HomeMy WebLinkAboutC-6058(A) - Indemnification AgreementAGREEMENT
BETWEEN THE CITY OF NEWPORT BEACH AND
V THE TIDES CENTER MARINE EDUCATION PROJECT
This Agreement is entered into this 1� day of February, 2015 ( "Effective
Date "), by and between the City of Newport Beach, a California municipal corporation
and Charter City ( "City" or "Landowner"), and THE TIDES CENTER MARINE
EDUCATION PROJECT, a California nonprofit corporation located at 45 Fremont
Street, Suite 2000, San Francisco, California 94105 ( "Grantee "). City and Grantee are
at times individually referred to as "Party" and collectively as "Parties" herein.
RECITALS
A. This Agreement is p3ade in connection with the Grant Agreement ( "Grant
Agreement ") dated , 2015 between the California Wildlife
Conservation Board ( "Grant& '), the Grantee, and the City, for Newport Valley
Habitat Restoration, Orange County, California, # WC- 1423EH, incorporated
herein by this reference as Exhibit A.
B. The purpose of this Agreement is to provide indemnifications that were not
otherwise provided in the Grant Agreement.
C. All other aspects of the original Agreement shall remain in full force and effect.
NOW, THEREFORE, the Parties agree as follows:
1. INDEMNIFICATION
To the fullest extent permitted by law, Grantee shall indemnify, protect, and hold
harmless the City, its City Council, boards and commissions, their respective members,
officers, agents, employees, representatives, and volunteers (collectively, the
"Indemnified Parties "), from and against any and all claims, demands, damages, losses,
costs (including attorneys' fees), expenses, and liability of any nature ( "Claims "),
including, without limitation, claims for bodily injury, death or damage to property, arising
out of or incident to the Project (as defined at Section 2 of the Grant Agreement),
Grantee's entry upon and use of the Property (as defined at Section 2 of the Grant
Agreement), and the performance of, or failure to observe or perform, any obligations of
the Grantee under this Agreement. The obligations of Grantee include, without
limitation, Claims resulting from the generation, use, storage, disposal, release or
threatened release of any hazardous or toxic substance, material or waste; petroleum or
petroleum products and other substances that present a threat to human health or the
environment. Any obligation to indemnify the City by Grantee shall be limited to those
claims, demands, damages, losses, costs, expenses and liability that are a result of
Grantee's negligence or willful misconduct.
2. NO ASSIGNMENT OR TRANSFER
This Agreement is not assignable or transferable by Grantee, either in whole or in
part, without the prior written consent of the City, which may grant or withhold at the
City's discretion.
3. STANDARD PROVISIONS
3.1. Recitals. City and Grantee acknowledge that the above Recitals are true and
correct and are hereby incorporated by reference into this Agreement.
3.2. Compliance With all Laws. Grantee 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.
3.3. Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Grant Proposal or any other
attachments attached hereto, the terms of this Agreement shall govern.
3.4. 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.
3.5. Amendments. This Agreement may be modified or amended only by a
written document executed by both Grantee and City and approved as to form by the
City Attorney.
3.6. 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.
3.7. 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.
3.8. Equal Opportunity Employment. Grantee represents that it is an equal
opportunity employer and it shall not discriminate against any contractor, employee or
applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex or age or any other impermissible basis under law.
3.9. No Attorney's Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorney's fees.
3.10. Counterpart s. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one and the same instrument.
[SIGNATURES ON NEXT PAGE]
THE TIDES CENTER MARINE EDUCATION PROJECT Page 2
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORN Y'S OFFICE
Date:'� / l
Bv: \ VL —
Aaron C. Harp C)�M 0t11a11S"
City Attorney
ATTEST:
Date: �-'01 I5
By
L
C
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Dave Kiff
City Manager
GRANTEE: THE TIDES CENTER
MARINE EDUCATION PROJECT, a
California nonprofit corporation
Date:
Attachment: Exhibit A: Grant Agreement
Signed in Counterpart
Judith Hill
Chief Financial Officer
[END OF SIGNATURES]
THE TIDES CENTER MARINE EDUCATION PROJECT Page 3
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: Vm(l(
Rv-
Aaron C. Harp
City Attorney
ATTEST:
By:
Leilani I. Brown
City Clerk
CAtA ON1laIls
Attachment: Exhibit A: Grant Agreement
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
Dave Kiff
City Manager
GRANTEE: THE TIDES CENTER
MARINE EDUCATION PROJECT, a
California nonprofit corporation
Date:
ByQ
Judi Hill
Chief Financial Officer
[END OF SIGNATURES]
THE TIDES CENTER MARINE EDUCATION PROJECT Page 3
Exhibit A
Grant Agreement
CALIFORNIA WILDLIFE CONSERVATION BOARD
GRANT AGREEMENT
Between
STATE OF CALIFORNIA, WILDLIFE CONSERVATION BOARD
and
TIDES CENTER — MARINE EDUCATION PROJECT
and
CITY OF NEWPORT BEACH
for
NEWPORT VALLEY HABITAT RESTORATION
ORANGE COUNTY, CALIFORNIA
WC- 1423EH
State of California
Natural Resources Agency
Department of Fish and Wildlife
Wildlife Conservation Board
This page left blank intentionally.
