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Home My WebLink About19 - Resource and Recreation Management for Buck GullyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 19 December 12, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Resource and Recreation Management Plan for Buck Gully; Authorization to contract with the Irvine Ranch Land Reserve Trust (IRLRT); Budget Amendment of $98,938.00 ISSUE: Should the City hire an outside organization to help the City develop and implement a Resource and Recreation Management Plan for City-owned open space in Buck Gully, in compliance with the Orange County Central Coastal Natural Community Conservation Plan (NCCP)? RECOMMENDATION: 1. Authorize the City Manager to enter into a Professional Services Agreement (PSA) substantially similar to the attached draft PSA with the Irvine Ranch Land Reserve Trust (IRLRT) to assist the City in developing and implementing a Resource and Recreation Management Plan (RRMP) for Buck Gully; 2. Adopt Budget Amendment 2006 -_ in the amount of $99,938 to fund the first six months of the RRMP; and 3. As a part of the Fiscal Year 2007 -08 Budget, prepare a Scope of Services and cost estimate (estimated now at $203,425 to complete an 18 -month program) to complete the RRMP and for ongoing management of the Buck Gully Open Space Reserve by IRLRT. DISCUSSION: On July 1, 2005, the City took title to-the five "view parks" along Newport Coast Drive and San Joaquin Hills Road .and the open space resources of Buck Gully from the County of Orange (see attached map). Inland of 5t' Avenue, the Gully is publicly Resource and Recreation Management Plan for Buck Gully December 12, 2006 Page 2 owned. Coastward of 5th, property owners on adjacent streets own the land in the Gully all the way to the centerline of the streambed, except for limited easements in the area. About Buck Gully and the NCCP. The 254 -acre Buck Gully is part of the Orange County Central Coastal Natural Communities Conservation Plan (NCCP) area, which means that it is protected habitat that has been set -aside in perpetuity as mitigation land in exchange for development elsewhere. NCCP lands must be managed in a specific manner to preserve their natural resources, as described in the NCCP Implementation Agreement to which the City is a signatory. Compatible public access and recreation as well as such things as infrastructure maintenance and firetfuels management is allowed if it is planned and managed. In other words, the City has legally committed to manage the land in perpetuity — this includes the following elements (which are detailed in the Central Coastal NCCP Chapters 4 and 5): • Long -term Adaptive Biotic Resource Management and Monitoring; • Habitat Restoration and Enhancement; • Fire Management; • Public Access and Recreation; and • Maintenance of Existing Infrastructure consistent with the terms of the NCCP. The following uses are potentially allowable in the Gully, subject to the terms of the NCCP. • Biological Research and Monitoring; • Invasive species (plant and animal) removal or control; • Habitat Mitigation for permitted destruction of habitats outside the NCCP Reserve areas; • Fire and fuels management; • Recreation and Public Access including hiking, biking and equestrian activity on designated trails; • Park administrative and interpretive facilities; • Construction, operation and maintenance of new facilities to support permitted uses; • Activities related to provision and operation of existing or permitted new infrastructure; and • Emergency activities. Today, Buck Gully is in immediate need of effective management. Much of the area is overgrown with invasive plant species, and native vegetation communities are unbalanced, resulting in an abundance of such plants as poison oak and artichoke thistle. Irrigation seepage from adjacent developed areas (Harbor Ridge, Spyglass, Newport Ridge, Newport Coast) as well as direct storm water runoff have significantly increased average water flows in Buck Gully's streambed, causing rapid growth of vegetation (which increases fuel loads for wildfires) along with soil erosion and slope instability. Water in the .canyon also contains pollutants, leading to Buck Gully's designation as "water quality limited" on the Federal Clean Water Act's Section 303(d) list. Resource and Recreation Management Plan for Buck Gully December 12, 2006 Page 3 As the Council is aware, waterways on the Section 303(d) list are slated for the eventual development of Total Maximum Daily Loads (TMDLs). TMDLs mandate specific water quality improvements. The Newport Beach Fire Department currently considers Buck Gully to be one of the highest risk areas for wildfire in the community due to its heavy vegetation loads and proximity to homes. A fuel management or fuel modification plan for Buck Gully will be integral to protecting the larger community (including Corona del Mar, Spyglass, Harbor View, and Newport Coast) in the years ahead and to minimize both the risk of fire and impacts to protected habitat areas. The Central Coastal NCCP states that Fuel Modification Zones (FMZs) are not a permitted use within the NCCP Reserve area with the exception of limited and identified areas adjacent to already developed areas located in immediate proximity to the Reserve boundary. A Resource Management Plan for Buck Gully should evaluate and address the implications of this policy for management of the area. The NCCP specifies that fire management and fuel modification must meet the criteria established by the NCCP signatories via a detailed agreement on common fuel modification and fire management policies. In addition to the community - related needs for management, the Gully has recognized habitat and natural resource values, as well as recreation potential. Several endangered or listed species reside there, as do natural communities that help those species thrive. An existing but long- overgrown trail running the entire length of the parcel leading inland from 5 h Avenue could provide an ideal public access point for area residents, in a controlled manner, to enjoy this urban -open space interface. We propose that the City start managing Buck Gully effectively to meet our NCCP requirements, to address wildfire risk, and to expand the recreational and natural resource values of the area. To date, the only activity the City has done in the parcel is some brush clearance close to homes in Spyglass. As time goes on, without appropriate management by the City, the risk grows both of wildfire and that we will be out of compliance with our legal obligations under NCCP. The City does not currently have the in -house expertise necessary to take on this challenge. We could bring this expertise to the City by creating the capacity to manage the property. However, we believe that a much more economical, higher - quality alternative is to engage a private- sector organization with specific expertise in open space management, preferably one that has experience managing local open space resources locally and is managed as a non - profit. The Irvine Ranch Land Reserve Trust (IRLRT) is one such organization. About IRLRT. IRLRT is a non - profit, non - advocacy organization established by Donald Bren (of The Irvine Company) to ensure that the permanently protected natural resources and open space of the former Irvine Ranch (collectively, these lands are referred to as the Irvine Ranch Land Reserve) are stewarded and enjoyed in perpetuity. Resource and Recreation Management Plan for Buck Gully December 12, 2006 Page 4 Among other things, the IRLRT coordinates research and habitat restoration efforts, as well as providing public access and educational programs within the Reserve lands. IRLRT has other existing management partnerships in the area such as what we are proposing, including with the City of Irvine. The IRLRT manages the natural resources and provides field operations and public programs services for the City of Irvine in Bommer and Shady Canyons and Quail Hill. The IRLRT has a highly - qualified professional staff of land managers, scientists and public program experts. The organization is headed by Michael O'Connell, former Southern California regional director for The Nature Conservancy. Among the projects that Mr. O'Connell oversaw during his 13 years with The Nature Conservancy included that organization's involvement in both the Central Coastal NCCP and the Irvine Ranch Land Reserve. The local connections and experience of this organization are difficult to replicate. Further, the IRLRTs mission is to provide exactly the kind of planning, management and programming services that the City requires to address the issues in Buck Gully. The IRLRT provides a professional option to the City for fulfilling its management obligations and enhancing public access programs. As a non - profit, the IRLRT offers a very reasonable price for a high - quality product. Because the IRLRT is already partnering with other land owners in the area, IRLRT can provide efficiencies of scale and scope that will greatly enhance the City's open space programs. Discussions with the IRLRT culminated in the attached Management Agreement describing the terms under which the IRLRT would provide planning and other services for the City. The Management Agreement contains a scope of services, a schedule, 'a management fee and other applicable provisions. The term of the Agreement is 10 years, with an option to extend. Importantly, the Agreement contains a termination clause, without penalty, in the case