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HomeMy WebLinkAbout14 - RRMP for Big Canyon Restoration AreaCITY OF F NEWPORT REACH City Council Staff Report November 25, 2014 Agenda Item No. 14 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director- (949) 644 -3330, dawebb @newportbeachca.gov PREPARED BY: Bob Stein, Assistant City Engineer PHONE: (949) 644 -3322 TITLE: Contract with the New Irvine Ranch Conservancy for Preparation of a Resource and Recreation Management Plan (RRMP) for Big Canyon Restoration Area ABSTRACT: A formal restoration planning document for Big Canyon is desired in order to guide policy and management decisions for proposed extensive restoration efforts in the canyon. RECOMMENDATION: Approve a Professional Services Agreement with the New Irvine Ranch Conservancy at a not -to- exceed price of $169,060.00 for the preparation of a RRMP for Big Canyon and authorize the City Manager and City Clerk to execute the Agreement with the New Irvine Ranch Conservancy once the intended contribution funding is secured and made available from a settlement agreement between the Irvine Company and Defend the Bay, Inc. FUNDING REQUIREMENTS: Funding of this plan is listed in the current adopted FY 2014/15 CIP budget as a contribution (7251 - 05002004). Adequate funding will be available for this agreement upon receipt of the anticipated settlement contribution. DISCUSSION: The New Irvine Ranch Conservancy (IRC) is a non - governmental organization that manages parklands and open space areas for the County of Orange, City of Irvine and City of Newport Beach. IRC has a professional staff of land managers, scientists and public program experts and has managed Upper Buck Gully for the City since 2009. 14 -1 Last month, City and IRC staff met with the California Department of Fish and Wildlife (DFW) and Newport Bay Conservancy to discuss restoration options for Big Canyon in the area between Jamboree Road and Newport Bay. DFW owns the land adjacent to the bay and around the freshwater lake adjacent to Back Bay Drive. The City owns Back Bay Drive and the remainder of land to the south and east of the DFW property to Jamboree Road. The parties developed a concept plan (Attachment B) that envisions removing most of the invasive plants and trees within the City property and replacing them with native -type plants, enhancing the trail system, and other minimalist amenities such as information signage. With this concept plan as the basis, City staff would like IRC to prepare a formal planning document called a Resource and Recreation Management Plan (RRMP) as was done for Upper Buck Gully in 2009. The RRMP is a comprehensive, long -term management plan that provides guidance for habitat restoration and enhancement, education, public access and recreation, and monitoring. The RRMP is reviewed by DFW and U.S. Fish and Wildlife Service, and therefore provides a level of certainty for permitting requirements from these agencies for future projects in the canyon. An approved RRMP for Big Canyon would give the City the option of enrolling this area of Big Canyon at a future date into the Orange County Central Coastal Natural Community Conservation Plan (NCCP). Enrolling Big Canyon into the NCCP could provide the City (upland) mitigation credits for development elsewhere in the City. Funding for this task is anticipated to be provided from an older settlement agreement between the Irvine Company and Defend the Bay, Inc. The City has attempted to work with both parties to reach agreement on (1) the projects to be funded and (2) contingency conditions in the event there are any surplus funds. ENVIRONMENTAL REVIEW: This action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15306 (Information Collection) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3. The preparation of the RRMP does not authorize any specific development or project, but would create the guidelines and standard for future projects. Those future projects would be subject to CEQA. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment A - Location Mao Attachment B - Concept Plan Attachment C - Agreement 14 -2 UPPER NEWPQR r .� 1 I(�i Location Map Big Canyon Nature Park -� FAS MON ISLAND Ii: ATTACHMENT A I CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT 11/25/2014 14 -3 C R N O O J y n C R w m o 0 0 3 °c = m m H a m li E o vg 30 0_n oo d C7 03 H 'm o J Wn m U N V (` U U C m N c R m m ab H Hm E c o Q rn o aw 0 m O V m F H a a °—' c !� y a°� v `0 > m -O c N ON o 0 rn 9 3 3: E 0 0 2 °� .o d a m 1 o K x o 8 s - O 3 m y U 'm c in f- m` in 0 Y= m o x 3 z v w c) op 0 o c E c E o<� d I I W I I Z I I l i■® a` c m — U O o m O m 0 O 0 N C N O M" O c 0 L p' O'p 0 E N c U 0 N C N U C U N co C U p ` C N y " //''��� O , �I 0 O (6 U 0 0 > y« N d? N C O O c CL ;. m o `° m 0 0 0 m 3 n L m o m c .>c cE o 00 d T y O O w Ol m m U m 0 L o m p O o a C CO 9 N 3 06 O 0 O U U J y f0 N tq N y� O w a) 0 o o E a) C C o E 0 0 0 ON o W N o O O N U j (0 > U W O L Vl _ '� :� '00 0 co N N o N p dW' U, N( —_ tY/f O_ � U .