Newport Valley Habitat Restoration, Orange County Page 1
Grant Agreement Number WC- WC1423EH
Project 1D 2014129
1. SCOPE OF AGREEMENT
Pursuant to the Wildlife Conservation Law of 1947, Chapter 4.0 of Division 2,
(commencing with Section 1300) of the California Fish and Game Code; the Water
Security, Clean Drinking Water, Coastal and Beach Protection Fund of 2002
(Proposition 50), Water Code Section 79572(a); and the approval granted by the
Wildlife Conservation Board on November 20, 2014, the Wildlife Conservation Board
(Grantor) hereby grants to Tides Center— Marine Education Project (Grantee), a sum
not to exceed three hundred, eighty -one thousand dollars ($381,000.00) (Grant Funds),
upon and subject to the terms and conditions of this Grant Agreement (Agreement).
2. PURPOSES OF GRANT
Grantor is entering into this Agreement, and the Grant Funds shall be used, only for the
purpose of assisting Grantee with the project generally described as: removing invasive
weed species and restoring approximately 15 acres of native vegetation (Project) on
approximately 15 acres of land commonly known as Newport Valley, located in Orange
County, California (Property). The Property is generally shown on the attached Exhibit
A - LOCATION MAP. The City of Newport Beach is the fee owner of the Property.
3. CONDITIONS OF GRANT
Grantor's obligation to disburse Grant Funds under this Agreement is conditioned upon
and subject to the satisfactory completion of all of the following conditions:
3.1 Grantor shall have reviewed and approved all documents pertaining to the
Project, including, without limitation, feasibility and planning studies, designs,
plans, budgets, cost estimates, timelines and agreements. Such review and
approval by Grantor will be for compliance with this Agreement as well as
funding and other requirements applicable to Grantor, and shall not be
unreasonably withheld.
3.2 Grantor shall have reviewed and approved a certified resolution or other
appropriate action of the governing board or governing body of Grantee,
authorizing the execution and performance of this Agreement and the carrying
out of the Project by Grantee.
3.3 Grantee shall have disclosed all funding sources for the Project, including all
amounts applied for or obtained from sources other than Grantor. These
amounts shall be reflected in the attached Exhibit B — BUDGET (Budget) by
Budget category. As between Grantor and Grantee, Grantee shall be
responsible for any and all Project costs that exceed the amount of the Grant
Funds provided under this Agreement.
3.4 The grant proposal shall have been approved by the Wildlife Conservation
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project 1D 2014129
Page 2
Board at a public meeting, this Agreement shall have been fully executed by
Grantor and Grantee, and Grantee shall have received a written "Notice to
Proceed" from Grantor. The approval of the grant proposal by the Wildlife
Conservation Board, if such approval is given, shall not constitute
authorization for the commencement of the Project or expenditure of Grant
Funds. No expenditure made or activity initiated prior to Grantee's receipt of a
written Notice to Proceed from Grantor will be eligible for reimbursement by
Grantor.
4. DISBURSEMENTS
4.1 Upon satisfaction of all of the Conditions of Grant set forth in Section 3, above,
and so long as Grantee is not in breach or default under this Agreement,
Grantor agrees to disburse the Grant Funds to Grantee, in arrears, in
installments as set forth in this Section 4. Disbursements shall be made not
more frequently than monthly and disbursements of less than $5000.00 should
be made not more frequently than quarterly. All disbursements shall be
subject to the availability of funds for purposes of the Project as provided in
Section 4.8.
4.2 Grantee shall request disbursement of Grant Funds by submitting a
disbursement request to Grantor in triplicate for approved budgeted work
performed on the Project in accordance with Section 4.3. Disbursement shall
be contingent upon approval of the disbursement request by Grantor.
4.3 The disbursement request must be submitted on Grantee's letterhead, signed
by an authorized representative of Grantee, and include a written description
of the work completed during the period of the disbursement request.
Requests for disbursement must be itemized using the same categories
included in the attached Budget. Exhibit C — DISBURSEMENT REQUEST
TEMPLATE provides the format to use for submitting disbursement requests
to Grantor. Each disbursement request shall contain supporting or back -up
documentation for all amounts shown on the request, including receipts for all
materials and supplies, all Grantee staff time shown by number of hours
worked and hourly rate, and all contractor or sub - contractor services.
4.4 Grantor may withhold ten percent (10 %) of the total approved amount from
each disbursement (Retained Grant Funds) until Grantor has approved the
completion of the Project, the final report required by Section 6.4, and the final
request for disbursement.
4.5 Upon completion of Project activities, Grantee may request disbursement of
the Retained Grant Funds. Grantee shall submit this request no later than
thirty (30) days after the Projected Completion Date (as defined in Section
6.1).