that either party wishes to end the Agreement for any reason. More about the Resource and Recreation Management Plan (RRMP). As noted previously, the NCCP and its implementing permit contain policies governing land within the NCCP Reserve, including policies for: • Fire management; • Recreation and public access. • Infrastructure maintenance; and • Habitat management. To comply with these policies, the City intends to prepare a Resource and Recreation Management Plan (RRMP) for the Buck Gully area with the assistance of IRLRT. This RRMP will be submitted to the Nature Reserve of Orange County (the oversight entity of the Central Coastal NCCP on whose Board the City serves as a landowner). The RRMP must be reviewed and approved by the state and federal wildlife regulatory agencies who oversee implementation of the NCCP. The RRMP or a similar plan is Resource and Recreation Management Plan for Bur* Guo December 12, 2006 Page 5 required should the City desire to do any management of Buck Gully, including firetfuel modification, habitat management and/or the provision of recreational and public access opportunities. Agreement with IRLRT. The proposed Management Agreement with IRLRT calls for a variety of services to be provided to the City by IRLRT in the short-term and in the long- term. Short-Term. In the first year of the agreement, IRLRT will support development of the RRMP on behalf of the City that will assist the City in compliance with its obligations under NCCP, and will position the City to effectively manage the area in the future for both community- related and resource/recreation- related objectives. The City will retain complete control of all activities and products in that process, and will have sole approval authority on the plan that is submitted to the NCCP regulatory agencies. The IRLRT is simply providing professional services and expertise that will assist the City in meeting its planning needs for the RRMP. IRLRT proposes to complete this work for about $200,000.00. Once the RRMP is developed and approved, and based on the long -term habitat restoration, maintenance and public access recommendations set forth therein, the City, with assistance from the IRLRT if requested, will establish implementation priorities. As part of this process, the IRLRT will submit a capital program (restoration and public access) for City's review and approval by February 28, 2008. The capital program will address components of stewardship and public access (including trails and facilities) as identified by the RRMP. Long -Term. The Management Agreement allows the City to retain IRLRT to provide management services for Buck Gully for a period of 10 years, including stewardship consistent with both the approved RRMP and NCCP. Typical stewardship activities include field monitoring, habitat and natural resource maintenance (removals of invasives, replantings of native species, etc.), regional coordination with adjacent open space land managers, fire and fuels management (on an as- needed basis), public outreach and education, as well as managing volunteers who might accomplish maintenance activities or might assist with public access programs. Clearly, the initial years of the Agreement following the RRMP will involve restoring Buck Gully to a level where it can be effectively sustained with an annual appropriation of funds covering a distinct amount of restoration work. Later, we assume that Buck Gully will restored and improved to a level where public access would be combined with an ongoing stewardship program. At that time, the Management Agreement envisions IRLRT providing light, routine custodial service in the Gully resulting from everyday regular, authorized use. This includes: • Trail cleanliness: litter removal from trail areas and trash receptacles on trails; • Minor trail service, minor erosion remediation and prevention including: -* annual mowing of trail centerlines; Resource and Recreation Management Plan for Burk Gutty December 12, 2006 Page 6 •:• installation of water bars and other erosion prevention features as required; identification and remediation of erosion problems as required; removal of invasive plant species as agreed by City and Manager on trail alignments; Touch -up paint, service and perform minor repairs on fences, locks and gates; Install and maintain service of trail signage, trail kiosks, trail benches, trail water troughs, trail shade structures, and similar trail facilities purchased by City; Open and close gates and other public facilities associated with public access program activities; Under the draft Agreement, if we enter this long -term maintenance phase, the City would retain responsibility for all heavy maintenance and for damage resulting from unauthorized use, or events such as storms, vandalism or malicious mischief, including: • Trash removal from staging area and trailhead receptacles; • Storm damage cleanup and major trail rehabilitation and repair; • Major trail erosion and damage remediation/reconstruction; • Oversight and maintenance of trailhead operations, including trash removal, restroom maintenance (both permanent and temporary restrooms) and repair; • Remediation and cleanup of illegal dumping; • Installation and maintenance of staging area kiosks, booths and similar facilities; and • Replace /repaint fences, locks and gates These services may be modified or adjusted based on the approved RRMP and the identification of implementation priorities by the City, with assistance of the IRLRT. The annual management fee may be adjusted up or down according to the terms of the Agreement (for example, an expanded role in fire or fuels management) and according to City budget decisions. In the event that the City does not wish to continue its relationship with IRLRT within the term of the Agreement, the Agreement provides that we may cancel without cause and without penalty by providing 6 months' notice. Alternatives Considered: Other alternatives were considered in the preparation of this item. The first was development of the in -house capacity for planning and implementation of management for Buck Gully directly by the City. This was determined to be too costly and somewhat inefficient. Another alternative was to seek a different organization than IRLRT to perform the services for the City. Because of the work done in adjacent and similar open space areas, we determined that the IRLRT's local experience and non -profit status provide a combination of expertise and cost savings that justify their selection as the preferred provider for these services. Environmental Review: City Council's approval of this action is not subject to CEQA. Public Notice: This agenda item has been noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Resource and Recreation Management Plan for Suck Gully December 12, 2006 Page 7 Funding Availability: A budget amendment of $99,938.00 is proposed with this action (the first half -year of the RRMP management). As the RRMP is developed, we envision at least another $100,000.00 to complete it and begin implementation. This latter amount will be proposed within the City's FY 2007 -08 budget. The proposed Agreement also speaks to the IRLRT's managing the lands per the approved RRMP for the long -term (10 years). The estimated cost of annual management will depend upon the Scope of Services that the City directs IRLRT to do — it could be $0 or up to $200K a year, again depending on what the Gully needs and what the City chooses to do. Submitted by: � Dave f Assistant City Manager Attachments: Map of Affected Lands Draft PSA with IRLRT, including Scope of Services Resource and Recreation Management Plan for Buck Gully December 12, 2006 Page 8 Exhibit A -- Map of Affected Properties 1 't'. r .+ -. i '1 � ,�\. / City of . Propertytto be f;% e e `r 1, ,e "3/ryln Conyey'ed City of Newpoxt' Be. "ach ` -1 fl' , "y ti 5\:, `\ srw: nesaa.awaEaaemam �`a" \ /`�•..L `G� ''�' 1, \. � �j� 6SC4 Oosovro WxarvoMan EOSarcm BUCK GULLY OPEN SPACE RESERVE 1 (showing parcels included in Reserve) MEMO" a. Beach 1. Est i 1� y3s ,r n .' d,I — � ••+�'�,•�' Q ( t "ate M, I 1 1116 \ ^�0 1.000 2.000 ®F eel Buck Gully Open Space Reserve MANAGEMENT AGREEMENT between THE CITY OF NEWPORT BEACH and IRVINE RANCH LAND RESERVE TRUST HURTrost Manageftr emvl 11/28/06 ARTICLE II TABLE OF CONTENTS 2.1 Initial Term 3 2.2 Page ARTICLE 1 MANAGEMENT SERVICES 1 1.1 Management Engagement 1 1.2 Standards of Performance 2 1.3 Managers Project Director; Manager's Agents 2 1.4 Professional Work Product 3 ARTICLE II TERM OF AGREEMENT 3 2.1 Initial Term 3 2.2 Option to Extend 4 ARTICLE III MANAGER'S COMPENSATION 4 3.1 Fees 4 3.2 Annual Adjustments 4 3.3 Payments 4 3.4 Other Adjustments to Management Fee 5 3.5 Reimbursable Expenses 5 3.6 Payment Upon Termination 5 ARTICLE IV SCOPE OF SERVICES 5 4.1 Duties of Manager 5 4.2 Progress Reports and Meetings 5 4.3 Modification of Management Services 5 4.4 Compliance with Laws and Agreements 6 4.5 Employees 7 4.6 Legal Action 7 4.7 Approval of Collateral Materials 7 4.8 Ownership of Improvements 8 4.9 Additional Land 8 4.10 City's Rights Reserved 8 ARTICLE V INSURANCE 8 5.1 Insurance Types 8 5.2 Other Insurance Requirements 9 ARTICLE VI INDEMNIFICATION 9 6.1 Indemnification by Manager 9 6.2 Indemnification by City 9 6.3 General 9 ARTICLE VII LIENS 10 ARTICLE VIII TERMINATION 10 8.1 Termination without Cause 10 8.2 Termination for Cause 11 8.3 Obligations Upon Termination 11 H" Tr ut Manage ApwmM J2 i2M/06 ARTICLE IX GENERAL PROVISIONS 12 9.1 Independent Contractor 12 9.2 Notices 