All collateral materials related to the
management of the Managed Lands, including, without limitation, advertising and promotional
materials, signs, brochures and publications (collectively, the "Collateral Materials ") shall
!Qi
(a) reference the Managed Lands as a part of the Irvine Ranch wildlands and parks or include a
reference that the Managed Lands are within the Irvine Ranch wildlands and parks, (b) include
the City's logo in all Collateral Materials which reference exclusively the Managed Lands, and in
other Collateral Materials as appropriate, and (c) be subject to mutual approval of City and
Manager prior to publication or dissemination and shall comply with all applicable Laws. Such
approval shall not be unreasonably withheld or delayed by either party.
4.8 Ownership of Improvements. Manager understands and acknowledges
that Manager shall have no ownership rights whatsoever in connection with any improvements
(including, without limitation, signs, fences and gates) maintained or repaired on the Managed
Lands pursuant to the terms of this Agreement.
4.9 Additional Land.
(a) Manager and City acknowledge and agree that additional parcels
of land may from time to time be added to the Managed Lands for which Manager is to provide
the Management Services under this Agreement upon mutual written agreement of City and
Manager. Among other things, the parties shall agree upon the effective date of any such
addition of property to the Managed Lands.
(b) In the event the Managed Lands are proposed to be increased
pursuant to the provisions of this Section 4.9, the Management Fee may be modified as City
and Manager mutually agree pursuant to the procedure in Section 4.3 above. To that end, if City
proposes to so increase the Managed Lands, concurrent with City's notice to Manager, City
shall also notify Manager of City's proposed corresponding modification to the Management
Fee.
4.10 City's Riqhts Reserved. Nothing in this Agreement is intended or shall be
deemed to restrict use of the Managed Lands by City in any way whatsoever; provided,
however, that City shall provide Manager with at least thirty (30) days' prior written notice of any
events or activities on the Managed Lands that may materially affect Manager's performance of
the Management Services.
ARTICLE V
INSURANCE
5.1 Insurance Types. Manager shall not commence any work until all
insurance is obtained. Manager will retain insurance consistent with the City's requirements as stated
by the City's Risk Manager. The City's Risk Manager may, at each option period, require Manager
to increase the dollar amounts for coverage in the same manner and amount that the
preponderance of the City's other management contracts are increased.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by Manager. Manager agrees to indemnify, hold
harmless and defend City, and each of its elected and appointed officials and representatives,
employees and agents, and each of the successors and assigns of such parties (collectively,
the "City Parties") from and against any and all of the following: claims, costs, liabilities,
8
penalties, damages or expenses of any kind or nature whatsoever, to any person or property,
and whether based on negligence, strict liability or other claim (including, but not limited to, court
costs and reasonable attorneys' fees and expenses, whether incurred at the trial, appellate or
administrative level, or in connection with any required arbitration) (collectively, "Claims ") that
any of the City Parties may suffer or incur, or to which any of the City Parties may be subjected,
to the extent such Claims are the result of or arise out of (i) any breach or violation of the terms
of this Agreement by Manager or by anyone acting for or under the authority of Manager, (ii) any
other activity of Manager or Manager's Agents on, at or with respect to the Managed Lands or in
accessing the Managed Lands, or (iii) the negligence or willful misconduct of Manager or any of
Manager's Agents in the performance of the Management Services.
6.2 Indemnification by City. City agrees to indemnify, hold harmless and
defend Manager, each of Manager's directors, officers, employees and agents, and each of the
successors and assigns of such parties (collectively, the "Manager Parties "), from and against
any and all Claims that any of the Manager Parties may suffer or incur, or to which any of the
Manager Parties may be subjected, to the extent such Claims are the result of or arise out of (i)
any entry on the Managed Lands by the general public in connection with the Management
Services, except to the extent such Claims are the result of or arise out of conduct covered by
Manager's indemnification in subsections 6.1(i) or 6.1 (iii) above, (ii) any breach or violation of
the terms of this Agreement by City or by anyone acting for or under the authority of City, (iii)
any other activity of City or any of the City Parties on, at or with respect to the Managed Lands,
or (iv). the negligence or willful misconduct of City or any of City's Parties relating to the
Managed Lands.