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project iD 2014129
4.6 Requests for disbursement should be sent to:
Wildlife Conservation Board
180713 th Street, Suite 103
Sacramento, California 95811
Attn: Elizabeth Hubert
4.7 Grantee shall reimburse Grantor for any erroneous disbursement of Grant
Funds under this Agreement. Reimbursement shall occur within 30 days of
written demand by Grantor. Interest shall accrue at the highest rate allowed
by law from the time that reimbursement becomes due and owing until
received by Grantor.
Page 3
4.8 Despite any contrary provision of this Agreement, Grantor shall not be
obligated to disburse any remaining unpaid portion of the Grant Funds unless
and until sufficient funds identified for allocation to the Project (as further
specified in the Funding Certification attached to this Agreement) are released
by the State Treasurer's Office to Grantor for expenditure for this grant. No
request for disbursement submitted prior to the release of such funds to
Grantor shall be effective.
5. BUDGET
The attached Budget is an estimate of the Grantee's anticipated costs for the
Project and discloses all funding sources for the Project, including all amounts
applied for or obtained from sources other than Grantor. Should the Budget not
disclose all funding sources for the Project, Grantor may refer this grant to the
Department of Finance for a Project audit. Grantee may seek additional funding
from sources other than Grantor, with Grantor's approval, to cover cost
increases or to reduce Grantor's cost share. Should Grantee obtain additional
funds from sources other than Grantor, Grantee shall promptly notify Grantor of
the amounts and sources of the additional funding and submit a proposed new
budget reflecting any changes to Grantor for its approval.
When actual Project costs indicate that the costs of certain Budget categories payable
by Grantor are higher than estimated, and these higher costs are offset by lower costs
in other Budget categories payable by Grantor, the Grantee may submit a written
request to Grantor to shift funds between such Budget categories. Contingencies shall
be used only upon written approval by Grantor. Grantor shall approve or deny a
requested Budget revision or use of contingencies in writing within 10 business days of
receipt of Grantee's written request.
6. GRANTEE'S COVENANTS
In consideration of this Agreement, Grantee hereby covenants and agrees as follows:
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project ID 2014129
Page 4
6.1. Grantee will complete or cause to be completed all Project activities in
accordance with Grantee's proposed design and specifications submitted
to Grantor, a copy of which is attached as Exhibit D - WORK PLAN and
incorporated herein by this reference, on or before December 30, 2019
(Projected Completion Date). The Project will be considered complete
when all Project activities have been completed and Grantor has approved
the completion of the Project, the final report required by Section 6.4, and
the final request for disbursement.
6.2 Grantee is responsible for obtaining all necessary permits and approvals
for the Project (including its construction, management, monitoring,
operation, use and maintenance), and complying with all federal, state and
local statutes, laws, regulations, ordinances, orders and other
governmental and quasi - governmental requirements that apply to the
Project (including its construction, management, monitoring, operation,
use and maintenance).
6.3 Grantee shall recognize the cooperative nature of the Project and shall
provide credit to the Grantor and the California Department of Fish and
Wildlife on signs, demonstrations, promotional materials, advertisements,
publications and exhibits prepared or approved by Grantee referencing the
Project. Any sign installed on the Property referencing the Project shall be
subject to the mutual agreement of Grantor. Grantee and Landowner
regarding text, design and location and shall display the logo of Grantor. [
6.4 Not later than 30 days following the completion of all Project activities
Grantee will submit either five hard copies or one hard copy and one
digital copy of a final report of accomplishments, including pre- and post -
Project photographs and a final design or site plan of the Project, to
Grantor.
6.5 Grantee shall ensure that the Property [restored /enhanced] with funds
provided by Grantor is operated, used and maintained throughout the
Project Life consistent with the Purposes of Grant and in accordance with
the long -term management plan for the Project attached as Exhibit E —
MANAGEMENT PLAN.
6.6 The Grantee shall cause the Landowner to permit Grantor, the California
Department of Fish and Wildlife, and their respective members, officers,
employees, agents and representatives, to access the Property at least
once every twelve months from the date of Grantor's Notice to Proceed
through the end of the Project Life for purposes of inspections and
monitoring. Such access shall be at times reasonably acceptable to the
Landowner and the requester following written or verbal request to the
Grantee.
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project ID 2014129
7. BREACH AND
Page 5
7.1 In the event of a breach of Grantee's obligations under this Agreement,
Grantor shall give notice to Grantee describing the breach. If Grantee
does not cure the breach described in the Grantor's notice within 90 days
after the date of Grantor's notice (or, if the breach cannot reasonably be
cured within 90 days, Grantee does not commence the cure within the 90-
day period and diligently pursue it to completion), then Grantee shall be in
default of this Agreement.