12 9.3 Attomeys' Fees 12 9.4 Waiver of Jury Trial 13 9.5 Mediation 13 9.6 Assignment 13 9.7 Amendments and Written Consents 13 9.8 Counterparts 13 9.9 Governing Law 13 9.10 Remedies Cumulative 13 9.11 Nonwaiver 13 9.12 Severability 14 9.13 No Third -Party Beneficiaries 14 9.14 Incorporation of Exhibits 14 9.15 Oral Agreements 14 9.16 Approvals 14 9.17 Press Releases and Press Relations 14 9.18 Authorization 14 9.19 Time 14 9.20 Nonliability of Officials and Employees 15 9.21 Entire Agreement 15 LIST OF EXHIBITS A Depiction of Managed Lands as of Effective Date B Depiction of Managed Lands and Additional Lands C Basic Management Services D Schedule 1 — Preserve Management Schedule of Services IPIA ThW Mamp agreemew v2 12/04/06 2 MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (the "Agreement') is made and entered into effective as of January 1, 2007 (the "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California municipal corporation ( "City'), and the IRVINE RANCH LAND RESERVE TRUST, a California nonprofit corporation ( "Manager"). RECITALS A. City owns an open space parcel of land located within the City of Newport Beach known as °Buck Gully" which is part of the Orange County Central Coast Natural Communities Conservation Plan Reserve and is depicted on Exhibit A attached hereto (the "Managed Lands"). B. City desires to provide public access to the Managed Lands while protecting the natural and biotic resources therein, and desires to retain a manager to (i) assist in the development and implementation of plans and policies regarding the provision of such access, the long -term protection of natural resources, the performance of habitat restoration and other matters relating to the operation of the Managed Lands and trail systems located therein, and (ii) manage and administer the Managed Lands in accordance with the policies adopted by City for the operation of such property. C. Manager is a nonprofit entity engaged in, among other things, preserving, restoring and managing natural resources and providing public access and educational programs on the Irvine Ranch Land Reserve in Orange County, California. The Buck Gully Open Space Reserve is included in the Irvine Ranch Land Reserve. D. City desires to retain Manager to manage the Managed Lands in accordance with the terms of this Agreement, and Manager desires to perform such services for City. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the terms, conditions, covenants and obligations contained herein, City and Manager agree as follows: ARTICLE 1 MANAGEMENT SERVICES 1.1 Management Engagement. (a) City hereby engages Manager to perform, for all of the Managed Lands, the management services identified on Exhibit B attached hereto (the "Basic Management Services "), together with any additional services as agreed to from time to time pursuant to Section 4.3 below (the "Additional Management Services "). The Basic Management Services and Additional Management Services are collectively referred to herein as the "Management Services." Manager agrees to perform the Management Services commencing on the Commencement Date specified in Section 2.1 below, all in accordance with and subject to the terms and conditions of this Agreement. RURTmst Manage Ap=mwt (b) City hereby designates the City Manager or the City Manager's designee to represent City as its agent ( "City's Agent') under this Agreement. All written communications given to or by such representative under this Agreement shall be deemed as given to or by City. City may change City's Agent at any time and from time to time by delivery of written notice to Manager. 1.2 Standards of Performance. Manager and City acknowledge that they are entering into this Agreement in good faith. Each party agrees to use its reasonable efforts, skill and judgment in all matters arising under this Agreement, and to cooperate in good faith with the other party. Manager agrees to perform its duties and obligations in an efficient, expeditious and professional manner, consistent with the terms and provisions of Article V below and the parameters of the scope of Management Services. 1.3 Manager's Prolect Director, Manager's Agents (a) Manager hereby designates its Executive Director as its project director under this Agreement (the "Project Director"). Manager hereby designates its Senior Field Ecologist as project manager responsible to represent Manager as its agent for the day -to- day provision of the Management Services (the "Project Manager"). All written communications given to or by the Project Manager with respect to such day - today operation of the Managed Lands pursuant to this Agreement shall be deemed given to or by Manager. Amendments to this Agreement, including but not limited to modifications of the Management Services or any Exhibit hereto, shall require the written approval of the Project Director, it being understood that the Project Manager does not have the power to make such decisions. The Project Director and Project Manager may be changed from time to time by Manager; provided, however, that Manager shall consult in good faith with City prior to any replacement of the Project Manager. (b) Manager may either retain employees or subcontract with others to perform all or a portion of the Management Services. Manager shall be solely responsible for hiring, supervising and training all of Manager's officers, directors, employees, staff members, consultants, volunteers, agents, suppliers, contractors, subcontractors, representatives, and all other persons acting by or through any of the foregoing (collectively, "Manager's Agents ") in performing the Management Services. Manager shall at all times exercise reasonable care and diligence to ensure that Manager's Agents perform their respective obligations hereunder or under their respective contract in a competent and professional manner. Manager shall be responsible to City and third parties for the acts and omissions of Manager's Agents. The term "Manager's Agents" shall not however, include any member of the general public present on the Managed Lands for any purpose, including without limitation, for the purpose of attending or participating in a guided tour or other open public access program included in the Management Services. (c) Manager shall from time to time have field personnel on the Managed Lands as part of the Management Services. Manager's field personnel are not intended to, and shall not, provide police, security, crime prevention or similar services. All such services shall at all times remain the sole responsibility of the City of Newport Beach Police Department and the personnel retained by such Police Department (the "Police Department'). Neither the Police Department nor any of its employees, agents or contractors shall be Manager's Agents for any purposes whatsoever under this Agreement, nor shall Manager be responsible to any extent for supervising the Police Department or any of its employees, agents or contractors. Manager shall have no responsibility whatsoever for paying any compensation or for providing any facilities, insurance or any other benefits to the Police Department or any of its IRIR Trust Mamp AV rent employees, agents or contractors. Manager's Agents shall have no responsibility whatsoever for providing police, security, crime prevention or similar services, other than to report any suspicious activity they observe on the Managed Lands to the Police Department or to other appropriate authorities. Managers Agents shall not interfere with the activities carried out by the Police Department on the Managed Lands. 1.4 Professional Work Product (a) All work product generated by Manager pursuant to this Agreement shall be the joint property of City and Manager. For purposes of this Agreement, the term "work product' shall mean any and all draft and final reports, studies and plans, including but not limited to all drawings, graphics and other materials that are part of such reports or plans. Manager shall furnish City duplicates of all work product upon request. Neither party shall attribute any work product to the other party without the other party s prior consent. Neither party shall unreasonably withhold or delay its consent under this Section. (b) The parties agree that public access to and use of the Managed Lands shall be provided under the name and auspices of either the "Buck Gully Open Space Reserve" as a part of the "Irvine Ranch Land Reserve, City of Newport Beach portion," or simply as a part of the "Irvine Ranch Land Reserve." City acknowledges that Manager owns, or has been granted the right to use, certain marks, namely the trademark, service mark and collective membership mark "The Irvine Ranch Land Reserve" and the various versions of Managers logo used by Manager. City further recognizes and acknowledges the ownership (or right to use) of such marks by Manager and the validity of those marks and every registration thereof, and shall not at any. time use, nor permit the use of, any such marks, or of Managers name, logo or any other property of Manager in connection with any materials, advertising, product or service of any kind (other than the use of Managers name in records, correspondence or other writings simply in order to refer to or report on this Agreement, Manager or Managers role with respect to the Managed Lands) without the explicit prior written consent of Manager. Manager hereby explicitly consents to the non - exclusive, nontransferable use of such marks by City, in the forms and styles approved