HomeMy WebLinkAbout14 - Upper Buck Gully Reserve Area Resource Management and Trail ImprovementCITY OF
z NEWPORT BEACH
C9�FO0.HP City Council Staff Report
Agenda Item No. 14
September 13, 2011
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644 -3311, sbadum(cD.newportbeachca.gov
PREPARED BY: Bob Stein, Assistant City Engineer
949 - 644 -3322, rstein(5newportbeachca.gov
APPROVED:
TITLE: Upper Buck Gully Reserve Area Resource Management and Trail
Improvement /Restoration
ABSTRACT:
The City received a grant from the Habitat Conservation Fund to be matched with City
funds to construct a loop trail in Upper Buck Gully. Staff proposes to amend an existing
agreement with the Irvine Ranch Conservancy (IRC) for management of Upper Buck
Gully resources including repair and enhancement of a loop trail in the canyon.
RECOMMENDATIONS:
1. Approve an amendment to the IRC agreement for resource management
services in Upper Buck Gully for FY 11/12 in the amount of $185,000.
2. Approve Budget Amendment No. 12-
a) recognizing a contribution of $90,000 from the Habitat Conservation Fund
and appropriating $90,000 to Account No. 7251- C5002009 and transferring
$90,000 from Account No. 7014- C5002002 to 7014- C5002009 for
construction of the Upper Buck Gully Loop Trail; and
b) transferring $185,000 from Account No. 7014- C5002002 to Account No.
0110 -8250 for resource management services.
Upper Buck Gully Reserve Area Resource Management and Trail Improvement
/Restoration
September 13, 2011
Page 2
3. Find this project exempt from the California Environmental Quality Act ( "CEQA ")
pursuant to Section 15304, Class 4, Minor Alteration to Land, of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has
no potential to have a significant effect on the environment.
FUNDING REQUIREMENTS:
The Budget Amendment records and appropriates $180,000 for construction of the
Upper Buck Gully Loop Trail bridges and appurtenances, and $185,000 for Buck Gully
resource management services. For these two appropriations, $90,000 is from a new
grant source and $275,000 is from a transfer from the Buck Gully Erosion Control and
Flood Stabilization project.
DISCUSSION:
Background
On July 1, 2005, the City took title to the open space resources of Upper Buck Gully which
is part of the Orange County Central Coastal Natural Community Conservation Plan
(NCCP). 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. Since 2007, the Irvine Ranch Conservancy (IRC) has been under contract to the
City to manage the NCCP reserve in Upper Buck Gully.
One of the conditions of the NCCP Implementation Agreement is the preparation of a
Resource and Recreation Management Plan (RRMP) which was prepared by Irvine Ranch
Conservancy in 2009 and subsequently approved by City Council. The approved RRMP
includes a loop trail starting at 5th Avenue /Poppy Avenue, up the canyon to the Edison
access road which connects to San Joaquin Hills Road. From there, the trail system
utilizes the existing public sidewalk along San Joaquin Hills Road to the east, returns
south to the canyon bottom via the existing access road and then connects back with
main trail (see attached figure). Several improvements are required to create this
sustainable trail loop including four bridges to cross Buck Gully Creek, a series of three
culverts across Buck Gully Creek, erosion repairs, and trail clearing and widening.
Earlier this year, the City of Newport Beach applied for California Wildlife Protection Act -
Habitat Conservation Funds to partially fund the four bridges, entry gate and informational
signs for the proposed loop trail. City Council approved the grant application by resolution
on October 12, 2010. The City received notice of a grant award of $90,000 in August, 2011.
The City's required match is $90,000.
Upper Buck Gully Reserve Area Resource Management and Trail Improvement
/Restoration
September 13, 2011
Page 3
IRC Management Agreement
Under the proposed amendment to the IRC agreement, IRC will provide basic
management services for Buck Gully including field monitoring, habitat and natural
resource management, regional coordination with adjacent open space land managers,
assistance with fire and fuels management, public outreach, education and recreational
programs, as well as volunteer management for stewardship and public access
programs. The amendment also includes an additional task for IRC to perform the
planning, design and restoration management of the proposed loop trail repairs and
enhancements including providing staff to clear and re -grade the trail in a more
sustainable manner.
Loop Trail
To secure the Habitat Conservation Grant funds of $90,000 for the loop trail, the City must
provide a 50% match. The City and grant funds will fund the cost and installation of four
bridges, an entry gate and informational signs. The trail will be designated as "hiking only"
or "hiking and mountain biking only ". Trail users will be managed to well- defined areas
with off -trail encroachment into heavily vegetated and sensitive resources prohibited.
The loop trail will have several overlook areas offering panoramic views of the gully.
Trail use will be prohibited for appropriate periods (usually three days) following rains
greater than 0.5 inches to avoid trail damage and impacts on adjacent habitat. During
fire season, trail use may also be prohibited. Unauthorized trails would be eliminated
and impacted habitat restored.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California
Environmental Quality Act ( "CEQA ") pursuant to Section 15304, Class 4, Minor
Alteration to Land, of the CEQA Guidelines, California Code of Regulations, Title 14,
Chapter 3, because it has no potential to have a significant effect on the environment.
The project involves re- grading existing trails and installing four pre- manufactured
bridges within the Buck Gully Reserve. The improvements are considered minor
alterations in land and vegetation within an existing designated wildlife management
area, which will result in improvement of habitat for fish and wildlife resources. The Buck
Gully Reserve is located within the boundaries of the Orange County Central & Coastal
Subregion Natural Communities Conservation Plan /Habitat Conservation Plan
(NCCP /HCP) area. The NCCP /HCP was approved in July of 1996 and an Implementing
Agreement (IA) was executed between federal and state Wildlife Agencies and
participating jurisdictions and landowners within the Orange County Central & Coastal
NCCP Subregion. Environmental documentation for the NCCP /HCP recreation and
access policies was incorporated in a Joint EIR /EIS that was certified by the County of
Upper Buck Gully Reserve Area Resource Management and Trail Improvement
/Restoration
September 13, 2011
Page 4
Orange and for which a Record of Decision was issued by the U.S. Fish and Wildlife
Service. The proposed project is consistent with the NCCP /HCP recreation and access
policies and adaptive management measures for the Reserve System, and is consistent
with the mitigation /minimization measures established by the EIR /EIS for the
management of public access and recreational uses within the NCCP /HCP Reserve
System.
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Q..k 4+i A ti.,
Attachments: A.
Resolution 2010
B.
Buck Gully Reserve Trail Map
C.
Gates Exhibit
D.
IRC Original Contract
E.
Amendment No. 1
F.
Budget Amendment
G.
Notice of Exemption
Attachment A
RESOLUTION NO. 2010-15
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH APPROVING THE TRANSFER OF
DEVELOPMENT RIGHTS IN THE NORTH NEWPORT
CENTER PLANNED COMMUNITY (TD 2009 -002, PA 2009-
159)
WHEREAS, The Irvine Company has applied to the City of Newport Beach for
approval of a transfer of development rights as follows:
(1) Transfer 50,000 square feet for general office use from Block 500 to
Block 600.
(2) Transfer 165,833 square feet for general office use from Block 500 to
San Joaquin Plaza.
WHEREAS, General Plan Policy LU 6.14.3 permits development rights to be
transferred within Newport Center as long as the transfer is consistent with the intent of
the General Plan and will not result in any adverse traffic impacts.
WHEREAS, the North Newport Center Planned Community Development Plan
provides that the City Council shall approve a transfer of development rights if it finds
that the transfer will not result in any adverse traffic impacts and will not result in greater
intensity of land use than the development allowed without the transfer.
WHEREAS, a traffic analysis entitled North Newport Center Once Trip Transfer
No. 3 (Austin -Foust Associates, Inc., January 15, 2010) was prepared for the
application for the transfer of development rights in compliance with General Plan Policy
LU 6.14.3 and the North Newport Center Planned Community Development Plan.
WHEREAS, the traffic analysis found that, consistent with General Plan Policy
LU 6.14.3 and the North Newport Center Planned Community Development Plan, the
transfer of development rights will not result in any adverse traffic impacts.
WHEREAS, the transfer of development rights does not involve a conversion of
land uses and will not result in greater intensity than development allowed without the
transfer.