6.3 General. The foregoing indemnities and obligations to hold harmless
and defend are intended to apply with respect to all Claims incurred directly by the indemnified
party or parties, or their property, as well as by third parties or the indemnifying party. The
foregoing obligation to defend Manager and the Manager Parties shall mean the obligation to
defend with counsel reasonably approved in writing by Manager. Likewise, the foregoing
obligation to defend City and the City Parties shall mean the obligation to defend with counsel
reasonably approved in writing by City. Neither payment nor a finding of liability or of an
obligation to defend shall be a condition precedent to the enforcement of any indemnity or duty
to defend provision herein.
ARTICLE VII
LIENS
Manager shall not suffer or permit to be enforced against the Managed Lands, or
any part thereof, any mechanics', laborers', materialmen's, contractors or any other liens arising
from or any claims for damages growing out of any work of construction performed by or caused
to be performed by Manager in connection with the performance of the Management Services.
Manager shall pay or cause to be paid all of said liens, claims and demands before any action is
brought to enforce the same against the Managed Lands. City shall have the right at any time
to post and maintain on the Managed Lands, or any part thereof, such Notices of Non -
responsibility as desired by City or as may be provided by law. Notwithstanding anything to the
contrary contained herein, if Manager shall in good faith contest the validity of any such lien,
claim or demand, then Manager shall, at its expense, defend itself and City against the same
and shall pay and satisfy any adverse judgment that may be rendered thereon before the
enforcement thereof against the Managed Lands. If City shall require, Manager shall provide to
City a surety bond satisfactory to City in an amount equal to such contested lien, claim or
demand indemnifying City against liability for same, or if City shall request, Manager shall
procure and record the bond provided for in the California Civil Code, or any comparable statute
hereafter enacted, providing for a bond freeing the Managed Lands from the effect of such lien
or claim or action thereon. Notwithstanding the above, Manager shall have no obligation with
respect to any of the foregoing to the extent any such lien, claim or other proceeding arises
directly out of City's acts or omissions or a failure by City to make payments to Manager as
provided in this Agreement (except in circumstances where City has contested in good faith
such payment, in which case Manager shall remain obligated as provided in this sentence
pending resolution of such dispute).
ARTICLE VIII
TERMINATION
8.1 Termination Without Cause.
(a) Either party may, for any reason and without cause, terminate this
Agreement effective as of January 1, 2009, by giving written notice of such termination to the
other party on or before October 1, 2008. Failure of either party to so give a written termination
notice by October 1, 2008, shall be deemed the election by such party to waive such early
termination right.
(b) Either party may, for any reason and without cause, terminate this
Agreement effective as of any day after January 1, 2009, by giving written notice of such
termination to the other party at least one hundred and eighty (180) days prior to such effective
date.
8.2 Termination for Cause.
(a) Either party may terminate this Agreement for cause by written
notice to the other party (the "Termination Notice "). The acts or omissions that shall entitle a
party to terminate this Agreement are:
(1) In the case of Manager: (i) failure to provide the
Management Services at a level of quality at least equal to other land reserves of a type
similar to the Managed Lands in the State of California; (ii) failure to perform the
Management Services in any way; (iii) commission of any fraud, misrepresentation,
breach of fiduciary duty or willful misconduct in connection with the performance of
Manager's duties under this Agreement; or (iv) failure to cure any other breach of this
Agreement by Manager.
(2) In the case of City: (i) failure to pay the Management Fee
or to make any other payment due to Manager hereunder; or (ii) failure to cure any other
breach of this Agreement by City.
(b) Termination shall be effective upon the expiration of thirty (30)
days following the giving of the Termination Notice, unless the party allegedly in default cures
the same within such thirty (30) day period; or, alternatively, if such default is not capable of
cure within thirty (30) days, unless such defaulting party within thirty (30) days of receiving the
Termination Notice shall have both notified the other party in writing of the defaulting party's
plan of action to cure such default and initiated all necessary action to cure such default and
within sixty (60) days of the Termination Notice shall have completed all such action.
