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HomeMy WebLinkAboutC-3594(A) - Proposition 13 Watershed Protection Grant Program Grant Agreement - Big Canyon Creek Restoration Project; Agreement No. 04-079-558-0=Pw e PROPOSITION 13 WATERSHED PROTECTION GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD AND CITY OF NEWPORT BEACH Big Canyon Creek Restoration Project AGREEMENT NO. 04 -079- 558-34 This Grant Agreement is made between the State of California acting by and through the State Water Resources Control Board, hereafter referred to as the 'SWRCB', and the City of Newport Beach, a city, hereafter referred to as the "Grantee' and as approved by SWRCB dated November 12, 2004 and subsequeaNy amended on February 9, 2007 and March 17, 2008 is hereby and subsequently amended on July 28, 2008, Is hereby amended on September 16, 2009 to revise Exhibits A, and B, and C and the work completion and term end dates. Except as noted herein, all other terms and conditions shall remain the same. WHEREAS: 1. The following provisions authorize the SWRCB to enter into this type of Grant Agreement: WC § 79079 (Pr 13 WPP). 2. The Grantee has applied for a grant and has been determined by the SWRCB to be eligible for a grant pursuant to applicable State laws and regulations; and 3. The SWRCB, pursuant to the SWRCB Resolution No., 2004 -0003, approved on February 19, 2004, has authorized grant funding for the Project hereafter described. NOW THEREFORE, it is agreed as follows: 1. The Project generally consists of Phase II Water Quality and Design of Big Canyon Restoration Project, for the benefit of the Grantee. The Project Representatives during the term of this Agreement will be: State Water Resources Control Board Grantee: City of Newport Beach Name: Wanda4fessKen Coutter, , Grant Manager Name: Dave Kiff, Project Director Address: CA 92601110011 Street,1 C Floor, Sacramento, CA 92501 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 16 1 -5496 Phone: 949 644 3032 Fax: 91 1 -5296 Fax: 949 6443020 e -mail: wGfes6kcoufter@waterboards.ca.gov I e-mail: dkiffCcL)city.newport-bearh.ca.us Direct all inquiries to: State Water Resources Control Board Grantee: City of Newport Beach Section/Unit Division of Financial Assistance Section/Unit: Attention: Pam Nichols, P V ram Anal st Attention: Dave Kiff, Grant Contact Address: 1001 1 Street, 17 Floor, Sacramento, CA 95814 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 916 341 -5909 Phone: 949 644 -3032 • • City of Newport Beach SWRCB Grant Agreement No. 04- 079 - 558-2 op Pege.2 of 15 • •�M • a • •Li c ��. •- r •• - �•ll1�49:1 =1 !dl �: r�.l �= Each party may change Its Project Representative upon written notice to the other party. 2. Incorporation of Documents. This Agreement incorporates the following documents:Z c 2.1 Exhibit A, Scope of Work; J 2.2 Exhibit B, Invoicing, Budget Detail, and Reporting Provisions; Fjly DIVLSI() ;N t ,r Cjj E. A oc,�„ ...... 2.3 Exhibit C, SWRCB General Conditions; and 2.4 Exhibit D, Grant Program Terms and Conditions. 3. The Grantee accepts and agrees to comply with all terms, provisions, conditions; and commitments of this Agreement; Including all incorporated documents, and to fulfill all assurances, declaration, representations, and commitments made by the Grantee In its application, accompanying documents, and communications Cad in support of Its request for grant funding. Grantee shell comply with and require its contractors and subcontractors to comply with all applicable laws, policies and regulations. 4 The term of the Agreement shall begin on September 15, 2004 and Continue for thirty -five (35) years unless otherwise terminated or amended as provided In the Agreement. HOWEVER, ALL WORK SHALL BE COMPLETED BY MARGH 34DECEMBEIR $1, 2009. IN WITNESS THEREOF, the parties have executed this Agreement the dates set forth below. By: B Y_ Grantee Signature re L' Evay, Dep Dir W or KEITH CARRY Grantee Typed/Printed Name MAYOR 12/23/09 Tltie and Date Date Revhnved Dyi v . OAke of ChM Counsel oate:.2 . /- /0 City of Newport Beach • SWRCB t Agreement No. 04 -079- 55823 Page 3 of 15 EXHIBIT A — SCOPE OF WORK 1. Contracts and Permits. 1.1 Grantee shall document steps taken in soliciting and awarding any contracts to perform grant work and submit such documentation to the Grant Manager for review prix to contract award. Grantee shall provide Grant Manager with a copy of the awarded contract Grantee shall document all contractor activities and expenditures in progress reports. 1.2 No work that is subject to California Environmental Quality Act (CEQA) or National Environmental Policy Act (NEPA) may proceed under this Agreement until documents that satisfy the CEQA/NEPA process are received by the Grant Manager. 1.3 Grantee shall secure all required permits for project work. No work that is subject to permitting may proceed under this Agreement until documents that satisfy the permitting processes) are received by the Grant Manager. 2. Quality Assurance Project Plan and Sampling and Analysis Plan 2.1 Prepare and maintain a Quality Assurance Project Plan (QAPP) that is, consistent with the QAPP for the Surface Water Ambient Monitoring Program (SWAMP). The QAPP must be approved by the RWQCB or SWRCB's Quality Assurance Officer prior to implementation of any sampling or monitoring activities. No monitoring may occur prior to QAPP approval. Any costs related to monitoring data collected prior to and not supported by the approved QAPP will not be reimbursed. 2.2 Prepare and maintain a Sampling and Analysis Plan (SAP) that describes the types of constituents to be monitored and the frequency /schedule for the monitoring activities. The SAP shall be approved by the Grant Manager prior to implementation of any sampling or monitoring activities. No sampling may occur prior to SAP approval. The Grant Manager must approve any changes to the SAP prior to implementation. 3. Work To Be Performed: 3.1 Water Quality Sampling and Analysis 3.1.1 Conduct water quality sampling and analysis per approved SAP 3.1.2 Prepare baseline water quality analysis and evaluation of Big Canyon Restoration Area. 3.1.3 Characterize contaminants entering and/or present within Big Canyon Restoration Area. 3.1.4 Prepare and submit to the Grant Manager a baseline water quality and contaminant characterization report 3.2 Public Agency and Stakeholder Meetings 3.2.1 Conduct meetings and tours to ensure 1) direct involvement in the design process by the many federal, state and kxxl public agencies that have jurisdiction in Big Canyon; 2) definition of permitting issues and needs for each agency; and 3) landowners are informed of project impacts. 3.2.2 Produce a draft hydrology and water quality design plan and related material for stakeholder review. Submit to the Grant Manager for review and approval prior to holding meetings. 3.2.3 Finalize the design plan and submit to the Grant Manager. City of Newport Beach • A SWRCB Agreement No. 04 -079- 558-23 Page 4 of 15 3.2.4 Send meeting notices via e-mail to public agencies and telephone stakeholders. 3.2.5 Hob two (2) group meetings with public agencies and technical team to discuss, and then refine, the hydrology and water quality design plan. 3.2.6 Hold on -site tour with any interested federal, regional, state, and local agencies, address comments. 3.2.7 Hold six (6) meetings with the City of Newport Beach staff in design, CEQA, and project approval and permitting phases. 3.2.8 Meet at least two (2) times with the Big Canyon Country Club to explore and gvaluate possible water quality improvement measures for Big Canyon Creek on.the Country Club's property. 3.2.9 Meet once with each homeowners association representing homeowners on the surrounding bluffs to discuss on -site water quality improvements, erosion control, and non - native plant control, address comments. 3.3 Restoration and Site Design 3.3.1 Support the conduct of geotechnical, biological, and soil test studies and submit a report on each to the Grant Manager. 3.3.2 Support the design development of plans for habitat restoration and landscape architecture and submit to the Grant Manager. 3.3.3 Support the design development of plans for public access, trails, and interpretive components and provide design and restoration detail to the Grant Manager. 3.3.4 Prepare preliminary, pre-construction, and final structural engineering design and submit to the Grant Manager. Incorporate habitat restoration, landscape plan, water quality improvements, public access, trails and interpretive components into the design. 3.3.5 Coordinate six (6) focused planning and design sessions with engineers, restoration specialists, public facilitators, and landscape architects. 3.4 Distribution of Information to the Public 3.4.1 Develop written and digital public information materials describing the restoration plan, goals, and benefits. Information materials will be mailed to community stakeholder lists and posted to the City's web site (www.city.newoort- beach.ca.usl. 3.5 Public Workshops 3.5.1 Conduct at least one (1) public workshop to allow the public an opportunity to comment on design plans for the Big Canyon Restoration Area before the plans are finalized, and to allow the design team and public agencies to respond to public needs and concerns. 3.6 Draft and Final Project Reports 3.6.1 Prepare a draft final project report and submit to the Grant Manager for review and comment. City of Newport Beach • SWRCB Ott Agreement No. 04 -079- 558-23 Page 5 of 15 3.6.2 Prepare a final project report that addresses comments made by the Grant Manager on the draft report. Submit one (1) reproducible master and two (2) copies of the final project report to the Grant Manager for review and acceptance. TABLE OF SUBMITTALS Item DESCRIPTION DUE DATE Project Administration L Ongoing EXHIBIT A— SCOPE OF WORK 1.0 CONTRACTS AND PERMITS 1.1 Subcontract Documentation Before each award 2.0 QUALITY ASSURANCE PROJECT PLAN AND SAMPLING AND ANALYSIS PLAN 2.1 Quality Assurance Project Plan 04107 2.2 Sampling and Analysis Plan 04107 3.0 WORK TO BE PREFORMED 3.1 Water Quality Sampling and Analysis 1111104 to 06/07 3.1.4 Baseline Water Quality and Contaminant Characterization Report 07107 3.2 Public Agency and Stakeholder Meetings 12/1104 to 01/09 3.2.2 Draft Hydrology and Water Quality Design Plan and Related Materials 05107 3.2.3 Final Hydrology and Water Quality Design Plan 12/08 3.3 Restoration and Site Design . 3.3.1 Geotechnical, Biological, and Soil Test Report 11/08 3.3.2 Habitat Restoration and Landscape Design 12/07 3.3.3 Public Access, Trails, and Interpretation Design Detail 12108 3.3.4 Final Structural Engineering Design 01109 3.4 Distribution of Information to the Public 3.4.1 Website Updates and Informational Materials Quarterly, as applicable 3.5 Public Workshops 3.5.1 Meeting Notice and Summaries Quarterly, as applicable 3.6 Draft and Final Project Reports 3.6.1 Draft Project Report 0113111115!09 3.6.3 Final Project Report 02/2812115/09 City of Newport Beach • SWRCB Agreement No. 04-079 -558-23 Page 6 of 15 Item DESCRIPTION DUE DATE EXHIBIT B— BUDGET AND REPORTING PROVISIONS 6.1 Progress Reports by the tenth (1 On of the month following the end of the calendar quarter (March, June, September, and December) 1110105 and Quarterly thereafter 6.2 ExpenditureAnvoice Projections Each May and October 6.3 Grant Summary Form 12/1104 6.4 Natural Resource Projects Inventory (NRPI) Project Survey Form T 0207/09 City of Newport Beach • SWRCB A Agreement No. 04 -079 -558-23 Page 7 of 15 EXHIBIT B — INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS 1. Invoicing 1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the SWRCB's Program Analyst on a quarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit Three (3) copies of the invoice shall be submitted to the SWRCB's Grant Manager. The addresses for submittal are: Pam Nichols, Program Analyst Ofanda 6ressKen Coulter, Grant Manager State Water Resources Control Board Division of Financial Assistance 1001 1 Street, 17111 Floor Sacramento, CA 95814 State Water Resources Corrtrot Board 10011 Street. 16 Floor Sacramento, CA 85814 1.2 Payment of any invoice will be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice or payment request. Invoices received by the SWRCB that are not consistent with the approved format will be cause for an invoice to be disputed. In the event of an invoice dispute, the SWRCB Grant Manager will notify the Grantee by initiating a Standard Form 209, 'Invoice Dispute Notification' form. Payment shall be deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United States mail. All invoices must be approved by the SWRCB's Grant Manager. 1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws; rules, or regulation, or which may require any rebates to the Federal Government, or any loss of tax -free status on state bonds, pursuant to any Federal statute or regulation. 1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain an amount equal to ten percent (10 %) of the grant amount specked in this Agreement until completion of the Project to the reasonable satisfaction of the SWRCB. Any retained amounts due to the -Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 1.5 The invoice shall contain the following information: 1.5.1 The word °INVOICE° should appear in a prominent location at the top of page(s); 1.5.2 Printed name of the Grantee; 1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code; 1.5.4 The date of the invoice; 1.5.5 The number of the Agreement upon which the claim is based; and 1.5.6 An itemized account of the work for which the SWRCB is being billed; 1.5.6.1 The time period covered by the invoice, i.e., the term 'from' and 'to"; 1.5.6.2 A brief description of the work performed; 1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices must be itemized based on the categories specified in the Budget The amount claimed for salaries/wages/consuftant fees must also be explained; i.e., hours or days worked times the hourly or daily rate = the total amount claimed; 1.5.6.4 The total amount due; this should be in a prominent location in the lower right -hand portion of the last page and Dearly distinguished from other figures or computations appearing on the invoice; the total amount due shall include all costs incurred by the Grantee under the terms of this Agreement; and 1.5.7 Original signature and date (in ink) of Grantee or its authorized representative. City of Newport Beach • SWRCB At Agreement No. 04-079 - 558-23 Page 8 of 15 1.5.8 Final invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN ARR{I 301ANUARY 31 .2010,2889. 2. Budget Contingency Clause The maximum amount . to be encumbered under this Agreement for the 2004 -05 fiscal year ending June 30, 2005 shall not exceed two hundred thousand dollars ($200,000). If the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no force and effect This provision shall be construed as a condition precedent to the obligation of the SWRCB to make any payments under this Agreement In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to furnish any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of this Agreement Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for payment over any other Grantee. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to Grantee to reflect the reduced amount. I 3. LINE ITEM BUDGET Development of QAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget PROP 13 MATCH TOTAL Personnel Services (includes benefits) $0 $5,000 $5,000 Class Hours Wage/Hour Assistant City Manager 40 $75 Senior Civil Engineer 15.2 $65 Administrative Assistant 28:5 $35 Professional and Consultant Services $200,000 $25,000 $225,000 Development of QAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget City of Newport Beach • SWRCB tAgreement No. 04079- 558 -23 Page 9 of 15 5. QAPP /CEQA/NEPA/Pennft Payment Grantee shall provide to the SWRCB's Grant Manager a Standard Requirements Certification From (to be provided by the SWRCB) certifying that QAPP /CEQA/NEPA/PERMIT documents have been received by the Grant Manager. Payment for activities that require a completed QAPP or CEQARJEPA documents, or permits shall not be made to Grantee until the certification form is received by the Grant Manager. 6. Reports. 6.1 Grantee shall submit quarterly progress reports to the SWRCB's Grant Manager by the tenth (10'h) of the' month following the end of the calendar quarter (March, June, September, and December). The progress reports shall describe activities undertaken and accomplishments during the quarter, milestones achieved, and any problems encountered in the performance of the work under this Agreement. 6.2 Every six (6) months during the work performed under the Scope of Work of this Agreement, the Grantee stall develop and submit to their assigned SWRCB's Program Analyst expenditure/invoice projections to enable funding to be available for payment of invoices. 6.3 Grantee shall complete a one (1) page Grant Summary Form htti?:/twww.swrcb,ca.gov/ni)s/docVoonsummary.doc within three (3) months of the Agreement execution. 6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource Projects Inventory (NRPI) project survey form htto: / /www.ice.ucdavis.edu/n . A hard copy shall be submitted to the Program Analyst prior to final payment 6.5 Grantee agrees to expeditiously provide, during work on the Project and for a reasonable period of time thereafter, such reports, data, information, and certifications as may be reasonably required by the SWRCB. 7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs and that all costs connected with the Project will be paid by the Grantee on a timely basis. S. Audit Disallowances. The Grantee agrees it shall return any audit disallowances to the SWRCB. City of Newport Beach • SWRCB At Agreement No. 04- 079 -558 -3 Page 10 of 15 EXHIBIT C SWRCB GENERAL CONDITIONS 1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 2. APPROVAL: The Grantee will not proceed with any work on the Project until authorized In writing by the SWRCB. 3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of the SWRCB. 4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement Grantee agrees to maintain such records for possible audit for a minimum of thirty -five (35) years after final payment, unless a longer period of records retention is stipulated. Grantee agrees to allow the auditors) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Grantee agrees to include a similar right of the State: to audit records and interview staff in any contract related to performance of this Agreement. 5. BONDING: Where contractors are used, construction shall not begin until each such contractor has furnished a performance bond in favor of the Grantee in the following amounts: faithful performance (100 %) of contract value; labor and materials (100 %) of contract value. This requirement shall not apply to any contract for less than $20,000. 6. COMPLIANCE WITH LAW, REGULATIONS, ETC.: The Grantee agrees that lt will, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, the Grantee agrees that, to the extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for the term of this Agreement. 7. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. 8. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds, or 0 such breach shall result in an obligation on the part of the State to reimburse the federal government by reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any damages paid by or loss incurred by the state due to such breach. 9. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any dispute. Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Deputy Director of the Division of Financial Assistance (Division), or his or her authorized representative. The decision shall be reduced to writing and a copy thereof furnished to the Grantee and to the SWRCB's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCB's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute City of Newport Beach • SWRCB GO Agreement No. 04- 079.558 -2,1 Page 11 of 15 hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the SWRCB, or any official or representative thereof, on any question of law. 10. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of state law or this Agreement. The Grantee further agrees that lt will maintain separate Project accounts. in accordance with generally accepted accounting principles. 11. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 12. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by the Grantee to the State, to the extent that they are property allocable to costs for which the Grantee has been reimbursed by the State under this Agreement. . 13. INSPECTION: Throughout the term of this Agreement, the SWRCB shall have the right to inspect the project area to ascertain compliance with this Agreement. 14. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance against fire, vandalism and other loss, damage, or destruction of the facilities or structures constructed pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to transact business in the State of California. The insurance policy shall contain an endorsement specifying that the policy will not be cancelled or reduced in coverage without thirty days' prior written notice to the SWRCB. 15. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition, marital status, age (over 40) or denial of family-care leave, medical-care leave, or pregnancy -disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment 16. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the scope, budget, or work performed under this Agreement. The Grantee agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the SWRCB, and the SWRCB has given written approval for such change. The Grantee shall notify the SWRCB at least ten (10) working days prior to any public or media event publicizing the accomplishments and /or results of this Agreement and provide the opportunity for attendance and participation by SWRCB's representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project. 17. PERMITS, CONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits and licenses necessary to accomplish the work contemplated.in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors, outside associates, or consultants required by the Grantee in connection with the services covered by this Agreement shall be limited to such individuals or fines as were specifically identified and agreed to during negotiations for this Agreement, or as are specifically authorized by the SWRCB's Grant Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the SWRCB's Grant Manager. Any waiver of rights with respect to a default or other matter arising under the Agreement at any time by either party shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The Grantee shall not contract with any party who is debarred or suspended or otherwise excluded from or City of Newport Beach • . SWRCB AAgreement No. 04- 079 - 558 -23 [' Page 12 of 15 ineligible for participation in federal assistance_ programs under Executive Order 12549, "Debarment and Suspension ". The Grantee shall not contract with any individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code 4477) The Grantee certifies to the best'of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or grantee; b. Have not within a three -year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and d. Have not within a three -year period preceding this application/proposal had one or more public transactions (federal, state or local) terminated for cause or default. 18. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed or improved as part of the project throughout the term of this Agreement, consistent with the purposes for which this grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Grant Manager. For purposes of this Agreement, 'operation costs' include direct costs incurred for material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs" include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic structures. 19. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall monitor all agreements subject to reimbursement from this Agreement to assure that the prevailing wage provisions of State Labor Code Section 1771 are being met The Grantee agrees to fulfill its responsibilities under Section 1771.8 of the Labor Code, where applicable. 20. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. 21. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally accepted accounting principles, the Grantee'agrees to: • City of Newport Beach y� SWRCB A Agreement No. 04 -079- 558 -2.1 Page 13 of 15 a. Establish an official file for the Project which shall adequately document all significant actions relative to the Project; b. Establish separate accounts which will adequately and accurately depict all amounts received and expended-on this Project, including all grant funds received under this Agreement C. Establish separate accounts which will adequately depict all income received which is attributable to the Project especially Including any income attributable to grant funds disbursed under this Agreement d. Establish an accounting system which will adequately depict final total costs of the Project, including both direct and Indirect costs; a. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and f. If Force Account is used by the Grantee for any phase of the Project establish an account that documents all employee hours, and associated tasks charged to the Project per employee. 22. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement shall be available to the State as set forth in this section. The State shall have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. The Grantee shall not utilize the materials for any profit - making venture or sell or grant rights to a third party who intends to do so. 23. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project applications, documents, permits, plans and specifications or other Project information by the SWRCB is for administrative purposes only and does not relieve the Grantee of its responsibility to property plan, design, construct, operate, maintain, implement or otherwise carry out the Project To the extent permitted by law, the Grantee agrees to indemnify, defend and hold harmless the SWRCB and the State against any loss or liability arising out of any claim or action brought against the SWRCB and/or the State from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions, occupancy, use, possession, conduct or management of, work done in or about or the planning, design, acquisition, installation or construction, of the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act the California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Grantee for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement To the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered or made against the SWRCB and/or the State with respect to any such claim or action, and any settlement compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement 24. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee agrees that any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party shall be entitled to such reasonable costs and/or attorney fees as may be ordered by the court entertaining such litigation. City of Newport Beach • SWRCB 60 Agreement No. 04-079558 -22 Page 14 of 15 25. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB, upon violation by the Grantee of any material provision after such violation has been called to the attention of the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Grantee to the date of full repayment by the Grantee. 26. TIMELINESS: Time is of the essence in this Agreement. 27. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those amounts paid to the State's represented employees under collective bargaining Agreements currently in effect . No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the SWRCB. 28. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have full force and effect and shall not be affected thereby. 29. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States Distrid Court In and for the Eastern District of California. The Grantee hereby waives any existing sovereign immunity for the purposes of this Agreement 30. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may'withhold all or any portion of the grant funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement, or the Grantee fails to maintain reasonable progress toward completion of the Project City of Newport Beach SWRCB G& Agreement No. 04 -079- 55841 Page 15 of 15 EXHIBIT D Grant Program Terms & Conditions 1. This project is to develop local watershed management plans or to implement project consistent with local watershed management and regional water quality control plans, as such terms are defined in Water Code § 79078. 2. The Grantee certifies that it has adequate legal authority to manage the grant money. 3. The Grantee certifies that it is a member of local watershed group, as defined in Water Code § 79078. 4. The Grantee certifies that its project is designed to withstand substantial flooding, if a watershed improvement project 5. Nothwilhstanding Exhibit A, the Grantee agrees to submit a monitoring and reporting plan that will do all of the following: a. describes baseline water quality of the water body impacted b. describes manner in which proposed watershed restoration activities are implemented c. determines effectiveness of watershed restoration activities in preventing or reducing pollution d. determines, to extent feasible, changes in pattern of flow in affected streams, Including reduction of flood flows and increases in spring, summer, and fall flovo that result from the implementation of the project e. determines, to the extent feasible, economic benefits resulting from changes determined pursuant to (c) or (d) above. 6. The Grantee shall inform the SWRCB with regard to necessary public agency approvals, entitlements, and permits that may be necessary to implement the project. The Grantee shall certify to the SWRCB, at the appropriate time, that it has obtained those approvals, entitlements, and permits. 7. The Grantee shall notify, in writing, adjoining landowners of its request for this grant and the scope of the project for which the grant funding is requested. Upon completion of the notification required under this section, the Grantee shall inform the SWRCB that the notification has occurred. 8. The Grantee hereby certifies that it has written permission from the landowners of the parcel on which work will occur under this Agreement. 9. Notwithstanding Exhibit A, if this project is a capital outlay project, the Grantee agrees to submit a report to the SWRCB at the completion of the project that summarizes the completed project and Identifies additional steps necessary to achieve the purposes of the local watershed management plan, as such term is defined under Water Code § 79078. 10. The Grantee certifies that if a recovery plan for coho, steelhead, or other threatened or endangered aquatic species exists, this project is consistent with such a plan and, if feasible, implements actions in such a plan. DGS REGISTRATION NO. Lift/101.5,425'/ 3 PROPOSITION 13 WATERSHED PROTECTION GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD AND CITY OF NEWPORT BEACH Big Canyon Creek Restoration Project AGREEMENT NO. 04 -079- 55843 This Grant Agreement is made between the State of California acting by and through the State Water Resources Control Board, hereafter referred to as the "SWRCB ", and the City of Newport Beach, a city, hereafter referred to as the 'Grantee" and as approved by SWRCB dated November 12, 2004 and subsequently amended on February 9, 2007 s heFeby amended eoand March 17, 2008 is hereby amended on July 28, 2008 to revise Exhibits A, B, and C and the work completion and term end dates. Except as noted herein, all other terms and conditions shall remain the same. WHEREAS: 1. The following provisions authorize the SWRCB to enter into this type of Grant Agreement: WC § 79079 (Pr 13 WPP). 2. The Grantee has applied for a grant and has been determined by the SWRCB to be eligible for a grant pursuant to applicable State laws and regulations: and 3. The SWRCB, pursuant to the SWRCB Resolution No., 2004 -0003, approved on February 19, 2004, has authorized grant funding for the Project hereafter described. NOW THEREFORE, it is agreed as follows: 1. The Project generally consists of Phase II Water Quality and Design of Big Canyon Restoration Project, for the benefit of the Grantee. The Project Representatives during the term of this Agreement will be: State Water Resources Control Board Grantee: City of Newport Beach Name: Wanda Cross, Grant Manager Name: Dave Kiff, Project Director Address: 3737 Main Street, Suite 500, Riverside, CA 92501 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 951 782 -4468 Phone: 949 644 -3032 Fax: 951 781 -6288 Fax: 949 644 -3020 e -mail: wcross waterboards.ca. ov e-mail: dkiff ci .new ort- ach.ca.us Direct all inquiries to: State Water Resources Control Board Grantee: City of Newport Beach Section /Unit: Division of Financial Assistance Section/Unit: Attention: Pam Nichols, Pro ram Anal t Attention: Dave Kiff, Grant Contact Address: 1001 1 Street, 17 Floor, Sacramento, CA 95814 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 916 341 -5909 Phone: 949 644 -3032 Fax: 916 341 -5296 Fax: 949 644 -3020 City of Newport Beach SWRCB C it Agreement No. 04-079-558-23 Page 2 of 15 e-mail:pnichols@waterboards.ca.gov e-mail: dkiff cit .new ort-beach.ca.us Each party may change its Project'Representative upon written notice to the other party. 2. Incorporation of Documents. This Agreement incorporates the following documents: 2.1 Exhibit A, Scope of Work; 2.2 Exhibit B, Invoicing, Budget Detail, and Reporting Provisions; 2.3 Exhibit C, SWRCB General Conditions; and 2.4 Exhibit D, Grant Program Terms and Conditions. 3. The Grantee accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declaration, representations, and commitments made by the Grantee in its application, accompanying documents, and communications filed in support of its request for grant funding. Grantee shall comply with and require its contractors and subcontractors to comply with all applicable laws, policies and regulations. 4. The term of the Agreement shall begin on September 15, 2004 and continue for bmenty three (23)thirty-five 35 years unless otherwise terminated or amended as provided in the Agreement. HOWEVER, ALL WORK SHAD BE COMPLETED BY DECEMBER 31, 2909MARCH 31, 2009. F the parties have executed this Agreement op the dates set forth below. ED SELICH Grantee Typed/Printed Name MAYOR, 12/23/08 Title and' Date Bar ara L. Evoy, Upu�fDire r (-J SW CB, Division of F anci sistance 7 b C--7 Date Reviewed by4 Office of Chief Counsel Date: / —5--Oq City of Newport Beach • SWRCB Co Agreement No. 04- 079 - 558-2-2 Page 3 of 15 EXHIBIT A — SCOPE OF WORK 1. Contracts and Permits. 1.1 Grantee shall document steps taken in soliciting and awarding any contracts to perform grant work and submit such documentation to the Grant Manager for review prior to contract award. Grantee shall provide Grant Manager with a copy of the awarded contract Grantee shall document all contractor activities and expenditures in progress reports. 1.2 No work that is subject to California Environmental Quality Act (CEQA) or National Environmental Policy Act (NEPA) may proceed under this Agreement until documents that satisfy the CEQA/NEPA process are received by the Grant Manager. 1.3 Grantee shall secure all required permits for project work. No work that is subject to permitting may proceed under this Agreement until documents that satisfy the permitting process(es) are received by the Grant Manager. 2. Quality Assurance Project Plan and Sampling and Analysis Plan 2.1 Prepare and maintain a Quality Assurance Project Plan (QAPP) that is consistent with the QAPP for the Surface Water Ambient Monitoring Program (SWAMP). The QAPP must be approved by the RWQCB or SWRCB's Quality Assurance Officer prior to implementation of any sampling or monitoring activities. No monitoring may occur prior to QAPP approval. Any costs related to monitoring data collected prior to and not supported by the approved QAPP will not be reimbursed. 2.2 Prepare and maintain a Sampling and Analysis Plan (SAP) that describes the types of constituents to be monitored and the frequency /schedule for the monitoring activities. The SAP shall be approved by the Grant Manager prior to implementation of any sampling or monitoring activities. No sampling may occur prior to SAP approval. The Grant Manager must approve any changes to the SAP prior to implementation. 3. Work To Be Performed: 3.1 Water Quality Sampling and Analysis 3.1.1 Conduct water quality sampling and analysis per approved SAP 3.1.2 Prepare baseline water quality analysis and evaluation of Big Canyon Restoration Area. 3.1.3 Characterize contaminants entering and /or present within Big Canyon Restoration Area. 3.1.4 Prepare and submit to the Grant Manager a baseline water quality and contaminant characterization report. 3.2 Public Agency and Stakeholder Meetings 3.2.1 Conduct meetings and tours to ensure 1) direct involvement in the design process by the many federal, state and local public agencies that have jurisdiction in Big Canyon; 2) definition of permitting issues and needs for each agency; and 3) landowners are informed of project impacts. 3.2.2 Produce a draft hydrology and water quality design plan and related material for stakeholder review. Submit to the Grant Manager for review and approval prior to holding meetings. 3.2.3 Finalize the design plan and submit to the Grant Manager. City of Newport Beach • SWRCB Agreement No. 04- 079558-23 Page 4 of 15 3.2.4 Send meeting notices via e-mail to public agencies and telephone stakeholders. 3.2.5 Hold two (2) group meetings with public agencies and technical team to discuss, and then refine, the hydrology and water quality design plan. 3.2.6 Hold on -site tour with any interested federal, regional, state, and local agencies, address comments. 3.2.7 Hob six (6) meetings with the City of Newport Beach staff in design, CEQA, and project approval and permitting phases. 3.2.8 Meet at least two (2) times with the Big Canyon Country Club to explore and evaluate possible water quality improvement measures for Big Canyon Creek on the Country Club's property. 3.2.9 Meet once with each homeowners association representing homeowners on the surrounding bluffs to discuss on -site water quality improvements, erosion control, and non -native plant control, address comments. 3.3 Restoration and Site Design 3.3.1 Support the conduct of geotechnical, biological, and soil test studies and submit a report on each to the Grant Manager. 3.3.2 Support the design development of plans for habitat restoration and landscape architecture and submit to the Grant Manager. 3.3.3 .Support the design development of plans for public access, trails, and interpretive components and provide design and restoration detail to the Grant Manager. 3.3.4 Prepare preliminary, pre - construction, and final structural engineering design and submit to the Grant Manager. Incorporate habitat restoration, landscape plan, water quality improvements, public access, trails and Interpretive components into the design. 3.3.5 Coordinate six (6) focused planning and design sessions with engineers, restoration specialists, public facilitators, and landscape architects. 3.4 Distribution of Information to the Public 3.4.1 Develop written and digital public information materials describing the restoration plan, goals, and benefits. Information materials will be mailed to community stakeholder lists and posted to the City's web site (www.cdv.newoort- t>each.ca.us). 3.5 Public Workshops 3.5.1 Conduct at least one (1) public workshop to allow the public an opportunity to comment on design plans for the Big Canyon Restoration Area before the plans are finalized, and to allow the design team and public agencies to respond to public needs and concerns. 3.6 Draft and Final Project Reports 3.6.1 Prepare a draft final project report and submit to the Grant Manager for review and comment. City of Newport Beach • SWRCB Co Agreement No. 04- 079 - 558-23 Page 5 of 15 3.6.2 Prepare a final project report that addresses comments made by the Grant Manager on the draft report Submit one (1) reproducible master and two (2) copies of the final project report to the Grant Manager for review and acceptance. TABLE OF SUBMITTALS Item DESCRIPTION DUE DATE Project Administration Ongoing EXHIBIT A — SCOPE OF WORK 1.0 CONTRACTS AND PERMITS 1.1 Subcontract Documentation Before each award 2.0 QUALITY ASSURANCE PROJECT PLAN AND SAMPLING AND ANALYSIS PLAN 2.1 Quality Assurance Project Plan 04/07 2.2 Sampling and Analysis Plan 04/07 3.0 WORK TO BE PREFORMED 3.1 Water Quality Sampling and Analysis 1111/04 to 06/07 3.1.4 Baseline Water Quality and Contaminant Characterization Report 07107 3.2 Public Agency and Stakeholder Meetings 12/1104 to 3.2.2 Draft Hydrology and Water Quality Design Plan and Related Materials 05/07 3.2.3 Final Hydrology and Water Quality Design Plan 06/A812f08 3.3 Restoration and Site Design 3.3.1 Geotechnical, Biological, and Soil Test Report - 074911108 3.3.2 Habitat Restoration and Landscape Design 12/07 3.3.3 Public Access, Trails, and Interpretation Design Detail 96!0812108 3.3.4 Final Structural Engineering Design 06!0801109 3.4 Distribution of Information to the Public 3.4.1 Website Updates and Informational Materials Quarterly, as applicable 3.5 Public Workshops 3.5.1 Meeting Notice and Summaries Quarterly, as applicable 3.6 Draft and Final Project Reports 3.6.1 Draft Project Report X0131/08 011/311109 3.6.3 Final Project Report 744012008 02/28109 City of Newport Beach • SWRCB (St Agreement No. 04- 079 - 558,4 Page 6 of 15 Item DESCRIPTION DUE DATE EXHIBIT B — BUDGET AND REPORTING PROVISIONS 6.1 Progress Reports by the tenth (10 ) of the month following the end of the calendar quarter (March, June, September, and December) 1/10/05 and Quarterly thereafter 6.2 Expenditure/invoioe Projections Each May and October 6.3 Grant Summary Form 1211/04 6.4 Natural Resource Projects Inventory (NRPI) Project Survey Form �11A8 0 H City of Newport Beach - • SWRCB Ce Agreement No. 04- 079558-2 Page 7 of 15 EXHIBIT B — INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS 1. Invoicing 1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the SWRCB's Program Analyst on a quarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit. Three (3) copies of the invoice shall be submitted to the SWRCB's Grant Manager. The addresses for submittal are: Pam Nichols, Program Analyst Wanda Cross, Grant Manager State Water Resources Control Board Santa Ana Regional Water Quality Control Board Division of Financial Assistance 3737 Main Street, Suite 500 1001 1 Street, 170 Floor Riverside, CA 92501 Sacramento, CA 95614 1.2 Payment of any invoice will be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice or payment request. Invoices received by the SWRCB that are not consistent with the approved format will be cause for an invoice to be disputed. In the event of an invoice dispute, the SWRCB Grant Manager will notify the Grantee by initiating a Standard Form 209, `Invoice Dispute Notification" form. Payment shall be deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United States mail. All invoices must be approved by the SWRCB's Grant Manager. 1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, rules, or regulation, or which may require any rebates to the Federal Government, or any loss of tax -free status on state bonds, pursuant to any Federal statute or regulation. 1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain an amount equal to ten percent (10 %) of the grant amount specified in this Agreement until completion of the Project to the reasonable satisfaction of the SWRCB. Any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 1.5 The invoice shall contain the following information: 1.5.1 The word "INVOICE' should appear in a prominent location at the top of page(s); 1.5.2 Printed name of the Grantee; 1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code; 1.5.4 The date of the invoice; 1.5.5 The number of the Agreement upon which the claim is based; and 1.5.6 An itemized account of the work for which the SWRCB is being billed; 1.5.6.1 The time period covered by the invoice, i.e., the term 'from" and "to "; 1.5.6.2 A brief description of the work performed; 1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices must be itemized based on the categories specified in the Budget. The amount claimed for salades/wages/consultant fees must also be explained; i.e., hours or days worked times the hourly or daily rate = the total amount claimed; 1.5.6.4 The total amount due; this should be in a prominent location in the lower right -hand portion of the last page and clearly distinguished from other figures or computations appearing on the invoice; the total amount due shall include all costs incurred by the Grantee under the terms of this Agreement; and 1.5.7 Original signature and date (in ink) of Grantee or its authorized representative. City of Newport Beach • SWRCB C& Agreement No. 04-079-558-23 Page 8 of 15 1.5.8 Final invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN PEORWARY APRIL 30. 2009. 2. Budget Contingency Clause The maximum amount to be encumbered under this Agreement for the 2004-05 fiscal year ending June 30, 2005 shall not exceed two hundred thousand dollars ($200,000). If the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no force and effect This provision shall be construed as a condition precedent to the obligation of the SWRCB to make any payments under this Agreement In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to fumish any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of this Agreement. Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for payment over any other Grantee. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to Grantee to reflect the reduced amount 3. LINE ITEM BUDGET Development of OAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line items) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget. PROP 13 MATCH TOTAL Personnel Services (includes benefits) $0 $5,000 $5,000 Class Hours Wage/Hour Assistant City Manager 40 $75 Senior Civil Engineer 15.2 $65 Administrative Assistant 28.5 $35 Professional and Consultant Services $200,000 $25,000 $225,000 Development of OAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line items) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget. City of Newport W 04 Beach • SWRCB (0 Agreement No. - 079 - 558-2) Page 9 of 15 5. QAPP /CEQA/NEPA/Permit Payment. Grantee shall provide to the SWRCB's Grant Manager a Standard Requirements Certification From (to be provided by the SWRCB) certifying that QAPP /CEQAMEPA/PERMIT documents have been received by the Grant Manager. Payment for activities that require a completed QAPP or CEQA/NEPA documents, or permits shall not be made to Grantee until the certification form is received by the Grant Manager. 6. Reports. 6.1 Grantee shall submit quarterly progress reports to the SWRCB's Grant Manager by the tenth (UP) of the month following the end of the calendar quarter (March, June, September, and December). The progress reports shall describe activities undertaken and accomplishments during the quarter, milestones achieved, and any problems encountered in the performance of the work under this Agreement. 6.2 Every six (6) months during the work performed under the Scope of Work of this Agreement, the Grantee shall develop and submit to their assigned SWRCB's Program Analyst expenditure/invoice projections to enable funding to be available for payment of invoices. 6.3 Grantee shall complete a one (1) page Grant Summary Form http:// www. swrcb .ca.00v /npsldocs/consummary.doc within three (3) months of the Agreement execution. 6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource Projects Inventory (NRPI) project survey form http: //www.ice.ucdavis.edu/nroi forms/defauft.asp. A hard copy shall be submitted to the Program Analyst prior to final payment. 