� _ � D) � 3 O .2 ) E N N Q p LL N U 0 Z w • _ .w. W N a Z 7 p O O t0 Y N d N O y � 0 mL m O 3 a O 0 L N —(D L O O o E 7� O N 0 U W O _N W ■ Y 3 C p @ C C O 9 N E m N� Z � a a 0 0 0 c�?o CC wnn oo N V z�1�N .0 L O �� // ANN U m � ��� ATTACHMENT C PROFESSIONAL SERVICES AGREEMENT WITH NEW IRVINE RANCH CONSERVANCY FOR BIG CANYON RECREATION AND RESOURCE MANAGEMENT PLAN THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement ") is made and entered into as of this 25th day of November, 2014 ( "Effective Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City "), and NEW IRVINE RANCH CONSERVANCY, a California nonprofit corporation ( "Consultant'), whose address is 4727 Portola Parkway, Irvine, California 92620, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to develop a Recreation and Resource Management Plan for Big Canyon ( "RRMP "). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31. 2017 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Consultant shall perform the on -call services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). Upon written request from the Project Administrator as defined herein, Consultant shall provide a letter proposal for Services requested by the City (hereinafter referred to as the "Letter Proposal'). The Letter Proposal shall include the following: 2.1.1 A detailed description of the Services to be provided; 2.1.2 The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; New Irvine Ranch Conservancy Page 1 FEW -_We 2.1.3 The estimated number of hours and cost to complete the Services; 2.1.4 The time needed to finish the specific project. 2.2 No Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control, including delays in providing necessary permissions, data, reports, or other information by City. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand - delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant a Fee of One Hundred Sixty Nine Thousand and Sixty Dollars and 001100 ($169,060.00) for the Services described in the Scope of Services attached hereto as Exhibit A. New Irvine Ranch Conservancy Page 2 WIN 4.2 Payment for the Scope of Services shall be made in four (4) equal installments commencing with the date of execution of this Agreement and bi- monthly thereafter in accordance with the provisions of this Section. Payment for Scope of Services Vt Installment $42,265 2nd Installment $42,265 3rd Installment $42,265 4th Installment $42,265 4.3 Compensation includes all costs and expenses related to providing the Services and deliverables. Consultant's compensation for all Work performed in accordance with this Agreement, shall not exceed this Fee amount without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.4 Consultant shall submit quarterly invoices to City describing the Work performed the preceding quarter. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the quarterly invoice by City staff. 4.5 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid at the sole discretion of City and in an amount to be mutually agreed upon. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Dr. Riley Pratt to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. New Irvine Ranch Conservancy Page 3 QL�J 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Deputy Public Works Director shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City as described further in the attached Scope of Services. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first - class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. New Irvine Ranch Conservancy Page 4 PLEA 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. New Irvine Ranch Conservancy Page 5 QL'S.*] 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. New Irvine Ranch Conservancy Page 6 FEWS] 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and /or viewable with Adobe Acrobat. 17.4 City hereby grants Consultant non - exclusive license to use GIS information, field and monitoring data, and other related Work Product for publication in scientific or peer- reviewed journals and professional presentations with appropriate acknowledgement of City. No Work Product shall be used by Consultant for any other purpose without the expressed written consent of City. All work generated by or on behalf of Consultant as part of its unrelated or previous activities shall remain the exclusive property of Consultant. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged New Irvine Ranch Conservancy Page 7 14 -11 infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. New Irvine Ranch Conservancy Page 8 FERFA, 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first - class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Public Works Director City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Executive Director New Irvine Ranch Conservancy 4727 Portola Parkway Irvine, CA 92620 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured New Irvine Ranch Conservancy Page 9 iC5R3 within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than thirty (30) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. mug] M 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. New Irvine Ranch Conservancy Page 10 iCSCf 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] New Irvine Ranch Conservancy Page 11 TERM IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized agents as of the date first set forth above. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: I 1 I(q 11.0 By: am mt,- Aar n C. Harp (.AM �\IwtltH City Attorney ATTEST: CITY OF NEWPORT BEACH, a California municipal corporation Rush N. Hill, II Mayor CONSULTANT: New Irvine Ranch Conservancy, a California nonprofit corporation Date: By: By: Leilani I. Brown Michael O'Connell City Clerk President / Executive Director Bv: Ken Kramer Assistant Secretary [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services and Costs Exhibit B - Insurance Requirement New Irvine Ranch Conservancy Page 12 14 -16 EXHIBIT A SCOPE OF SERVICES AND COSTS New Irvine Ranch Conservancy ( "NIRC) will develop a Resource and Recreation Management Plan ( "RRMP ") for Big Canyon Nature Preserve. The purpose of the RRMP is to provide a planning document that will guide the management, restoration, enhancement and recreation in Big Canyon. NIRC will develop detailed knowledge of the Big Canyon ( "the Preserve ") 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, NIRC will collect, organize and evaluate existing resource data with respect to the Preserve. Upon execution of the Agreement to which this Scope of Work is attached, City will provide NIRC with all relevant information and data in its possession including GIS files, land use data, ownership and jurisdictional information, resource data, and any other relevant information. 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, the State of California, and the Nature Reserve of Orange County ( "NROC "), and will include previous NCCP data as made available to NIRC mangers by these and other sources. NIRC, with the approval of City, will subcontract with a qualified consultant or consultants ( "Consultant") to prepare a comprehensive resource and recreational management plan document for the Preserve consistent with the terms and criteria of the Orange County Central Coastal Natural Communities Conservation Plan (the "NCCP "), including collection and organization of the data described above and gathering additional data on soils, vegetation, species occurrences and other biological resources as needed and appropriate. NIRC will supervise Consultant and will coordinate and provide planning support services in the preparation of the RRMP for City, which is estimated to require up to twelve (12) months to prepare, including time for supplemental field surveys, public information sessions and agency review and approval. The City anticipates submitting the RRMP for review by the state and federal wildlife agencies and NROC, with the intent of enrolling the Big Canyon Preserve in the NCCP. Because the RRMP must be approved by state and federal wildlife regulatory agencies and coordinated with NROC to enroll the Preserve in the NCCP, NIRC will organize the consultation and involvement of such agencies in the planning process and will assist City in submittal of the City- approved draft to NROC and applicable state and federal wildlife regulatory agencies for review. After development 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 NIRC, will establish implementation priorities based on the RRMP. As part of this process, NIRC will submit a capital program (habitat restoration and public access) for City's review no later than 60 days after the completion and approval of the RRMP. The capital program will address components of stewardship and public access (including trails and facilities) as identified by the RRMP. During development of the RRMP, City will create an informal Stakeholder Advisory Group (including adjacent homeowners) that City shall convene as needed to assist City and NIRC in completing and implementing the RRMP. NIRC shall participate in New Irvine Ranch Conservancy Page A -1 14 -17 Stakeholder Advisory Group meetings to the extent appropriate. City may also choose to host one or more public meetings associated with the RRMP development, and NIRC will participate in and support City in such process. Costs for Scope of Services: TASK Review of Existing Information Updated Detailed Site Evaluation Biological Surveys Soil Surveys RRMP Draft Preparation RRMP Document Finalization Project - Related Meetings TOTAL PROJECT COST New Irvine Ranch Conservancy COST $8,440 $6,850 $71,770 $12,830 $40,200 $12,100 $16,870 $169,060 Page A -2 14 -18 INSURANCE REQUIREMENTS- PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this New Irvine Ranch Conservancy Page B -1 14 -19 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non- Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self - insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance New Irvine Ranch Conservancy Page B -1 14 -20 shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. E. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. F. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non - compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. G. Requirements not Limitinq. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. H. Self- insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self -- insurance will not be considered to comply with these requirements unless approved by City. City Remedies for Non - Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. J. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. New Irvine Ranch Conservancy Page B -2 14 -21 K. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. New Irvine Ranch Conservancy Page B -3 14 -22