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(c) Prior to delivery of a Termination Notice under this Section 8.2,
the non - defaulting party agrees to (i) notify the defaulting party as to the non - defaulting party's
concerns with the other party's performance and (ii) meet with the other party to confer
regarding resolution of those concerns. If the parties have been unable to resolve the non -
defaulting party's concerns by the date that is thirty (30) days after the date the notice was
given, then the non - defaulting party may proceed with its Termination Notice.
8.3 Obligations Upon Termination. Upon termination of this Agreement, each
party shall continue to be fully liable for its respective obligations that have accrued up to and
including the termination date. In addition, the parties shall have the following obligations:
(a) City Obligations. City shall remain obligated to pay Manager for
the portion of the Management Fee earned by Manager up to the date of termination and for
any other payments and reimbursements due to Manager prior to the termination date.
(b) Manager Obligations. Manager shall perform any Management
Services reasonably requested by City until the termination date. In addition, within thirty (30)
days of the termination date of this Agreement, whether by expiration of the Term, by early
termination notice under this Article or by mutual agreement, Manager shall deliver to City the
following:
(1) Complete and legible copies of all work product generated
by Manager and Manager's Agents pursuant to this Agreement not previously delivered
by Manager to City pursuant to Section 1.4(a);
(2) All records, contracts, agreements, keys, correspondence
files and other papers or documents that pertain to the Managed Lands; and
(3) A Progress Report (whether or not then due), covering the
period from the end of the previous quarterly Progress Report to the termination date.
ARTICLE IX
GENERAL PROVISIONS
9.1 Independent Contractor. Manager shall act as an independent contractor
in the performance of its duties and responsibilities set forth in this Agreement. Manager is not
and shall not be an agent of City for any purpose. No provisions hereunder are intended or shall
be construed to create a partnership or a joint venture between City and Manager with respect
to the Managed Lands or otherwise, and neither party shall have the power to bind or obligate
the other party, except as expressly set forth in this Agreement.
9.2 Notices. All notices required or permitted by this Agreement shall be in
writing and may be delivered in person (by hand - delivery or professional messenger service) to
either party or may be sent by registered or certified mail, with postage prepaid, return receipt
requested or delivered by Federal Express or other courier service guaranteeing overnight
delivery, charges prepaid, and addressed as follows:
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If to Manager at:
Irvine Ranch Conservancy
320 Commerce, Suite 150
Irvine, CA 92602
Attention: Executive Director
If to City at:
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Attention: Assistant City Manager
Any such notice sent by registered or certified mail, return receipt requested, shall be deemed to
have been duly given and received seventy -two (72) hours after the same is so addressed and
mailed in the State of California with postage prepaid. Notices delivered by overnight service
shall be deemed to have been given twenty -four (24) hours after delivery of the same, charges
prepaid, to the courier. Any notice or other document sent by any other manner shall be
effective only upon actual receipt thereof. Any party may change its address for purposes of this
Section by giving notice to the other party as herein provided.
9.3 Attorneys' Fees. In any judicial action between the parties to enforce any
of the provisions of this Agreement or any right of any party under this Agreement, regardless of
whether such action or proceeding is prosecuted to judgment and in addition to any other
remedy, the unsuccessful party shall pay to the prevailing party all costs and expenses,
including reasonable attorneys' fees, expert witness fees and court costs incurred by the
prevailing party.
9.4 Waiver of Jury Trial. City and Manager each acknowledge that it has had
the advice of counsel of its choice with respect to rights to trial by jury under the constitutions of
the United States and the State of California. Each party expressly and knowingly waives and
releases all such rights to trial by jury in any action, proceeding or counterclaim brought by
either party against the other on any matters arising out of or in any way connected with this
Agreement, the Managed Lands or both.
9.5 Mediation. If a dispute arises from or relates to the terms and provisions
of this Agreement or any other matter referred to herein, which cannot be settled by direct
discussions or negotiation, City and Manager agree first to try in good faith to settle the dispute
by non - binding mediation administered by the American Arbitration Association under its
Commercial Mediation Rules, or by such other organization or individual and under such rules
as the parties may agree, before resorting to litigation or some other dispute resolution
procedure.