WHEREAS, the North Newport Center Planned Community Development Plan
provides that if a transfer meets two fixed standards, then the City Council shall approve
the transfer. The first fixed standard requires that the transfer not result in any adverse
traffic impacts than the development allowed without the transfer. The second fixed
standard requires that the transfer not result in greater intensity of land use than the
developmerit,allowed without the transfer.
WHEREAS, Guidelines Section 15369 of the California Environmental Quality
Act ( "CEQA') defines the term "ministerial" as "a governmental decision involving little or
no personal judgment by the public official as to the wisdom or manner of carrying out
the project. The public official merely applies the law to the facts as presented but uses
no special discretion or judgment in reaching a decision..
WHEREAS, the transfer of development rights in the North Newport Center
Planned Community is a ministerial action under CEQA because it only involves
application of fixed standards.
WHEREAS, the City Council considered the application at a public meeting on
January 26, 2010, in the City Hall Council Chambers, 3300 Newport Boulevard,
Newport Beach, California, at which time the City Council considered the transfer of
development rights and the traffic analysis.
WHEREAS, the City Council recognizes that judicial challenges to the City's
CEQA determinations and approvals of land use projects are costly and time
consuming. In addition, project opponents often seek an award of attorneys' fees in
such challenges. As project applicants are the primary beneficiaries of such approvals,
it is appropriate that such applicants should bear the expense of defending against any
such judicial challenge, and bear the responsibility for any costs, attorneys' fees, and
damages which may be awarded to a successful challenger.
WHEREAS, the City Council finds that:
(1) Consistent with General Plan Policy LU 6.14.3 and the North Newport
Center Planned Community Development Plan, the transfer of
development rights will not result in any adverse traffic impacts, as
documented in the traffic study.
(2) Consistent with General Plan Policy LU 6.14.3 and the North Newport
Center Planned Community Development Plan, the transfer of
development rights will not result in greater intensity than that which is
allowed without the transfer, and is consistent with the intent of the
General Plan.
(3) The transfer of development rights satisfies the two fixed standards
provided in the North Newport Center Planned Community Development
because it will not result in any adverse traffic impacts than the
development allowed without the transfer, and it will not result in greater
intensity of land use .than the development allowed without the transfer.
Since the transfer satisfies the two fixed standards, approval is a
.'governmental decision involving little or no personal judgment' and is a
ministerial action under CEQA. A ministerial action is exempt from
CEQA's environmental review requirements. Cal. Pub. Res. Code §
21080(b)(1); Cal. Code Regs. tit. 14, § 15268. The transfer of
development rights is therefore exempt from CEQA.
NOW, THEREFORE, BE IT RESOLVED that the City Council approves the
transfer of development rights (TD 2009 -002, PA 2009 -159), based on the weight of the
evidence in the administrative record, including the traffic study.
PASSED AND ADOPTED on the 26th day of January, 2010.
MAYOR
ATTEST:
CITY CLERK
i
. .
STATE OF CALIFORNIA }
COUNTY OF ORANGE ) as.
CITY OF NEWPORT BEACH }
I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby
certify that the whole number of members of the City Council is seven; that the foregoing resolution,
being Resolution No. 2010 -15 was duly and regularly introduced before and adopted by the City
Council of said City at a regular meeting of said Council, duly and regularly held on the 26th day of
January, 2010, and that the same was so passed and adopted by the following vote, to wit:
Ayes: Selich, Rosansky, Henn, Webb, Gardner, Daigle, Mayor Curry
Noes: None
Absent: None
Abstain: None
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the
official seal of said City this 27th day of January, 2010.
Q am'—
City Clerk
Newport Beach, California
(Seal)
Attachment B
Gly_o_�ary 0 5eeo:7ran Kioek Brip3e Proposed Toll Map — Spur o Mrrr4ro 151om
O Sreae TfaJ WOSk 59^ — BOecNTr3R27mQf&wrr Pueac Srarnatk
A Vren9arp BMpe TMII t 05MM 59km Ca5loeem FdS la 1. Qo1:1s
D U D E K Buck Gully Reserve - Resource & Recreation Management Plan FIGURE
Foe, �
O 9
a Tay 1400 Proposed Trails Map
91W Otbbtl PatNW�Oty
11'b l!'vtltby4M
Altldvacros
Attachment C
NPB Draft Signs /Gates /Bridges
RECREATION ENTRY GATE
FOUR BRIDGES
Open Daily
7:00 am to Sunset
PlensP stn, on deelgnnlea Vnds m+ly
VWtwww.l,bPa�w¢
ofe (N)S 757
F B
O O
U B
R C
B T+
R C1
I
D on Leash omy
G
E
S
I I I
FILE COPY
Buck Gully Open Space Reserve
MANAGEMENT AGREEMENT
between
THE CITY OF NEWPORT BEACH
and
IRVINE RANCH CONSERVANCY
EFFECTIVE: March 1, 2008
ARTICLE II TERM OF AGREEMENT 4
2.1 Initial Term 4
2.2 Option to Extend 4
ARTICLE III
TABLE OF CONTENTS
3.1
Fees 4
3.2
Page
ARTICLE I
MANAGEMENT SERVICES
1
1.1
Management Engagement
1
1.2
Standards of Performance
2
1.3
Manager's Project Director; Manager's Agents
2
1.4
Professional Work Product
3
ARTICLE II TERM OF AGREEMENT 4
2.1 Initial Term 4
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 4
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 6
4.4
Compliance with Laws and Agreements 7
4.5
Employees 8
4.6
Legal Action 8
4.7
Approval of Collateral Materials 8
4.8
Ownership of Improvements 8
4.9
Additional Land 8
4.10
City's Rights Reserved 9
ARTICLE V INSURANCE 9
5.1 Insurance Types 9
ARTICLE VI
INDEMNIFICATION
10
6.1
Indemnification by Manager
10
6.2
Indemnification by City
10
6.3
General
10
6.4
Indemnification of Manager and City by Visitors
10
ARTICLE VII LIENS 11
ARTICLE VIII TERMINATION 11
8.1 Termination without Cause 11
8.2 Termination for Cause 11
8.3 Obligations Upon Termination 12
ARTICLE IX
GENERAL PROVISIONS
9.1
Independent Contractor
9.2
Subcontracting
9.3
Notices
9.4
Waiver of Jury Trial
9.5
Mediation
9.6
Records
9.7
Assignment
9.8
Amendments and Written Consents
9.9
Counterparts
9.10
Governing Law
9.11
Remedies Cumulative
9.12
Nonwaiver
9.13
Severability
9.14
No Third -Party Beneficiaries
9.15
Incorporation of Exhibits
9.16
Oral Agreements
9.17
Approvals
9.18
Press Releases and Press Relations
9.19
Authorization
9.20
Time
9.21
Nonliability of Officials and Employees
9.22
Conflicts of Interest
9.23
Equal Opportunity Employment
9.24
Entire Agreement
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
13
13
13
13
13
14
14
14
14
14
14
14
15
15
15
15
15
15
15
16
16
16
16
16
16
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the " Agreemenf') is made and entered
into effective as of March 1, 2008 (the "Effective Date ") by and between the CITY OF
NEWPORT BEACH, a California municipal corporation ( "City'), and the IRVINE RANCH
CONSERVANCY, a California nonprofit corporation ( "Manager").
RECITALS
A. City owns an open space parcel of land of approximately 342 acres located within the
City of Newport Beach known as "Buck Gully" which is part of the Orange County Central Coast
Natural Communities Conservation Plan ( "NCCP ") Reserve and is depicted on Exhibit A
attached hereto (the "Managed Lands ").
B. City desires to provide public access to the Managed Lands while protecting the natural
and biotic resources therein, and desires to retain a manager to (i) assist in the development
and implementation of plans and policies regarding the provision of such access, the long -term
protection of natural resources, the performance of habitat restoration and other matters relating
to the operation of the Managed Lands and trail systems located therein, and (ii) manage and
administer the Managed Lands in accordance with the policies adopted by City for the operation
of such property.
C. City also desires Manager to oversee the preparation of a comprehensive Resource and
Recreational Management Plan ( "RRMP ") for the Managed Lands for City, which will include
recommendations for long -term habitat restoration, maintenance and public access. in addition,
City desires Manager to prepare a proposed capital program (for restoration and public access)
for the City's review and approval.
D. Manager is a nonprofit entity engaged in, among other things, preserving, restoring and
managing natural resources and providing public access and educational programs on the
Nature Reserve of Orange County in Orange County, California. The Buck Gully Open Space
Reserve is included in the Nature Reserve of Orange County.