6.5 Grantee agrees to expeditiously provide, during work on the Project and for a reasonable period of time thereafter, such reports, data, information, and certifications as may be reasonably required by the SWRCB. 7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs and that all coats connected with the Project will be paid by the Grantee on a timely basis. 8. Audit Disallowances. The Grantee agrees it shall return any audit disallowances to the SWRCB. City of Newport Beach • SWRCB 4 Agreement No. 04-079- 558-23 Page 10 of 15 EXHIBIT C SWRCB GENERAL CONDITIONS 1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 2. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the SWRCB. 3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of the SWRCB. 4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated representative shall have the right to review and to, copy any records and supporting documentation pertaining to the performance of this Agreement. Grantee agrees to maintain such records for possible audit for a minimum of sweaty three (23)thirty -flue 135) years after final payment, unless a longer period of records retention is stipulated. Grantee agrees to allow the audltor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Grantee agrees to include a similar right of the State to audit records and interview staff in any contract related to performance of this Agreement. 5. BONDING: Where contractors are used, construction shall not begin until each such contractor has fumished a performance bond in favor of the Grantee in the following amounts: faithful performance (100 %) of contract value; labor and materials (100 %) of contract value. This requirement shall not apply to any contract for less than $20,000. 6. COMPLIANCE WITH LAW, REGULATIONS, ETC.: The Grantee agrees that it will, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, the Grantee agrees that, to the extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for the term of this Agreement. 7. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. 8. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds, or If such breach shall result in an obligation on the part of the State to reimburse the federal government by reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any damages paid by or loss incurred by the state due to such breach. 9. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any dispute. Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Deputy Director of the Division of Financial Assistance (Division), or his or her authorized representative. The decision shall be reduced to writing and a copy thereof furnished to the Grantee and to the SWRCB's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCB's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute City of Newport Beach • SWRCB eft Agreement No. 04-079 - 558-2 Page 11 of 15 hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the SWRCB, or any official or representative thereof,'on any question of law. 10. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of state law or this Agreement The Grantee further agrees that it will maintain separate Project accounts in accordance with generally accepted accounting principles. 11. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 112. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by the Grantee to the State, to the extent that they are properly allocable to costs for which the Grantee has been reimbursed by the State under this Agreement 4413. INSPECTION: Throughout the.term of this Agreement, the SWRCB shall have the right to inspect the project area to ascertain compliance with this Agreement 1614. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance against fire, vandalism and other loss, damage, or destruction of the facilities or structures constructed pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to transact business in the State of California. The insurance policy shall contain an endorsement specifying that the policy will not be cancelled or reduced in coverage without thirty days' prior written notice to the SWRCB. 36150 NONDISCRIMINATION: During the performance of this Agreement, the Grantee and Its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition, marital status, age (over 40) or denial of family -care leave, medical -care leave, or pregnancy-disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment 316. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the scope, budget, or work performed under this Agreement The Grantee agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the SWRCB, and the SWRCB has given written approval for such change. The Grantee shall notify the SWRCB at least ten (10) working days prior to any public or media event publicizing the accomplishments and/or results of this Agreement and provide the opportunity for attendance and participation by SWRCB's representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project 38-17. PERMITS, CONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors, outside associates, or consultants required by the Grantee in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and City of Newport Beach • SWRCB t* Agreement No. 04-079 - 558,2,2 Page 12 of 15 agreed to during negotiations for this Agreement, or as are specifically authorized by the SWRCB's Grant Manager during the performance of this Agreement Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the SWRCB's Grant Manager. Any waiver of rights with respect to a default or other matter arising under the Agreement at any time by either party shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The Grantee shall not contract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension ". The Grantee shall not contract with any Individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code 4477) The Grantee certifies to the best of its knowledge and belief, that It and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or grantee; b. Have not within a three -year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and d. Have not within a three -year period preceding this applicationtproposal had one or more public transactions (federal, state or local) terminated for cause or default. 48-18—OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed or improved as. part of the project throughout the term of this Agreement, consistent with the purposes for which this grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Grant Manager. For purposes of this Agreement, 'operation costs' include direct costs incurred for material and labor. needed for operations, utilities, insurance, and similar expenses. "Maintenance costs' include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic structures. 2&19. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall monitor all agreements subject to reimbursement from this Agreement to assure that the prevailing wage provisions of State tabor Code Section 1771 are being met The Grantee agrees to fulfill its responsibilities under Section 1771.8 of the labor Code, where applicable. 24-20. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. 22-21. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally accepted accounting principles, the Grantee agrees to: City of Newport Beach • SWRCB Ot Agreement No. 04- 079 - 558-23 Page 13 of 15 a. Establish an official file for the Project which shall adequately document all significant actions relative to the Project; b. Establish separate accounts which will adequately and accurately depict all amounts received and expended on this Project, including all grant funds received under this Agreement: c. Establish separate accounts which will adequately depict all income received which is attributable to the Project, especially including any income attributable to grant funds disbursed under this Agreement; d. Establish an accounting system which will adequately depict final total costs of the Project, including both direct and indirect costs; e. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and f. If Force Account is used by the Grantee for any phase of the Project, establish an account that documents all employee hours, and associated tasks charged to the Project per employee. 23-22. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement shall be available to the State as set forth in this section. The State shall have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. The Grantee shall not utilize the materials for any profit-making venture or sell or grant rights to a third party who intends to do so. 24-23. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project applications, documents, permits, plans and specifications or other Project information by the SWRCB is for administrative purposes only and does not relieve the Grantee of its responsibility to properly plan, design, construct, operate, maintain, implement, or otherwise carry out the Project To the extent permitted by law, the Grantee agrees to indemnity, defend and hold harmless the SWRCB and the State against any loss or liability arising out of any claim or action brought against the SWRCB and/or the State from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions, occupancy, use, possession, conduct or management of, work done in or about or the planning, design, acquisition, installation or construction, of the Project or any part thereof, (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the Califomia Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Grantee for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement To the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered or made against the SWRCB and/or the State with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement 25:24. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee agrees that any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party shall be entitled to such reasonable costs and/or attorney fees as may be ordered by the court entertaining such litigation. City of Newport Beach • SWRCB (& Agreement No. 04 -079 -558-03 Page 14 of 15 26-.25. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB, upon violation by the Grantee of any material provision after such violation has been called to the attention of the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Grantee to the date of full repayment by the Grantee. 2.28. TIMELINESS: Time is of the essence in this Agreement. 28:27. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those amounts paid to the State's represented employees under collective bargaining Agreements currently in effect. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the SWRCB. 29-.28. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have full force and effect and shall not be affected thereby. 3&29. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. The Grantee hereby waives any existing sovereign immunity for the purposes of this Agreement. 34-30. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may withhold all or any portion of the grant funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or the Grantee fails to maintain reasonable progress toward completion of the Project City of Newport Beach • SWRCB 0 Agreement No. 04079 - 558,2-2 Page 15 of 15 EXHIBIT D Grant Program Terms & Conditions 1. This project is to develop local watershed management plans or to implement project consistent with local watershed management and regional water quality control plans, as such terms are defined in Water Code § 79078. 2. The Grantee certifies that it has adequate legal authority to manage the grant money. 3. The Grantee certifies that it is a member of local watershed group, as defined in Water Code § 79078. 4. The Grantee certifies that its project is designed to withstand substantial flooding, if a watershed improvement project- 5. Nothwithstanding Exhibit A, the Grantee agrees to submit a monitoring and reporting plan that will do all of the following: a. describes baseline water quality of the water body impacted b. describes manner in which proposed watershed restoration activities are implemented c. determines effectiveness of watershed restoration activities in preventing or reducing pollution d. determines, to extent feasible, changes in pattern of flow in affected streams, including reduction of flood flows and increases in spring, summer, and fall flows that result from the implementation of the project e. detenmines, to the extent feasible, economic benefits resulting from changes determined pursuant to (c) . or (d) above. 6. The Grantee shall inform the SWRCS with regard to necessary public agency approvals, entitlements, and' permits that may be necessary to implement the project. The Grantee shall certify to the SWRCB, at the appropriate time, that it has obtained those approvals, entitlements, and permits. 7. The Grantee shall notify, in writing, adjoining landowners of its request for this grant and the scope of the project for which the grant funding is requested. Upon completion of the notification required under this section, the Grantee shall inform the SWRCB that the notification has occurred. 8. The Grantee hereby certifies that it has written permission from the landowners of the parcel on which work will occur under this Agreement 9. Notwithstanding Exhibit A, if this project is a capital outlay project, the Grantee agrees to submit a report to the SWRCB at the completion of the project that summarizes the completed project and identifies additional steps necessary to achieve the purposes of the local watershed management plan, as such term is defined under Water Code § 79078. 10. The Grantee certifies that if a recovery plan for coho, steelhead, or other threatened or endangered aquatic species exists, this project is consistent with such a plan and, N feasible, implements actions in such a plan. SJ':i Ji DGS REGISTRATION NO. 3q`-t01109-5(0251.2 PROPOSITION 13 WATERSHED PROTECTION GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD AND CITY OF NEWPORT BEACH Big Canyon Creek Restoration Project AGREEMENT NO. 04- 079 - 55842 This Grant Agreement is made between the State of California acting by and through the State Water Resources Control Board, hereafter referred to as the "SWRCB*, and the City of Newport Beach, a city, hereafter referred to as the "Grantee" and as approved by SWRCB dated November 12, 2004 and subsequently amended on February 9, 2007 is hereby amended on March 17, 2008 to revise Exhibits A. 8, and C and the work completion and term end dates. Except as noted herein, all other terms and conditions shall remain the same. WHEREAS: 1. The following provisions authorize the SWRCB to enter into this type of Grant Agreement: WC § 79079 (Pr 13 WPP). 2. The Grantee has applied for a grant and has been determined by the SWRCB to be eligible for a grant pursuant to applicable State laws and regulations, and 3. The SWRCB, pursuant to the SWRCB Resolution No., 2004 -0003, approved on February 19, 2004, has authorized grant funding for the Project hereafter described. NOW THEREFORE, it is agreed as follows: 1. The Project generally consists of Phase II Water Quality and Design of Big Canyon Restoration Project, for the benefit of the Grantee. The Project Representatives during the term of this Agreement will be: State Water Resources Control Board Grantee: City of Newport Beach Name: Wanda Cross, Grant Manager Name: Dave Kiff, Project Director Address: 3737 Main Street, Suite 500, Riverside, CA 92501 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 951 782 -4468 Phone: 949 644 -3032 Fax: 951 781 -6288 Fax: 949 644 -3020 e -mail: wcross waterboards.ca. ov e-mail: dkiff ci .new ort- beach.ca.us Direct all inquiries to: State Water Resources Control Board Grantee: City of Newport Beach Section /Unit: Division of Financial Assistance Section /Unit: Attention: Pam Nichols, Program Anal st Attention: Dave Kiff, Grant Contact Address: 1001 I Street, 17 Floor, Sacramento, CA 95814 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 916 341 -5909 Phone: 949 644 -3032 Fax: 916 341 -5296 Fax: 949 644 -3020 e -mail: pnicholspwaterboards ca. ov e-mail: dkiff ci .new ort- beach.ca.us City of Newport Beach SWRCB C it Agreement No. 04-079-55842 Page 2 of 15 Each party may change its Project Representative upon written notice to the other party. 2. Incorporation of Documents. This Agreement incorporates the following documents: 2.1 Exhibit A, Scope of Work; 2.2 Exhibit B, Invoicing, Budget Detail, and Reporting Provisions; 2.3 Exhibit C, SWRCB General Conditions; and 2.4 Exhibit D, Grant Program Terms and Conditions. 3. The Grantee accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declaration, representations, and commitments made by the Grantee in its application, accompanying documents, and communications filed in support of its request for grant funding. Grantee shall comply with and require its contractors and subcontractors to comply with all applicable laws, policies and regulations. 4. The term of the Agreement shall begin on September 15, 2004 and continue for twenty—three (23) years unless otherwise terminated or amended as provided in the Agreement. HOWEVER, ALL WORK SHALL BE COMPLF,FiED BY M #DECEMBER 31, 2008. NF-SSTHEREO t" arties have executed this Agreement on the dates set forth below. B > Y: ntee Signalure J Barbara L. Evoy, Deputy ffrector SWRCB, Division of Financial Assistance ED SELICH Grantee Typed/Printed Name MAYOR, CITY OF NEWPORT BEACH Title and Date 4/24/08 Date Reviewed by Office of Chiefounsel Date:5--(o_®d City of Newport Beach r�\ • SWRCB (lot Agreement No. 04- 079 -55832 Page 3 of 15 EXHIBIT A— SCOPE OF WORK 1. Contracts and Permits. 1.1 Grantee shall document steps taken in soliciting and awarding any contracts to perform grant work and submit such documentation to the Grant Manager for review prior to contract award. Grantee shall provide Grant Manager with a copy of the awarded contract Grantee shall document all contractor activities and expenditures in progress reports. 1.2 No work that is subject to California Environmental Quality Act (CEQA) or National Environmental Policy Act (NEPA) may proceed under this Agreement until documents that satisfy the CECWNEPA process are received by the Grant Manager. 1.3 Grantee shall secure all required permits for project work. No work that is subject to permitting may proceed under this Agreement until documents that satisfy the permitting process(es) are received by the Grant Manager. 2. Quality Assurance Project Plan and Sampling and Analysis Plan 2.1 Prepare and maintain a Quality Assurance Project Plan (QAPP) that is consistent with the QAPP for the Surface Water Ambient Monitoring Program (SWAMP). The QAPP must be approved by the RWQCB or SWRCB's Quality Assurance Officer prior to implementation of any sampling or monitoring activities. No monitoring may occur prior to QAPP approval. Any costs related to monitoring data collected prior to and not supported by the approved QAPP will not be reimbursed. 2.2 Prepare and maintain a Sampling and Analysis Plan (SAP) that describes the types of constituents to be monitored and the frequency /schedule for the monitoring activities. The SAP shall be approved by the Grant Manager prior to implementation of any sampling or monitoring activities. No sampling may occur prior to SAP approval. The Grant Manager must approve any changes to the SAP prior to implementation. 3. Work To Be Performed: 3.1 Water Quality Sampling and Analysis 3.1.1 Conduct water quality sampling and analysis per approved SAP 3.1.2 Prepare baseline water quality analysis and evaluation of Big Canyon Restoration Area. 3.1.3 Characterize contaminants entering and /or present within Big Canyon Restoration Area. 31.4 Prepare and submit to the Grant Manager a baseline water quality and contaminant characterization report. 3.2 Public Agency and Stakeholder Meetings 3.2.1 Conduct meetings and tours to ensure 1) direct involvement in the design process by the many federal, state and local public agencies that have jurisdiction in Big Canyon; 2) definition of permitting issues and needs for each agency; and 3) landowners are informed of project impacts. 3.2.2 Produce a draft hydrology and water quality design plan and related material for stakeholder review. Submit to the Grant Manager for review and approval prior to holding meetings. 3.2.3 Finalize the design plan and submit to the Grant Manager. City of Newport Beach pp ,11A0 • SWRCB r& Agreement No. 04- 07955842 t� l Page 4 of 15 3.2.4 Send meeting notices via e-mail to public agencies and telephone stakeholders. 3.2.5 Hold two (2) group meetings with public agencies and technical team to discuss, and then refine, the hydrology and water quality design plan. 3.2.6 Hold on -site tour with any interested federal, regional, state, and local agencies, address comments. 3.2.7 Hold six (6) meetings with the City of Newport Beach staff in design, CEQA, and project approval and permitting phases. 3.2.8 Meet at least two (2) times with the Big Canyon Country Club to explore and evaluate possible water quality improvement measures for Big Canyon Creek on the Country Club's property. 3.2.9 Meet once with each homeowners association representing homeowners on the surrounding bluffs to discuss on -site water quality improvements, erosion control, and non -native plant control, address comments. 3.3 Restoration and Site Design 3.3.1 Support the conduct of geotechnical, biological, and soil test studies and submit a report on each to the Grant Manager. 3.3.2 Support the design development of plans for habitat restoration and landscape architecture and submit to the Grant Manager. 3.3.3 Support the design development of plans for public access, trails, and interpretive components and provide design and restoration detail to the Grant Manager. 3.3.4 Prepare preliminary, pre-construction, and final structural engineering design and submit to the Grant Manager. Incorporate habitat restoration, landscape plan, water quality improvements, public access, trails and interpretive components into the design. 3.3.5 Coordinate six (6) focused planning and design sessions with engineers, restoration specialists, public facilitators, and landscape architects. 3.4 Distribution of Information to the Public 3.4.1 Develop written and digital public information materials describing the restoration plan, goals, and benefits. Information materials will be mailed to community stakeholder lists and posted to the City's web site (www.city.newport- beach.ca.us). 3.5 Public Workshops 3.5.1 Conduct at least one (1) public workshop to allow the public an opportunity to comment on design plans for the Big Canyon Restoration Area before the plans are finalized, and to allow the design team and public agencies to respond to public needs and concerns. 3.6 Draft and Final Project Reports 3.6.1 Prepare a draft final project report and submit to the Grant Manager for review and comment. City of Newport Beach 1�/titk dj • SWRCBent Agreement No. 04- 079 - 558-42 Page 5 of 15 3.6.2 Prepare a final project report that addresses comments made by the Grant Manager on the draft report. Submit one (1) reproducible master and two (2) copies of the final project report to the Grant Manager for review and acceptance. TABLE OF SUBMITTALS Item DESCRIPTION DUE DATE Project Administration Ongoing EXHIBIT A— SCOPE OF WORK 1.0 CONTRACTS AND PERMITS 1.1 Subcontract Documentation Before each award 2.0 QUALITY ASSURANCE PROJECT PLAN AND SAMPLING AND ANALYSIS PLAN 2.1 Quality Assurance Project Plan 04/07 2.2 Sampling and Analysis Plan 04107 3.0 WORK TO BE PREFORMED 3.1 Water Quality Sampling and Analysis 1111/04 to 06/07 3.1.4 Baseline Water Quality and Contaminant Characterization Report 07/07 3.2 Public Agency and Stakeholder Meetings 12/1104 to 01/06 3.2.2 Draft Hydrology and Water Quality Design Plan and Related Materials 05/07 12.3 Final Hydrology and Water Quality Design Plan 0947 06/08 13 Restoration and Site Design 3.3.1 Geotechnical, Biological, and Soil Test Report 01= 07/08 3.3.2 Habitat Restoration and Landscape Design 12107 3.3.3 Public Access, Trails, and Interpretation Design Detail 42!07 06108 3.3.4 Final Structural Engineering Design 42Q7 06108 3.4 Distribution of Information to the Public 3.4.1 Website Updates and Informational Materials Quarterly, as applicable 3.5 Public Workshops 3.5.1 Meeting Notice and Summaries Quarterly, as applicable 3.6 Draft and Final Project Reports 3.6.1 Draft Project Report 0 210 81 0131 /0 8 3.6.3 Final Project Report 03!98 11/30/2008 • SWRCB Go City of Newport Beach Agreement No. 04 -079- 558-42 DUE DATE EXHIBIT B — BUDGET AND REPORTING PROVISIONS 6.1 Page 6 of 15 It DESCRIPTION DUE DATE EXHIBIT B — BUDGET AND REPORTING PROVISIONS 6.1 Progress Reports by the tenth (10 ')of the month following the end of the calendar quarter (March, June, September, and December) 1!10/05 and Quarterly thereafter 6.2 Expenditure/Invoice Projections Each May and October 6.3 Grant Summary Form 12/1/04 6.4 Natural Resource Projects Inventory (NRPI) Project Survey Form 03!98 -11108 • SWRCB Ce Newport Beach Agreem ntyNof. 04-079-558-42 Page 7 of 15 EXHIBIT B— INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS 1. Invoicing 1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the SWRCB's Program Analyst on a quarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit Three (3) copies of the invoice shall be submitted to the SWRCB's Grant Manager. The addresses for submittal are: Pam Nichols, Program Analyst Wanda Cross, Grant Manager State Water Resources Control Board Santa Ana Regional Water Quality Control Board Division of Financial Assistance 3737 Main Street, Suite 500 1001 1 Street, 17" Floor Riverside, CA 92501 Sacramento, CA 95814 1.2 Payment of any invoice will be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice or payment request Invoices received by the SWRCB that are not consistent with the approved format will be cause for an invoice to be disputed. In the event of an invoice dispute, the SWRCB Grant Manager will notify the Grantee by initiating a Standard Form 209, 'Invoice Dispute Notification' form. Payment shall be deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United States mail. All invoices must be approved by the SWRCB's Grant Manager. 1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, rules, or regulation, or which may require any rebates to the Federal Government, or any loss of tax -free status on state bonds, pursuant to any Federal statute or regulation. 1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain an amount equal to ten percent (10 %) of the grant amount specified in this Agreement until completion of the Project to the reasonable satisfaction of the SWRCB. Any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 1.5 The invoice shall contain the following information: 1.5.1 The word 'INVOICE" should appear in a prominent location at the top of page(s); 1.5.2 Printed name of the Grantee; 1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code; 1.5.4 The date of the invoice; 1.5.5 The number of the Agreement upon which the claim is based; and 1.5.6 An itemized account of the work for which the SWRCB is being billed; 1.5.6.1 The time period covered by the invoice, i.e., the term 'from' and 'to', 1.5.6.2 A brief description of the work performed; 1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices must be itemized based on the categories specified in the Budget. The amount claimed for salaries /wages/consultant fees must also be explained; i.e., hours or days worked times the hourly or daily rate = the total amount claimed; 1.5.6.4 The total amount due; this should be in a prominent location in the lower right -hand portion of the last page and clearly distinguished from other figures or computations appearing on the invoice; the total amount due shall include all costs incurred by the Grantee under the terms of this Agreement; and 1.5.7 Original signature and date (in ink) of Grantee or its authorized representative. • City of Newport Beach 1 "�rJI SWRCB G Agreement No. 04- 079 -558-42 Page 8of15 1.5.8 Final invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN MA-Y 2808 FEBRUARY 1. 2009. 2. Budget Contingency Clause The maximum amount to be encumbered under this Agreement for the 2004 -05 fiscal year ending June 30, 2005 shall not exceed two hundred thousand dollars ($200,000). If the Budget Act of the current year andlor any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no force and effect. This provision shall be construed as a condition precedent to the obligation of the SWRCB to make any payments under this Agreement. In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to furnish any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of this Agreement. Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for payment over any other Grantee. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to Grantee to reflect the reduced amount. 3. LINE ITEM BUDGET Development of OAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the. SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRC13 may also propose adjustments to the budget. PROP 13 MATCH TOTAL Personnel Services (includes benefits) $0 $5,000 $5,000 Class Hours Wage /Hour Assistant City Manager 40 $75 Senior Civil Engineer 15.2 $65 Administrative Assistant 28.5 $35 Professional and Consultant Services $200,000 $25,000 $225,000 Development of OAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the. SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRC13 may also propose adjustments to the budget. • SWRCB � Beach Agreem ntyNo.N04-079 -55842 00 Page 9 of 15 5. QAPP /CEQA/NEPA/Permft Payment. Grantee shall provide to the SWRCB's Grant Manager a Standard Requirements Certification From (to be provided by the SWRCB) certifying that QAPP /CEQA/NEPA/PERMIT documents have been received by the Grant Manager. Payment for activities that require a completed QAPP or CEQA/NEPA documents, or permits shall not be made to Grantee until the certification form is received by the Grant Manager. 6. Reports. 6.1 Grantee shall submit quarterly progress reports to the SWRCB's Grant Manager by the tenth (I OP) of the month following the end of the calendar quarter (March, June, September, and December). The progress reports shall describe activities undertaken and accomplishments during the quarter, milestones achieved, and any problems encountered in the performance of the work under this Agreement. 6.2 Every six (6) months during the work performed under the Scope of Work of this Agreement, the Grantee shall develop and submit to their assigned SWRCB's Program Analyst expenditure /invoice projections to enable funding to be available for payment of invoices. 6.3 Grantee shall complete a one (1) page Grant Summary Form htti): / /www. swrcb .ca.00v /nr)s /docs/consumMgry.do,c within three (3) months of the Agreement execution. 6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource Projects Inventory (NRPI) project survey form http //www.ice,ucdavis.edu /nrpi forms/defauft.asp. A hard copy shall be submitted to the Program Analyst prior to final payment. 6.5 Grantee agrees to expeditiously provide, during work on the Project and for a reasonable period of time thereafter, such reports, data, information, and certifications as may be reasonably required by the SWRCB. 7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs and that all costs connected with the Project will be paid by the Grantee on a timely basis. 8. Audit Disallowances. The Grantee agrees it shall return any audit disallowances to the SWRCB. • SWRCB (6 City of Newport Beach Agreement No. 04-079-55842 Page 10 of 15 EXHIBIT C SWRCB GENERAL CONDITIONS 1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 2. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the SWRCB. 3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of the SWRCB. 4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Grantee agrees to maintain such records for possible audit for a minimum of twenty-three (23) years after final payment, unless a longer period of records retention is stipulated. Grantee agrees to allow the auddor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Grantee agrees to include a similar right of the State to audit records and interview staff in any contract related to performance of this Agreement. 5. BONDING: Where contractors are used, construction shall not begin until each such contractor has furnished a performance bond in favor of the Grantee in the following amounts: faithful performance (100 %) of contract value; labor and materials (100 %) of contract value. This requirement shall not apply to any contract for less than $20,000. 6. COMPLIANCE WITH LAW, REGULATIONS, ETC.: The Grantee agrees that 0 will, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, the Grantee agrees that, to the extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for the term of this Agreement. 7, COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. 8. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds, or if such breach shall result in an obligation on the part of the State to reimburse the federal government by reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any damages paid by or loss incurred by the state due to such breach. 9. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any dispute. Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Deputy Director of the Division of Financial Assistance (Division), or his or her authorized representative. The decision shall be reduced to writing and a copy thereof fumished to the Grantee and to the SWRCB's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCB's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute City of Newport Beach �'I .` • SWRCB Gi•Agreement No. 04- 079 -55842 Page 11 of 15 hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the SWRCB, or any official or representative thereof, on any question of law. 10. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of state law or this Agreement. The Grantee further agrees that it will maintain separate Project accounts in accordance with generally accepted accounting principles. 11. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 12. GRANT MODIFICATIONS: The SWRCB may, at any time, without notice to any sureties, by written order designated or indicated to be a "grant modification ", make any change in Exhibit A, for the work to be performed under this Agreement so long as the modified work is within the general scope of work called for by this Agreement, including but not limited to changes in the specifications or in the method, manner, or time of performance of work. If the Grantee intends to dispute the change, the Grantee must, within ten (10) days after receipt of a written "grant modification ", submit to the SWRCB a written statement setting forth the disagreement with the change. 13. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by the Grantee to the State, to the extent that they are properly allocable to costs for which the Grantee has been reimbursed by the State under this Agreement. 14, INSPECTION: Throughout the term of this Agreement, the SWRCB shall have the right to inspect the project area to ascertain compliance with this Agreement. 15. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance against fire, vandalism and other loss, damage, or destruction of the facilities or structures constructed pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to transact business in the State of California. The insurance policy shall contain an endorsement specifying that the policy will not be cancelled or reduced in coverage without thirty days' prior written notice to the SWRCB. 16. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition, marital status, age (over 40) or denial of family -care leave, medical -care leave, or pregnancy - disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. 17. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the scope, budget, or work performed under this Agreement. The Grantee agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the SWRCB, and the SWRCB has given written approval for such change. The Grantee shall notify the SWRCB at least ten (10) working days prior to any public or media event publicizing the accomplishments and /or results of this Agreement and provide the opportunity for attendance and participation by SWRCB's representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project. 18. PERMITS, CONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors, outside associates, or consultants required by the Grantee in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during • SWRCB GeAgreement City of Newport Beach No. 04- 079 - 558-42 V Page 12 of 15 negotiations for this Agreement, or as are specifically authorized by the SWRCB's Grant Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the SWRCS's Grant Manager. Any waiver of rights with respect to a default or other matter arising under the Agreement at any time by either party shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The Grantee shall not contract with any parry who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension'. The Grantee shall not contract with any individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code 4477) The Grantee certifies to the best of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or grantee, b. Have not within a three -year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and d. Have not within a three -year period preceding this application/proposal had one or more public transactions (federal, state or local) terminated for cause or default. 19. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed or improved as part of the project throughout the term of this Agreement, consistent with the purposes for which this grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Grant Manager. For purposes of this Agreement, "operation costs" include direct costs incurred for material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs' include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic structures. 20. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall monitor all agreements subject to reimbursement from this Agreement to assure that the prevailing wage provisions of State Labor Code Section 1771 are being met. The Grantee agrees to fulfill its responsibilities under Section 1771.8 of the Labor Code, where applicable. 21. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. 22. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally accepted accounting principles, the Grantee agrees to: of Newport Beach • SWRCB GIRAgreemenit No. 04- 079 - 556-42 \• `�I Page 13 of 15 a. Establish an official file for the Project which shall adequately document all significant actions relative to the Project, b. Establish separate accounts which will adequately and accurately depict all amounts received and expended on this Project, including all grant funds received under this Agreement; c. Establish separate accounts which will adequately depict all income received which is attributable to the Project, especially including any income attributable to grant funds disbursed under this Agreement; d. Establish an accounting system which will adequately depict final total costs of the Project, including both direct and indirect costs; e. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and f. If Force Account is used by the Grantee for any phase of the Project, establish an account that documents all employee hours, and associated tasks charged to the Project per employee. 23. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement shall be available to the State as set forth in this section. The State shall have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. The Grantee shall not utilize the materials for any profit- making venture or sell or grant rights to a third parry who intends to do so. 24. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project applications, documents, permits, plans and specifications or other Project information by the SWRCB is for administrative purposes only and does not relieve the Grantee of its responsibility to properly plan, design, construct, operate, maintain, implement, or otherwise carry out the Project. To the extent permitted by law, the Grantee agrees to indemnify, defend and hold harmless the SWRCB and the State against any loss or liability arising out of any claim or action brought against the SWRCB and/or the State from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions, occupancy, use, possession, conduct or management of, work done in or about, or the planning, design, acquisition, installation or construction, of the Project or any part thereof, (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Grantee for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered or made against the SWRCB and/or the State with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement. 25. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee agrees that any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party shall be entitled to such reasonable costs and /or attorney fees as may be ordered by the court entertaining such litigation. • SWRCB t& Nert Beach AgreementyNof . 04 -09- 558-12 �A Page 14 of 15 26. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB, upon violation by the Grantee of any material provision after such violation has been called to the attention of the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Grantee to the date of full repayment by the Grantee. 27. TIMELINESS: Time is of the essence in this Agreement 28. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those amounts paid to the State's represented employees under collective bargaining Agreements currently in effect. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the SWRCB. 29. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have full force and effect and shall not be affected thereby. 30. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. The Grantee hereby waives any existing sovereign immunity for the purposes of this Agreement. 31. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may withhold all or any portion of the grant funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or the Grantee fails to maintain reasonable progress toward completion of the Project. City of Newport Beach M1�� SWRCB G, . Agreement No. 04-079-5582 Page 15 of 15 EXHIBIT D Grant Program Terms & Conditions 1. This project is to develop local watershed management plans or to implement project consistent with local watershed management and regional water quality control plans, as such terms are defined in Water Code § 79078. 2. The Grantee certifies that it has adequate legal authority to manage the grant money. 3. The Grantee certifies that it is a member of local watershed group, as defined in Water Code § 79078. 4, The Grantee certifies that its project is designed to withstand substantial flooding, if a watershed improvement project. 5. Nothwithstanding Exhibit A, the Grantee agrees to submit a monitoring and reporting plan that will do all of the following: a. describes baseline water quality of the water body impacted b. describes manner in which proposed watershed restoration activities are implemented c. determines effectiveness of watershed restoration activities in preventing or reducing pollution d. determines, to extent feasible, changes in pattern of flow in affected streams, including reduction of flood flows and increases in spring, summer, and fall flows that result from the implementation of the project e. determines, to the extent feasible, economic benefits resulting from changes determined pursuant to (c) or (d) above. 6. The Grantee shall inform the SWRCB with regard to necessary public agency approvals, entitlements, and permits that may be necessary to implement the project. The Grantee shall certify to the SWRCB, at the appropriate time, that it has obtained those approvals, entitlements, and permits. 7. The Grantee shall notify, in writing, adjoining landowners of its request for this grant and the scope of the project for which the grant funding is requested. Upon completion of the notification required under this section, the Grantee shall inform the SWRCB that the notification has occurred. 8. The Grantee hereby certifies that it has written permission from the landowners of the parcel on which work will occur under this Agreement. 9. Notwithstanding Exhibit A, if this project is a capital outlay project, the Grantee agrees to submit a report to the SWRCB at the completion of the project that summarizes the completed project and identifies additional steps necessary to achieve the purposes of the local watershed management plan, as such term is defined under Water Code § 79078. 10. The Grantee certifies that if a recovery plan for coho, steelhead, or other threatened or endangered aquatic species exists, this project is consistent with such a plan and, if feasible, implements actions in such a plan. FOR STATE USE ONLY DGS REGISTRATION NO. 394o116(15wn.1 PROPOSITION 13 WATERSHED PROTECTION GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD AND CITY OF NEWPORT BEACH Big Canyon Creek Restoration Project AGREEMENT NO. 04- 079- 558 -1":; This Grant Agreement is made between the State of California acting by and through the State Water Resources Control Board, hereafter referred to as the "SWRCB ", and the City of Newport Beach, a city, hereafter referred to as the "Grantee" and as approved by SWRCB dated November 12. 2004 is herebv amended on February 9. WHEREAS: 1. The following provisions authorize the SWRCB to enter into this type of Grant Agreement: WC § 79079 (Pr 13 WPP). 2. The Grantee has applied for a grant and has been determined by the SWRCB to be eligible for a grant pursuant to applicable State laws and regulations; and 3. The SWRCB, pursuant to the SWRCB Resolution No., 2004 -0003, approved on February 19, 2004, has authorized grant funding for the Project hereafter described. NOW THEREFORE, it is agreed as follows: 1. The Project generally consists of Phase II Water Quality and Design of Big Canyon Restoration Project, for the benefit of the Grantee. The Project. Representatives during the term of this Agreement will be: State Water Resources Control Board Grantee: City of Newport Beach Name: Wanda Cross lv1afuuis- Sm4h, Grant Manager Name: Dave Kiff, Project Director Address: 3737 Main Street, Suite 500, Riverside, CA 92501 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 951 782 -4468 Phone: 949 644 -3032 Fax: 951 781 -6288 Fax: 949 644 -3020 e -mail: wcross( waterboards.ca.ciov vvsmllh(gG. rbg s vrcb:ea-f�v e-mail: dkiff(a)city.newport- beach.ca.us Direct all inquiries to: State Water Resources Control Board Grantee: City of Newport Beach Section /Unit: Division of Financial Assistance Section /Unit: Attention: Pam Nichols, Pro ram Anal st Attention: Dave Kiff, Grant Contact Address: 1001 1 Street, 17 16 Floor, Sacramento, CA 95814 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 916 341 -5909 Phone: 949 644 -3032 qf� f City of Newport Beach SWRCB L nt Agreement No. 04-079-558-10 Page 2 of 15 Fax: 916 341-5296 Fax: (949)644-3020 e-mail:pnicholsna waterboards.ca.gov e-mail: dkiff(a)city. newport-beach.ca. us Each party may change its Project Representative upon written notice to the other party. 2. Incorporation of Documents. This Agreement incorporates the following documents: 2.1 Exhibit A, Scope of Work; 2.2 Exhibit B, Invoicing, Budget Detail, and Reporting Provisions; 2.3 Exhibit C, SWRCB General Conditions; and 2.4 Exhibit D, Grant Program Terms and Conditions. 3. The Grantee accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declaration, representations, and commitments made by the Grantee in its application, accompanying documents, and communications filed in support of its request for grant funding. Grantee shall comply with and require its contractors and subcontractors to comply with all applicable laws, policies and regulations. 4. The term of the Agreement shall begin on September 15, 2004 and continue for twenty—three (23) thirty-six years unless otherwise terminated or amended as provided in the Agreement. HOWEVER, ALL WORK SHALL BE COMPLETED BY MARCH 31, 20087. IN NESS EREOF the p rties have executed this Agreement on the dates set forth below. B By: rantee Sig ature Barbara L Iffvoy, De utv Director Rs 1; ,114?f SWRCB, Division of Financial Assistance Administrative .Services S�-a-eK_ R sdrtsk� Grantee Typed/Printed Name Ce Ute 511107 Title and D' to Date Reviewed by:�1 Office of Chief Counsel Date: (p-0-01 City of Newport Beach • SWRCB St Agreement No. 04- 079 - 558 -10 Page 3 of 15 EXHIBIT A — SCOPE OF WORK 1. Contracts and Permits. 1.1 Grantee shall document steps taken in soliciting and awarding any contracts to perform grant work and submit such documentation to the Grant Manager for review prior to contract award. Grantee shall provide Grant Manager with a copy of the awarded contract. Grantee shall document all contractor activities and expenditures in progress reports. 1.2 No work that is subject to California Environmental Quality Act (CEQA) or National Environmental Policy Act (NEPA) may proceed under this Agreement until documents that satisfy the CEQA/NEPA process are received by the Grant Manager. 1.3 Grantee shall secure all required permits for project work. No work that is subject to permitting may proceed under this Agreement until documents that satisfy the permitting process(es) are received by the Grant Manager. 2. Quality Assurance Project Plan and Sampling and Analysis Plan 2.1 Prepare and maintain a Quality Assurance Project Plan (QAPP) that is consistent with the QAPP for the Surface Water Ambient Monitoring Program (SWAMP). The QAPP must be approved by the RWQCB or SWRCB's Quality Assurance Officer prior to implementation of any sampling or monitoring activities. No monitoring may occur prior to QAPP approval. Any costs related to monitoring data collected prior to and not supported by the approved QAPP will not be reimbursed. 2.2 Prepare and maintain a Sampling and Analysis Plan (SAP) that describes the types of constituents to be monitored and the frequency /schedule for the monitoring activities. The SAP shall be approved by the Grant Manager prior to implementation of any sampling or monitoring activities. No sampling may occur prior to SAP approval. The Grant Manager must approve any changes to the SAP prior to implementation. 3. Work To Be Performed: 3.1 Water Quality Sampling and Analysis 3.1.1 Conduct water quality sampling and analysis per approved SAP 3.1.2 Prepare baseline water quality analysis and evaluation of Big Canyon Restoration Area. 3.1.3 Characterize contaminants entering and/or present within Big Canyon Restoration Area. 3.1.4 Prepare and submit to the Grant Manager a baseline water quality and contaminant characterization report. 3.2 Public Agency and Stakeholder Meetings 3.2.1 Conduct meetings and tours to ensure 1) direct involvement in the design process by the many federal, state and local public agencies that have jurisdiction in Big Canyon; 2) definition of permitting issues and needs for each agency; and 3) landowners are. informed of project impacts. 3.2.2 Produce a draft hydrology and water quality design plan and related material for stakeholder review. Submit to the Grant Manager for review and approval prior to holding meetings. 3.2.3 Finalize the design plan and submit to the Grant Manager. City of Newport Beach y • SWRCB40nt Agreement No. 04 -079- 558 -1u Page 4 of 15 3.2.4. Send meeting notices via e-mail to public agencies and telephone stakeholders. 3.2.5 Hold two (2) group meetings with public agencies and technical team to discuss, and then refine, the hydrology and water quality design plan. 3.2.6 Hold on -site tour with any interested federal, regional, state, and local agencies, address comments. 3.2.7 Hold six (6) meetings with the City of Newport Beach staff in design, CEQA, and project approval and permitting phases. 3.2.8 Meet at least two (2) times with the Big Canyon Country Club to explore and evaluate possible water quality improvement measures for Big Canyon Creek on the Country Club's property. 3.2.9 Meet once with each homeowners association representing homeowners on the surrounding bluffs to discuss on -site water quality improvements, erosion control, and non- native plant control, address comments. 3.3 Restoration and Site Design 3.3.1 Support the conduct of geotechnical, biological, and soil test studies and submit a report on each to the Grant Manager. 3.3.2 Support the design development of plans for habitat restoration and landscape architecture and submit to the Grant Manager. 3.3.3 Support the design development of plans for public access, trails, and interpretive components and provide design and restoration detail to the Grant Manager. . 3.3.4 Prepare preliminary, pre- construction, and final structural engineering design and . submit to the Grant Manager. Incorporate habitat restoration, landscape plan, water quality improvements, public access, trails and interpretive components into the design. 3.3.5 Coordinate six (6) focused planning and design sessions with engineers, restoration specialists, public facilitators, and landscape architects. 3.4 Distribution of Information to the Public 3.4.1 Develop written and digital public information materials describing the restoration plan, goals, and benefits. Information materials will be mailed to community stakeholder lists and posted to the City's web site (www.city.newport- beach.ca.us). 3.5 Public Workshops 3.5.1 Conduct at least one (1) public workshop to allow the public an opportunity to comment on design plans for the Big Canyon Restoration Area before the plans are finalized, and to allow the design team and public agencies to respond to public needs and concerns. 3.6 Draft and Final Project Reports 3.6.1 Prepare a draft final project report and submit to the Grant Manager for review and comment. City of Newport Beach I • SWRCB Wt Agreement No. 04- 079 - 558 -10 Page 5 of 15 3.6.2 Prepare a final project report that addresses comments made by the Grant Manager on the draft report. Submit one (1) reproducible master and two (2) copies of the final project report to the Grant Manager for review and acceptance. TABLE OF SUBMITTALS Item DESCRIPTION DUE DATE -- Project Administration Ongoing EXHIBIT A— SCOPE OF WORK 1.0 CONTRACTS AND PERMITS 1.1 Subcontract Documentation Before each award 2.0 QUALITY ASSURANCE PROJECT PLAN AND SAMPLING AND ANALYSIS PLAN 2.1 Quality Assurance Project Plan 04107 - 141; 04 2.2 Sampling and Analysis Plan 04107 11 -1104 3.0 WORK TO BE PREFORMED 3.1 Water Quality Sampling and Analysis 1111104 to 06107 3F1-M5 3.1.4 Baseline Water Quality and Contaminant Characterization Report 07107 6/1,05 3.2 Public Agency and Stakeholder Meetings 1211104 to 01108 3.2.2 Draft Hydrology and Water Quality Design Plan and Related Materials 05107 9;a !Ora 3.2.3 Final Hydrology and Water Quality Design Plan 09107 0110E 3.3 Restoration and Site Design 3.3.1 Geotechnical, Biological, and Soil Test Report 09107 2,445 3.3.2 Habitat Restoration and Landscape Design 12107,39/0-5 3.3.3 Public Access, Trails, and Interpretation Design Detail 12107 100105 3.3.4 Final Structural Engineering Design 12107 9 119a 3.4 Distribution of Information to the Public 3.4.1 Website Updates and Informational Materials Quarterly, as applicable 3.5 Public Workshops 3.5.1 Meeting Notice and Summaries Quarterly, as applicable City of Newport Beach • SWRCB18nt Agreement No. 04- 079- 558 -10 . Page 6 of 15 Item DESCRIPTION DUE DATE 3.6 Draft and Final Project Reports 3.6.1 Draft Project Report 02108 L "1"6 3.6.3 Final Project Report 03108 6/90/06 EXHIBIT B — BUDGET AND REPORTING PROVISIONS 6.1 Progress Reports by the tenth (10 ) of the month following the end of the calendar quarter (March, June, September, and December) 1/10/05 and Quarterly thereafter 6.2 Expenditure /Invoice Projections Each May and October 6.3 Grant Summary Form 12/1/04 6.4 Natural Resource Projects Inventory (NRPI) Project Survey Form 03/08 3/30106 City of Newport Beach:`f • SWRCB0nt Agreement No. 04- 079 - 558 -10 Page 7 of 15 EXHIBIT B — INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS 1. Invoicing 1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the SWRCB's Program Analyst on a quarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit. Three (3) copies of the invoice shall be submitted to the SWRCB's Grant Manager. The addresses for submittal are: Pam Nichols, Program Analyst Wanda Cross A1ac ,d+s- SA =sta, Grant Manager State Water Resources Control Board Santa Ana Regional Water Quality Control Board Division of Financial Assistance 3737 Main Street, Suite 500 1001 1 Street, 17 " 1i " Floor Riverside, CA 92501 Sacramento, CA 95814 1.2 Payment of any invoice will be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice or payment request. Invoices received by the SWRCB that are not consistent with the approved format will be cause for an invoice to be disputed. In the event of an invoice dispute; the SWRCB Grant Manager will notify the Grantee by initiating a Standard Form 209, "Invoice Dispute Notification" form. Payment shall be deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United States mail. All invoices must be approved by the SWRCB's Grant Manager. 1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, rules, or regulation, or which may require any rebates to the Federal Government, or any loss of tax -free status on state bonds, pursuant to any Federal statute or regulation. 1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain an amount equal to ten percent (10 %) of the grant amount specified in this Agreement until *completion of the Project to the reasonable satisfaction of the SWRCB. Any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 1.5 The invoice shall contain the following information: 1.5.1 The word "INVOICE" should appear in a prominent location at the top of page(s); 1.5.2 Printed name of the Grantee; 1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code; 1.5.4 The date of the invoice; 1.5.5 The number of the Agreement upon which the claim is based; and 1.5.6 An itemized account of the work for which the SWRCB is being billed; 1.5.6.1 The time period covered by the invoice, i.e., the term "from" and "to "; 1.5.6.2 A brief description of the work performed; 1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices must be itemized based on the categories specified in the Budget. The amount claimed for salaries/wages/consultant fees must also be explained; i.e., hours or days worked times the hourly or daily rate = the total amount claimed; 1.5.6.4 The total amount due; this should be in a prominent location in the lower right -hand portion of the last page and clearly distinguished from other figures or computations appearing on the invoice; the total amount due shall include. all costs incurred by the Grantee under the terms of this Agreement; and 1.5.7 Original signature and date (in ink) of Grantee or its authorized representative. City of Newport Beach I • SWRCB Ot Agreement No. 04- 079- 558 -10 Page 8 of 15 1.5.8 Final invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN MAY 1, 2008-. 2. Budget Contingency Clause The.maximum amount to be encumbered under this Agreement for the 2004 -05 fiscal year ending June 30, 2005 shall not exceed two hundred thousand dollars ($200,000). If the Budget Act of the current year and/or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no force and effect. This provision shall be construed as a condition precedent to the obligation of the SWRCB to make any payments under this Agreement. In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to furnish any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of this Agreement. Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for payment over any other Grantee. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to Grantee to reflect the reduced amount. 3. LINE ITEM BUDGET Development of QAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment. 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget. PROP 13 MATCH TOTAL Personnel Services (includes benefits) $0 $5,000 $5,000 Class Hours Wage /Hour Assistant City Manager 40 $75 Senior Civil Engineer 15.2 $65 Administrative Assistant 28.5 $35 Professional and Consultant Services $200,000 $25,000 $225,000 Development of QAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment. 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget. City of Newport Beach . SWRCB dot Agreement No. 04- 079 - 558 -10 Page 9 of 15 5. QAPP /CEQA/NEPA/Permit Payment. Grantee shall provide to the SWRCB's Grant Manager a Standard Requirements Certification From (to be provided by the SWRCB) certifying that QAPP /CEQA/NEPA/PERMIT documents have been received by the Grant Manager. Payment for activities that require a completed QAPP or CEQA/NEPA documents, or permits shall not be made to Grantee until the certification form is received by the Grant Manager. 6. Reports. 6.1 Grantee shall submit quarterly progress reports to the SWRCB's Grant Manager by the tenth (10'h) of the month following the end of the calendar quarter (March, June, September, and December). The progress reports shall describe activities undertaken and accomplishments during the quarter, milestones achieved, and any problems encountered in the performance of the work under this Agreement. 6.2 Every six (6) months during the work performed under the Scope of Work of this Agreement, the Grantee shall develop and submit to their assigned SWRCB's Program Analyst expenditure /invoice projections to enable funding to be available for payment of invoices. 6.3 Grantee shall complete a one (1) page Grant Summary Form htti): / /www.swrcb.ca- govinps /docs /consummary.doc within three (3) months of the Agreement execution. 6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource Projects Inventory (NRPI) project survey form http: / /www.ice.ucdavis.edu /nrpi forms /default.asp..A hard copy shall be submitted to the Program Analyst prior to final payment. 6.5 Grantee agrees to expeditiously provide, during work on the Project and for a reasonable period of time thereafter, such reports, data, information, and certifications as may be reasonably required by the SWRCB 7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs and that all costs connected with the Project will be paid by the Grantee on a timely basis. 8. Audit Disallowances. The Grantee agrees it shall return any audit disallowances to the SWRCB. City of Newport Beach.% •SWRCB ent Agreement No. 04079 - 558-10 Page 10 of 15 EXHIBIT C SWRCB GENERAL CONDITIONS 1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 2. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the SWRCB. 3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of the SWRCB. 4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Grantee agrees to maintain such records for possible audit for a minimum of twenty -three (23) hirty -- six -f36 years after final payment, unless a longer period of records retention is stipulated. Grantee agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Grantee agrees to include a similar right of the State to audit records and interview staff in any contract related to performance of this Agreement. 5. BONDING: Where contractors are used, construction shall not begin until each such contractor has furnished a performance bond in favor of the Grantee in the following amounts: faithful performance (100 %) of contract value; labor and materials (100 %) of contract value. This requirement shall not apply to any contract for less than $20,000. 6. COMPLIANCE WITH LAW, REGULATIONS, ETC.: The Grantee agrees that it will, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations; and requirements. Without limitation of the foregoing, the Grantee agrees that, to the extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for the term of this Agreement. 7. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. 8. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds, or if such breach shall result in an obligation on the part of the State to reimburse the federal government by reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any damages paid by or loss incurred by the state due to such breach. 9. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any. dispute. Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Deputy Director Chief of the Division of Financial Assistance (Division), or his or her authorized representative. The decision shall be reduced to writing and a copy thereof furnished to the Grantee and to the SWRCB's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCB's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute City of Newport Beach • SWRCB Wt Agreement No. 04 -079- 558 -10 Page 11 of 15 hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the SWRCB, or any official or representative thereof, on any question of law. 10. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of state law or this Agreement. The Grantee further agrees that it will maintain separate Project accounts in accordance with generally accepted accounting principles. 11. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 12. GRANT MODIFICATIONS: The SWRCB may, at any time, without notice to any sureties, by written order designated or indicated to be a "grant modification ", make any change in Exhibit A, for the work to be performed under this Agreement so long as the modified work is within the general scope of work called for by this Agreement, including but not limited to changes in the specifications or in the method, manner, or time of performance of work. If the Grantee intends to dispute the change, the Grantee must, within ten (10) days after receipt of a written "grant modification ", submit to the SWRCB a written statement setting forth the disagreement with the change. 13. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by the Grantee to the State, to the extent that they are properly allocable to costs for which the Grantee has been reimbursed by the State under this Agreement. 14. INSPECTION: Throughout the term of this Agreement, the SWRCB shall have the right to inspect the project area to ascertain compliance with this Agreement. 15. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance against fire, vandalism and other loss, damage, or destruction of the facilities or structures constructed pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to transact business in the State of California. The insurance policy shall contain an endorsement specifying that the policy will not be cancelled or reduced in coverage without thirty days' prior written notice to the SWRCB. 16. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition, marital status, age (over 40) or denial of family -care leave, medical -care leave, or pregnancy - disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. 17. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the scope, budget, or work performed under this Agreement. The Grantee agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the SWRCB, and the SWRCB has given written approval for such change. The Grantee shall notify the SWRCB at least ten (10) working days prior to any public or media event publicizing the accomplishments and /or results of this Agreement and provide the opportunity for attendance and participation by SWRCB's representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project. 18. PERMITS, CONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors, outside associates, or consultants required by the Grantee in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during City of Newport Beach • SWRCB St Agreement No. 04- 079 - 558 -10 Page 12 of 15 negotiations for this Agreement, or as are specifically authorized by the SWRCB's Grant Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the SWRCB's Grant Manager. Any waiver of rights with respect to a default or other matter arising under the Agreement at any time by either party shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The Grantee shall not contract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension ". The Grantee shall not contract with any individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code 4477) The Grantee certifies to the best of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or grantee; b. Have not within a three -year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in. paragraph (b) of this certification; and d. Have not within a three -year period preceding this application /proposal had one or more public transactions (federal, state or local) terminated for cause or default. 19. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed or improved as part of the project throughout the term of this Agreement, consistent with the purposes for which this grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Grant Manager. For purposes of this Agreement, "operation costs" include direct costs incurred for material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs" include ordinary repairs and replacements of a recurring nature necessary to prolong the fife of capital assets and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic structures. 20. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall monitor all agreements subject to reimbursement from this Agreement to assure that the prevailing wage provisions of State Labor Code Section 1771 are being met. The Grantee agrees to fulfill its responsibilities under Section 1771.8 of the Labor Code, where applicable. 21. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. 22. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally accepted accounting principles, the Grantee agrees to: City of Newport Beach • SWRCB &t Agreement No. 04- 079 - 558.19 Page 13 of 15 a. Establish an official file for the Project which shall adequately document all significant actions relative to the Project; b. Establish separate accounts which will adequately and accurately depict all amounts received and expended on this Project, including all grant funds received under this Agreement; c. Establish separate accounts which will adequately depict all income received which is attributable to the Project, especially including any income attributable to grant funds disbursed under this Agreement; d. Establish an accounting system which will adequately depict final total costs of the Project, including both direct and indirect costs; e. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and f. If Force Account is used by the Grantee for any phase of the Project, establish an account that documents all employee hours, and associated tasks charged to the Project per employee. 23. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement shall be available to the State as set forth in this section. The State shall have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. The Grantee shall not utilize the materials for any profit- making venture or sell or grant rights to a third party who intends to do so. 24. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project applications, documents, permits, plans and specifications or other Project information by the SWRCB is for administrative purposes only and does not relieve the Grantee of its responsibility to properly plan, design, construct, operate, maintain, implement, or otherwise carry out the Project. To the extent permitted by law, the Grantee agrees to indemnify, defend and hold harmless the SWRCB and the State against any loss or liability arising out of any claim or action brought against the SWRCB and/or the State from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions, occupancy, use, possession, conduct or management of, work done in or about, or the planning, design, acquisition, installation or construction, of the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Grantee for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered or made against the SWRCB and /or the State with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement. 25. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee agrees that any remedy provided in this Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party shall be entitled to such reasonable costs and /or attorney fees as may be ordered by the court entertaining such litigation. City of Newport Beach ti^ • SWRCB Ot Agreement No. 04- 079 - 558 -10 Page 14 of 15 26. TERMINATION, IMMEDIATE REPAYMENT, INTEREST:.This Grant Agreement may be terminated by written notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB, upon violation by the Grantee of any material provision after such violation has been called to the attention of the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on all amounts due'at the highest legal rate of interest from the date that notice of termination is mailed to the Grantee to the date of full repayment by the Grantee. 27. TIMELINESS: Time is of the essence in this Agreement. 28. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those amounts paid to the State's represented employees under collective bargaining Agreements currently in effect. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the SWRCB.. 29. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have full force and effect and shall not be affected thereby. 30. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. The Grantee hereby waives any existing sovereign immunity for the purposes of this Agreement. 31. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may withhold all or any portion of the grant funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or the Grantee fails to maintain reasonable progress toward completion of the Project. City of Newport Beach • SWRCB OtAgreement No. 04- 079 - 558-19 Page 15 of 15 EXHIBIT D Grant Program Terms & Conditions 1. This project is to develop local watershed management plans or to implement project consistent with local watershed management and regional water quality control plans, as such terms are defined in Water Code § 79078. 2. The Grantee certifies that it has adequate legal authority to manage the grant money. 3. The Grantee certifies that it is a member of local watershed group, as defined in Water Code § 79078. 4. The Grantee certifies that its project is designed to withstand substantial flooding, if a watershed improvement project. 5. Nothwithstanding Exhibit A, the Grantee agrees to submit a monitoring and reporting plan that will do all of the following: a. describes baseline water quality of the water body impacted b. describes manner in which proposed watershed restoration activities are implemented c. determines effectiveness of watershed restoration activities in preventing or reducing pollution d. determines, to extent feasible, changes in pattern of flow in affected streams, including reduction of flood flows and increases in spring, summer, and fall flows that result from the implementation of the project e. determines, to the extent feasible, economic benefits resulting from changes determined pursuant to (c) or(d)above. 6. The Grantee shall. inform the SWRCB with regard to necessary public agency approvals, entitlements, and permits that may be necessary to implement the project. The Grantee shall certify to the SWRCB, at the appropriate time, that it has obtained those approvals, entitlements, and permits. 7. The Grantee shall notify, in writing, adjoining landowners of its request for this grant and the scope of the project for which the grant funding is requested. Upon completion of the notification required under this section, the Grantee shall inform the SWRCB that the notification has occurred. 8. The Grantee hereby certifies that it has written permission from the landowners of the parcel on which work will occur under this Agreement. 9. Notwithstanding Exhibit A, if this project is a capital outlay project, the Grantee agrees to submit a report to the SWRCB at the completion of the project that summarizes the completed project and identifies additional steps necessary to achieve the purposes of the local watershed management plan, as such term is defined under Water Code § 79078. 10. The Grantee certifies that if a recovery plan for coho, steelhead, or other threatened or endangered aquatic species exists, this project is consistent with such a plan and, if feasible, implements actions in such a plan. • • c -3�aq FOR STATE USE ONLY DGS REGISTRATION NO. 3940 110 yS6�sl PROPOSITION 13 WATERSHED PROTECTION GRANT PROGRAM GRANT AGREEMENT BETWEEN THE STATE WATER RESOURCES CONTROL BOARD AND CITY OF NEWPORT BEACH Big Canyon Creek Restoration Project AGREEMENT NO. 04- 079 -558 -0 This Grant Agreement is made between the State of California acting by and through the State Water Resources Control Board, hereafter referred to as the "SW RCB ", and the City of Newport Beach, a city, hereafter referred to as the "Grantee ". WHEREAS: 1. The following provisions authorize the SW RCB to enter into this type of Grant Agreement: WC § 79079 (Pr 13 WPP). 2. The Grantee has applied for a grant and has been determined by the SW RCB to be eligible for a grant pursuant to applicable State laws and regulations; and 3. The SW RCB, pursuant to the SW RCB Resolution No., 2004 -0003, approved on February 19, 2004, has authorized grant funding for the Project hereafter described. NOW THEREFORE, it is agreed as follows: 1. The Project generally consists of Phase II Water Quality and Design of Big Canyon Restoration Project, for the benefit of the Grantee. The Project Representatives during the term of this Agreement will be: State Water Resources Control Board Grantee: City of Newport Beach Name: Wanda Marquis-Smith, Grant Manager Name: Dave Kiff, Project Director Address: 3737 Main Street, Suite 500, Riverside, CA 92501 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 951 782 -4468 Phone: 949 644 -3032 Fax: 951 781 -6288 Fax: 949 644 -3020 e -mail: wsmith rb8.swrcb.ca. ov e-mail: dkiff cit .new ort- beach.ca.us Direct all inquiries to: State Water Resources Control Board Grantee: City of Newport Beach Section /Unit: Division of Financial Assistance Section /Unit: Attention: Pam Nichols, Pro ram Anal st Attention: Dave Kiff, Grant Contact Address: 1001 1 Street, 16 Floor, Sacramento, CA 95814 Address: 3300 Newport Blvd., Newport Beach, 92658 Phone: 916 341 -5909 Phone: 949 644 -3032 Fax: 916 341 -5296 Fax: 949 644 -3020 e -mail: nLchp@swrcb .ca. ov e-mail: dkiff cit .new ort- beach.ca.us Each party may change its Project Representative upon written notice to the other party. City of Newport Beach • SW ROB Wt Agreement No. 04- 079 -558 -0 Page 2 of 15 2. Incorporation of Documents. This Agreement incorporates the following documents: 2.1 Exhibit A, Scope of Work; 2.2 Exhibit B, Invoicing, Budget Detail, and Reporting Provisions; 2.3 Exhibit C, SWRCB General Conditions; and 2.4 Exhibit D, Grant Program Terms and Conditions. 3. The Grantee accepts and agrees to comply with all terms, provisions, conditions, and commitments of this Agreement, including all incorporated documents, and to fulfill all assurances, declaration, representations, and commitments made by the Grantee in its application, accompanying documents, and communications filed in support of its request for grant funding. Grantee shall comply with and require its contractors and subcontractors to comply with all applicable laws, policies and regulations. 4. The term of the Agreement shall begin on September 15, 2004 and continue for thirty -six (36) years unless otherwise terminated or amended as provided in the Agreement. HOWEVER, ALL WORK SHALL BE COMPLETED BY MARCH 31, 2007. IN WITNESS THEREOF, the parties have executed this Agreement on th ates set orth below. By: By: M, . fY4—_ Grantee Signature Bill Brown, Chief SW RCB, Division of Administrative Services /tIalaz Grantee Typed /P Date ' vf� t Ne 1 Reviewed Offce of Chief Counsel Title and Dz e i Date: il.y (oy • City of Newport Beach SWRCB &t Agreement No. 04- 079 -558 -0 Page 3 of 15 EXHIBIT A— SCOPE OF WORK 1. Contracts and Permits. 1.1 Grantee shall document steps taken in soliciting and awarding any contracts to perform grant work and submit such documentation to the Grant Manager for review prior to contract award. Grantee shall provide Grant Manager with a copy of the awarded contract. Grantee shall document all contractor activities and expenditures in progress reports. 1.2 No work that is subject to California Environmental Quality Act (CEQA) or National Environmental Policy Act (N EPA) may proceed under this Agreement until documents that satisfy the CEQA/NEPA process are received by the Grant Manager. 1.3 Grantee shall secure all required permits for project work. No work that is subject to permitting may proceed under this Agreement until documents that satisfy the permitting process(es) are received by the Grant Manager. 2. Quality Assurance Project Plan and Sampling and Analysis Plan 2.1 Prepare and maintain a Quality Assurance Project Plan (QAPP) that is consistent with the QAPP for the Surface Water Ambient Monitoring Program (SWAMP). The QAPP must be approved by the RWQCB or SWRCB's Quality Assurance Officer prior to implementation of any sampling or monitoring activities. No monitoring may occur prior to QAPP approval. Any costs related to monitoring data collected prior to and not supported by the approved QAPP will not be reimbursed. 2.2 Prepare and maintain a Sampling and Analysis Plan (SAP) that describes the types of constituents to be monitored and the frequency /schedule for the monitoring activities. The SAP shall be approved by the Grant Manager prior to implementation of any sampling or monitoring activities. No sampling may occur prior to SAP approval. The Grant Manager must approve any changes to the SAP prior to implementation. 3. Work To Be Performed: 3.1 Water Quality Sampling and Analysis 3.1.1 Conduct water quality sampling and analysis per approved SAP. 3.1.2 Prepare baseline water quality analysis and evaluation of Big Canyon Restoration Area. 3.1.3 Characterize contaminants entering and /or present within Big Canyon Restoration Area. 3.1 A Prepare and submit to the Grant Manager a baseline water quality and contaminant characterization report. 3.2 Public Agency and Stakeholder Meetings 3.2.1 Conduct meetings and tours to ensure 1) direct involvement in the design process by the many federal, state and local public agencies that have jurisdiction in Big Canyon; 2) definition of permitting issues and needs for each agency; and 3) landowners are informed of project impacts. 3.2,2 Produce a draft hydrology and water quality design plan and related material for stakeholder review. Submit to the Grant Manager for review and approval prior to holding meetings. 3.2.3 Finalize the design plan and submit to the Grant Manager. City of Newport Beach • SW RCB *nt Agreement No. 04- 079 -558 -0 Page 4 of 15 3.2.4 Send meeting notices via e-mail to public agencies and telephone stakeholders. 3.2.5 Hold two (2) group meetings with public agencies and technical team to discuss, and then refine, the hydrology and water quality design plan. 3.2.6 Hold on -site tour with any interested federal, regional, state, and local agencies, address comments. 3.2.7 Hold six (6) meetings with the City of Newport Beach staff in design, CEQA, and project approval and permitting phases. 3.2.8 Meet at least two (2) times with the Big Canyon Country Club to explore and evaluate possible water quality improvement measures for Big Canyon Creek on the Country Club's property. 3.2.9 Meet once with each homeowners association representing homeowners on the surrounding bluffs to discuss on -site water quality improvements, erosion control, and non - native plant control, address comments. 3.3 Restoration and Site Design 3.3.1 Support the conduct of geotechnical, biological, and soil test studies and submit a report on each to the Grant Manager. 3.3.2 Support the design development of plans for habitat restoration and landscape architecture and submit to the Grant Manager. 3.3.3 Support the design development of plans for public access, trails, and interpretive components and provide design and restoration detail to the Grant Manager. 3.3.4 Prepare preliminary, pre- construction, and final structural engineering design and submit to the Grant Manager. Incorporate habitat restoration, landscape plan, water quality improvements, public access, trails and interpretive components into the design. 3.3.5 Coordinate six (6) focused planning and design sessions with engineers, restoration specialists, public facilitators, and landscape architects. 3.4 Distribution of Information to the Public 3.4.1 Develop written and digital public information materials describing the restoration plan, goals, and benefits. Information materials will be mailed to community stakeholder lists and posted to the City's web site (www.citv.newport- beach.ca.us). 3.5 Public Workshops 3.5.1 Conduct at least one (1) public workshop to allow the public an opportunity to comment on design plans for the Big Canyon Restoration Area before the plans are finalized, and to allow the design team and public agencies to respond to public needs and concerns. 3.6 Draft and Final Project Reports 3.6.1 Prepare a draft final project report and submit to the Grant Manager for review and comment. City of Newport Beach SW RCB &t Agreement No. 04- 079 -558 -0 Page 5 of 15 3.6.2 Prepare a final project report that addresses comments made by the Grant Manager on the draft report. Submit one (1) reproducible master and two (2) copies of the final project report to the Grant Manager for review and acceptance. TABLE OF SUBMITTALS Item DESCRIPTION DUE DATE Project Administration Ongoing EXHIBIT A — SCOPE OF WORK 1.0 CONTRACTS AND PERMITS 1.1 Subcontract Documentation Before each award 2.0 QUALITY ASSURANCE PROJECT PLAN AND SAMPLING AND ANALYSIS PLAN 2.1 Quality Assurance Project Plan 11/1/04 2.2 Sampling and Analysis Plan 11/1/04 3.0 WORK TO BE PREFORMED 3.1 Water Quality Sampling and Analysis 11/1104 to 3/1/05 3.1.4 Baseline Water Quality and Contaminant Characterization Report 6/1/05 3.2 Public Agency and Stakeholder Meetings 12/1/04 to 12/1/05 3.2.2 Draft Hydrology and Water Quality Design Plan and Related Materials 9/1/05 3.2.3 Final Hydrology and Water Quality Design Plan 611/06 3.3 Restoration and Site Design 33.1 Geotechnical, Biological, and Soil Test Report 211/05 3.3.2 Habitat Restoration and Landscape Design 3/1105 3.3.3 Public Access, Trails, and Interpretation Design Detail 1011/05 3.3.4 Final Structural Engineering Design 9/1/05 3.4 Distribution of Information to the Public 3.4.1 Website Updates and Informational Materials Quarterly, as applicable 3.5 Public Workshops 3.5.1 Meeting Notice and Summaries Quarterly, as applicable 3.6 Draft and Final Project Reports 3.6.1 Draft Project Report 2/1/06 3.6.3 Final Project Report 6/30106 City of Newport Beach SW RCB dint Agreement No. 04- 079 -558 -0 Page 6 of 15 Item DESCRIPTION DUE DATE EXHIBIT B — BUDGET AND REPORTING PROVISIONS 6.1 Progress Reports by the tenth (10'0) of the month following the end of the calendar quarter (March, June, September, and December) 1110/05 and Quarterly thereafter 6.2 Expenditure /Invoice Projections Each May and October 6.3 Grant Summary Form 12/1/04 6.4 Natural Resource Projects Inventory (NRPI) Project Survey Form 3/30/06 City of Newport Beach SWRCB &t Agreement No. 04- 079 -558 -0 Page 7 of 15 EXHIBIT B — INVOICING, BUDGET DETAIL AND REPORTING PROVISIONS 1. Invoicing 1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the SWRCB's Program Analyst on a quarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit. Three (3) copies of the invoice shall be submitted to the SW RCB's Grant Manager. The addresses for submittal are: Pam Nichols, Program Analyst Wanda Marquis- Smith, Grant Manager State Water Resources Control Board Santa Ana Regional Water Quality Control Board Division of Financial Assistance 3737 Main Street, Suite 500 1001 1 Street, 16`" Floor Riverside, CA 92501 Sacramento, CA 95814 1.2 Payment of any invoice will be made only after receipt of a complete, adequately supported, properly documented and accurately addressed invoice or payment request. Invoices received by the SWRCB that are not consistent with the approved format will be cause for an invoice to be disputed. In the event of an invoice dispute, the SWRCB Grant Manager will notify the Grantee by initiating a Standard Form 209, "Invoice Dispute Notification" form. Payment shall be deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United States mail. All invoices must be approved by the SW RCB's Grant Manager. 1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or in any manner which is in violation of or in conflict with federal or state laws, rules, or regulation, or which may require any rebates to the Federal Government, or any loss of tax -free status on state bonds, pursuant to any Federal statute or regulation. 1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain an amount equal to ten percent (10 %) of the grant amount specified in this Agreement until completion of the Project to the reasonable satisfaction of the SWRCB. Any retained amounts due to the Grantee will be promptly disbursed to the Grantee, without interest, upon completion of the Project. 1.5 The invoice shall contain the following information: 1.5.1 The word "INVOICE" should appear in a prominent location at the top of page(s); 1.5.2 Printed name of the Grantee; 1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code; 1.5.4 The date of the invoice; 1.5.5 The number of the Agreement upon which the claim is based; and 1.5.6 An itemized account of the work for which the SWRCB is being billed; 1.5.6.1 The time period covered by the invoice, i.e., the term 'from" and "to "; 1.5.6.2 A brief description of the work performed; 1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices must be itemized based on the categories specified in the Budget. The amount claimed for salaries /wages /consultant fees must also be explained; i.e., hours or days worked times the hourly or daily rate = the total amount claimed; 1.5.6.4 The total amount due; this should be in a prominent location in the lower right -hand portion of the last page and clearly distinguished from other figures or computations appearing on the invoice; the total amount due shall include all costs incurred by the Grantee under the terms of this Agreement; and 1.5.7 Original signature and date (in ink) of Grantee or its authorized representative. City of Newport Beach SWRCB Ont Agreement No. 04- 079 -558 -0 Page 8 of 15 1.5.8 Final invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN MAY 1, 2007. 2. Budget Contingency Clause The maximum amount to be encumbered under this Agreement for the 2004 -05 fiscal year ending June 30, 2005 shall not exceed two hundred thousand dollars ($200,000). If the Budget Act of the current year and /or any subsequent years covered under this Agreement does not appropriate sufficient funds for the program, this Agreement shall be of no force and effect. This provision shall be construed as a condition precedent to the obligation of the SWRCB to make any payments under this Agreement. In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to furnish any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of this Agreement. Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for payment over any other Grantee. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this Agreement with no liability occurring to the State, or offer an Agreement amendment to Grantee to reflect the reduced amount. 3. LINE ITEM BUDGET Development of QAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment. 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget. PROP 13 MATCH TOTAL Personnel Services (includes benefits) $0 $5,000 $5,000 Class Hours Wage /Hour Assistant City Manager 40 $75 Senior Civil Engineer 15.2 $65 Administrative Assistant 28.5 $35 Professional and Consultant Services $200,000 $25,000 $225,000 Development of QAPP Development of SAP Implementation of SAP (sampling, testing, analysis) Restoration Planning and Site Design Public Outreach (meetings, web, postage, notice, etc.) Preparation of Draft and Final Report TOTAL $200,000 $30,000 $230,000 4. Budget Line Item Flexibility 4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager, adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in excess of fifteen percent (15 %) shall require a formal Agreement amendment. 4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item requires a formal amendment and are not permissible under this provision. The SWRCB may also propose adjustments to the budget. • City of Newport Beach SWRCB &t Agreement No. 04- 079 -558 -0 Page 9 of 15 5. QAPP /CEQA/NEPA/Permit Payment. Grantee shall provide to the SWRCB's Grant Manager a Standard Requirements Certification From (to be provided by the SWRCB) certifying that QAPP /CEQA/NEPA/PERMIT documents have been received by the Grant Manager. Payment for activities that require a completed QAPP or CEQA/NEPA documents, or permits shall not be made to Grantee until the certification form is received by the Grant Manager. 6. Reports. 6.1 Grantee shall submit quarterly progress reports to the SW RCB's Grant Manager by the tenth (10"') of the month following the end of the calendar quarter (March, June, September, and December). The progress reports shall describe activities undertaken and accomplishments during the quarter, milestones achieved, and any problems encountered in the performance of the work under this Agreement. 6.2 Every six (6) months during the work performed under the Scope of Work of this Agreement, the Grantee shall develop and submit to their assigned SW RCB's Program Analyst expenditure /invoice projections to enable funding to be available for payment of invoices. 6.3 Grantee shall complete a one (1) page Grant Summary Form http:// www. swrcb .ca.aov /nps /docs /consummary.doc within three (3) months of the Agreement execution. 6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource Projects Inventory (NRPI) project survey form httr): / /www.ice.ucdavis.edu /nrpi forms /default.asp. A hard copy shall be submitted to the Program Analyst prior to final payment. 6.5 Grantee agrees to expeditiously provide, during work on the Project and for a reasonable period of time thereafter, such reports, data, information, and certifications as may be reasonably required by the SWRCB. 7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs and that all costs connected with the Project will be paid by the Grantee on a timely basis. 8. Audit Disallowances. The Grantee agrees it shall return any audit disallowances to the SWRCB. City of Newport Beach SWRCB &t Agreement No. 04- 079 -558 -0 Page 10 of 15 EXHIBIT C SWRCB GENERAL CONDITIONS 1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated in the Agreement is binding on any of the parties. 2. APPROVAL: T he G rantee will n of p roceed w ith a ny work o n t he P roject u ntil a uthorized i n writing b y t he SWRCB. 3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of the SWRCB. 4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated representative shall have the right to review and to copy any records and supporting documentation pertaining to the performance of this Agreement. Grantee agrees to maintain such records for possible audit for a minimum of thirty -six (36) years after final payment, unless a longer period of records retention is stipulated. Grantee agrees to allow the auditor(s) access to such records during normal business hours and to allow interviews of any employees who might reasonably have information related to such records. Further, Grantee agrees to include a similar right of the State to audit records and interview staff in any contract related to performance of this Agreement. 5. BONDING: Where contractors are used, construction shall not begin until each such contractor has furnished a performance bond in favor of the Grantee in the following amounts: faithful performance (100 %) of contract value; labor and materials (100°/x) of contract value. This requirement shall not apply to any contract for less than $20,000. 6. COMPLIANCE WITH LAW, REGULATIONS, ETC.: The Grantee agrees that it will, at all times, comply with and require its contractors and subcontractors to comply with all applicable federal and state laws, rules, guidelines, regulations, and requirements. Without limitation of the foregoing, the Grantee agrees that, to the extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for the term of this Agreement. 7. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or maintenance of computer software in violation of copyright laws. 8. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds, or if such breach shall result in an obligation on the part of the State to reimburse the federal government by reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any damages paid by or loss incurred by the state due to such breach. 9. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any dispute. Any dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by the Chief of the Division of Financial Assistance (Division), or his or her authorized representative. The decision shall be reduced to writing and a copy thereof furnished to the Grantee and to the SWRCB's Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCB's Executive Director shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or c apricious, or a rbitrary, o r s o grossly erroneous as n ecessarily to i mply bad f aith, o r not s upported b y substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute City of Newport Beach • SWRCB Wt Agreement No. 04- 079 -558 -0 Page 11 of 15 hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and requirements of this Agreement. This clause does not preclude consideration of legal questions, provided that nothing herein shall be construed to make final the decision of the SWRCB, or any official or representative thereof, on any question of law. 10. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that, at a minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a level of expenditure adequate to establish that such funds have not been used in violation of state law or this Agreement. The Grantee further agrees that it will maintain separate Project accounts in accordance with generally accepted accounting principles. 11. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the State of California. 12, GRANT MODIFICATIONS: The SWRCB may, at any time, without notice to any sureties, by written order designated or indicated to be a "grant modification ", make any change in Exhibit A, for the work to be performed under this Agreement so long as the modified work is within the general scope of work called for by this Agreement, including but not limited to changes in the specifications or in the method, manner, or time of performance of work. If the Grantee intends to dispute the change, the Grantee must, within ten (10) days after receipt of a written "grant modification ", submit to the SWRCB a written statement setting forth the disagreement with the change. 13. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts (including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by the Grantee to the State, to the extent that they are properly allocable to costs for which the Grantee has been reimbursed by the State under this Agreement. 14. INSPECTION: Throughout the term of this Agreement, the SWRCB shall have the right to inspect the project area to ascertain compliance with this Agreement. 15. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance against fire, vandalism and other loss, damage, or destruction of the facilities or structures constructed pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to transact business in the State of California. The insurance policy shall contain an endorsement specifying that the policy will not b e cancelled o r reduced in coverage without thirty days' p rior written n otice to t he SWRCB. 16. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not unlawfully discriminate against, harass, or allow harassment against any employee or applicant for employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition, marital status, age (over 40) or denial of family -care leave, medical -care leave, or pregnancy - disability leave. The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination and harassment. 17. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the scope, budget, or work performed under this Agreement. The Grantee agrees that no substantial change in the scope of the Project will be undertaken until written notice of the proposed change has been provided to the SWRCB, and the SWRCB has given written approval for such change. The G rantee shall notify the SWRCB at least ten (10) working days prior to any public or media event publicizing the accomplishments and /or results of this Agreement and provide the opportunity for attendance and participation by SWRCB's representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project. 18. PERMITS, CONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees, and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors, outside associates, or consultants required by the Grantee in connection with the services covered by this Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during • City of Newport Beach SWRCB & Agreement No. 04- 079 -558 -0 Page 12 of 15 negotiations for this Agreement, or as are specifically authorized by the SW RCB's Grant Manager during the performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or consultants, shall be subject to the prior written approval of the SWRCB's Grant Manager. Any waiver of rights with respect to a default or other matter arising under the Agreement at any time by either party shall not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The Grantee shall not contract with any party who is debarred or suspended or otherwise excluded from or ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and Suspension ". The Grantee shall not contract with any individual or organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code 4477) The Grantee certifies to the best of its knowledge and belief, that it and its principals: a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any federal department or grantee; b. Have not within a three -year period preceding this Agreement been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal, state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification; and d. Have not within a three -year period preceding this application /proposal had one or more public transactions (federal, state or local) terminated for cause or default. 19. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures constructed o r improved a s p art of the p roject throughout the term of this Agreement, consistent with t he purposes for which this grant was made. The Grantee assumes all operations and maintenance costs of the facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or operation. The Grantee may be excused from operations and maintenance only upon the written approval of the Grant Manager. For purposes of this Agreement, "operation costs" include direct costs incurred for material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs" include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic structures. 20. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall monitor all agreements subject to reimbursement f rom this Agreement to assure that the prevailing wage provisions of State Labor Code Section 1771 are being met. The Grantee agrees to fulfill its responsibilities under Section 1771.8 of the Labor Code, where applicable. 21. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services under this Agreement where such services are called for. 22. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally accepted accounting principles, the Grantee agrees to: • City of Newport Beach SWRCB At Agreement No. 04- 079 -558 -0 Page 13 of 15 a. Establish an official file for the Project which shall adequately document all significant actions relative to the Project; b. Establish separate accounts which will adequately and accurately depict all amounts received and expended on this Project, including all grant funds received under this Agreement; c. Establish separate accounts which will adequately depict all income received which is attributable to the Project, especially including any income attributable to grant funds disbursed under this Agreement; d. Establish an accounting system which will adequately depict final total costs of the Project, including both direct and indirect costs; e. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal reporting requirements, including any and all reporting requirements under federal tax statutes or regulations; and f. If Force Account is used by the Grantee for any phase of the Project, establish an account that documents all employee hours, and associated tasks charged to the Project per employee. 23. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Agreement shall be available to the State as set forth in this section. The State shall have the right to reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes whatsoever and to authorize others to do so. The Grantee shall not utilize the materials for any profit- making venture or sell or grant rights to a third party who intends to do so. 24. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project applications, documents, permits, plans and specifications or other Project information by the SWRCB is for administrative purposes only and does not relieve the Grantee of its responsibility to properly plan, design, construct, operate, maintain, implement, or otherwise carry out the Project. To the extent permitted by law, the Grantee agrees to indemnify, defend and hold harmless the SWRCB and the State against any loss or liability arising out of any claim or action brought against the SWRCB and /or the State from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions, occupancy, u se, possession, c onduct o r m anagement of, work d one in o r about, o r the planning, d esign, acquisition, installation or construction, of the Project or any part thereof; (2) the carrying out of any of the transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Grantee for use in any disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered or made against the SWRCB and /or the State with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The provisions of this section shall survive the term of this Agreement. 25. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee agrees that any remedy provided in this Agreement i s in a ddition t o a nd n of i n d erogation o f a ny other I egal o r e quitable remedy available to t he SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party shall be entitled to such reasonable costs and /or attorney fees as may be ordered by the court entertaining such litigation. • City of Newport Beach SWRCB Ot Agreement No. 04- 079 -558 -0 Page 14 of 15 26. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB, upon violation by the Grantee of any material provision after such violation has been called to the attention of the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the Grantee to the date of full repayment by the Grantee. 27. TIMELINESS: Time is of the essence in this Agreement 28. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to exceed those amounts paid to the State's represented employees under collective bargaining Agreements currently in effect. No travel outside the State of California shall be reimbursed unless prior written authorization is obtained from the SWRCB. 29. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have full force and effect and shall not be affected thereby. 30. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United States District Court in and for the Eastern District of California. The Grantee hereby waives any existing sovereign immunity for the purposes of this Agreement. 31. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may withhold all or any portion of the grant funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to materially violate, any term, provision, condition, or commitment of this Agreement; or the Grantee fails to maintain reasonable progress toward completion of the Project. • City of Newport Beach SWRCB Ot Agreement No. 04- 079 -558 -0 Page 15 of 15 EXHIBIT D Grant Program Terms & Conditions 1. This project is to develop local watershed management plans or to implement project consistent with local watershed management and regional water quality control plans, as such terms are defined in Water Code § 79078. 2. The Grantee certifies that it has adequate legal authority to manage the grant money. 3. The Grantee certifies that it is a member of local watershed group, as defined in Water Code § 79078. 4. The Grantee certifies that its project is designed to withstand substantial flooding, if a watershed improvement project. 5. Nothwithstanding Exhibit A, the Grantee agrees to submit a monitoring and reporting plan that will do all of the following: a. describes baseline water quality of the water body impacted b. describes manner in which proposed watershed restoration activities are implemented c. determines effectiveness of watershed restoration activities in preventing or reducing pollution d. determines, to extent feasible, changes in pattern of flow in affected streams, including reduction of flood flows and increases in spring, summer, and fall flows that result from the implementation of the project e. determines, to the extent feasible, economic benefits resulting from changes determined pursuant to (c) or(d)above. 6. The Grantee shall inform the SWRCB with regard to necessary public agency approvals, entitlements, and permits that may be necessary to implement the project. The Grantee shall certify to the SWRCB, at the appropriate time, that it has obtained those approvals, entitlements, and permits. 7. The Grantee shall notify, in writing, adjoining landowners of its request for this grant and the scope of the project for which the grant funding is requested. Upon completion of the notification required under this section, the Grantee shall inform the SWRCB that the notification has occurred. 8. The Grantee hereby certifies that it has written permission from the landowners of the parcel on which work will occur under this Agreement. 9. Notwithstanding Exhibit A, if this project is a capital outlay project, the Grantee agrees to submit a report to the SWRCB at the completion of the project that summarizes the completed project and identifies additional steps necessary to achieve the purposes of the local watershed management plan, as such term is defined under Water Code § 79078. 10. The Grantee certifies that if a recovery plan for coho, steelhead, or other threatened or endangered aquatic species exists, this project is consistent with such a plan and, if feasible, implements actions in such a plan. 1" Amendment to a PROFESSIONAL SERVICES AGREEMENT THIS AMENDMENT, entered into this�th day of May 2004, to an existing PROFESSIONAL SERVICES AGREEMENT, entered into the 14`h day of January 2003, by and between the City of Newport Beach ( "City "), a municipal corporation, and Community Conservancy International, a non - profit corporation whose address is 10951 West Pico Blvd. Suite 201, Los Angeles, CA 90064, ( "Consultant "), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City intends to provide for the water quality improvement, restoration, and habitat protection of Big Canyon Nature Park called the Big Canyon Creek Restoration Project ( "Project "). C. Resolution 2002 -15 authorized Consultant and the City to submit a joint application to the State Coastal Conservancy (SCC), via its Southern California Wetlands Recovery Project (SCWRP), for a grant to complete Planning and Technical Studies ( "Studies ") associated with the Project. On October 31, 2002, the State Coastal Conservancy approved a grant of $167,000 for the Studies. City offered to match the SCC Grant with $110,000 from the City's Upper Newport Bay Restoration Account. D. City engaged Consultant to provide project management, sub - consultant contracting, and any other work relating to Phase I of the Project. E. The principal member of Consultant, is for purposes of this Project, Ms. Esther Feldman. F. City reviewed the previous experience and evaluated the expertise of Consultant, and contracted with Consultant under the terms and conditions provided in an Agreement executed in January 2003. G. Consultant largely completed Phase I, selecting with the assistance of public input a restoration plan called the Historic Wetlands Alternative as the going - forward restoration plan for the Project; H. In January 2004, City received notification that a Phase II proposal for $200,000 in grant funding via the State Water Resources Control Board was approved; City desires to engage Consultant for Phase 11 of the Project; and • Big Canyon Phase IIA PSA Page 2 J. On February 10, 2004, the Newport Beach City Council authorized the City Manager to enter into this 1s` Amendment. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties that the Parties desire to amend the Professional Services Agreement between Consultant and City as follows: TERM The Agreement shall terminate on the 31 s` of December 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the Phase II Scope of Work, attached hereto as Exhibit "A" and incorporated herein by reference. Consultant is only obligated to perform such work as available compensation allows. 3. COMPENSATION TO CONSULTANT The total estimated costs for services described in Phase 11 are $230,000, which includes $200,000 from the State Water Resources Control Board and $30,000 from the City. City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached in Exhibit B. City's obligation to compensate Consultant for all work performed in accordance with this Agreement shall not exceed the total contract price of two hundred thirty thousand dollars ($230,000.00). IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVE AS TO FORM: By: / Robert H. Burnham ` City Attorney CITY OF NEWPORT BEACH A Munici al Corporation B: Y Homer Blud City Manager for the City of Newport Beach CONSULTANT Esther Feldman, President for Community Conservancy Int'I • • ig Canyon Phase IIA PSA Page 3 Exhibit A Scope of Work Big Canyon Creek Restoration Project — Phase IIA (Water Quality Component) Consultant will be responsible for conducting various technical studies, research, site design, meetings and other work necessary to prepare a conceptual restoration, water quality improvement and public access plan for Big Canyon Creek and Big Canyon Nature Park, with an emphasis on water quality improvement components. Tasks include: Task 1: Project Administration Task 3: Project Monitoring and Performance Plan Task 4: Conduct Water Quality Sampling and Analysis Purpose: Big Canyon Creek drains a two- square mile, heavily urbanized watershed, contributes pollutants to Newport Bay, and past water quality sampling shows a history of contamination - but no baseline water quality data exists for the creek. A baseline water quality evaluation of dry weather flows and stormwater flows is essential to characterize contaminants coming from this watershed and to provide data that can be used to properly design water quality improvement components of the Big Canyon Creek Restoration Project. Sub - tasks: 1. Retain consultant; 2. Review testing history of AB 411 bacterial data from OC HCA at Big Canyon where runoff enters UNB; 3. Prepare water quality sampling plan; 4. Conduct water quality sampling and analysis, including: • Turbidity; • Sediment Loading; • Flow rates; • Nutrients (primarily nitrogen and phosphorus) • AB 411 Indicator Bacterial (Total Coliform, Fecal Coliform, Enteroccoccus); • Pesticides; and • Heavy metals. 5. Prepare baseline water quality analysis and evaluation of Big Canyon Restoration Area; 6. Characterize contaminants entering and /or present within Big Canyon Restoration Area. Task 4 Deliverables: 4.1, 4.2 -- Water quality sampling plan 4.3, 4.4, 4.5 -- Baseline water quality evaluation and characterization of contaminants • Big Canyon Phase IIA PSA Page 4 Task 5: Hold Public Agency and Stakeholder Meetings Purpose: This task's purpose is to ensure direct involvement in the design process by the many federal, state and local public agencies who have jurisdiction in Big Canyon, and definition of permitting issues and needs for each agency. There is also a need to meet with the golf course owners directly upstream of the project area to explore and evaluate possible water quality improvement measures for Big Canyon Creek on the golf course site, and to meet with the homeowner associations representing homeowners on the surrounding bluffs to discuss potential on -site water quality improvements, erosion control and non - native plant control. . Sub - tasks: 1. Produce draft design drawings and related materials; 2. Send notices via e-mail (public agencies) and phone (stakeholders); 3. Develop agenda for each meeting; 4. Conduct one group meeting with public agencies and technical team, address comments; 5. Conduct an on -site tour with all federal, regional, state and local agencies, address comments; 6. Conduct two m eetings with C ity o f N ewport B each s taff i n d esign, C EQA, p roject approval and permitting phases, address comments; 7. Conduct two meetings with Big Canyon Country Club, address comments; and 8. Meet once with each blufftop homeowners association (3), address comments. Task 5 Deliverables: 5.1 -- Draft design drawings and related materials 5.2 -- Copy of meeting notice where applicable 5.3 -- Meeting agenda 5.4, 5.6, 5.7, 5.8 -- Meeting minutes, including comments and comments addressed, with list of attendees; 5.5 -- Delineated project boundaries pursuant to Army Corps and list of permitting needs and issues. Task 6: Conduct restoration and site design Purpose: The purpose of this task is to conduct civil engineering and geotechnical studies, conduct feasibility design analyses, incorporate all collected data in order to refine the initial conceptual design (completed in Phase I in 2003), facilitate a coordinated design effort between all technical team members, and develop preliminary design plans through synthesis of all involved design disciplines, In this task, we will use the water quality data to design natural urban runoff, storm water treatment and other water quality improvement components in Big Canyon to maximize treatment prior to discharge to Upper Newport Bay, and will incorporate all other information and agency input into the site design. Sub -tasks may include: 1. Conduct field studies for preliminary design, including conducting geotechnical studies for facility location, stability analysis, and construction requirements; 2. Conduct preliminary engineering design, including: (a) Research and design water quality improvement components; Big Canyon Phase IIA PSA Page 5 (b) Incorporate detail of water quality improvement components, preliminary habitat restoration, landscape plan, public access, trails and interpretive facilities into overall site design; (c) Prepare preliminary civil engineering design and plans and specific detailed element for water quality improvement components; (d) Develop construction timeline; and (e) Prepare opinion of probable cost. 3. Preliminary design of habitat restoration and landscape architecture components, including: (a) Prepare conceptual schematic of upland and freshwater habitat restoration plans; (b) Prepare wetlands habitat restoration detail and plans; (c) Provide restoration planting plan to engineer; (d) Develop construction timeline; and (e) Provide engineer with cost information and review opinion of probable cost. 4. Design public access, trails and interpretive components, including: (a) Preliminary design of public access, trails, boardwalks, overlooks and interpretive components; (b) Prepare preliminary landscaping and facility design; (c) Prepare preliminary interpretive components and signage design; (d) Provide landscaping, public access and interpretive components design to engineer; and (e) Incorporate restoration plans with site landscaping, public access and interpretive plan. 5. Coordinate focused planning and design sessions with engineers, restoration specialists, public facilitators and landscape architects, including: (a) Meet up to three times in person throughout planning and design; and (b) Hold conference calls between team members. Task 6 Deliverables: 6.1.a -- Geotechnical report 6.2.a -- Feasibility analysis and detailed design of water quality improvements components 6.2.b -- Synthesized preliminary design including habitat restoration, landscaping, public access, trails and interpretive facilities, with emphasis on water quality improvement components 6.2.c. -- Preliminary engineering design and plans for site with specific water quality improvement element 6.2.d. -- Construction timeline (engineer) 6.2.e. -- Opinion of probable cost (engineer) 6.3.a, 6.3.c -- AutoCAD of preliminary upland and freshwater habitat restoration design details; planting plans for freshwater marsh, riparian and upland habitat restoration areas; expected acreage changes per habitat type 6.3.b, 6.3.c -- AutoCAD of preliminary of tidal and wetlands habitat restoration design details; expected acreage changes per habitat type 6.3.d -- Construction timeline (restoration specialists and landscape architect) 6.3.e -- Opinion of probable cost (restoration specialists and landscape architect) Big Canyon Phase IIA PSA Page 6 6.4.a, 6.4.b, 6.4.c, 6.4.e -- AutoCAD of preliminary restoration design, with separate elements for water quality improvement components 6.4.d -- Outline of interpretive signage design 6.5.a, 6.5.b -- Meetings summaries, design timeline Task 7: Prepare and Distribute Public Information Purpose: This task's purpose is to ensure public understanding of and support for the project, and to prevent unnecessary confusion and misconceptions. This is essential in the Upper Newport Bay area, as surrounding communities use Big Canyon as a primary access point and take a very great personal interest in everything that happens here. Preparation and use of both printed and digital information will allow us to reach as many diverse users as possible from throughout the region, maximize our communication ability, and coordinate with community and conservation organizations on making the restoration plan known to their memberships. Sub - tasks: (a) Develop written and digital public information materials describing restoration plan, goals, benefits (b) Update community stakeholder lists (c) Mail one update to stakeholder list (d) Post project information on website (e) Provide digital data to organizations with websites who wish to post Task 7 Deliverables: 7.1, 7.4 -- Copy of written and digital project information 7.2, 7.5 -- Updated stakeholder list 7.3 -- Copy of update 7.6 -- List of organizations provided with digital information Task 9: Prepare draft final report Purpose: Preparation of a draft allows public agencies and sub - contractors the opportunity to review and comment on the draft plan and related reports, maps, drawings, and documents, and to allow the technical team to respond to any concerns or issues before documents are finalized. Sub - tasks: 1. Prepare report outline and standard format and circulate to all team members 2. Compile all related information developed in previous tasks into a draft document. 