9.6 Assignment. Neither party shall voluntarily or involuntarily, directly or
indirectly, sell, assign, hypothecate, pledge or otherwise transfer or dispose of all or any portion
of its interest in this Agreement to any third party without the prior written consent of the other
party; which consent may be withheld in such other party's sole and absolute discretion. Any
such attempted sale, assignment, hypothecation, pledge or other transfer without such consent
shall be void and of no effect. No assignment approved by one party pursuant to the terms of
this Section shall be deemed to relieve the other party from any liability, responsibility or
obligation hereunder. City acknowledges that the foregoing restrictions on assignment are not
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intended to preclude Manager from retaining consultants or contractors to perform all or a
portion of the Management Services.
9.7 Amendments and Written Consents. All amendments to this Agreement
shall be in writing and executed by City and Manager. For day -to -day communication and
decisions, an e-mail request and approving e-mail reply will satisfy the written request
requirement.
9.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall constitute one and
the same instrument.
9.9 Governing Law. This Agreement is executed and shall be governed by
and construed in accordance with the laws of the State of California.
9.10 Remedies Cumulative. No remedy herein reserved to either party is
intended to be exclusive of any other remedy, but each and every such remedy shall be
cumulative and shall be in addition to any other remedy given in this Agreement as now or
hereafter existing or at law, in equity or by statute.
9.11 Nonwaiver. The failure of a party to notify the other party of any default
under this Agreement shall not be deemed to be a waiver by such non - defaulting party of any
continuing default by the defaulting party of any term, covenant or condition set forth in this
Agreement, nor of the non - defaulting party's right to declare a default for any such continuing
breach. The failure of a non - defaulting party to insist upon strict performance of any of the
terms, covenants or conditions of this Agreement, or to exercise any option in this Agreement in
any one or more instances, shall not be construed as a waiver or relinquishment of any such
terms, covenants, conditions or options, but the same shall be and remain in full force and
effect.
9.12 Severability. In case any one or more provisions set forth in this
Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, any such
invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provision had
never been incorporated therein.
9.13 No Third -Party Beneficiaries. This Agreement is not intended and shall
not be deemed or construed to confer any rights, powers or privileges on any person, firm,
partnership, corporation or other entity not a party hereto, except as may be expressly provided
herein to the contrary.
9.14 Incorporation of Exhibits. The following Exhibits attached hereto shall be
construed with and as integral parts of this Agreement to the same extent as if the same had
been set forth verbatim herein:
Exhibit A - Depiction of Managed Lands as of Effective Date
Exhibit B - Basic Management Services
9.15 Oral Agreements. No oral order, objection, claim or notice by any party to
the other shall affect or modify any of the terms or obligations contained in this Agreement, and
none of the provisions of this Agreement shall be held to be waived or modified by reason of
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any act whatsoever, other than by a definitely agreed waiver or modification thereof in writing,
and no evidence shall be introduced in any proceeding of any other waiver or modification.
9.16 Approvals. Except as otherwise provided herein, all approvals required
under this Agreement shall be in writing and shall be within the approving party's reasonable
discretion.
9.17 Press Releases and Press Relations. Any feature stories and /or "soft
coverage" concerning this Agreement, the subject matter hereof and the management of the
Managed Lands shall not be initiated or solicited by either Manager or City without the prior
written consent of the other party. In the case of inquiries by the press, the party to whom an
inquiry has been made shall use reasonable efforts to contact the other party. If a party initiates
a telephone call to the other party advising such party of a press inquiry, and such party does
not respond within two (2) hours after the telephone call has been placed, the party to whom the
inquiry has been made may answer questions asked by the press to the best of its knowledge.
Notwithstanding the foregoing, prior consent of the other party shall not be required to respond
to any routine inquiries by the press.