by Manager, in connection with the promotion of the Managed Lands for open space use during the term of this Agreement. City hereby acquires no right, title, interest or claim of ownership in or to the marks, except as expressly granted herein. City hereby grants Manager non - exclusive, nontransferable use of the City logo in connection with promotion of activities on the Managed Lands for the term of this Agreement. ARTICLE II TERM OF AGREEMENT 2.1 Initial Tenn. The initial term of this Agreement (the "Term") shall commence on January 1, 2007 (the "Effective Date ") , and shall continue until midnight on December 31, 2017, unless sooner terminated as provided in Article IX. 2.2 Option to Extend. Subject to the provisions of this Section 2.2, City shall have the option to extend the Term of this Agreement for an additional ten (10) years by providing written notice to Manager of City's intention to extend on or before January 1, 2017. Upon receipt of such notice, City and Manager shall commence negotiations as to any changes to this Agreement that will be applicable during the extended term, and shall complete such negotiations on or before July 1, 2017. If the parties are unable to agree on the terms OUR Trust Manage Agreerawt applicable during the proposed extension, then this Agreement shall terminate on the expiration date specified in Section 2.1 above without any further action by either party. ARTICLE III MANAGER'S COMPENSATION 3.1 Fees. Manager shall be paid a Management Fee in an equal amount to: (a) with respect to the period of this Agreement from the Effective Date through June 30, 2007, (Phase 1 — Resource Planning Phase), Ninety -Nine Thousand Nine Hundred Thirty -Eight Dollars ($99,938), and (b) with respect to the period of this Agreement from July 1, 2007 through June 30, 2008 (Phase 1 — Resource Planning Phase, and Initial Phase 2 Resource Management Phase), Two Hundred Three Thousand Four Hundred Twenty -Five Dollars ($203,425), (c) with respect to each fiscal year commencing July 1, 2008 and thereafter (Phase 2 — Resource Management Phase), an amount equal to the cost of providing the Basic Management Services in Schedule 1 as determined by the RRMP and mutually agreed by City and Manager, in all cases, adjusted in accordance with the following provisions of this Article (the "Management Fee"). Management Fee includes 25% indirect costs. 3.2 Annual Adiustments. Commencing on July 1, 2008 and continuing through the end of the term, the then current Management Fee shall be adjusted on an annual basis on July 1 of each remaining year of the Term as follows: The then current Management Fee shall be increased on July 1 each year by the greater of (a) the amount of the increase in the "Consumer Price Index — Urban Consumers (Los Angeles- Riverside - Orange County, CA area); base 1982 -84 = 100" as published by the United States Department of Labor, Bureau of Labor Statistics (the "Index") for the March 1 to March 1 period just completed, or (b) three percent (3 %) of the current annual Management Fee. In the event that the U.S. Department of Labor discontinues publication of the Index, or varies the method of calculation of same, then Manager and City shall agree on a substitute index or procedure that reasonably reflects and monitors changes in consumer prices. 3.3 Payments. City shall pay the Management Fee to Manager in four (4) equal quarterly installments payable on or before July 1, October 1, January 1 and April 1 of each year of the Term. City shall pay the first quarterly payment of the Management Fee to Manager on or before January 1, 2007. 3.4 Other Adiustments to Management Fee. In addition to changes in the Management Fee as a result of annual adjustments as described in Section 3.2 above, the Management Fee may be adjusted: (a) Based upon changes in the scope of the Management Services as provided in Section 4.3 below; or (b) Due to increases in costs of providing the Management Services in excess of the greater of the increase in the Consumer Price Index described in Section 3.2 or three percent (3 %), if and as approved by the City Council. Manager may at any time prepare a request for such an increase in the Management Fee, in form and substance approved by City's Agent, whereupon it shall be the obligation of the City Council to act upon such request within sixty (60) days from the date such request was submitted by Manager. UU R Tnwt Manage Agreenuw In the event of any adjustment to the Management Fee, the adjusted Management Fee will be considered the Management Fee for the next scheduled annual adjustment made in accordance with Section 3.2. 3.5 Reimbursable Expenses. In addition to the Management Fee, Manager shall be reimbursed for all of its costs and expenses incurred in performing services, if any, beyond the Management Services as authorized by City's Agent in writing. 3.6 Pavment Upon Termination. In the event of termination of this Agreement prior to the expiration date in Section 2.1 above, Manager shall be entitled to that portion of the Management Fee earned to the date of termination. If the termination is effective on a day other than the last day of a calendar quarter, the quarterly payment will be prorated based on the basis of a ninety - one -day calendar quarter. In addition, Manager shall be entitled to all other amounts owing to Manager as specified in Section 8.3 (a) below. ARTICLE IV SCOPE OF SERVICES 4.1 Duties of Manager. Manager shall provide the Management Services in an efficient and professional manner in accordance with the terms, conditions and standards set forth in this Article. City shall provide Manager with any additional documentation reasonably necessary to establish Manager's authority to act as required hereunder. Manager shall perform all Management Services in a prompt and diligent manner in accordance with recognized standards of the open space reserve management industry and in compliance with such standards and practices as are prevalent in the geographic area where the Managed Lands are located. Management Services include light, routine custodial service resulting from everyday regular, authorized use of the Managed Lands. Management Services do not include heavy maintenance and for damage resulting from unauthorized use or events such as storms, vandalism or malicious mischief as described in Exhibit B. 4.2 Progress Reports and Meetings (a) Manager shall prepare and submit to City no later than the thirtieth (30th) day of each calendar quarter, in such form as City may reasonably require, a progress report (the "Progress Report') for the preceding quarter. At a minimum, the Progress Report shall summarize all activities undertaken by Manager's Agents during such period and describe the Management Services to be performed by Manager's Agents during the current quarter. Notwithstanding the foregoing, Manager shall promptly notify City of any information that is or becomes known to Manager's Agents in the course of the performance of their respective Management Services concerning facts or events that may materially affect the Managed Lands. (b) Manager shall schedule and attend meetings with City to (i) review management of the Managed Lands and exchange Information related thereto, (ii) submit Collateral Materials (as hereinafter defined) for City's approval, and (iii) assess compliance of Manager and City with the requirements of this Agreement. Said meetings shall be held on a periodic schedule as City and Manager reasonably deem necessary, but no less frequent than quarterly during the first year of the Term. HU R Tnw Menage Agreement 4.3 Modification of Manaqement Services. At the meetings between City and Manager described in Section 4.2 above, the parties shall discuss, among other things, whether the scope of the Management Services should be changed. Any such changes to the scope of Management Services may be made only upon mutual agreement of City and Manager. (a) Fuel Modification. In the event City from time to time desires to add any fuel modification or firebreak maintenance to the Management Services, City shall describe for Manager in writing the spec work (type, location, duration, etc.) in the Managed Lands which City desires to have Manager perform, and Manager shall thereafter determine and provide in writing to City the cost (time and materials plus overhead) to perform such work. Upon approval by City in writing of such cost, said work shall be included in the Management Services and the Management Fee shall be increased by the cost thereof so approved by the City. (b) Other Services. In the event either party desires to otherwise modify the Management Services, such party (the "Requesting Party') shall notify the other party (the "Other Party') in writing of any proposed modification (the "Modification Notice "), and the following procedures shall be followed: (i) Increases in Management Services. City and Manager anticipate that the results of the Resource and Recreation Management Plan prepared for the City with the assistance of Manager as described in Exhibit B (Basic Management Services) may .result in an increase to Management Services. In the event this or any other proposed modification increases the Management Services, the Requesting Party shall describe in the Modification Notice such requested additional services and set forth the proposed increase in the Management Fee to cover such additional services. The Other Party shall notify the Requesting Party in writing within the Permitted Time (defined below) after receipt of the Modification Notice whether the Other Party accepts or rejects such proposed modification, and the Parties shall thereafter respond back and forth to one another's proposals in writing, in each case within the Permitted Time. If the Parties reach mutual agreement, Manager shall prepare for execution an amendment to this Agreement setting forth the details of the agreed modification. Upon approval of such amendment, City shall promptly execute and return one (1) original of such amendment to Manager. (ii) Decreases in Management Services. In the event a proposed modification decreases the Management Services, the Requesting Party shall describe in the Modification Notice the services to be deleted and the amount by which the Management Fee is proposed to be decreased, If any, to reflect such deletion. City and Manager shall follow the procedures set forth in Section 4.3(a) concerning the acceptance or rejection of such proposed modification and the preparation of an amendment reflecting such mutually agreed modification. (c) Permitted Time. For purposes of this Section 4.3, City shall have forty-fore (45) calendar days to respond to Manager's proposals, while Manager shall have twenty (20) calendar days to respond to City's proposals (in either case, the "Permitted Time"). 