3. Submit document for review and comment to RWQCB, USFWS, ACOE, NMFS, City of Newport Beach, Orange County, CA Department of Fish and Game, CA Coastal Commission, CA Coastal Conservancy 4. Distribute document and review deadline via e-mail 5. Compile all drawings, maps, illustrations and diagrams in digital files and hard copies 6. Incorporate comments to produce a final document consisting of preliminary design components Task 9 Deliverables: 9.1 -- Report outline and format Big Canyon Phase //A PSA Page 7 9.2, 9.3, 9.4 -- Draft report and copy of distribution list 9.5 -- Complete set of digital and hard files of all drawings, maps, illustrations and diagrams 9.6 -- Final draft report of preliminary design Big Canyon Phase //A PSA Page 8 Exhibit B Community Conservancy International Billing Rates Valid through October 2004 Employee Rate Project Director $97 per hour Project Manager $72 per hour Project Assistant $46 per hour Administrative Assistant $34 per hour 0 a CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT FEB 10 2004 Agenda Item No. 17 February 10, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: Big Canyon Creek Restoration Project - Phase 11 (Water Quality Improvement Components) ISSUE: With notification of the recent receipt of a $200,000 grant for the Big Canyon Creek Restoration Project's Phase 11, should the City amend its existing contract with . Community Conservancy International (CCI) to complete the planning associated with the Project? RECOMMENDATIONS: 1. Direct the staff to accept a grant from the State Water Resources Control Board (SWRCB) in the amount of $200,000 for the Big Canyon Restoration Project, Phase II (Water Quality Improvements); 2. Authorize the City Manager to execute an existing Professional Services Agreement with Community Conservancy International (CCI) to reflect the $200,000 grant and a revised Scope of Work; 3. Authorize the City Manager to include in the proposed 2004 -05 Capital Improvement Program a match in the amount of $30,000 to match the $200,000 grant; and 4. Authorize the City Manager to make changes as necessary to the Phase II scope of work and budget provided that the terms and deliverables remain substantially similar to the document attached to this Staff Report. DISCUSSION: Background: Newport Bay is Newport Beach's most treasured environmental asset. From the ecological reserve and parkland in the Upper Bay to the boating, residential, and visitor - serving uses in the Lower Bay, Newport Bay is home to six endangered species, the nation's largest small craft harbor, tour and charter boat operations, more 4gM4, CiDacuments and SeningsWleklonch\Lo lSelings \Temporary[Mme Files \OLKIW / -10N Big Gny nPhase 11doc Big Canyon Creee Restoration Project— Phase 11' February 10, 2004 Page 2 than sixty different commercial ventures, rowing clubs, yacht races, millions of visitors • annually, and more. Upper Newport Bay - including its ecological reserve (administered by the California Department of Fish and Game), its regional park (administered by the County of Orange) and the access provided by Back Bay Drive (administered by the City) - is one of California's more challenging resources to manage and protect. Several major and complex Upper Bay projects involving a multitude of agencies are underway today, including: Upper Newport Bay Ecological Restoration Project. This US Army Corps of Engineers -led (US ACE) study is the "Big Dredge" set for Fall 2004. The dredging project will be about three times as large as the last dredging project, with up to $13.5 million in funds coming from Proposition 12 (approved by the voters in March 2000) and another $20 million from the federal government. This $33.5 million project is cost - shared 65 % -35% between the federal government and state /local partners. Newport Bay /San Diego Creek Watershed Feasibility Study. This US ACE -led Study looks at ways to reduce sediment and nutrient deposits in the Upper Bay by keeping the sediment at its source. The Study is identifying locations in the San Diego Creek watershed that will catch sediment, treat runoff (in part via the IRWD's Natural Treatment System or "NTS" project), and preserve and restore habitat. • Sediment/Nutrient TMDL Compliance. To comply with recently- adopted total maximum daily loads (TMDLs) that limit sediment and nutrients into the Bay, the City helps fund ongoing monitoring and maintenance of upstream environments to meet the TMDL's limits. Even with these three major efforts, the Upper Bay still faces significant problems relating to the region's heavy use of the Bay as a park, reserve, and local resource. These problems include: • Erosion of the City-, County-, and privately -owned slopes that abut the Bay; • Infestation by non - native plants; • Increased threats to endangered, threatened and species of concern; • Continued serious loss of wetland, saltmarsh, mudflat and transitional habitats; • Trespassing and vandalism in sensitive areas due to a lack of appropriate public access; and • Inputs of contaminated runoff from Bay - adjacent residential and business areas. About CCI. Aware of these concerns, representatives of the Newport Bay Naturalists and Friends discussed Upper Newport Bay's challenges with Community Conservancy International (www.ccint.org). CCI describes itself as "a non- profit organization dedicated to preserving natural lands and waters worldwide and implementing conservation- compatible projects to protect local communities.." CCI recently • 49~,1 • Big Canyon Creek• Restoration Project - Phase 11 February 10, 2004 Page 3 Is advocated and planned for two square miles of park and open space in the Baldwin Hills (near Ballona Creek in southwestern Los Angeles). CCI succeeded in securing $36 million in state funding for the Baldwin Hills. The Restoration Project. CCI has focused its attention on Big Canyon Creek, a drainage that receives runoff from two square miles of primarily urbanized watershed, the Big Canyon Country Club and adjacent residences, and that runs through the 58- acre Big Canyon Nature Park, a City park. • The City Council approved planning funding for the Project - called the Big Canyon Creek Restoration Project- on January 14, 2003. The Project addresses: • A restoration plan for wetlands and wetlands - related habitats • The needs of endangered and threatened species • Unfiltered urban runoff and impacts on Bay water quality • Drainage needs of golf course, City storm drains and bluffside homes • Public access and connection to Big Canyon Nature Park • Flood prevention • Public agency needs and concerns Big Canyon Creek Area After receiving Council authorization to do so via Resolution 2002 -15 on January 22, 2002, Ms. Feldman and the City jointly applied to the State Coastal Conservancy, via its • Southern California Wetlands Recovery Project (SCWRP), for a grant to complete Phase I of the Project (Planning and Technical Studies). On October 31, 2002, the • Big Canyon CregRestoration Project— Phase II February 10, 2004 Page 4 SCWRP approved a grant of $167,000 for Phase I. The City matched the grant with $110,000 from the Upper Newport Bay Restoration Account. Another $27,000 in in -kind support came from the Newport Bay Naturalists and Friends and from CCI itself. About the Upper Newport Bay Restoration Aocount. State law and other regulatory agencies (including SB 576 [Johnson] and the National Marine Fisheries Service or "NMFS ") direct the City to reserve a portion of the revenue it receives from the residences at Beacon Bay as well as mitigation for Lower Bay dockwork for restoration projects in the Bay. These funds go into an account called the Upper Newport Bay Restoration Account. At the end of June 2002, there was $238,822.39 in this Account (technically a designation of equity within the Tidelands Fund, #230 - 3755). Phase I Work. CCI completed a majority of the Project's Phase I work in Fall 2003. The culmination of the work included public meetings and a consensus by various resources agencies that one identified alternative - called the Historic Tidal Wetlands Alternative - is the project alternative that should provide the best habitat value for Big Canyon Creek. A schematic of the Alternative is Attachment B. The City will receive a final report from Phase I sometime in Spring 2004. What's in Phase II. Phase II continues planning and design work for the Project with the Historic Tidal Wetlands Alternative as the guiding use. Phase II includes a comprehensive study of water quality concerns in Big Canyon Creek, including the following specific tasks (further delineated in the proposed PSA Amendment): Task 1: Project Administration Task 2: CEQA Documentation and Permits Task 3: Project Monitoring and Performance Plan /QAPP Task 4: Conduct Water Quality Sampling and Analysis Task 5: Hold Public Agency and Stakeholder Meetings Task 6: Conduct Restoration and Site Design Task 7: Prepare and Distribute Public Information Task 8: Conduct Public Workshop Task 9: Prepare draft and final reports Funding. The State Water Resources Control Board awarded $200,000 to this component of Phase II following the submission of a grant application and a competitive statewide review of eligible grant- funded projects. CCI prepared the grant application under the City's direction. The grant is contingent upon a City match of $30,000 for the Phase, an amount that can be contributed in FY 2004 -05 using the Newport Bay • Restoration Account or similar funding sources. CCI and the City have submitted other 489989.1 • Big Canyon Cree/c Restoration Project —Phase tt February 10, 2004 Page 5 components of Phase II to the State Coastal Conservancy and have lobbied the SCC for its support of the components. Construction. Construction might exceed $5 million. We intend to seek construction funding from Propositions 12, 13, 40, or 50 as additional grant moneys become available. Despite the State's current budget problems, we are optimistic that the Project, once planned and approved, will successfully secure construction funding given that funding from the above - mentioned propositions is unaffected by the State budget. Environmental Review: Environmental review is not required for this Council action. Public Notice: This agenda item requires standard Brown Act notice. Submitted by: Assistant City Manager iAttachments: 1 5'Amendment to a Professional Services Agreement with CCI Preferred Restoration Alternative C1 48"94.1 • Big Canyon CreRestoration Project— Phase tl February 10, 2004 Page 6 1 s` Amendment to a PROFESSIONAL SERVICES AGREEMENT THIS AMENDMENT, entered into this _th day of February 2004, to an existing PROFESSIONAL SERVICES AGREEMENT, entered into the 10 day of January 2003, by and between the City of Newport Beach ( "City "), a municipal corporation, and Community Conservancy International, a non - profit corporation whose address is 10951 West Pico Blvd. Suite 201, Los Angeles, CA 90064, ( "Consultant "), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City intends to provide for the water quality improvement, restoration, and habitat protection of Big Canyon Nature Park called the Big Canyon Creek Restoration Project ( "Project "). C. Resolution 2002 -15 authorized Consultant and the City to submit a joint application to the State Coastal Conservancy (SCC), via its Southern California Wetlands Recovery Project (SCWRP), for a grant to complete Planning and Technical Studies ( "Studies") associated with the Project. On October 31, 2002, the State Coastal Conservancy approved a grant of $167,000 for the Studies. City offered to match the SCC Grant with $110,000 from the City's Upper Newport Bay Restoration Account. D. City engaged Consultant to provide project management, sub - consultant contracting, and any other work relating to Phase I of the Project. E. The principal member of Consultant, is for purposes of this Project, Ms. Esther Feldman. F. City reviewed the previous experience and contracted with Consultant under Agreement executed in January 2003. and evaluated the expertise of Consultant, the terms and conditions provided in an G. Consultant largely completed Phase I, selecting with the assistance of public input a restoration plan called the Historic Wetlands Alternative as the going - forward restoration plan for the Project; H. In January 2004, City received notification that a Phase II proposal for $200,000 in grant funding via the State Water Resources Control Board was approved. I. City desires to engage Consultant for Phase II of the Project. 48"84. i Ll 0 • Big Canyon Creekl2estoration Project— Phase 11 February 10, 2004 Page 7 NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties that the Parties desire to amend the Professional Services Agreement between Consultant and City as follows: TERM The Agreement shall terminate on the 3151 of December 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the Phase II Scope of Work, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT The total estimated costs for services described in Phase II are $230,000. City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached in the Agreement's Exhibit "B" and incorporated herein by reference. City's obligation to compensate Consultant for all work performed in accordance with this Agreement shall not exceed the total contract price of two hundred thirty thousand dollars ($230,000.00). IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation 0 489984.1 Robert H. Burnham, City Attorney 21 Homer Bludau, City Manager for the City of Newport Beach X617 611114 IF10 zIII in Esther Feldman, President for Community Conservancy Intl • Big Canyon Cref Restoration Project— Phase 11 February 10, 2004 Page 8 Exhibit A ! Scope of Work Big Canyon Creek Restoration Project - Phase II (Water Quality Component) Consultant will be responsible for conducting various technical studies, research, meetings and other work necessary to prepare a conceptual restoration and public access plan for Big Canyon Creek and Big Canyon Nature Park. Tasks include: Task 1: Project Administration Task 2: CEQA Documentation and Permits Task 3: Project Monitoring and Performance Plan /QAPP Task 4: Conduct Water Quality Sampling and Analysis Purpose: Big Canyon Creek drains a two- square mile, heavily urbanized watershed, contributes pollutants to Newport Bay, and past water quality sampling shows a history of contamination - but no baseline water quality data exists for the creek. A baseline water quality evaluation is essential to characterize contaminants coming from this watershed and to provide data that can be used to properly design water quality improvement components of the Big Canyon Creek Restoration Project. Sub - tasks: 1. Retain testing firm 2. Prepare water quality sampling plan 3. Conduct water quality sampling and analysis, including turbidity, nutrients, fecal coliform, pesticides and heavy metals 4. Prepare baseline water quality analysis and evaluation of Big Canyon Restoration Area 5. Characterize contaminants entering and /or present within Big Canyon Restoration Area Task 5: Hold Public Agency and Stakeholder Meetings Purpose: This task's purpose is to ensure direct involvement in the design process by the many federal, state and local public agencies who have jurisdiction in Big Canyon, and definition of permitting issues and needs for each agency. There is also a need to meet with the golf course owners directly upstream of the project area to explore and evaluate possible water quality improvement measures for Big Canyon Creek on the golf course site, and to meet with the homeowner associations representing homeowners on the surrounding bluffs to discuss potential on -site water quality improvements, erosion control and non - native plant control. Sub - tasks: 1. Produce draft design drawings and related materials 2. Send notices via e-mail (public agencies) and phone (stakeholders) 3. Develop agenda for each meeting 4. Hold two group meetings with public agencies and technical team 5. Hold an on -site tour with all federal, regional, state and local agencies 6. Hold six meetings with City of Newport Beach staff in design, CEQA, project approval and permitting phases 7. Meet twice with Big Canyon Country Club 8. Meet once with each blufftop homeowners association (3) 9. Hold follow -up meetings with permitting agencies as permitting and design process moves forward 49"U.1 • Big Canyon Creek Restoration Project— Phase 11 February 10, 2004 Page 9 • Task 6: Conduct Restoration and Site Design Purpose: The purpose of this task is to conduct all the technical studies and incorporate all collected data in order to refine the initial conceptual design (completed in Phase I in 2003), coordinate the design effort between all technical team members, develop preliminary and final design plans, allow initiation of the CEQA process and preparation of permit applications, prepare site design feasibility analyses and prepare final construction drawings and bid package. In this task, we will use the water quality data to design natural water treatment components in Big Canyon to maximize treatment prior to discharge to Upper Newport Bay, and will incorporate public and agency input into the site design. Sub - tasks: 1. conduct field studies for preliminary and final design 2. conduct preliminary, pre - construction and final engineering design 3. design habitat restoration and landscape architecture 4. design public access, trails and interpretive components 5. coordinate focused planning and design sessions with engineers, restoration specialists, public facilitators and landscape architects Task 7: Prepare and Distribute Public Information Purpose: This task's purpose is to ensure public understanding of and support for the project, and to prevent unnecessary confusion and misconceptions. This is essential in the Upper Newport Bay area, as surrounding communities use Big Canyon as a primary access point and take a very great personal interest in everything that happens here. Preparation and use of both printed and digital information will allow us to reach as many diverse users as possible from throughout the region, maximize our communication ability, and coordinate with community and conservation organizations on making the restoration plan known to their memberships. Sub - tasks: 1. develop written and digital public information materials describing restoration plan, goals, benefits 2. update community stakeholder lists 3. mail one update to stakeholder list 4. post project information on website 5. post e-mail information on restoration plan 6. provide digital data to organizations with websites who wish to post Task 8: Conduct Public Workshop Purpose: This task's purpose is to allow the public an opportunity to comment on the design plans for Big Canyon before the plans are finalized, and to allow the design team and public agencies to respond to public needs and concerns. This in turn helps meet the larger goal of designing a project with maximum public support, which helps ensure that the project can be fully funded for construction and can be implemented. Sub - tasks: 1. Select and reserve workshop venue 2. Develop workshop announcement (flyer, information for newsletters, and news releases) 3. Place announcement in local newsletters of targeted groups and in newspapers of general . circulation 4. E -mail notification to stakeholder list and post on website 5. Mail flyer to stakeholder list 48"84 1 • Big Canyon CreeTc Restoration Project— Phase 11 February 10, 2004 Page 10 6. Make follow -up calls to key stakeholder group leaders 7. Post meeting announcement in public venues 8. Develop presentation panels and digital files for workshop 9. Develop handouts for workshop 10. Develop power -point presentation 11. Develop "sign -in" (attendance list) for meeting participants. Task 9: Prepare draft and final reports Purpose: Preparation of a draft allows public agencies and sub - contractors the opportunity to review and comment on the draft plan and related reports, maps, drawings, and documents, and to allow the technical team to respond to any concerns or issues before documents are finalized. Preparation of final reports and documents is for distribution to public agencies and the public, and to allow transition into the construction phase. Sub - tasks: 1. Prepare report outline and standard format and circulate to all team members 2. Compile all related information developed in previous tasks into a draft document. 3. Submit document for review and comment to RWQCB, USFWS, ACOE, NMFS, City of Newport Beach, Orange County, CA Department of Fish and Game, CA Coastal Commission, CA Coastal Conservancy 4. Distribute document and review deadline via e-mail 5. Compile all drawings, maps, illustrations and diagrams in digital files and hard copies 6. 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