9.18 Authorization. By the execution of this Agreement, the undersigned each
represent and warrant, in each case as to the party on behalf of whom they are signing, that the
execution, delivery and performance of this Agreement by such party has been duly and validly
authorized by all necessary action and proceedings, and no further action or authorization is
necessary on the part of such party in order to perform its obligations hereunder.
9.19 Time. Time is of the essence of this Agreement and each provision hereof
of which time is an element.
9.20 Nonliabilitv of Officials and Employees. No member, official, employee,
or consultant of City shall be personally liable to Manager, or any successor interest of
Manager, in the event of any default or breach by City or for any amount which may become
due to Manager or to its successor, or on any obligations under the terms of this Agreement.
No member, director, officer, employee, or consultant of Manager shall be personally liable to
City, or any successor interest of City, in the event of any default or breach by Manager or for
any amount which may become due to City or to its successor, or on any obligations under the
terms of this Agreement.
9.21 Entire Agreement. This Agreement and the Exhibits attached hereto
comprise the entire agreement of the parties with respect to the transaction described herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
"City'
CITY OF NEWPORT BEACH,
a California municipal corporation
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"Manager"
IRVINE RANCH CONSERVANCY,
a California nonprofit corporation
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By: By:
Michael O'Connell
President & Executive Director
By: By:
Mary Westbrook
Secretary
ATTEST:
By:
City Clerk
Approved as to form:
By:
City Attorney
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Exhibit A
Depiction of Managed Lands
Exhibit A Note
Depiction above includes all City -owned lands in Buck Gully;
• Inland of 51" Avenue
• West of Newport Coast Drive
• South of San Joaquin Hills Road
• Exclusive of the San Joaquin Hills Road View Parks
• Exclusive of HOA- controlled fuel Modification Zones in
Newport Coast.
A -1
V
Exhibit B
Basic Management Services
Year 1 i(November 1, 2007 — October 31, 2008
Resource Planning Focus:
Manager will develop a detailed knowledge of the Managed Lands' natural systems and the
many challenges of the surrounding urban interface to plan for its long -term management,
restoration and public enjoyment. To develop such knowledge, Manager will collect,
organize and evaluate existing resource data with respect to the Managed Lands.
Information on historic and current habitats, as well as planned land uses directly and
indirectly impacting the Lands, will be obtained from The Irvine Company LLC, City, the
County of Orange, and the Nature Reserve of Orange County ( "NROC "), and will include
previous NCCP data as made available to Manager by these and other sources.
Manager, with the approval of City, will subcontract with a qualified consultant or consultants
( "Consultant') to assist in preparation of a comprehensive resource and recreational
management plan for the Managed Lands including collection and organization of the data
described above ( "RRMP ") according to the terms and criteria of the NCCP. Manager will
supervise Consultant and will coordinate and provide planning support services in the
preparation of the RRMP for City, which is estimated to require at least twelve (12) months to
prepare, including time for supplemental field surveys. Because the RRMP must be approved
by state and federal wildlife regulatory agencies, Manager will coordinate the consultation
and involvement of such agencies in the planning process and will assist City in submittal of
the City- approved draft to the NROC and the applicable state and federal wildlife regulatory
agencies for review and approval.
City will create a Stakeholder Advisory Group that City shall convene as needed to provide
input to City and Manager in completing and implementing the RRMP. Manager shall
participate in Stakeholder Advisory Group meetings to the extent needed. City and Manager
understand that this RRMP is being developed to comply with the requirements of NCCP and
to fulfill the City's desires for resource management and public access. The Stakeholder
Advisory Group will therefore provide valuable input to the process of RRMP preparation but
is not an approval body for the RRMP.
Year 2 and Subsequent Years (November 1 2008 and thereafter)
Resource Planning Focus:
Manager will continue with the coordination and provision of support services in the
completion and approval of the City's RRMP. After approval of the RRMP and based on the
long -term habitat restoration, maintenance and public access recommendations set forth in
the approved RRMP, City, with the assistance of Manager, will establish implementation
priorities based on the RRMP. As part of this process, Manager will submit a capital program
(restoration and public access) for City's review and approval by October 1, 2008. The
capital program will address components of stewardship and public access (including trails
and facilities) as identified by the RRMP.
I'm
E
Resource Management Services:
Manager will provide management services for the Managed Lands which will include
stewardship of the Managed Lands consistent with the approved RRMP and NCCP, and
which will include field monitoring, habitat and natural resource management, regional
coordination with adjacent open space land managers, fire management (to be defined),
public outreach and education, as well as volunteer management for stewardship and public
access programs as described in Schedule 1. Manager will procure, maintain and repair
vehicles and equipment associated with Manager's Basic Management Services.
Initial Resource Recovery Phase. In the initial 3 -4 years of the RRMP's implementation,
the Manager and City envision that the Manager's duties will primarily consist of habitat
restoration (including the removal of invasive species), erosion control, fire /fuel modification
efforts, resource monitoring, and similar activities designed to recover the habitat value of the
Managed Lands.
Public Access & Ongoing Maintenance Phase. After public access is improved and
granted to the Managed Lands, the Manager will begin the provision of light, routine custodial
service resulting from everyday regular, authorized use of the Managed Lands as follows:
- Trail cleanliness:litter removal from trail areas and trash receptacles (if any) on trails;
- Minor trail service, minor erosion remediation and prevention including:
• annual mowing of trail centerlines;
• installation of water bars and other erosion prevention features as required;
• identification and remediation of erosion problems as required;
• removal of invasive plant species as agreed by City and Manager on trail
alignments;
- Touch -up paint, service and perform minor repairs on fences, locks and gates;
- Install and maintain service of trail signage, trail kiosks, trail benches, trail water
troughs, trail shade structures, and similar trail facilities purchased by City;
- Open and close gates and other public facilities associated with public access
program activities;
City has and will continue to have responsibility for heavy maintenance and for damage
resulting from unauthorized use or events such as storms, vandalism or malicious mischief,
including:
- Trash removal from staging area and trailhead receptacles
- Storm damage cleanup and major trail rehabilitation and repair
- Major trail erosion and damage remediation /reconstruction
- Oversight and maintenance of trailhead operations, including trash removal,
restroom maintenance (both permanent and temporary restrooms) and repair
- Remediation and cleanup of illegal dumping
- Installation and maintenance of staging area kiosks, booths and similar facilities
- Replace /repaint fences, locks and gates
A further description of the management services to be provided by Manager is included on
the "Preserve Management Schedule of Services" for the Managed Lands which is attached
hereto as Schedule 1. This schedule of services may be modified or adjusted based on the
approved RRMP and the identification of implementation priorities by City, with assistance of
Manager as described above, and the Annual Management Fee adjusted according to the
terms of Section 4.3.
Zl
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SCHEDULEI
Preserve Management Schedule of Services
YEAR 1 (November 1 2007 — October 31, 2008)
Item Description Qty. Units Comments
Preserve Operations
1
Reserve Operations Manager
0
FTE
See Note (1)
2
Vehicle Maintenance
0
ea
Vehicle for Preserve Operations
3
Trail Gates
0
ea
Inspection, preventative maintenance, and minor repairs
4
Fences
0
If
Inspection, preventative maintenance, and minor repairs
5
Bridges — Pedestrian
0
ea
Inspection, preventative maintenance, and minor repairs
6
Trails /Fire Roads Grading
0
If
Annual preventative erosion control/minor erosion repairs
7
Trails/Fire Roads Drainage
0
If
Annual drainage and crossings maint. /contract service
8
Paved Roadways
0
sf
Annual Patch and repair & 5 year Seal
9
Restroom Maintenance
0
ea
Assumes 2 ADA Leased toilets 1 x per week service
10
Trash Collection
0
ea
Assumes $50.00 x 24 collections for 1 dumpster
11
Weed Abatement at Gateways
0
ea
One application or mowing per spring per gateway
12
Field Operations Materials & Equip.