7.2 In the event of a default by Grantee before the Project is complete then, in
addition to any and all other remedies available at law or in equity, Grantor
may seek specific performance of this Agreement. Grantee agrees that
specific performance is an appropriate remedy because the benefits to
Grantor from Grantee's completion of the Project in accordance with this
Agreement, as described in Section 2 (Purposes of Grant), are unique and
damages would not adequately compensate Grantor for the loss of such
benefits.
7.3 In the event of a default by Grantee, in addition to any and all other
remedies available under this Agreement, at law or in equity, Grantor may
require Grantee to reimburse the Grant Funds to Grantor in an amount
determined by application of the following Reimbursement Formula:
"Reimbursement Formula"
Formula: Dollar amount of Grant Funds divided by Project Life, times
the number of years remaining in the Project Life.
Example: Grantor grants $50,000.00 to Grantee for the restoration and
enhancement of wetland and riparian habitat, and the
Project Life is 25 years. With 10.5 years remaining on the
Project Life, the Grantee is in default under the Agreement.
The reimbursement amount would be $21,000, calculated as
follows:
($50,000.00 _ 25 years) x 10.5 years = $21,000
Reimbursement shall be due from Grantee immediately upon written
demand by Grantor. Interest shall accrue at the highest rate allowed by
law from the time that the reimbursement becomes due until it is actually
received by Grantor.
7.4 Any costs incurred by Grantor, where Grantor is the prevailing party, in
enforcing the terms of this Agreement, including but not limited to costs of
suit, attorneys' and experts' fees, at trial and on appeal, and costs of
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project ID 2014129
enforcing any judgment, shall be borne by Grantee.
7.5 Waiver of any breach or default by Grantee shall not be deemed to be a
waiver of any subsequent breach or default, nor shall it constitute a
modification of this Agreement.
8. ADDITIONAL TERMS AND CONDITIONS
8.1 Grantee Responsible for Project
Page 6
While the Grantor undertakes to assist the Grantee with the Project by providing
a grant pursuant to this Agreement, the Project itself remains the sole
responsibility of the Grantee. Grantor undertakes no responsibilities to the
Grantee, the Landowner, or any third party, other than as expressly set out in this
Agreement. The responsibility for implementing the Project is solely that of the
Grantee, as is the responsibility for any claim or suit of any nature by any third
party related in any way to the Project.
8.2 Contracts
All agreements between Grantee and any third party related to the Project must
be in writing and contain language that establishes the right of the auditors of the
State of California to examine the records of the third party relative to the goods,
services, equipment, materials, supplies or other assistance provided to Grantee
for the Project. Grantee shall provide a complete copy of each agreement over
$10,000.00 to Grantor prior to commencing work.
Grantee shall obtain at least three (3) competitive bids or proposals for any
portion of the Project for which Grantee intends to contract with a third party, and
shall award the contract to the lowest cost responsible and qualified bidder.
8.3 Indemnification
To the fullest extent permitted by law, Grantee shall indemnify, protect, and hold
harmless the Wildlife Conservation Board and the State of California, and their
respective members, officers, agents, employees and representatives, from and
against any and all claims, demands, damages, losses, costs (including
attorneys' fees), expenses, and liability of any nature (Claims) arising out of or
incident to the Project, Grantee's entry upon and use of the Property, and the
performance of, or failure to observe or perform, any obligations of the Grantee
under this Agreement. The obligations of Grantee under this Section 8.3 include,
without limitation, Claims resulting from the generation, use, storage, disposal,
release or threatened release of any hazardous or toxic substance, material or
waste; petroleum or petroleum products and other substances that present a
threat to human health or the environment.
Newport Valley Habitat Restoration, Orange County Page 7
Grant Agreement Number WC- WC1423EH
Project !D 2014129
8.4 Amendment; Severability
This Agreement may be modified only by a written amendment signed by
Grantor; Grantee and Landowner. No oral or written understanding or
agreement not incorporated in this document shall be binding on the parties.
If any provision of this Agreement or the application thereof to any person or
circumstance is held to be invalid or unenforceable, that shall not affect any other
provision of this Agreement or applications of the Agreement that can be given
effect without the invalid provision or application. To this end the provisions of
this Agreement are severable.
8.5 Independent Capacity of Grantee; Withholding and Payments
Grantee, its members, officers, directors, employees, agents and
representatives, is each acting in an independent capacity in entering into and
carrying out this Agreement, and not as a partner, member, officer, agent,
employee or representative of Grantor. Grantee is responsible for withholding
and paying employment taxes, insurance and deductions of any kind required by
federal, state or local laws.
8.6 No Assignment or Transfer
This Agreement is not assignable or transferable by Grantee, either in whole or in
part, without the prior written consent of Grantor which Grantor may grant or
withhold in Grantor's discretion.