E. City and its City Council desire to retain full control over all major policy decisions
involving the Managed Lands, and seek to retain Manager to serve as a consultant and
contractor to City 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:
LT-4111Ly11114
MANAGEMENT SERVICES
1.1 Management Engagement.
(a) City hereby engages Manager to perform, for all of the Managed
Lands, the management services identified on - EExhibit B attached hereto (the "Basic
Management Services'), together with any additional services as agreed to from time to time
pursuant to Section 4.3 below (the "Additional Management Services "). The Basic
Management Services and Additional Management Services are collectively referred to herein
as the "Management Services" Manager agrees to perform the Management Services
commencing on the Commencement Date specified in Section 2.1 below, all in accordance with
and subject to the terms and conditions of this Agreement.
(b) City hereby designates the City Manager or the City Manager's
designee to represent City as its agent ( "City's Agent') under this Agreement. All written
communications given to or by such representative under this Agreement shall be deemed as
given to or by City. City may change City's Agent at any time and from time to time by delivery
of written notice to Manager.
1.2 Standards of Performance. Manager and City acknowledge that they are
entering into this Agreement in good faith. Each party agrees to use its reasonable efforts, skill
and judgment in all matters arising under this Agreement, and to cooperate in good faith with
the other party. Manager agrees to perform its duties and obligations in an efficient, expeditious
and professional manner, consistent with the terms and provisions of Article V below and the
parameters of the scope of Management Services.
1.3 Managers Project Director; Manager's Agents.
(a) Manager hereby designates its Executive Director as its project
director under this Agreement (the "Project Director"). Manager hereby designates its Senior
Field Ecologist as project manager responsible to represent Manager as its agent for the day -to-
day provision of the Management Services (the "Project Manager"). All written
communications given to or by the Project Manager with respect to such day -to -day operation of
the Managed Lands pursuant to this Agreement shall be deemed given to or by Manager.
Amendments to this Agreement, including but not limited to modifications of the Management
Services or any Exhibit hereto, shall require the written approval of the Project Director, it being
understood that the Project Manager does not have the power to make such decisions. The
Project Director and Project Manager may be changed from time to time by Manager; provided,
however, that Manager shall consult in good faith with City prior to any replacement of the
Project Manager_ In the event that City notifies Manager that any of its personnel assigned to
the performance of services under this Agreement are not meeting appropriate standards of
conduct or have committed any acts of misconduct, Manager shall take such action as it deems
appropriate with regard to such personnel, up to and including, their removal from the Project.
(b) Manager may either retain employees or subcontract with others
to perform all or a portion of the Management Services. Manager shall be solely responsible for
hiring, supervising, paying the wages of and training all of Manager's officers, directors,
employees, staff members, consultants, volunteers, agents, suppliers, contractors,
subcontractors, representatives, and all other persons acting by or through any of the foregoing
(collectively, "Manager's Agents ") in performing the Management Services. Manager shall at
all times exercise reasonable care and diligence to ensure that Manager's Agents perform their
respective obligations hereunder or under their respective contract in a competent and
professional manner. Manager shall be responsible to City and third parties for the acts and
omissions of Manager's Agents. The term "Manager's Agents" shall not, however, include any
member of the general public present on the Managed Lands for any purpose, including without
limitation, for the purpose of attending or participating in a guided tour or other open public
access program included in the Management Services.
(c) Manager shall from time to time have field personnel on the
Managed Lands as part of the Management Services. Manager's field personnel are not
intended to, and shall not, provide police, security, crime prevention or similar services. All such
services shall at all times remain the sole responsibility of the City of Newport Beach Police
Department and the personnel retained by such Police Department (the "Police Department').
Neither the Police Department nor any of its employees, agents or contractors shall be
Manager's Agents for any purposes whatsoever under this Agreement, nor shall Manager be
responsible to any extent for supervising the Police Department or any of its employees, agents
or contractors. Manager shall have no responsibility whatsoever for paying any compensation or
for providing any facilities, insurance or any other benefits to the Police Department or any of its
employees, agents or contractors. Manager's Agents shall have no responsibility whatsoever for
providing police, security, crime prevention or similar services, other than to report any
suspicious activity they observe on the Managed Lands to the Police Department or to other
appropriate authorities. Manager's Agents shall not interfere with the activities carried out by
the Police Department on the Managed Lands.
1.4 Professional Work Product
(a) All work product generated by Manager pursuant to this
Agreement shall be the joint property of City and Manager. For purposes of this Agreement, the
term "work product' shall mean any and all draft and final reports, studies and plans, including
but not limited to all drawings, graphics and other materials that are part of such reports or
plans. Manager shall furnish City duplicates of all work product upon request. Neither party
shall attribute any work product to the other party without the other party's prior consent.
Neither party shall unreasonably withhold or delay its consent under this Section.
(b) The parties agree that public access to and use of the Managed
Lands shall be provided under the name and auspices of the "Buck Gully Nature Preserve."
City agrees that Manager may develop and provide educational, promotional, or advisory
materials that include the Managed Lands within materials associating the Managed Lands with
areas like the wildlands and parks of the historic Irvine Ranch and /or the Nature Reserve of
Orange County ( "NROC "), but that such materials will always refer to the Managed Lands as
"The Buck Gully Nature Preserve, owned by the City of Newport Beach and managed by the
Irvine Ranch Conservancy." City acknowledges that Manager owns, or has been granted the
right to use, certain marks and various versions of Manager's logo used by Manager. City
further recognizes and acknowledges the ownership (or right to use) of such marks by Manager
and the validity of those marks and every registration thereof, and shall not at any time use, nor
permit the use of, any such marks, or of Manager's name, logo or any other property of
Manager in connection with any materials, advertising, product or service of any kind (other than
the use of Manager's name in records, correspondence or other writings simply in order to refer
to or report on this Agreement, Manager or Manager's role with respect to the Managed Lands)
without the explicit prior written consent of Manager. Manager hereby explicitly consents to the
non - exclusive, nontransferable use of such marks by City, in the forms and styles approved by
Manager, in connection with the promotion of the Managed Lands for open space use during
the term of this Agreement. City hereby acquires no right, title, interest or claim of ownership in
or to the marks, except as expressly granted herein. City hereby grants Manager non-
exclusive, nontransferable use of the City logo in connection with promotion of activities on the
Managed Lands for the term of this Agreement.
ARTICLE II
TERM OF AGREEMENT
2.1 Initial Term. The initial term of this Agreement (the "Term ") shall
commence on March 1, 2008 (the "Effective Date "), and shall continue until midnight on
February 28, 2018, unless sooner terminated as provided in Article VIII.
2.2 Option to Extend. Subject to the provisions of this Section 2.2, City shall
have the option to extend the Term of this Agreement for an additional ten (10) years by
providing written notice to Manager of City's intention to extend on or before January 1, 2016.
Upon receipt of such notice, City and Manager shall commence negotiations as to any changes
to this Agreement that will be applicable during the extended term, and shall complete such
negotiations on or before July 1, 2016. If the parties are unable to agree on the terms
applicable during the proposed extension, then this Agreement shall terminate on the expiration
date specified in Section 2.1 above without any further action by either party.
ARTICLE III
MANAGER'S COMPENSATION
3.1 Fees. Manager shall be paid an annual management fee as follows: (a)
with respect to the first year of this Agreement from the Effective Date through December 31,
2008 (the RRMP's development phase), One Hundred Fifty -Eight Thousand Six Hundred
Twenty Five Dollars ($158,625), and (b) with respect to each fiscal year commencing January 1,
2009 (RRMP Implementation Phase), Two Hundred Three Thousand Four Hundred Twenty -
Five Dollars ($203,425), as, in all cases, adjusted in accordance with the following provisions of
this Article (the "Management Fee"). This Management Fee includes Manager's indirect costs
of 25 %.
3.2 Annual Adjustments. Commencing on January 1, 2009 and continuing
through the end of the term, the then current Management Fee shall be adjusted on an annual
basis on January 1 of each remaining year of the Term as follows: The then current
Management Fee shall be increased on January 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 tabor Statistics (the "Inda') 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 April 1, 2008.
3.4 Other Adjustments to Management Fee. In addition to changes in the
Management Fee as a result of annual adjustments as described in Section 3.2 above, the
Management Fee may be adjusted:
(a) Based upon changes in the scope of the Management Services as
provided in Section 4.3 below; or
(b) Due to increases in costs of providing the Management Services
in excess of the greater of the increase in the Consumer Price Index described in Section 3.2 or
three percent (3 %), if and as approved by the City Council. Manager may at any time prepare a
request for such an increase in the Management Fee, in form and substance approved by City's
Agent, whereupon it shall be the obligation of the City Council to act upon such request within
sixty (60) days from the date such request was submitted by Manager.
In the event of any adjustment to the Management Fee, the adjusted Management Fee will be
considered the Management Fee for the next scheduled annual adjustment made in accordance
with Section 3.2.
3.5 Reimbursable Expenses. In addition to the Management Fee, Manager
shall be reimbursed for all of its reasonable costs and expenses incurred in performing services,
if any, beyond the Management Services as authorized by City's Agent in writing. However,
Manager shall be solely responsible for paying the cost of all Consultant(s) who will be hired to
prepare the initial RRMP as described herein, and this cost shall not be subject to
reimbursement.
3.6 Payment Upon Termination. In the event of termination of this Agreement
prior to the expiration date in Section 2.1 above, Manager shall be entitled to that portion of the
Management Fee earned to the date of termination. If the termination is effective on a day other
than the last day of a calendar quarter, the quarterly payment will be prorated based on the
basis of a ninety -one -day calendar quarter. In addition, Manager shall be entitled to all other
amounts owing to Manager as specified in Section 8.3 (a) below.
ARTICLE IV
SCOPE OF SERVICES
4.1 Duties of Manager. Manager shall provide the Management Services in
an efficient and professional manner in accordance with the terms, conditions and standards set
forth in this Article. City shall provide Manager with any additional documentation reasonably
necessary to establish Manager's authority to act as required hereunder. Manager shall perform
all Management Services in a prompt and diligent manner in accordance with recognized
standards of the open space reserve management industry and in compliance with such
standards and practices as are prevalent in the geographic area where the Managed Lands are
located. Management Services include light, routine custodial service resulting from everyday
regular, authorized use of the Managed Lands. Management Services do not include heavy
maintenance and repairs or restoration due to 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 (301h) 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. Manager agrees to work closely and
cooperate fully with the City's Agent in performance of the services to be provided hereunder.
Manager is responsible for keeping the City Manager or his /her duly authorized designee
informed on a regular basis regarding the status and progress of the Project, activities
performed and planned, and any meetings that have been scheduled or are desired.
4.3 Modification of Management Services. At the meetings between City and
Manager described in Section 4.2 above, the parties shall discuss, among other things, whether
the scope of the Management Services should be changed. Any such changes to the scope of
Management Services may be made only upon mutual agreement of the City Council 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 specific work (type, location, duration, etc.) in the Managed
Lands which City desires to have Manager perform, and Manager shall thereafter determine
and provide in writing to City the cost (time and materials plus overhead) to perform such work.
Upon approval by the City Council 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:
(1) Increases in Management Services. City and Manager
anticipate that the results of the Resource and Recreation Management Plan prepared for the
City with the assistance of Manager as described in Exhibit B (Basic Management Services)
may result in an increase to Management Services. In the event this or any other proposed
modification increases the Management Services, the Requesting Party shall describe in the
Modification Notice such requested additional services and set forth the proposed increase in
the Management Fee to cover such additional services. The Other Party shall notify the
Requesting Party in writing within the Permitted Time (defined below) after receipt of the
Modification Notice whether the Other Party accepts or rejects such proposed modification, and
the Parties shall thereafter respond back and forth to one another's proposals in writing, in each
case within the Permitted Time. If the Parties reach mutual agreement, Manager shall prepare
for execution an amendment to this Agreement setting forth the details of the agreed
modification. Upon approval of such amendment, City shall promptly execute and return one (1)
original of such amendment to Manager.
(ii) Decreases in Management Services. In the event a
proposed modification decreases the Management Services, the Requesting Party shall
describe in the Modification Notice the services to be deleted and the amount by which the
Management Fee is proposed to be decreased, if any, to reflect such deletion. City and
Manager shall follow the procedures set forth in Section 4.3(a) concerning the acceptance or
rejection of such proposed modification and the preparation of an amendment reflecting such
mutually agreed modification.
(c) Permitted Time. For purposes of this Section 4.3, City shall have
forty -five (45) calendar days to respond to Manager's proposals, while Manager shall have
twenty (20) calendar days to respond to City's proposals (in either case, the "Permitted Time ").
4.4 Compliance with Laws and Agreements.
(a) Manager shall comply with all federal, state and local laws,
ordinances, regulations, permits and orders now in force or enacted or promulgated hereafter
(individually, a "Laid'; collectively, "Laws ") that are related to the performance of the
Management Services, including without limitation, (i) the Natural Communities Conservation
Plan ( "NCCP') implemented among City and local governments and various natural resource
agencies to protect various plant and wildlife communities, (ii) the Federal Endangered Species
Act, (iii) the California Endangered Species Act, and (iv) any law (in each case, a "Hazardous
Materials LaW') concerning wastes, materials, chemicals or other substances (whether in the
form of liquids, solids or gases, and whether or not airborne) that are ignitable, reactive,
corrosive, toxic or radioactive, or that are deemed to be pollutants, contaminants or hazardous
or toxic substances under or pursuant to any law, or that are to any extent regulated by, form
the basis of liability under or are otherwise under the authority of any Law (in each case, a
"Hazardous Material").
(b) Manager shall not do anything that may cause any portion of the
Managed Lands to be in violation of any Law. Manager shall use its best efforts to notify City
promptly of any suspected violation of any Law with respect to the Managed Lands owned by
City of which it becomes aware, it being understood that Manager has no obligation to research
any such matters or investigate to discover any such suspected violations, or to provide City
with any form of legal advice, and that the intent of this provision is to ensure that Manager
informs City of suspected violations of Laws with respect to Managed Lands owned by City of
which Manager actually becomes aware.
(c) Manager acknowledges that City may apply for state, federal and
other grants that may be applied towards the costs of preserving and operating the Managed
Lands (the "Grants"). Manager agrees that City's pursuit of these grants is entirely at City's
discretion and not subject to the approval of Manager. In the event City obtains any of the
Grants, City shall promptly provide Manager with copies of any guidelines and restrictions
associated therewith that relate to the use, operation, or preservation of the Managed Lands
(the "Grant Restrictions "), and Manager shall use its best efforts to comply with the Grant
Restrictions.
(d) Nothing in this agreement shall be construed to create in or give to
Manager: (1) the obligations or liabilities or an "owner" or "operator" as those words are defined
and used in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (42 US Code Sections 9601 et seq.) or any other Hazardous Materials Law,
including (but not limited to) the Hazardous Materials Transportation Act (49 US Code
Sections6901 et seq.); the Hazardous Waste Control Law (California Health & Safety Code
Sections 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety
Code Sections 25300 et seq.); and any rule regulation or other promulgation adopted under any
7
of the foregoing; (2) the obligations and liabilities of a person described in 42 USC §9607(a)(3);
(3) the obligations of a responsible person under any applicable Hazardous Materials Law; (4)
any obligation, right or permission to investigate, remove, remediate, abate or otherwise clean
up any Hazardous Materials located at or associated with the Managed Lands; or (5) control
over, or any obligation to participate in, the investigation, removal, remediation, abatement or
other clean up of Hazardous Materials in compliance with any Hazardous Materials Law, except
to the extent that the condition was actually caused by Manager or Manager's Agents.
4.5 Employees. Subject to City's rights under Section 1.3 (a), all matters
pertaining to the employment, supervision, compensation, promotion and discharge of
Manager's Agents shall be the responsibility of Manager. Manager shall comply with all
applicable governmental requirements relating to workers' compensation, social security,
unemployment insurance, hours of labor, wages, working conditions and other employer -
employee related matters.
4.6 Legal Action. Manager shall not, in connection with its obligations under
this Agreement, be called upon to, and shall not retain legal counsel to render legal advice or
institute any legal proceedings (including, without limitation, arbitration, judicial reference and
settlement negotiations) on behalf of City.
4.7 Approval of Collateral Materials. (a) 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 "):
(i) Shall include the City's logo and also the words "The Buck
Gully Nature Preserve, owned by the City of Newport Beach and managed by the Irvine Ranch
Conservancy" in all Collateral Materials which reference exclusively the Managed Lands, and in
other Collateral Materials as appropriate, and
(ii) May reference the Managed Lands as part of the wildlands
and parks of the historic Irvine Ranch and/or the Nature Reserve of Orange County ( "NROC ");
and
(ill) Shall 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; and
(iv) Signs and interpretive elements of the Resource and
Recreation Management Plan shall be subject to the mutual approval of City Council and
Manager and shall comply with all applicable laws.
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 Council
8
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
Council and Manager mutually agree pursuant to the procedure in Section 4.3 above. To that
end, if City Council 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.
(c) Manager and City acknowledge that nothing in this agreement
authorizes the Manager to administer lands outside of the Managed Lands without an action of
City Council. In the future, if the City Council authorizes the Manager to manage City -owned
lands outside the Managed Lands described in this Agreement, this authorization shall be done
via a separate agreement to specifically address the City's needs for management of the new
parcel.
4.10 City's Rights Reserved.
(a) Nothing in this Agreement is intended or shall be deemed to
restrict the City's full control over and use of the Managed Lands subject to the terms of the
Orange County Central /Coastal Natural Communities Conservation Plan and Implementation
Agreement 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.
(b) Nothing in this Agreement is intended to or shall be deemed to
restrict the City's right, subject to the terms of the Orange County Central /Coastal Natural
Communities Conservation Plan and Implementation Agreement, to determine the style,
manner, type or location of public improvements or access points, including but not limited to
trails, benches, shade structures, or trailheads.
(c) Nothing in this Agreement is intended to or shall be deemed to
restrict the City's right, subject to the terms of the Orange County Central /Coastal Natural
Communities Conservation Plan and Implementation Agreement, to determine the location, type
and manner of runoff reduction, erosion, or water quality protective measures in and around the
Managed Lands.
ARTICLE V
INSURANCE
5.1 Insurance Types. Manager shall not commence any work until all
necessary insurance is obtained by Manager, at Manager's sole cost and expense. Manager
will retain insurance consistent with the City's requirements as stated by the City's Risk
Manager. The City's Risk Manager may, at each option period, require Manager to increase the
dollar amounts for coverage in the same manner and amount that the preponderance of the
City's other management contracts are increased.
ARTICLE VI
INDEMNIFICATION
6.1 Indemnification by Manager. Manager agrees to indemnify, hold
harmless and defend City, and each of its elected and appointed officials and representatives,
employees and agents, and each of the successors and assigns of such parties (collectively,
the "City Parties') from and against any and all of the following: claims, costs, liabilities,
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 Cif. City agrees to indemnify, hold harmless and
defend Manager, each of Manager's directors, officers, employees and agents, and each of the
successors and assigns of such parties (collectively, the "Manager Parties "), from and against
any and all Claims that any of the Manager Parties may suffer or incur, or to which any of the
Manager Parties may be subjected, to the extent such Claims are the result of or arise out of (i)
any entry on the Managed Lands by the general public in connection with the Management
Services, except to the extent such Claims are the result of or arise out of conduct covered by
Manager's indemnification in subsections 6.1(i) or 6.1(iii) above, (ii) any breach or violation of
the terms of this Agreement by City or by anyone acting for or under the authority of City, (iii)
any other activity of City or any of the City Parties on, at or with respect to the Managed Lands,
or (iv) the negligence or willful misconduct of City or any of City's Parties relating to the
Managed Lands.
6.3 General. The foregoing indemnities and obligations to hold harmless
and defend are intended to apply with respect to all Claims incurred directly by the indemnified
party or parties, or their property, as well as by third parties or the indemnifying party. The
foregoing obligation to defend Manager and the Manager Parties shall mean the obligation to
defend with counsel reasonably approved in writing by Manager. Likewise, the foregoing
obligation to defend City and the City Parties shall mean the obligation to defend with counsel
reasonably approved in writing by City. Neither payment nor a finding of liability or of an
obligation to defend shall be a condition precedent to the enforcement of any indemnity or duty
to defend provision herein.
6.4 Indemnification of Manager and City y Visitors. Manager and City shall
use their best efforts to ensure that persons visiting the Managed Lands shall sign liability
waiver forms approved by the Manager and City in advance of any use of the Managed Lands.
10
ARTICLE VII
LIENS
Manager shall not suffer or permit to be enforced against the Managed Lands, or
any part thereof, any mechanics', laborers', materialmen's, contractors or any other liens arising
from or any claims for damages growing out of any work of construction performed by or caused
to be performed by Manager in connection with the performance of The Management Services.
Manager shall pay or cause to be paid all of said liens, claims and demands before any action is
brought to enforce the same against the Managed Lands. City shall have the right at any time
to post and maintain on the Managed Lands, or any part thereof, such Notices of Non -
responsibility as desired by City or as may be provided by law. Notwithstanding anything to the
contrary contained herein, if Manager shall in good faith contest the validity of any such lien,
claim or demand, then Manager shall, at its expense, defend itself and City against the same
and shall pay and satisfy any adverse judgment that may be rendered thereon before the
enforcement thereof against the Managed Lands. If City shall require, Manager shall provide to
City a surety bond satisfactory to City in an amount equal to such contested lien, claim or
demand indemnifying City against liability for same, or if City shall request, Manager shall
procure and record the bond provided for in the California Civil Code, or any comparable statute
hereafter enacted, providing for a bond freeing the Managed Lands from the effect of such lien
or claim or action thereon. Notwithstanding the above, Manager shall have no obligation with
respect to any of the foregoing to the extent any such lien, claim or other proceeding arises
directly out of City's acts or omissions or a failure by City to make payments to Manager as
provided in this Agreement (except in circumstances where City has contested in good faith
such payment, in which case Manager shall remain obligated as provided in this sentence
pending resolution of such dispute).
ARTICLE VIII
TERMINATION
8.1 Termination Without Cause.
(a) Either party may, for any reason and without cause, terminate this
Agreement effective as of January 1, 2009, by giving written notice of such termination to the
other party on or before October 1, 2008. Failure of either party to so give a written termination
notice by October 1, 2008, shall be deemed the election by such party to waive such early
termination right.
(b) Either party may, for any reason and without cause, terminate this
Agreement effective as of any day after January 1, 2009, by giving written notice of such
termination to the other party at least one hundred and eighty (180) days prior to such effective
date.
8.2 Termination for Cause.
(a) Either party may terminate this Agreement for cause by written
notice to the other party (the "Termination Notice'). The acts or omissions that shall entitle a
panty to terminate this Agreement are:
(i) 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
I
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.
(ii) In the case of City: (1) 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 parry within thirty (30) days of receiving the
Termination Notice shall have both notified the other party in writing of the defaulting party's
plan of action to cure such default and initiated all necessary action to cure such default and
within sixty (60) days of the Termination Notice shall have completed all such action.
(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:
(i) 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);
(ii) All records, contracts, agreements, keys, correspondence
files and other papers or documents that pertain to the Managed Lands; and
(iii) A Progress Report (whether or not then due), covering the
period from the end of the previous quarterly Progress Report to the termination date.
12
ARTICLE IX
GENERAL PROVISIONS
9.1 Indeoendent 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 Subcontracting. City and Manager agree that subconsultants may be
used to complete the work outlined in the Management Services. Manager shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement
shall create any contractual relationship between City and subcontractor nor shall it create any
obligation on the part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. The City is an intended beneficiary of
any work performed by the subcontractor for purposes of establishing a duty of care between
the subcontractor and the City. Except as specifically authorized herein, the services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted or
subcontracted out without the prior written approval of City.
9.3 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 Conservancy
4727 Portola
Irvine, CA 92602
Attention: Executive Director
If to City at:
City of Newport Beach
3300 Newport Boulevard
P.O. Box 1768
Newport Beach, CA 92658 -8915
Attention: Assistant City Manager
Any such notice sent by registered or certified mail, return receipt requested, shall be deemed to
have been duly given and received seventy -two (72) hours after the same is so addressed and
mailed in the State of California with postage prepaid. Notices delivered by overnight service
shall be deemed to have been given twenty -four (24) hours after delivery of the same, charges
prepaid, to the courier. Any notice or other document sent by any other manner shall be
effective only upon actual receipt thereof. Any party may change its address for purposes of this
Section by giving notice to the other party as herein provided.
9.4 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
13
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 Records. Manager shall keep records and invoices in connection with the
work to be performed under this Agreement. Manager shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any services, expenditures
and disbursements charged to City, for a minimum period of three (3) years, or for any longer
period required by law, from the date of final payment to Manager under this Agreement. All
such records and invoices shall be clearly identifiable. Manager shall allow an official
representative of City to examine and make transcripts or copies of such records and invoices
during regular business hours with three business days advance notice, and to audit such
records and invoices for the sole purpose of determining compliance with the contract terms.
Manager shall allow inspection of all work, data, documents, proceedings and activities related
to the Agreement for a period of three (3) years from the date of final payment to Manager
under this Agreement.
9.7 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 a portion of
the Management Services, funded within the approved budget.
9.8 Amendments and Written Consents. All amendments to the terms of this
Agreement shall be in writing and executed by the City Council and Manager, and approved as
to form by the City Attorney.
9.9 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.
9.10 Governing Law. This Agreement is executed and shall be governed by
and construed in accordance with the laws of the State of California. Any action brought
relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County
of Orange.
9.11 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
14
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.
9.12 Nonwaiver. The failure of a party to notify the other party of any default
under this Agreement shall not be deemed to be a waiver by such non - defaulting party of any
continuing default by the defaulting party of any term, covenant or condition set forth in this
Agreement, nor of the non - defaulting party's right to declare a default for any such continuing
breach. The failure of a non - defaulting party to insist upon strict performance of any of the
terms, covenants or conditions of this Agreement, or to exercise any option in this Agreement in
any one or more instances, shall not be construed as a waiver or relinquishment of any such
terms, covenants, conditions or options, but the same shall be and remain in full force and
effect.
9.13 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.
9.14 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.
9.15 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
9.16 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.
9.17 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.
9.18 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
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 to coordinate statements
and communications. 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 a reasonable amount of time 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.
15
9.19 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.
9.20 Time. Time is of the essence of this Agreement and each provision
hereof of which time is an element.
9.21 Nonliabilily 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.
9.22 Conflicts of Interest. The Manager or its employees may be subject to the
provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose any financial interest that may foreseeably be materially affected by the
work performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest. If subject
to the Act, Manager shall conform to all requirements of the Act. Failure to do so constitutes a
material breach and is grounds for immediate termination of this Agreement by City. Manager
shall indemnify and hold harmless City for any and all claims for damages resulting from
Manager's violation of this subsection.
9.23 Equal Opportunity Employment. Manager represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee or
applicant for employment because of race, religion, color, national origin, handicap, ancestry,
sex or age.
9.24 Entire Agreement. This Agreement and the Exhibits attached hereto
comprise the entire agreement of the parties with respect to the transaction described herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
[SIGNATURES ON FOLLOWING PAGE]
16
"City'
CITY OF NEWPORT BEACH,
a California nicipal corporation
By:
ward D. ich
"Manager"
IRVINE RANCH CONSERVANCY,
a California nonprofit corporation
By:
Michael O'Connell
President & Executive Director
Mayor h �
By:
Mary Westbrook
Secretary
ATTEST:
By: Ai�ll'lft�"lv
y Clerk
APP VEDAS TO FORM:
By:
Robin Clauson
City Attorney
1A
F:users/CATIShared /AG /Huck Gullyl- 3 -04 -08 Buck Gully - City -IRC Management Agreement.doc
17
we �
� 1 " � 7 ti'�yA. \ :i; "hU 7 r �•1 1 7 r µ'{i,'t
A5 4
S
Exhibit B
Basic Management Services
Year 1 (January 1. 2008 — December 31, 2008
Resource Planning Focus:
Manager will develop a detailed knowledge of the Managed Lands' natural systems and the many challenges of the surrounding
urban interface to plan for its long -term management, restoration and public enjoyment. To develop such knowledge, Manager
will collect, organize and evaluate existing resource data with respect to the Managed Lands. Information on historic and current
habitats, as well as planned land uses directly and indirectly impacting the Lands, will be obtained from The Irvine Company LLC,
City, the County of Orange, and the Nature Reserve of Orange County ( "NROC "), and will include previous NCCP data as made
available to Manager by these and other sources.
Manager, with the approval of City, will subcontract with a qualified consultant or consultants ( "Consultant ") to assist in
preparation of a comprehensive Resource and Recreational Management Plan for the Managed Lands including collection and
organization of the data described above ( "RRMP ") according to the terms and criteria of the NCCP. The Manager shall
determine the contract scope of work for the Consultant at its sole discretion, and shall pay the full cost of the Consultant, and City
shall be deemed to have compensated Manager for this cost as part of the payment of the annual Management Fee. 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 Feld surveys. Because the RRMP
must be approved by state and federal wildlife regulatory agencies, Manager will coordinate the consultation and involvement of
such agencies in the planning process and will assist City in submittal of the City- approved draft to the NROC and the applicable
state and federal wildlife regulatory agencies for review and approval.
City will create a Stakeholder Advisory Group that City shall convene as needed to provide input to City and Manager in
completing and implementing the RRMP. Manager shall participate in Stakeholder Advisory Group meetings to the extent
needed. City and Manager understand that this RRMP is being developed to comply with the requirements of NCCP and to fulfill
the City's desires for resource management and public access. The Stakeholder Advisory Group will therefore provide valuable
input to the process of RRMP preparation but is not an approval body for the RRMP.
B -1
Year 2 and Subsequent Years (January 1. 2009 and thereafter)
Resource Planning Focus:
Manager will continue with the coordination and provision of support services in the completion and approval of the City's RRMP.
After approval of the RRMP and based on the long -term habitat restoration, maintenance and public access recommendations set
forth in the approved RRMP, City, with the assistance of Manager, will establish implementation priorities based on the RRMP. As
part of this process, Manager will submit a capital program (restoration and public access) for City's review and approval by
January 1, 2009. The capital program will address components of stewardship and public access (including trails and facilities) as
identified by the RRMP.
Resource Management Services:
Manager will provide management services for the Managed Lands which will include stewardship of the Managed Lands
consistent with the approved RRMP and NCCP, and which will include field monitoring, habitat and natural resource management,
regional coordination with adjacent open space land managers, fire management (to be defined), public outreach and education,
as well as volunteer management for stewardship and public access programs as described in Schedule 1. Manager will procure,
maintain and repair vehicles and equipment associated with Manager's Basic Management Services.
Initial Resource Recovery Phase. In the initial 3 -4 years of the RRMP's implementation, the Manager and City envision that the
Manager's duties will primarily consist of habitat restoration (including the removal of invasive species), erosion control, fire /fuel
modification efforts, resource monitoring, and similar activities designed to recover the habitat value of the Managed Lands.
Public Access & Ongoing Maintenance Phase. After public access is improved and granted to the Managed Lands, the
Manager will begin the provision of light, routine custodial service resulting from everyday regular, authorized use of the Managed
Lands as follows:
Trail cleanliness: litter removal from trail areas and trash receptacles (if any) on trails;
Minor trail service, minor erosion remediation and prevention including:
• annual mowing of trail centerlines;
• installation of water bars and other erosion prevention features as required;
• identification and remediation of erosion problems as required;
• removal of invasive plant species as agreed by City and Manager on trail alignments;
Touch -up paint, service and perform minor repairs on fences, locks and gates;
Install and maintain service of trail signage, trail kiosks, trail benches, trail water troughs,
similar trail facilities purchased by City;
WE
trail shade structures, and
Open and close gates and other public facilities associated with public access program activities;
City has and will continue to have responsibility for heavy maintenance and for damage resulting from unauthorized use or events
such as storms, vandalism or malicious mischief, including:
- Trash removal from staging area and trailhead receptacles
- Storm damage cleanup and major trail rehabilitation and repair
- Major trail erosion and damage remediationlreconstruction
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
Replacelrepaint 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.
B -3
SCHEDULEI
Preserve Management Schedule of Services
YEAR 1 (January 1, 2008 — December 31, 2008)
Item Description Qty. Units Comments
Preserve Operations
1
Reserve Operations Manager
0
FTE
See Note (1)
2
Vehicle Maintenance
0
ea
Vehicle for Preserve Operations
3
Trail Gates
0
ea
Inspection, preventative maintenance, and minor repairs
4
Fences
0
If
Inspection, preventative maintenance, and minor repairs
5
Bridges — Pedestrian
0
ea
Inspection, preventative maintenance, and minor repairs
6
Trails /Fire Roads Grading
0
If
Annual preventative erosion control /minor erosion repairs
7
Trails /Fire Roads Drainage
0
If
Annual drainage and crossings maint. /contract service
8
Paved Roadways
0
sf
Annual Patch and repair & 5 year Seal
9
Restroom Maintenance
0
ea
Assumes 2 ADA leased toilets 1 x per week service
10
Trash Collection
0
ea
Assumes $50.00 x 24 collections for 1 dumpster
11
Weed Abatement at Gateways
0
ea
One application or mowing per spring per gateway
12
Field Operations Materials & Equip.