4.4 Compliance with Laws and Agreements. (a) Manager shall comply with all federal, state and local laws, ordinances, regulations, permits and orders now in force or enacted or promulgated hereafter (individually, a "Law; collectively, "Laws") that are related to the performance of the Management Services, including without limitation, (i) the Natural Communities Conservation HU.RTrust Ma ge Agreement Plan ( "NCCP") implemented among City and local governments and various natural resource agencies to protect various plant and wildlife communities, (ii) the Federal Endangered Species Act, (iii) the California Endangered Species Act, and (iv) any law (in each case, a "Hazardous Materials Law") concerning wastes, materials, chemicals or other substances (whether in the form of liquids, solids or gases, and whether or not airborne) that are ignitable, reactive, corrosive, toxic or radioactive, or that are deemed to be pollutants, contaminants or hazardous or toxic substances under or pursuant to any law, or that are to any extent regulated by, form the basis of liability under or are otherwise under the authority of any Law (In each case, a "Hazardous Materiar). (b) Manager shall not do anything that may cause any portion of the Managed Lands to be in violation of any Law. Manager shall use its best efforts to notify City promptly of any suspected violation of any Law with respect to the Managed Lands owned by City of which it becomes aware, it being understood that Manager has no obligation to research any such matters or investigate to discover any such suspected violations, or to provide City with any form of legal advice, and that the intent of this provision is to ensure that Manager informs City of suspected violations of Laws with respect to Managed Lands owned by City of which Manager actually becomes aware. (c) Manager acknowledges that City may apply for state, federal and other grants that may be applied towards the costs of preserving and operating the Managed Lands (the 'Grants'). In the event City obtains any of the Grants, City shall promptly provide Manager with copies of any guidelines and restrictions associated therewith that relate to the use, operation, or preservation of the Managed Lands (the "Grant Restrictions "), and Manager shall use its best efforts to comply with the Grant Restrictions. (d) Nothing in this agreement shall be construed to create in or give to Manager. (1) the obligations or liabilities or an "owner" or "operator" as those words are defined and used in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 US Code Sections 9601 et seq.) or any other Hazardous Materials Law, including (but not limited to) the Hazardous Materials Transportation Act (49 US Code Sections6901 at seq.); the Hazardous Waste Control Law (California Health R Safety Code Sections 25100 at seq.); the Hazardous Substance Account Act (California Health & Safety Code Sections 25300 at seq.); and any rule regulation or other promulgation adopted under any of the foregoing; (2) the obligations and liabilities of a person described in 42 USC §9607(a)(3); (3) the obligations of a responsible person under any applicable Hazardous Materials Law; (4) any obligation, right or permission to investigate, remove, remediate, abate or otherwise clean up any Hazardous Materials located at or associated with the Managed Lands; or (5) control over, or any obligation to participate in, the investigation, removal, remediation, abatement or other clean up of Hazardous Materials in compliance with any Hazardous Materials Law, except to the extent that the condition was actually caused by Manager or Manager's Agents. 4.5 Employees. Subject to City's rights under Section 1.3(a), all matters pertaining to the employment, supervision, compensation, promotion and discharge of Manager's Agents shall be the responsibility of Manager. Manager shall comply with all applicable governmental requirements relating to workers' compensation, social security, unemployment insurance, hours of labor, wages, working conditions and other employer — employee related matters. 4.6 Legal Action. Manager shall not in connection with its obligations under this Agreement, be called upon to, and shall not retain legal counsel to render legal advice or rRLR Trust Manage Ag�ew institute any legal proceedings (including, without limitation, arbitration, judicial reference and settlement negotiations) on behalf of City. 4.7 Approval of Collateral Materials. All collateral materials related to the management of the Managed Lands, including, without limitation, advertising and promotional materials, signs, brochures and publications (collectively, the. "Collateral Materials ") shall (a) reference the Managed Lands as the Irvine Ranch Land Reserve or include a reference that the Managed Lands are within the Irvine Ranch Land Reserve, (b) include the City s logo in all Collateral Materials which reference exclusively the Managed Lands, and in other Collateral Materials as appropriate, and (c) be subject to mutual approval of City and Manager prior to publication or dissemination and shall comply with all applicable Laws. Such approval shall not be unreasonably withheld or delayed by either party. 4.8 Ownership of Improvements. Manager understands and acknowledges that Manager shall have no ownership rights whatsoever in connection with any improvements (including, without limitation, signs, fences and gates) maintained or repaired on the Managed Lands pursuant to the terms of this Agreement. 4.9 Additional Land. (a) Manager and City acknowledge and agree that additional parcels of land may from time to time be added to the Managed Lands for which Manager is to provide the Management Services under this Agreement upon mutual written agreement of City and Manager. Among other things, the parties shall agree upon the effective date of any such addition of property to the Managed Lands. (b) In the event the Managed Lands are proposed to be increased pursuant to the provisions of this Section 4.9, the Management Fee may be modified as City and Manager mutually agree pursuant to the procedure in Section 4.3 above. To that end, if City proposes to so increase the Managed Lands, concurrent with City's notice to Manager, City shall also notify Manager of City's proposed corresponding modification to the Management Fee. 4.10 City s Rights Reserved. Nothing in this Agreement is intended or shall be deemed to restrict use of the Managed Lands by City in any way whatsoever; provided, however, that City shall provide Manager with at least thirty (30) days' prior written notice of any events or activities on the Managed Lands that may materially affect Manager's performance of the Management Services. ARTICLE V INSURANCE 5.1 Insurance Types. Manager shall not commence any work until all insurance is obtained. Manager shall obtain and maintain during the Term the following types of insurance: (a) Liability Insurance (including premises and operations, contractual liability, bodily injury, property damage and independent contractors liability), in the amount of One Million Dollars ($1,000,000.00) single limit, per occurrence. Said policy shall be written on a "date of occurrence" and not a "claims made" basis. BtLR TnW Manage Ape ew (b) Automobile Liability Insurance (including owned, non - owned, leased and hired autos used in connection with the Management Services) in the amount of One Million Dollars ($1,000,000.00) single limit, per occurrence for bodily injury and property damage. Said policy shall be written on a "date of occurrence" and not a "claims made" basis. (c) Statutory Workers Compensation and. Employer's Liability Insurance in the amount of One Million Dollars ($1,000,000.00) per occurrence for injuries incurred in providing the Management Services. 5.2 Other Insurance Requirements. The liability insurance policy shall be written by a good and solvent insurance company authorized to do business in the State of California or which is approved in writing by City, and shall contain clauses specifying that (i) such insurance is primary and City's insurance is excess and noncontributing with such primary coverage; (ii) the insurer waives all rights of subrogation against City; (iii) coverage shall not be suspended or cancelled without thirty (30) days prior written notice to City; and (iv) City is listed as an additional insured as respects Manager's activities involving the Managed Lands. ARTICLE Vl INDEMNIFICATION 6.1 Indemnification by Manager. Manager agrees to indemnify, hold harmless and defend City, and each of its elected and appointed officials and representatives, employees and agents, and each of the successors and assigns of such parties (collectively, the "City Parties ") from and against any and all of the following: claims, costs, liabilities, penalties, damages or expenses of any kind or nature whatsoever, to any person or property, and whether based on negligence, strict liability or other claim (including, but not limited to, court costs and reasonable attorneys' fees and expenses, whether incurred at the trial, appellate or administrative level, or in connection with any required arbitration) (collectively, "Claims") that any of the City Parties may suffer or incur, or to which any of the City Parties may be subjected, to the extent such Claims are the result of or arise out of (i) any breach or violation of the terms of this Agreement by Manager or by anyone acting for or under the authority of Manager, (ii) any other activity of Manager or Manager's Agents on, at or with respect to the Managed Lands or in accessing the Managed Lands, or (iii) the negligence or willful misconduct of Manager or any of Manager's Agents in the performance of the Management Services. 6.2 Indemnification by City. City agrees to Indemnify, hold harmless and defend Manager, each of Manager's directors, officers, employees and agents, and each of the successors and assigns of such parties (collectively, the °Manager Parties"), from and against any and all Claims that any of the Manager Parties may suffer or incur, or to which any of the Manager Parties may be subjected, to the extent such Claims are the result of or arise out of (i) any entry on the Managed Lands by the general public in connection with the Management Services, except to the extent such Claims are the result of or arise out of conduct covered by Manager's indemnification in subsections 6.1(i) or 6.1(iii) above, (ii) any breach or violation of the terms of this Agreement by City or by anyone acting for or under the authority of City, (iii) any other activity of City or any of the City Parties on, at or with respect to the Managed Lands, or (iv) the negligence or willful misconduct of City or any of City's Parties relating to the Managed Lands. 6.3 General. The foregoing indemnities and obligations to hold harmless and defend are intended to apply with respect to all Claims incurred directly by the indemnified BUR Host Manage Agreement party or parties, or their property, as well as by third parties or the indemnifying party. The foregoing obligation to defend Manager and the Manager Parties shall mean the obligation to defend with counsel reasonably approved in writing by Manager. Likewise, the foregoing obligation to defend City and the City Parties shall mean the obligation to defend with counsel reasonably approved in writing by City. Neither payment nor a finding of liability or of an obligation to defend shall be a condition precedent to the enforcement of any indemnity or duty to defend provision herein. ARTICLE VII LIENS Manager shall not suffer or permit to be enforced against the Managed Lands, or any part thereof, any mechanics', laborers', materialmen's, contractors or any other liens arising from or any claims for damages growing out of any work of construction performed by or caused to be performed by Manager in connection with the performance of the Management Services. Manager shall pay or cause to be paid all of said liens, claims and demands before any action is brought to enforce the same against the Managed Lands. City shall have the right at any time to post and maintain on the Managed Lands, or any part thereof, such Notices of Nonresponsibility as desired by City or as may be provided by law. Notwithstanding anything to the contrary contained herein, if Manager shall in good faith contest the validity of any such lien, claim or demand, then Manager shall, at its expense, defend itself and City against the same and shall pay and satisfy any adverse judgment that may be rendered thereon before the enforcement thereof against the Managed Lands. If City shall require, Manager shall provide to City a surety bond satisfactory to City in an amount equal to such contested lien, claim or demand indemnifying City against liability for same, or If City shall request, Manager shall procure and record the bond provided for in the California Civil Code, or any comparable statute hereafter enacted, providing for a bond freeing the Managed Lands from the effect of such lien or claim or action thereon. Notwithstanding the above, Manager shall have no obligation with respect to any of the foregoing to the extent any such lien, claim or other proceeding arises directly out of City's acts or omissions or a failure by City to make payments to Manager as provided in this Agreement (except in circumstances where City has contested in good faith such payment, in which case Manager shall remain obligated as provided in this sentence pending resolution of such dispute). ARTICLE Vlll TERMINATION 8.1 Termination Without Cause. (a) Either party may, for any reason and without cause, terminate this Agreement effective as of January 1, 2009, by giving written notice of such termination to the other party on or before July 1, 2008. Failure of either party to so give a written termination notice by July 1, 2008, shall be deemed the election by such party to waive such early termination right. (b) Either party may, for any reason and without cause, terminate this Agreement effective as of any day after January 1, 2009, by giving written notice of such termination to the other party at least one hundred and eighty (180) days prior to such effective date. HUR Trust Mnap Agreement 10 8.2 Termination for Cause. (a) Either party may terminate this Agreement for cause by written notice to the other party (the "Termination Notice"). The acts or omissions that shall entitle a party to terminate this Agreement are: (1) In the case of Manager: (i) failure to provide the Management Services at a level of quality at least equal to other land reserves of a type similar to the Managed Lands in the State of California; (ii) failure to perform the Management Services in any way; (iii) commission of any fraud, misrepresentation, breach of fiduciary duty or willful misconduct in connection with the performance of Manager's duties under this Agreement; or (iv) failure to cure any other breach of this Agreement by Manager. (2) In the case of City: (i) failure to pay the Management Fee or to make any other payment due to Manager hereunder, or (ii) failure to cure any other breach of this Agreement by City. (b) Termination shall be effective upon the expiration of thirty (30) days following the giving of the Termination Notice, unless the party allegedly in default cures the same within such thirty (30) day period; or, alternatively, if such default is not capable of cure within thirty (30) days, unless such defaulting party within thirty (30) days of receiving the Termination Notice shall have both notified the other party in writing of the defaulting partys plan of action to cure such default and initiated all necessary action to cure such default and within sixty (60) days of the Termination Notice shall have completed all such action. (c) Prior to delivery of a Termination Notice under this Section 8.2, the non - defaulting party agrees to (i) notify the defaulting party as to the non - defaulting party's concerns with the other party's performance and (ii) meet with the other party to confer regarding resolution of those concerns. If the parties have been unable to resolve the non - defaulting party's concerns by the date that is thirty (30) days after the date the notice was given, then the non - defaulting party may proceed with its Termination Notice. 8.3 Obligations Upon Termination. Upon termination of this Agreement, each party shall continue to be fully liable for its respective obligations that have accrued up to and including the termination date. In addition, the parties shall have the following obligations: (a) City Obligations. City shall remain obligated to pay Manager for the portion of the Management Fee earned by Manager up to the date of termination and for any other payments and reimbursements due to Manager prior to the termination date. (b) Manager Obligations. Manager shall perform any Management Services reasonably requested by City until the termination date. In addition, within thirty (30) days of the termination date of this Agreement, whether by expiration of the Term, by early termination notice under this Article or by mutual agreement, Manager shall deliver to City the following: (1) Complete and legible copies of all work product generated by Manager and Manager's Agents pursuant to this Agreement not previously delivered by Manager to City pursuant to Section 1.4(a); RUA Tnig Manage Agreement I I (2) All records, contracts, agreements, keys, correspondence files and other papers or documents that pertain to the Managed Lands; and (3) A Progress Report (whether or not then due), covering the period from the end of the previous quarterly Progress Report to the termination date. ARTICLE IX GENERAL PROVISIONS 9.1 Independent Contractor. Manager shall act as an independent contractor in the performance of its duties and responsibilities set forth in this Agreement. Manager is not and shall not be an agent of City for any purpose. No provisions hereunder are intended or shall be construed to create a partnership or a joint venture between City and Manager with respect to the Managed Lands or otherwise, and neither party shall have the power to bind or obligate the other party, except as expressly set forth in this Agreement. 9.2 Notices. All notices required or permitted by this Agreement shall be in writing and may be delivered in person (by hand - delivery or professional messenger service) to either party or may be sent by registered or certified mail, with postage prepaid, return receipt requested or delivered by Federal Express or other courier service guaranteeing overnight delivery, charges prepaid, and addressed as follows: If to Manager at: Irvine Ranch Land Reserve Trust 320 Commerce, Suite 150 Irvine, CA 92602 Attention: Executive Director If to City at: City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92658-8915 Attention: Assistant City Manager Any such notice sent by registered or certified mail, return receipt requested, shall be deemed to have been duly given and received seventy-two (72) hours after the same is so addressed and mailed in the State of California with postage prepaid. Notices delivered by ovemight service shall be deemed to have been given twenty-four (24) hours after delivery of the same, charges prepaid, to the courier. Any notice or other document sent by any other manner shall be effective only upon actual receipt thereof. Any party may change its address for purposes of this Section by giving notice to the other party as herein provided. 9.3 Attorneys' Fees. In any judicial action between the parties to enforce any of the provisions of this Agreement or any right of any party under this Agreement, regardless of whether such action or proceeding is prosecuted to judgment and in addition to any other remedy, the unsuccessful party shall pay to the prevailing party all costs and expenses, including reasonable attorneys' fees, expert witness fees and court costs incurred by the prevailing party. rRLRTmat Manage Agreement 12 9.4 Waiver of Jury Trial. City and Manager each acknowledge that it has had the advice of counsel of its choice with respect to rights to trial by jury under the constitutions of the United States and the State of California. Each party expressly and knowingly waives and releases all such rights to trial by jury in any action, proceeding or counterclaim brought by either party against the other on any matters arising out of or in any way connected with this Agreement, the Managed Lands or both. 9.5 Mediation. If a dispute arises from or relates to the terms and provisions of this Agreement or any other matter referred to herein, which cannot be settled by direct discussions or negotiation, City and Manager agree first to try in good faith to settle the dispute by non - binding mediation administered by the American Arbitration Association under its Commercial Mediation Rules, or by such other organization or individual and under such rules as the parties may agree, before resorting to litigation or some other dispute resolution procedure. 9.6 Assignment. Neither party shall voluntarily or involuntarily, directly or indirectly, sell, assign, hypothecate, pledge or otherwise transfer or dispose of all or any portion of its Interest in this Agreement to any third party without the prior written consent of the other party, which consent may be withheld in such other party's sole and absolute discretion. Any such attempted sale, assignment, hypothecation, pledge or other transfer without such consent shall be void and of no effect. No assignment approved by one party pursuant to the terms of this Section shall be deemed to relieve the other party from any liability, responsibility or obligation hereunder. City acknowledges that the foregoing restrictions on assignment are not intended to preclude Manager from retaining consultants or contractors to perform all or a portion of the Management Services. 9.7 Amendments and Written Consents. All amendments to this Agreement shall be in writing and executed by City and Manager. For day - to-day communication and decisions, an e-mail request and approving e-mail reply will satisfy the written request requirement. 9.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. 9.9 Governing Law. This Agreement is executed and shall be governed by and construed in accordance with the laws of the State of California. 9.10 Remedies Cumulative. No remedy herein reserved to either party is intended to be exclusive of any other remedy, but each and every such remedy shall be cumulative and shall be in addition to any other remedy given in this Agreement as now or hereafter existing or at law, in equity or by statute. 9.11 Nonwaiver. The failure of a party to notify the other party of any default under this Agreement shall not be deemed to be a waiver by such non - defaulting party of any continuing default by the defaulting party of any term, covenant or condition set forth in this Agreement, nor of the non - defaulting party's right to declare a default for any such continuing breach. The failure of a non - defaulting party to insist upon strict performance of any of the terms, covenants or conditions of this Agreement, or to exercise any option in this Agreement in any one or more instances, shall not be construed as a waiver or relinquishment of any such WJ,R Trust Manage AVwmem 13 terms, covenants, conditions or options, but the same shall be and remain in full force and effect. 9.12 Severability. In case any one or more provisions set forth in this Agreement shall for any reason be held invalid, illegal or unenforceable in any respect, any such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been incorporated therein. 9.13 No Third -Party Beneficiaries. This Agreement is not intended and shall not be deemed or construed to confer any rights, powers or privileges on any person, firm, partnership, corporation or other entity not a party hereto, except as may be expressly provided herein to the contrary. 9.14 Incorporation of Exhibits. The following Exhibits attached hereto shall be construed with and as integral parts of this Agreement to the same extent as if the same had been set forth verbatim herein: Exhibit A - Depiction of Managed Lands as of Effective Date Exhibit B - Basic Management Services 9.15 Oral Agreements. No oral order, objection, claim or notice by any party to the other shall affect or modify any of the terms or obligations contained in this Agreement, and none of the provisions of this Agreement shall be held to be waived or modified by reason of any act whatsoever, other than by a definitely agreed waiver or modification thereof in writing, and no evidence shall be introduced in any proceeding of any other waiver or modification. 9.16 Approvals. Except as otherwise provided herein, all approvals required under this Agreement shall be in writing and shall be within the approving party's reasonable discretion. 9.17 Press Releases and Press Relations. Any feature stories and /or "soft coverage" concerning this Agreement, the subject matter hereof and the management of the Managed Lands shall not be initiated or solicited by either Manager or City without the prior written consent of the other party. In the case of inquiries by the press, the party to whom an inquiry has been made shall use reasonable efforts to contact the other party. If a party initiates a telephone call to the other party advising such party of a press inquiry, and such party does not respond within two (2) hours after the telephone call has been placed, the party to whom the inquiry has been made may answer questions asked by the press to the best of its knowledge. Notwithstanding the foregoing, prior consent of the other party shall not be required to respond to any routine inquiries by the press. 9.18 Authorization. By the execution of this Agreement, the undersigned each represent and warrant, in each case as to the party on behalf of whom they are signing, that the execution, delivery and performance of this Agreement by such party has been duly and validly authorized by all necessary action and proceedings, and no further action or authorization is necessary on the part of such party in order to perform its obligations hereunder. 9.19 Time. Time is of the essence of this Agreement and each provision hereof of which time is an element. BUR 7Yust Menage Age wt 14 9.20 Nonliability of Officials and Employees. No member, official, employee, or consultant of City shall be personally liable to Manager, or any successor interest of Manager, in the event of any default or breach by City or for any amount which may become due to Manager or to its successor, or on any obligations under the terms of this Agreement. No member, director, officer, employee, or consultant of Manager shall be personally liable to City, or any successor interest of City, in the event of any default or breach by Manager or for any amount which may become due to City or to its successor, or on any obligations under the terms of this Agreement. 9.21 Entire Agreement. This Agreement and the Exhibits attached hereto comprise the entire agreement of the parties with respect to the transaction described herein. [signatures on the following page] HU R Tnwt Manage Agreement 15 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. "City' "Manager" CITY OF NEWPORT BEACH, IRVINE RANCH LAND RESERVE TRUST, a California municipal corporation a California nonprofit corporation By: By: ATTEST: By: City Clerk Approved as to form: By: City Attorney HURTrua Menge Agreement By: Michael O'Connell President & Executive Director By: Patricia Frobes Secretary Exhibit A Depiction of Managed Lands BUR Trust Mamp Agcemew 11/2006 A_j Exhibit B Basic Management Services Phase 1 f(January 1. 2007 — June 30, 2008)1 Resource Planning Phase: Manager will develop a detailed knowledge of the Managed Lands' natural systems and the many challenges of the surrounding urban interface to plan for its long -term management, restoration and public enjoyment. To develop such knowledge, Manager will collect, organize and evaluate existing resource data with respect to the Managed Lands. Information on historic and current habitats, as well as planned land uses directly and indirectly impacting the Lands, will be obtained from The Irvine Company LLC, City, the County of Orange, and the Nature Reserve of Orange County ( "NROC "), and will include previous NCCP data as made available to Manager by these and other sources. Manager, with the approval of City, will subcontract with a qualified consultant or consultants ( "Consultant") to prepare a comprehensive resource and recreational management plan for the Managed Lands including collection and organization of the data described above ( "RRMP ") according to the terms and criteria of the NCCP. Manager will supervise Consultant and will coordinate and provide planning support services in the preparation of the RRMP for City, which is estimated to require at least twelve (12) months to prepare, including time for supplemental field surveys. Because the RRMP must be approved by state and federal wildlife regulatory agencies, Manager will coordinate the consultation and involvement of such agencies in the planning process and will assist City in submittal of the City- approved draft to the NROC and the applicable state and federal wildlife regulatory agencies for review and approval. After approval of the RRMP and based on the long -term habitat restoration, maintenance and public access recommendations set forth in the approved RRMP, City, with the assistance of Manager, will establish implementation priorities based on the RRMP. As part of this process, Manager will submit a capital program (restoration and public access) for City's review 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. City will create a Stakeholder Advisory Group that City shall convene as needed to assist City and Manager in completing and implementing the RRMP. Manager shall participate in Stakeholder Advisory Group meetings to the extent appropriate. Phase 2 (July 1. 2008 and Subsequent Years Thereafter) Resource Management Phase: Manager will provide management services for the Managed Lands which will include stewardship of the Managed Lands consistent with the approved RRMP and NCCP, and BUR Trust Mgnst Armatent 1/2007 B -t which will include field monitoring, habitat and natural resource management, regional coordination with adjacent open space land managers, and fire management (to be defined). As authorized and agreed, Basic Management Services will include public outreach and education, as well as volunteer management for stewardship and public access programs as described in Schedule 1. Manager will procure, maintain and repair vehicles and equipment associated with Manager's Basic Management Services. Initial Resource Recovery:. In the years of RRMP implementation, City and Manager envision that Manager's duties will primarily consist of habitat restoration (including removal of invasive species), erosion control, fire/fuel modification efforts, resource monitoring, and similar activities designed toward recovering the habitat value of the Managed Lands. Should the RRMP be approved before July 1, 2008, Manager agrees to commence these activities under Schedule 1, Phase 2, on Managed Lands under the agreed -upon fee schedule. Public Access & Ongoing Maintenance: After public access is granted to the Managed Lands, and the infrastructure for public access is established, Manager will begin the provision of Public Access Program activities and Field Operations according to Schedule 1 Phase 2, including light, routine custodial services resulting from everyday regular, authorized use of the Managed Lands as follows: - Trail cleanliness: litter removal from trail areas and trash receptacles (f any) on trails; - Minor trail service, minor erosion remediation and prevention including: • annual mowing of trail centerlines; • installation of water bars and other erosion prevention features as required; • identification and remediation of erosion problems as required; • removal of invasive plant species as agreed by City and Manager on trail alignments; - Touch -up paint, service and perform minor repairs on fences, locks and gates; Install and maintain service of trail signage, trail kiosks, trail benches, trail water troughs, trail shade structures, and similar trail facilities purchased by City; Open and close gates and other public facilities associated with public access program activities; City has responsibility for heavy maintenance and for damage resulting from unauthorized use or events such as storms, vandalism or malicious mischief, including: - Trash removal from staging area and trailhead receptacles - Storm damage cleanup and major trail rehabilitation and repair - Major trail erosion and damage remediation/reconstruction - Oversight and maintenance of trailhead operations, including trash removal, restroom maintenance (both permanent and temporary restrooms) and repair - Remediation and cleanup of illegal dumping - Installation and maintenance of staging area kiosks, booths and similar facilities - Replace/repaint fences, locks and gates A further description of the management services to be provided by Manager is included on the "Preserve Management Schedule of Services" for the Managed Lands which is attached hereto as Schedule 1. This schedule of services may be modified or adjusted based on the approved RRMP and the identification of implementation priorities by City, with assistance of Manager as described above, and the Annual Management Fee adjusted according to the terms of Section 4.3. BUR ]lust M9= Agrcemem IaW B-2 QtLRTmst Mgmt Agreement IMN $_3 w J O W U O O N M m c I 0 O N m 7 c rn C C C m i7 I m N m a C m O. O. O. N> T Q E ry N N N C ry Om � C Z m m N E E E 4) d E CL O1 � �� 0 O pp C C C C QQ11 7 m m a m m m C 8_ 3 p �oo m 4) ��ie U N U U U 9 C N a� d 7I y C C C C E W" C 0 N O. O. (NJ N m p O 0 Flo Q �-. E N • O C C C O m N v N O N O) m N N C •� s ry Q7. E E E OCL > > >� b � e gm m E m E �m °� m t'a = i62wu ° E Q a)2 2 T 20 E o� it c c c m iUO ll 1 x N m p G) m 0 0000: 4)cQ° Odd id 6 m d m a d 0 N c " ao aso.� o N ff3 Z O m YO ,5 m N N 7 7 7 Z d U O2 N N N m m m 7 7 . 2 N G) L O. O. O. C C C N d C G) L C C d C N N d d N N N C C C ff/l�� N N N N . 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CL ` ! *Er ) # / E2 I ƒ }j m �k °` f f k \ \{ \ 0 k 8 \ /k M E /2 § �# o _ =.G ) m 7 LLI ) LL E 3� § U% kk�� f toCD ~ k/ k § /k k\ 2 z =R§_ EB k cr � City of Newport Beach BUDGET AMENDMENT 2006 -07 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations NX from additional estimated revenues from unappropriated fund balance EXPLANATION: NO. BA- 07BA -033 AMOUNT: 51x9,875.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase expenditure appropriations to enter into a contract with the Irvine Ranch Land Reserve Trust to assist the City in developing and implementing a Resource and Recreation Management Plan (RRMP) for Buck Gully. ACCOUNTING ENTRY: BUDGETARYFUND BALANCE Fund Aocoun t Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund/Division Account EXPENDITURE APPROPRIATIONS (3603) Description Description Division Number 7014 Misc & Studies Account Number C0310971 Buck Gully Resource & Rec Mgmt Pin Amount Debit $199,875.00 Credit $199,875.00 Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number ® / ` Aulomatic System Entry. Signed: �i��vy ��? ,j1 —d6 Financial Approval: Administrativ Services Director Date Signed: O Administrative App al: City Manager Da Signed: City Council Approval: City Clerk Date City ®f Newport Beach NO. BA- 07BA -033 BUDGET AMENDMENT 2006 -07 AMOUNT: $99,938.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance Increase Expenditure Appropriations AND AX Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: "RECEIVE AFTER AGENDA PRINTED:" �"1 f a'l aL-ob To increase expenditure appropriations to enter into a contract with the Irvine Ranch Land Reserve Trust to assist the City in developing and implementing a Resource and Recreation Management Plan (RRMP) for Buck Gully. The Fiscal Year 2007 -08 expenditure is estimated to be an additional $203,425. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) Fund /Division Account Description EXPENDITURE APPROPRIATIONS (3603) Signed: (�: . 14f c Financial Approval: Administrative Services Director Signed: City Manager Amount Debit Credit $99,938.00 ' Automatic $99,938.00 / / -d6 Date We Signed: City Council Approval: City Clerk Date Description Division Number 7014 Misc & Studies Account Number C0310971 Buck Gully Resource & Rec Mgmt Pin Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: (�: . 14f c Financial Approval: Administrative Services Director Signed: City Manager Amount Debit Credit $99,938.00 ' Automatic $99,938.00 / / -d6 Date We Signed: City Council Approval: City Clerk Date