8.7 Accounting /Records /Audits
Grantee shall maintain complete and accurate records of its actual Project costs,
in accordance with generally accepted accounting principles and practices, and
shall retain said records for at least three years after final disbursement by
Grantor. During such time, Grantee shall make said records available (or cause
them to be made available) to the State of California for inspection and audit
purposes during normal business hours. Expenditures not documented, and
expenditures not allowed under this Agreement or otherwise authorized in writing
by Grantor shall be borne by Grantee. The audit shall be confined to those
matters connected with this Agreement, including but not limited to administration
and overhead costs.
8.8 Use of Grant Funds to Secure Additional Funding
Grantee agrees that the funding provided under this Agreement shall not be used
as matching funds for other grants, or to secure loans or other monetary awards
without written approval from the Executive Director, Wildlife Conservation
Board. Such approval shall not be unreasonably withheld as long as the
Newport Valley Habitat Restoration, Orange County Page 8
Grant Agreement Number WC- WC1423EH
Project ID 2014129
purposes for which the grant was awarded are maintained.
8.9 Termination or Suspension of Agreement
At any time before Grantee has broken ground on the Project Grantor may
terminate this Agreement for any reason by providing Grantee not less than 30
days written notice of termination. In addition, Grantor may suspend this
Agreement at any time upon written notice to Grantee. In either case, Grantee
shall immediately stop work under this Agreement and take all reasonable
measures to prevent further costs to Grantor. The Grantor shall be responsible
for reasonable and non - refundable obligations or expenses incurred by the
Grantee under this Agreement prior to the date of the notice to terminate or
suspend, but only up to the undisbursed balance of funding authorized in this
Agreement. Any notice suspending work under this Agreement shall remain in
effect until Grantor authorizes work to resume by giving further written notice to
Grantee.
8.10 Resolution of Disputes
The State Project Representative is identified on Page 1 of this Agreement. The
State Project Representative has initial jurisdiction over each controversy arising
under or in connection with the interpretation or performance of this Agreement
or disbursement of Grant Funds. The Grantee will diligently pursue with the
State Project Representative a mutually agreeable settlement of any such
controversy.
If the controversy cannot be resolved between Grantee and the State Project
Representative, the Grantee must direct the grievance together with any
evidence, in writing, to the Executive Director of the Wildlife Conservation Board.
The grievance must state the issues in the dispute, the legal authority or other
basis for the Grantee's position and the relief sought.
The Executive Director or designee shall meet with a representative of the
Grantee to review the issues. A written decision signed by the Executive Director
or designee shall be returned to the Grantee within twenty (20) working days of
the conclusion of this meeting.
8.11 Drug -Free Workplace Certification
By signing this Agreement, Grantee hereby certifies under penalty of perjury
under the laws of the State of California that Grantee will comply with the
requirements of the Drug -Free Workplace Act of 1990 (Government Code
Section 8350 et seq.) and will provide a drug -free workplace by taking the
following actions:
8.11.1 Publish a statement notifying employees that unlawful manufacture,
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project ID 2014129
Page 9
distribution, dispensation; possession, or use of a controlled substance is
prohibited and specifying actions to be taken against employees for
violations, as required by Government Code Section 8355(a).
8.11.2 Establish a Drug -Free Awareness Program as required by Government
Code Section 8355(b) to inform employees about all of the following:
a) the dangers of drug abuse in the workplace;
b) the person's or organization's policy of maintaining a drug -free
workplace;
c) any available counseling, rehabilitation and employee assistance
programs; and,
d) penalties that may be imposed upon employees for drug abuse
violations.
8.11.3 Provide, as required by Government Code Section 8355(c), that every
employee who works on the proposed contract:
a) will receive a copy of the company's drug -free policy statement;
and,
b) will agree to abide by the terms of the company's statement as a
condition of employment on the contract.
Failure to comply with these requirements may result in suspension of
disbursements under this Agreement or termination of the Agreement or both
and Grantee may be ineligible for award of any future state contracts if the
Grantor determines that any of the following has occurred: (1) Grantee has made
false certification, or (2) Grantee violates the certification by failing to carry out
the requirements as noted above.
8.12 Union Organizing
By signing this Agreement the Grantee hereby acknowledges the applicability to
this Agreement of Government Code Sections 16645 through 16649, and
certifies that:
8.12.1 No state funds disbursed by this grant will be used to assist, promote or
deter union organizing;
8.12.2 Grantee shall account for state funds disbursed for a specific expenditure
by this grant, to show those funds were allocated to that expenditure;
12.3 Grantee shall, where state funds are not designated as described in
8.12.2 above, allocate, on a pro -rata basis, all disbursements that support
the grant program; and
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project ID 2014129
Page 10
8.12.4 If Grantee makes expenditures to assist, promote or deter union
organizing, Grantee will maintain records sufficient to show that no state
funds were used for those expenditures, and that Grantee shall provide
those records to the Attorney General upon request.