0
Is
Resource
Management
13
Senior Field Ecologist
0.25
FTE
See Note (1)
14
Vehicle Maintenance
0.25
ea
Vehicle for Resource Management
15
Fuel Modification
ac
as needed - time and materials per Management Agmt
16
Fire Break Maintenance
Is
as needed - time and materials per Management Agmt
17
Field Biology Assist (See Note 2)
1
Is
Preparation of Resource and Recreation Management Plan
18
Invasive Weed Control
0
Is
Annual trail- adjacent invasive weed control maintenance
19
Field Biology Materials & Equipment
0
Is
20
Field Storage
0
Is
Assumes $85 per month for (1) 8 X 20 Storage Bin
21
Field Communications
0
Is
Radios and related supplies
Public Safety
22
Public Safety/Security Personnel
0.5
Is
Assumes NBPD provided Public Safety Patrol
B -1
N
W
NOTES
(1) Includes .5 FTE split duties between (Reserve Management/ Resource Management). Duties include
collection, organization of resource information, field assessment, consultant coordination and
stewardship and field management oversight
(2) Consultant assistance for Resource and Recreation Mgmt Plan. Some
resource surveys have already been completed under direct contract to City.
B -2
N
S
Preserve Management Schedule of Services
(November 1, 2008 and Thereafter)
Item
Reserve Operations
1
Reserve Operations Manager
2
Vehicle Maintenance
3
Trail Gates
4
Fences
5
Bridges - Pedestrian
6
Trails /Fire Roads Grading
7
Trails/Fire Roads Drainage
8
Paved Roadways
9
Restroom Maintenance
10
Trash Collection
11
Weed Abatement at Gateways
12
Field Ops Materials & Equip.
13
Field Office /Storage
14
Field Communications
Resource Management
15
Field Ecologist
16
Vehicle Maintenance
17
Fuel Modification
18
Fire Break Maintenance
19
Field Biology Assistance
20
Invasive Weed Control
21
Field Biology Materials & Equipmt
Public Programs (when applicable/authorized)
22 Field Naturalist
23 Vehicle Maintenance
24 Program Brochure Design /Layout
Units Comments
0.35
FTE
See Note (1) Split Duties of 1 FTE + 33% benefits
0.35
ea
Vehicle for Field Operations personnel
3
ea
Inspection, preventative maint., and minor repairs
700
If
Inspection, preventative maint., and minor repairs
5
ea
Inspection, preventative maint., and minor repairs
15000
If
Annual erosion control /minor erosion repairs
15000
If
Annual drainage/crossings maint /contract service
14000
sf
Annual patch and repair & 5 year seal
2
ea
Assumes 2 ADA Leased toilets at 1x per week service
1
ea
Assumes 24 collections for 1 dumpster
3
ea
One application or mowing per spring per gateway
1
Is
Miscellaneous Field Equipment and Materials
1
Is
Assumes $85 per month for (1) 8 X 20 Storage Bin
1
Is
Radios and related supplies
0.4
FTE
See Note (1) Split Duties of 1 FTE + 33% benefits
0.4
ea
Vehicle for FTE Resource Management personnel
ac
TBD
Is
TBD
1
Is
See Note (2) for contract assistance
1
Is
Annual trail- adjacent invasive weed control maint.
1
Is
0.25
FTE
See Note (1) Split Duties of 1 FTE + 33% benefits
0.25
ea
Vehicle for FTE Field Ops /Ecologist/Naturalist personnel
1
Is
Initial setup and re- design every 3 -5 years
B -3
9�
25 Program Brochure Printing 10000 ea 2500 distributed brochures per quarter
26 Volunteer Management Expenses 1 Is See Note (3) for list of expenses
Public Safety
27 Public Safety /Security Personnel 0.5 FTE NBPD provides Public Safety Patrol
NOTES
(1) Includes 1 FTE split duties between Reserve Management/ Resource Management /Public Programs.
Duties include light maintenance of trails, gates, fences, and bridges,
ongoing habitat management, restoration, monitoring, fire management, and invasive species control;
Includes part-time assistance and /or consulting services for field biology projects and monitoring
(2) Includes contract assistance/labor for management, monitoring and field surveys; NCCP
compliance
(3) Includes training and certification costs, annual and special event costs, food, equipment, etc.
B -4
N