0
Is
Resource Management
13
Senior Field Ecologist
0.25
. FTE
See Note (1)
14
Vehicle Maintenance
025
ea
Vehicle for Resource Management
15
Fuel Modification
ac
as needed - time and materials per Management Agmt
16
Fire Break Maintenance
Is
as needed - time and materials per Management Agmt
17
Field Biology Assist (See Note 2)
1
Is
Preparation of Resource and Recreation Management Plan
18
Invasive Weed Control
0
Is
Annual trail- adjacent invasive weed control maintenance
19
Field Biology Materials & Equipment
0
Is
20
Field Storage
0
Is
Assumes $85 per month for (1) 8 X 20 Storage Bin
21
Field Communications
0
Is
Radios and related supplies
Public Safety
22
Public Safety /Security Personnel
0.5
Is
Assumes NBPD provided Public Safety Patrol
r
NOTES
(1) Includes .5 FTE split duties between (Reserve Management / Resource Management). Duties include
collection, organization of resource information, field assessment, consultant coordination and
stewardship and field management oversight
(2) Consultant assistance for Resource and Recreation Mgmt Plan. Some
resource surveys have already been completed under direct contract to City-
IM
Preserve Management Schedule of Services
(January 1, 2009 and Thereafter)
Item Description Qty. Units Comments
Reserve Operations
1
Reserve Operations Manager
2
Vehicle Maintenance
3
Trail Gates
4
Fences
5
Bridges - Pedestrian
6
Trails /Fire Roads Grading
7
Trails /Fire Roads Drainage
8
Paved Roadways
9
Restroom Maintenance
10
Trash Collection
11
Weed Abatement at Gateways
12 Field Ops Materials & Equip.
13 Field Office /Storage
14 Field Communications
Resource Management
15
Field Ecologist
16
Vehicle Maintenance
17
Fuel Modification
18
Fire Break Maintenance
19
Field Biology Assistance
20
Invasive Weed Control
21
Field Biology Materials & Equipmt
Public Programs (when applicable/authorized)
0.35
FTE
See Note (1) Split Duties of 1 FTE + 33% benefits
0.35
ea
Vehicle for Field Operations personnel
3
ea
Inspection, preventative maint., and minor repairs
700
If
Inspection, preventative maint., and minor repairs
5
ea
Inspection, preventative maint., and minor repairs
15000
If
Annual erosion control /minor erosion repairs
15000
If
Annual drainage /crossings maint. /contract service
14000
sf
Annual patch and repair & 5 year seal
2
ea
Assumes 2 ADA Leased toilets at 1x per week service
1
ea
Assumes 24 collections for 1 dumpster
3
ea
One application or mowing per spring per gateway
1
Is
Miscellaneous Field Equipment and Materials
1
Is
Assumes $85 per month for (1) 8 X 20 Storage Bin
1
Is
Radios and related supplies
0.4
FTE
See Note (1) Split Duties of 1 FTE + 33% benefits
0.4
ea
Vehicle for FTE Resource Management personnel
ac
TBD
Is
TBD
1
Is
See Note (2) for contract assistance
1
Is
Annual trail- adjacent invasive weed control maint.
1
Is
22
Field Naturalist
0.25
FTE
23
Vehicle Maintenance
0.25
ea
24
Program Brochure Design /Layout
1
Is
25
Program Brochure Printing
10000
ea
LM
See Note (1) Split Duties of 1 FTE + 33% benefits
Vehicle for FTE Field Ops /Ecologist/Naturalist personnel
Initial setup and re- design every 3 -5 years
2500 distributed brochures per quarter
26 Volunteer Management Expenses 1 Is See Note (3) for list of expenses
Public Safety
27 Public Safety /Security Personnel
0.5 FTE
NBPD provides Public Safety Patrol
NOTES
(1) Includes 1 FTE split duties between Reserve Management / Resource Management ]Public Programs.
Duties include light maintenance of trails, gates, fences, and bridges;
ongoing habitat management, restoration, monitoring, fire management, and invasive species control;
Includes part -time assistance and/or consulting services for field biology projects and monitoring
(2) Includes contract assistance /labor for management, monitoring and field surveys; NCCP
compliance
(3) Includes training and certification costs, annual and special event costs, food, equipment, etc.
B -7
FIRST AMENDMENT
To Management Agreement between the City of Newport Beach and
Irvine Ranch Conservancy
THIS FIRST AMENDMENT TO MANAGEMENT AGREEMENT (the "First Amendment')
is made and entered into as of July 1, 2011 by and between the City of Newport Beach,
a municipal corporation ( "City ") and the Irvine Ranch Conservancy ( "Manager "), for the
purpose of amending the written "Management Agreement' entered into between City
and Manager on March 1, 2008, (the "Agreement').
1. The Basic Management Services described in Section 1.1(a) of the Agreement, and
identified on EXHIBIT B, shall be modified as described in EXHIBIT C attached to this
First Amendment. Manager hereby confirms that the Project Director (Executive
Director) has approved such modifications to the Basic Management Services as
required by Section 1.3(a) of the Agreement.
2. Pursuant to Section 3.4(a) and consistent with Section 4.3 of the Agreement,
commencing with the first quarterly invoice on July 1, 2011, the annual Management
Fee shall be modified to $185,000 to compensate Manager for routine services
related to the oversight and maintenance of the Buck Gully Nature Preserve and
construction and maintenance of the trail system as described in EXHIBIT C.
Commencing July 1, 2011, this fee shall become the base Management Fee and
shall be subject to the annual adjustments set forth in Section 3.2 of the Agreement.
3. Except as set forth in this First Amendment, all terms, conditions, and provisions of
the Agreement are unchanged and remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to the
Agreement to be executed by their respective duly authorized agents as of the date first
set forth above.
CITY OF NEWPORT BEACH
0
Its:
Approve as t rm
1
it City Attorney
Attest:
By:
CITY CLERK
Page 1
IRVINE RANCH CONSERVANCY
M
Its: Executive Director (IRC)
an
Its: Secretary
Attachment E
EXHIBIT C
Basic Management Services:
Manager will provide management services described below (the "Basic Management
Services ") for the Managed Lands that include stewardship of the Managed Lands
consistent with the Recreation and Resource Management Plan ( "RRMP ") approved
January 6, 2010, under the Orange County Central Coastal Natural Community
Conservation Plan (the "NCCP ") to which City is a signatory and permit holder. Basic
Management Services include field monitoring, habitat and natural resource
management, regional coordination with adjacent open space land managers, assistance
with fire and fuels management, public outreach, education and recreational programs,
as well as volunteer management for stewardship and public access programs. Manager
will procure, maintain and repair vehicles and equipment at Manager's discretion
associated with the Basic Management Services.
Trail and Infrastructure Installation:
Manager will assist City in implementing a capital program of trail and infrastructure
construction and installation funded by a State Parks Grant under Proposition 84 (the
Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal
Protection Bond Act of 2006) and matched by the City, consistent with the terms and
conditions of the approved RRMP. This includes planning, construction and installation of
bridges, trail alignments, signs, kiosks and other preserve infrastructure funded by the
Grant.
Resource Management:
Manager's duties will primarily consist of removal of invasive species and habitat
restoration and similar activities designed to maintain and enhance the habitat value of
the Managed Lands; seasonal surveys for priority weeds including but not limited to
fennel, tree tobacco, artichoke thistle, garland chrysanthemum, castor bean, and pampas
grass; targeted and urgent weed removal using contracted labor as funds permit and
maximizing the use of volunteers; minor erosion control on trails, assistance with fireffuel
modification efforts by City including coordination with Newport Beach Fire Department
on maintenance of hazard reduction zones and monitoring fuel hazard reduction for
NCCP compliance and completion; natural resource monitoring under NCCP, including
servicing remote wildlife cameras and database management of wildlife and human
activity photos. Manager will compile and draft the NCCP Annual Report and Annual
Work Plan for submittal by City to the Nature Reserve of Orange County ( "NROC "), the
coordinating body for the NCCP, by the annual deadline.