8.13 Labor Code Requirements; Prevailing Wage
State grants may be subject to California Labor Code requirements, which
include prevailing wage provisions. Certain State grants administered by the
California Wildlife Conservation Board and the California Department of Fish and
Wildlife are not subject to Chapter 1 (commencing with Section 1720) of Part 7 of
Division 2 of the Labor Code. For more details, please refer to California Fish
and Game Code Section 1501.5 and to the Department of Industrial Relations
(DIR) website at http: / /www.dir.ca.gov. Grantee shall pay prevailing wage to all
persons employed in the performance of any part of the Project if required by law
to do so.
8.14 Informational Products
All informational products (e.g. data, studies, findings, management plans,
manuals, photos etc.) relating to California's natural environment and produced
with the use of public funds shall be cataloged in the California Environmental
Information Catalog (http: /gis.ca.gov /catalog) maintained by the CERES Program
(www.ceres.ca.gov).
8.15 Non - Discrimination
During the performance of this Agreement, Grantee shall not unlawfully
discriminate against, harass, or allow harassment against any employee or
applicant for employment because of race, religion, color, national origin,
ancestry, physical disability (including HIV and AIDS), mental disability, medical
condition, marital status, age (over 40), sex, sexual orientation, or use of family -
care leave, medical -care leave, or pregnancy - disability leave. Grantee shall take
affirmative action to ensure that the evaluation and treatment of its employees
and applicants for employment are free of such discrimination and harassment.
Such action shall include, but not be limited to, the following: employment,
upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. Grantee shall comply with the provisions of
the Fair Employment and Housing Act (Government Code Section 12900 (a -f) et
seq.), and applicable regulations (California Code of Regulations, Title 2, Section
7285 et seq.). The regulations of the Fair Employment and Housing Commission
regarding Contractor Nondiscrimination and Compliance (Chapter 5 of Division 4
of Title 2 of the California Code of Regulations) are incorporated by reference
into this Agreement. Grantee shall give written notice of its obligations under this
non - discrimination clause to labor organizations with which Grantee has a
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project ID 2014129
Page 11
collective bargaining or other agreement, and shall post in conspicuous places
available to employees and applicants for employment, notice setting forth the
provisions of this section. Grantee shall also include the nondiscrimination and
compliance provisions of this Agreement in all contracts related to the Project.
NOTICE OF AGREEMENT
The terms, conditions and restrictions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their personal representatives,
heirs, successors, and assigns and shall continue as a servitude running with the
Property for the Project Life.
Grantee and Landowner each agrees to sign, have acknowledged by a Notary
Public and deliver to Grantor for recording a separate document, in a form
substantially as shown in Exhibit F - NOTICE OF UNRECORDED GRANT
AGREEMENT, to provide constructive notice of this Agreement.
10. AUTHORIZATION
The signature of the Executive Director certifies that at the meeting of the Wildlife
Conservation Board held on November 20, 2014, the Board authorized the award
of a grant of up to $381,000.00 to Grantee for the Project.
11. EFFECTIVENESS OF AGREEMENT
This Agreement shall be deemed executed and effective when fully signed by
authorized representative(s) of each of Grantor, Grantee and Landowner. Each
party shall sign three original counterparts of this Agreement. Each fully executed
counterpart shall be deemed an original. Grantee and Landowner(s) shall each
receive one fully executed original and Grantor shall receive one fully executed
original.
12. EXHIBITS
Each of the Exhibits referenced in this Agreement is incorporated by reference as
though set forth in full herein. The following Exhibits are attached to this
Agreement:
Exhibit A — Location Map
Exhibit B — Budget
Exhibit C — Disbursement Request Template
Exhibit D — Work Plan
Exhibit E — Management Plan
Exhibit F — Form of Notice of Unrecorded Grant Agreement
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number WC- WC1423EH
Project ID 2014129
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement.
GRANTOR
STATE OF CALIFORNIA
WILDLIFE CONSERVATION BOARD
0
John P. Donnelly
Executive Director
Date:
GRANTEE
TIDES CENTER MARINE EDUCATION PROJECT %
By: I� vC Date: /OZ�X /¢
Judith —'
Chief Financial Officer
Page 12
By signing below, Landowner approves the Project and authorizes Grantee, its agents,
employees, representatives, invitees, contractors, and subcontractors to enter on and
use the Property for all purposes necessary or appropriate to carry out the Project and
the obligations of Grantee under this Agreement. Landowner agrees to ensure that any
activity on or use of the Property is consistent with the Purposes of Grant and the long-
term management plan for the Project attached as Exhibit E - MANAGEMENT PLAN.
LANDOWNER
CITY OF NEWPORT BEACH
Z
SAM
Dave Kiff
City Manager
APPROVED AS TO FORM,
City Attorney at &a +Iz4lit-
Date: ZlLtll'S
Newport Valley Habitat Restoration, Orange County EXHIBIT A
Grant Agreement Number— WC1423EH
Project ID 2014129
EXHIBIT A -LOCATION MAP
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Newport Valley Habitat Restoration, Orange County EXHIBIT D
Grant Agreement Number— WC1423EH
Project ID 2014129
WORK PLAN
Site Preparation
The habitats to be restored are dominated by invasive plants including pampas grass
(Cortederia selloana), artichoke thistle (Cynara cardunculus), sweet fennel (Foeniculum
vulgare), black mustard (Brassica nigra), field mustard (Brassica rapa), shortpod mustard
(Hirschfeldia incena), yellow sweet clover (Melilotus indica), dwarf nettle (Urtica urens), tocalote
(Centaurea melitensis), Spanish sunflower (Pulicaria paludosa), and wild celery (Apium
graveolens).