Ongoing Routine Maintenance:
After the trail system and infrastructure are installed and public access is improved and
granted to the Managed Lands, Manager will begin the provision of light, routine
custodial service resulting from everyday regular, authorized use of the Managed Lands
as follows:
Page 2
Trail cleanliness: litter removal from trail areas;
Minor trail service, minor erosion remediation and prevention including:
o annual mowing of trail centerlines;
o installation of water bars and other erosion prevention features as .
required;
o drainage control with temporary repairs to address safety concerns
o removal of priority invasive plant species 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
shade structures, and similar trail facilities purchased by City;
Open and close gates and other public facilities associated with public access
program activities;
Surveillance monitoring of unauthorized use via remote cameras; reporting of
patterns and trends to city and law enforcement;
City has and will continue to have responsibility for heavy maintenance and for
damage resulting from unauthorized use or events such as storms, vandalism or
malicious mischief, including:
- Trash removal from all 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
Public Education and Recreation Programs: After the installation of the trail and
preserve infrastructure system, Manager will establish and conduct public access tours
and manage volunteers in the Managed Lands as set forth below. In coordination with
City, Manager will establish the number, type (e.g., hiking, cycling, equestrian, bird -
watching and other specialty tours), location, time of year (i.e. some tours will be
seasonal), duration, date, time of day, number of participants, etc. for each tour.
Manager will notify City in advance of any changes in the program schedule other than
closures due to weather. Tours may be guided tours ( "Guided" tours) or self - guided or
unguided tours ( "Open Access" tours). Manager will provide staff or trained volunteer
docents to lead the Guided tours and relevant materials and oversight to the Open
Access tours. All guided tours will be led by either paid staff of Manager or fully - qualified
docents. Manager will endeavor to maximize the number of Tours led by volunteers. All
public participants in scheduled Tours will be required to sign a liability waiver that names
the City of Newport Beach among the beneficiaries of the waiver.
In consultation with Manager, City may provide notice and information to the public
regarding all of the tours and the tour schedule. Manager will also post notice and
information through additional . means, such as the Website (www.Irland marks. org) and
printed materials. Manager will take, and for all purposes be in charge of, web -based
Page 3
registration for all organized public access tours on behalf of City. Manager will serve as
the point of contact for public access inquiries on the Managed Lands. Manager will refer
interested parties and individuals to City for more information regarding the Managed
Lands when necessary and appropriate. City will relay tour reservation requests and
public inquiries for more information to Manager promptly.
Manager will maintain any electronic registration tools and databases and will provide all
data obtained, including reservations, attendance, participant feedback and demographic
information to City in electronic format on request.
Manager will recruit, oversee and manage volunteers as part of Manager's current
volunteer program to conduct the tours and assist in field observations, habitat
restoration and similar activities on the Managed Lands. Volunteers will be identified as
Irvine Ranch Conservancy volunteers while working on the Managed Lands.
In addition, Manager will:
1. Require that all volunteers sign a Volunteer Liability Waiver that names the City of
Newport Beach among the beneficiaries of the waiver;
2. Offer training to keep volunteer and docent skills current, including: CPR and first
aid, natural history knowledge, and field skills. CPR and first aid courses will be
offered a minimum of two (2) times per year and other training will be offered as
necessary and appropriate. Advance registration is required to participate in
training courses;
3. Provide ongoing communication with volunteer docents through access to a
volunteer newsletter and updates;
4. Recognize volunteer efforts through awards and an annual event;
5. Coordinate with volunteers and docents on other parts of the Irvine Ranch Natural
Landmarks to develop public program opportunities. This includes encouraging
volunteers on other parts of the nearby lands to become enrolled as volunteers on
the Managed Lands and vice versa; and
6. Implement other volunteer criteria requested by City; provided, however, that any
criteria requested by City which requires labor or costs to fulfill as opposed to
information supplied solely by the volunteers (e.g. fingerprinting, background
check) shall be included in the criteria only if City agrees to undertake and perform
such work at City's cost.
7. Allow volunteers under Manager's supervision to access open space only upon
approval of Manager.
Page 4
City of Newport Beach NO. BA- 12BA -007
BUDGET AMENDMENT
2011 -12 AMOUNT: $365,000.00
EFFECT ON BUDGETARY FUND BALANCE:
mxi Increase Revenue Estimates Increase in Budgetary Fund Balance
Increase Expenditure Appropriations AND Decrease in Budgetary Fund Balance
Transfer Budget Appropriations PX No effect on Budgetary Fund Balance
SOURCE:
x from existing budget appropriations
x from additional estimated revenues
from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase revenue estimates and expenditure appropriations to accept Califomia Wildlife Protection Act Habitat
Conservation funds and to transfer General Funds in order to amend an agreement with the Irvine Ranch Conservancy
for management of the Upper Buck Gull Reserve Area and trail improvement/restoration.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
REVENUE ESTIMATES (3601)
Fund /Division Account
250 487A
EXPENDITURE APPROPRIATIONS (3603)
Amount
Description Debit Credit
Description
Contribution -CA Wildlife Protection Habitat Conservation $90,000.00
Division Number
Account Number
Signed:
Signed: e__
Signed:
Approval: City
City Council Approval: City Clerk
Director
$275,000.00
$90,000.00
$90,000.00
$185,000.00
—--?r/ r
Date
q Uh
Date
Date
Description
Division
Number
7251
Contributions Fund
Account
Number
C5002009
Upper Buck Gully Loop Trail
Division
Number
7014
General Fund - Misc & Studies
Account
Number
C5002002
Prop 50 Buck Gully Stabilization
Division
Number
7014
General Fund - Misc & Studies
Account
Number
C5002009
Upper Buck Gully Loop Trail
Division
Number
0110
City Council
Account
Number
8250
Special Dept Expense NOC
Division Number
Account Number
Signed:
Signed: e__
Signed:
Approval: City
City Council Approval: City Clerk
Director
$275,000.00
$90,000.00
$90,000.00
$185,000.00
—--?r/ r
Date
q Uh
Date
Date
CITY OF NEWPORT BEACH
3300 Newport Boulevard - P.O. Box 1768
Newport Beach, CA 92658 -8915
(949) 644 -3200
NOTICE OF EXEMPTION
To:
® Office of Planning and Research
1400 Tenth Street, Room 121
Sacramento, CA 95814
County Clerk, County of Orange
❑X Public Services Division
P.O. Box 238
Santa Ana, CA 92702
EXHIBIT G
From: City of Newport Beach
Public Works Department
3300 Newport Boulevard - P.O. Box 1768
Newport Beach, CA 92658 -8915
(Orange County)
Date received for filing at OPR:
Name o Project: Buck Gully Trail Improvements
Project Location: Upper Buck Gully Reserve Area North of 51h Avenue
Specific: 4000 (T) San Joaquin Hills Road, Newport Beach, CA 92657
Project Location -City: Newport Beach Project Location - County: Orange
Project Description:
The project will repair the Upper Buck Gully Trail and install four bridges across Buck Creek.
The bridges will be pre- fabricated and air -lifted into the canyon. An entry gate will be installed at
one of the ridge top entryways into the canyon. Informational signs will be installed at each of
the three trailheads.
Exempt Status: (check one)
❑ Ministerial (Sec. 21080(b)(1);15268);
❑ Declared Emergency (Sec. 21080(b)(3); 15269(a));
❑ Emergency Project (Sec. 21080(b)(4); 15269(b)(c);
X Categorical Exemption, Existing Facilities Maintenance, Section 15301
❑ Statutory Exemptions. State code number:
❑ General Rule (Sec. 15061(b)(3))
Reasons why project is exempt: This project repairs the existing trail, and as a maintenance measure,
installs four small pedestrian bridges to prevent further degradation of the creek banks by removing the
necessity of hikers to climb in and out of the streambed. Bridge height and supports are designed such that the
structures are designed for low impact and located well outside the 100 -year flood extent of the creek.
Name of Public Agency Approving Project: City of Newport Beach
Date of Approval: 9/13/11
Name of Person or Agency Carrying Out Project: Public Works Department
Contact Person: Robert Stein Title: Assistant City Engineer
Signature: Tel.No. (949) 644 -3322 Date: 9/13/11