Every attempt to clear all invasive plants will be made before planting. All invasive plants will be
removed by the most efficient methods (i.e. "mowing" for annuals, deep root removal for
perennials, etc.) and if unable to remove a plant completely, the flowers and seeds will be
removed from the site or piled on site to reduce the overall spread of new seeds. Volunteers
will remove invasive plants by hand or by non - mechanized tool. Herbicides are available
through our partnership with the landowner and in cooperation with the California Department of
Fish and Game whose staff will be available to conduct spraying as necessary.
Propagation
Seeds and cuttings from native plants within the project area will be collected and used to
propagate plants within the Program's nursery facility for restoration. The nursery facility is
located at the Back Bay Science Center within walking distance of the restoration site.
Volunteers conduct native plant propagation work at Steward Days taking place each
Wednesday morning throughout the year.
Planting
The planting seasons will take place during the traditional rainy season from November through
February, with flexibility for other months depending on the availability of rain. The selected
plant palette will be based on the native species observed on site prior to planting. A specific
reference site will be used if available. A general palette of species prevalent in similar
conditions around the Upper Newport Bay will also diversify the site. The initial planting will
include indicator species and other species that will provide a native habitat baseline for the site.
After this first phase of container planting, the Program can return to the site to supplement with
annual species to diversify the site or plant replacement plants as needed. Irrigation will occur
at installation and once per month during the summer after installation.
Physical planting is completed by volunteers using 1- gallon container plants. Plants are
laid out on 4 -foot centers (or approximately 12,500 plants). In coastal sage scrub, planting will
occur in small clusters to create small native plant islands that allow for space in between plants
typical in coastal sage scrub. This also allows room for native seed drop and seedling growth
away from the parent plants. As a result of higher survival rates and the larger plant footprint for
willows and mulefat (reflective of the water resources readily available), riparian plantings will
occur on larger intervals than coastal sage scrub.
Plant Palette
Riparian species
Salix lasiolepis arroyo willow
Baccharis salicifolia mulefat
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number— WC1423EH
Project iD 2014129
Pluchea odorate
Juncus acutus
Frankenia salina
Coastal sage scrub species
Artemisia califomica
Eriogonum fasciculatum
Acmispon glaber
Encelia californice
Opuntia littoralis
Sambucus mexicana
Solanum douglasii
Salvia mellifera
Rhus integrifolia
Heteromeles arbutifolia
lsocoma menziesii
Baccharis emoryi
Cleome isomeris
Leymus condensatus
Opuntia prolifera
Nassella pulchra
marsh fleabane
spiny rush
alkali heath
California sagebrush
California buckwheat
deerweed
bush sunflower /California encelia
Coast prickly pear
Mexican elderberry
Douglas' nightshade
black sage
lemonadeberry
toyon
coast goldenbush
Emory's baccharis
bladderpod
giant wild rye
coast cholla
purple needlegrass
EXHIBIT D
Site Maintenance
Maintenance will be conducted by program volunteers. Maintenance activities include invasive
plant removal, irrigation, the placement of plant cages to protect from herbivores, and additional
planting if necessary. Maintenance for CBREP projects typically lasts for 3 -5 years to meet
success criteria.
The restoration will be maintained until the following success criteria are met:
1. Maintenance of 50% native plant survival 5 years after installation.
2. Established native plant coverage of 70% or greater in Coastal Sage Scrub 5 years after
project initiation. Native shrub cover between 60 and 70% at maturity. Established
native plant coverage in Riparian habitat has yet to be determined.
3. No more than 10% invasive plant coverage in restoration site 5 years after project
initiation.
4. Noted presence of use by wildlife throughout food web, in particular the presence of
threatened or endangered species, most notably the California gnatcatcher.
Performance Monitoring
The monitoring program measures plant coverage (native and invasive) in square meter
quadrats at regular intervals along transects placed across the restoration site. Baseline data is
taken before restoration and twice each year (February and August) during the five years after
the initial native plant installation. The protocols also include soil sampling to help determine the
best plant palette for the site. Monitoring protocols are available upon request.
Conservation measures
The following measures will be implemented to minimize impacts to sensitive fauna occurring on
or immediately adjacent to the subject property:
Newport Valley Habitat Restoration, Orange County EXHIBIT D
Grant Agreement Number —WC 1423EH
Project ID 2014129
To avoid impacts to breeding birds, the following measures will be implemented during
the bird breeding season (February 15 -July 15):
a. Prior to commencement of enhancement activities that could disturb habitat
occupied by nesting birds, a monitoring biologist will conduct pre- activity surveys
to determine the location of any active bird nests. The survey should begin not
more than one week prior to the beginning of project activities. Work should be
restricted from within 50 feet of active nests. Locations of nests could be
identified on maps and cordoned off by stakes or warning tape to identify
locations where work activities are restricted.
b. On the day of project activities, participants will be advised of areas to be
avoided to avoid impacts to nesting birds. Participants will be shown pictures of
rare and sensitive birds and possibly maps of potential nesting areas. Activities
will be overseen by the Coastal Commission or California Department of Fish
and Wildlife.
2. Volunteers will be directed to walk on single -track trails through disturbed habitat to get
to the work site. Mature habitat will be avoided to minimize disturbance. As the restored
habitat matures, only a few volunteers at a time are allowed on site to conduct
maintenance to minimize impact in the established habitat.
Newport Valley Habitat Restoration, Orange County EXHIBIT E
Grant Agreement Number— WC1423EH
Project ID 2014129
Management Plan
The Community -Based Restoration and Education Program is the lead
organization in the long -term management of the site. However, the program
also maintains partnerships with local organizations and agencies to support our
work including the Newport Bay Conservancy, California Department of Fish and
Wildlife, Orange County Parks, and the City of Newport Beach. While the
primary work site may change around Upper Newport Bay as the Newport Valley
project is completed, the program relies on its strong program structure and
strong partnerships to ensure long -term success for all of our sites.
Active restoration of the site is expected to take five years to complete. Initial
maintenance and monitoring is expected to last approximately five years in order
to reach our final goals. However, as a community -based restoration program,
our program volunteers develop a strong sense of ownership over their work
sites and expect to stay engaged in the site for the foreseeable future. With
regular events throughout the year, volunteers will be available to maintain the
site as needed.
A final report will be provided including restoration and monitoring results, and
photographic documentation.
The following chart describes the long -term maintenance plan that will begin after
the end of the 10 -year work plan.
Quarterly
Qualitative assessments:
• Presence of native plants
• Presence of invasive plants
• Human disturbance (trash,
vandalism)
• Weather conditions
Annually (August)
Quantitative monitoring:
• Percent coverage native plants
• Percent.coverage invasive plants
• Presence of wildlife
• Soil conditions
As needed
Volunteer work events to conduct:
• Replanting
• Invasive plant removal
• Trash /vandalism removal
• Education programs regarding
coastal sage scrub and riparian
habitats
Newport Valley Habitat Restoration, Orange County
Grant Agreement Number —WC 1423EH
Project ID 2014129
Recording requested by,
and when recorded mail to:
STATE OF CALIFORNIA
Department of Fish and Wildlife
Wildlife Conservation Board
180713 th Street, Suite 103
Sacramento, California 95811
Project: NAME
County:
Space above this line for Recorder's Use
Project ID:
NOTICE OF UNRECORDED GRANT AGREEMENT
EXHIBIT F
Page 1
A Grant Agreement titled for reference purposes as NAME (Agreement No. XXXX), was entered into by
and between the State of California, by and through the Wildlife Conservation Board (Board), NAME
(Grantee) and NAME (Landowner). As this recording is on the behalf of the State, please note the
recording of these documents is not subject to payment of fees pursuant to Section 27383 of the
Government Code.
The Board, Grantee and Landowner entered into said Grant Agreement (No. WC- XXXX), pursuant to
which the Board granted funds to Grantee to perform certain activities on the certain real property in
XXXX County owned by the Landowner, to BRIEF PROJECT DESCRIPTION, E.G., RESTORE
WETLAND HABITAT. The Grant Agreement term runs from DATE, through DATE, for capital
improvements and restoration activities and from DATE, through DATE, for management practices.
The terms, conditions and restrictions of the Grant Agreement are binding upon and inure to the benefit
of the Landowner, and their respective personal representatives, heirs, successors, and assigns and
shall continue as a servitude running for the project life span of the project on the subject lands as
described in Exhibit "A" attached hereto and incorporated herein by this reference. For additional terms
and conditions of the Grant, reference should be made to the Grant Agreement which is on file with the
Wildlife Conservation Board, 1807 13th Street, Suite 103, Sacramento, California 95811.
SIGNATURE OF STATE OF CALIFORNIA, WILDLIFE CONSERVATION BOARD
DA'
John P. Donnelly, Executive Director
SIGNATURE OF GRANTEE (NAME)
W-1
NAME, TITLE
SIGNATURE OF LANDOWNER (NAME)
(This is an EXAMPLE NOUGA - Do Not sign this copy) DA
NAME, TITLE
Newport Valley Habitat Restoration, Orange County EXHIBIT F
Grant Agreement Number— WC1423EH Page 2
Project 1D 2014129
EXHIBIT A
LEGAL DESCRIPTION
All that certain real property situate in the County of XXXX, State of California, described as
follows: