HomeMy WebLinkAboutC-3594(B) - PSA for Management and Consulting for the Big Canyon Creek and the Big Canyon Creek Nature Park1" 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. Incorporate comments to produce a final document
•
48W84.1
HISTORIC TIDAL WETLANDS ALTERNATIVE
WA&AW- -
IMFRDV QU M�W % EA
PRESERVE 4 Immom -- -
MSHWATOK MARSH
� WET MAPOW
WORE 60ASTAL
IMPROVE
MMAT
M06AIT. EARTHEN PN-1, CREM OPEN WA7f K FD
0"WAY 64-05fg TO
40 WITH FSHWA MARS
HISTORIC- LAM IT OF TIDAL U M H
INFWENCF,, AL,01N
ROAD WV PAM
ff?fSHWA K MARSH 4
PRESERVE IMPROVE '. RIPARIAN HAPtTA-r
AWNJ CPEfK
FJPAI?IAN HABITAT
ti,. - RESTORE 11DAl, A
cm
WMANIPS Em
"ASiM- W4�
I
HISTORIC TIDAL WETLANDS ALTERNATIVE
I-RAILc,, FU13UC AUZ% 6' lMgMTIV6 f eATL9LG
I
NEW TKAII, 6ONNE6TIONS FOR
6ONT[NUOL6, 1,00FAROUND CAN'fON
MINIMIZE IMPACT OF EY,15TIN4
KAINTENANCE ROAM
PI5A0UPACaG5'TRAIL5
AMNIP WWW- LAN'fON
"MPM'TWe AAA
OAK WW-
0 o;6izL-xK AgEA virm
i,,Ttq MIN/V F-vATM
F,0AVI11FAIL
Hle-i "I IFAIL.
41. 5? 'AhM
lee
FSWATfP PARKIN AREA
- !16 LeAn , 7 0 6e
J - MOMPgr76PCIRANITE yUFfAa
NATIVE iANDSAPJNCI
- IMPROVED 95MOOM
BicycLe RACK
sl
r.
op
hA
Z
MAP OF TRAILS
I I
i ,� C- 3 S °► L-I
PROFESSIONAL SERVICES
AGREEMENT
THIS AGREEMENT, entered into this_'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 improvement, restoration, and habitat protection of Big
Canyon Creek and the Big Canyon Creek Nature Park ( "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 desires to engage Consultant to provide project management, sub - consultant
contracting, and any other work relating to the Project.
E. The principal member of Consultant, is for purposes of this Project, Ms. Esther
Feldman.
City has reviewed the previous experience and evaluated the expertise of
Consultant, and desires to contract with Consultant under the terms and conditions
provided in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
follows:
1. TERM
The term of this Agreement shall commence on the 14'" day of January, 2003, and shall
terminate on the 301" of June, 2004, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the duties set forth in the Scope of Work, attached
hereto as Exhibit "A" and incorporated herein by reference.
i 16
3. COMPENSATION TO CONSULTANT
The total estimated costs for services described in Exhibit A are $277,0000. City shall
pay Consultant for the services in accordance with the provisions of this Section and the
scheduled billing rates, attached hereto as Exhibit "B" and incorporated herein by reference. No
rate changes shall be made during the term of this Agreement without prior written approval of
City. City's obligation to compensate Consultant for all work performed in accordance with this
Agreement shall not exceed the total contract price of one hundred ten thousand dollars
($110,000.00). Consultant agrees the remaining costs (in accordance with the budget in Exhibit
B) will be paid by the SCC Grant.
3.1 Consultant shall maintain accounting records of its billings which includes the
name of the employee, type of work performed, times and dates of all work which is billed on an
hourly basis and all approved incidental expenses including reproductions, computer printing,
postage, airfare, travel expenses and mileage.
3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30)
days of receipt of invoice subject to the approval of City.
3.3 Consultant shall not receive any compensation for extra work without prior written
authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "B"
and incorporated herein by reference. City shall reimburse Consultant only for those costs or
expenses which have been specifically approved in this Agreement, or specifically approved in
advance by City.
4. STANDARD OF CARE
4.1 Except to the extent provided in paragraph 19 below, all of the services shall be
performed by Consultant or under Consultant's supervision. Consultant represents that it
possesses the professional and technical personnel required to perform the services required
by this Agreement, and that it will perform all services in a manner commensurate with the
community professional standards. Consultant shall use only qualified and experienced
personnel who are not employed by City to perform all services as set forth in Exhibit A (Scope
of Work). Consultant represents and warrants to City that it has or shall obtain all applicable
licenses and permits, if any, required of its profession, including registration, if applicable, as a
person or entity authorized to advocate before state and local officials or departments.
Consultant further represents and warrants that it shall keep in effect all such licenses and
permits during the term of this Agreement.
4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible
for damages or be in default or deemed to be in default by reason of strikes, lockouts,
accidents, or acts of God, or the failure of City to furnish timely information or to approve or
disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or
governmental agencies, or any other delays beyond Consultant's control or without Consultant's
fault.
0 3
5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and Consultant is not an
employee of City. The manner and means of conducting the work are under the control of
Consultant, except to the extent they are limited by statute, rule or regulation and the expressed
terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or
any of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the details and means of performing the work
provided that Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement which may appear to give City the right to direct Consultant as to the details of the
performance of the services or to exercise a measure of control over Consultant shall mean that
Consultant shall follow the desires of City only with respect to the results of the services.
6. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator, and any other agencies which may have jurisdiction or interest in the work to be
performed. City agrees to cooperate with the Consultant on the Project.
7. PROJECT MANAGER
Consultant shall assign the Project to a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable times
during the Project term. Consultant has designated Esther Feldman as its Project Manager.
Consultant may designate other personnel as necessary to fulfill project management
obligations.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City. Consultant
warrants that it will continuously furnish the necessary personnel to complete the Project on a
timely basis as contemplated by this Agreement.
8. TIME OF PERFORMANCE
Time is of the essence in the performance of the services under this Agreement and the
services shall be performed by Consultant in accordance with the schedule specified in the
Scope of Work (Exhibit A). The failure by Consultant to strictly adhere to the schedule, may
result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall
not be responsible for delays which are due to causes beyond Consultant's reasonable control
as set forth further in paragraph 4.2 above. However, in the case of any such delay in the
services to be provided for the Project, each party hereby agrees to provide notice to the other
party so that all delays can be addressed. The City recognizes and acknowledges that the
selection of sub - contractors, the Budget (Exhibit B) and the Scope of Work (Exhibit A) are all
subject to the review and approval of the State Coastal Conservancy, and that this review and
approval may result in changes or delays to the Budget, Scope of Work and /or overall project
timeline.
8.1 Consultant shall submit all requests for extensions of time for performance in
writing to the Project Administrator not later than ten (10) calendar days after the start of the
condition which purportedly causes a delay, and not later than the date upon which performance
is due. The Project Administrator shall review all such requests and may grant reasonable time
extensions for unforeseeable delays, which are beyond Consultant's control.
0
4
8.2 For all time periods not specifically set forth herein, Consultant shall respond in
the most expedient and appropriate manner under the circumstances, by either telephone, fax,
hand delivery or mail.
9. CITY POLICY
Consultant will discuss and review all matters relating to policy and project direction with
the Project Administrator in advance of all critical decision points in order to ensure that the
Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state and
federal law, regulations and permit requirements and be subject to approval of the Project
Administrator and City.
11. HOLD HARMLESS
Consultant shall indemnify, defend, save and hold harmless City, its City Council,
officers, and employees (collectively "Indemnitees ") from and against any and all loss,
damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any
nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property
damages, or any other claims arising from any and all negligent acts or omissions of Consultant,
its employees, agents or subcontractors in the performance of services conducted or performed
or products provided pursuant to this Agreement, excepting only the sole negligence, active
negligence, or willful misconduct of Indemnitees, and shall include attorneys' fees and all other
costs incurred in good faith and in the exercise of reasonable discretion in defending any such
claim. Nothing in this hold harmless agreement shall be construed as authorizing any award of
attorneys' fees or other costs in any action on or to enforce the terms of this Agreement.
12. INSURANCE
Without limiting Consultant's indemnification of Indemnitees, and prior to
commencement of work, Consultant shall obtain and provide and maintain at its own expense
during the term of this Agreement, the following policies of insurance:
A. Worker's compensation insurance covering all employees and principals of
Consultant, per the laws of the State of California; and
B. Commercial general liability insurance covering third party liability risks, including
without limitation, contractual liability, in a minimum amount of $1 million combined
single limit per occurrence for bodily injury, personal injury and property damage. If
commercial general liability insurance or other form with a general aggregate is used,
either the general aggregate shall apply separately to this Project or the general
aggregate limit shall be twice the occurrence limit.
City shall be added as an additional insured to Consultant's general liability insurance
policy. Certificates of Insurance for the above - required policies shall be signed by a person
authorized by the applicable insurer to bind coverage on its behalf and must be filed with City
prior to exercising any right or performing any work pursuant to this Agreement.
0 0
All insurance policies shall be issued by an insurance company currently authorized by
the Insurance Commissioner to transact the business of insurance in the State of California,
with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Bests Key Rating Guide, unless otherwise
approved by the City Risk Manager.
Said policy or policies shall be endorsed to state that coverage shall not be canceled by
either party, except after thirty (30) days prior notice has been given in writing to City.
Consultant shall give City prompt and timely notice of a claim made or a suit instituted arising
out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its sole discretion may be
necessary for its proper protection and prosecution of the work.
Consultant agrees that, in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general liability insurance, Consultant shall look solely to its
insurance for recovery excepting only perils arising out of the sole negligence, active
negligence, or willful misconduct of indemnities. Consultant hereby grants to City, on behalf of
any insurer providing comprehensive general liability insurance to Consultant with respect to
the services of Consultant herein, a waiver of any right of subrogation which any such insurer of
said Consultant may acquire against City by virtue of the payment of any loss under such
insurance.
13. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for
the services to be performed under this Agreement, directly or indirectly, by operation of law or
otherwise without prior written consent of City. Any attempt to do so without consent of City
shall be null and void.
14. CONFIDENTIALITY
The information, which results from the services in this Agreement, is to be kept
confidential unless the release of information is authorized by City.
15. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to cooperate with Consultant in the development and production of display
materials, advocacy letters, background information, maps and related GIS data, and research
data, and to provide assistance in contacting and meeting with public agencies, elected officials
and other individuals or entities where requested by Consultant, and to install display and public
information materials on site if deemed appropriate. City agrees to provide all necessary review
of the project's legal requirements and to meet with homeowners and golf course operators
adjacent to the project site to discuss water quality, runoff and drainage issues identified by
Consultant.
0
16. ADMINISTRATION
• 6
This Agreement will be administered by the City Manager's Office. Dave Kiff shall be
considered the Project Administrator and shall have the authority to act for City under this
Agreement. The Project Administrator or his /her authorized representative shall represent City
in all matters pertaining to the services to be rendered pursuant to this Agreement.
17. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with respect to
the costs incurred under this Agreement. All such records shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or copies
of such records during normal business hours. Consultant shall allow inspection of all work,
data, documents, proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
18. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute with
respect to such payment. Such withholding shall not be deemed to constitute a failure to pay
according to the terms of this Agreement. Consultant shall not discontinue work as a result of
such withholding. Consultant shall have an immediate right to appeal to the City Manager or his
designee with respect to such disputed sums. Consultant shall be entitled to receive interest on
any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of
any amounts found to have been improperly withheld.
19. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other consultants in connection with the Project. City
expressly acknowledges and agrees that Consultant shall have no liability whatsoever for the
acts or omissions of any person or entity engaged directly by City.
20. CONFLICTS OF INTEREST
A. The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose financial interest that may foreseeably be materially affected
by the work performed under this Agreement, and (2) prohibits such persons
from making, or participating in making decisions that will foreseeably financially
affect such interest.
B. If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Consultant shall indemnify and hold harmless City for
any and all claims for damages resulting from Consultant's violation of this
Section.
0 0
21. SUBCONSULTANT AND ASSIGNMENT
Except as specifically authorized under this Agreement, the services included in this
Agreement shall not be assigned, transferred, contracted or subcontracted without prior written
approval of City, except for design production of graphic or visual materials necessary to the
Project, which design and production by a subcontractor is hereby approved.
22. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on the
third business day after the deposit thereof in the United States mail, postage prepaid, first class
mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Consultant to City shall be addressed
to City, attention Dave Kiff at:
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA 92658 -8915
Phone -- 949/644 -3002 and
Fax -- 949/644 -3020
E -Mail — dkiff @city.newport- beach.ca.us
All notices, demands, requests or approvals from City to Consultant shall be addressed
to Consultant, attention Esther Feldman at:
Community Conservancy International
10951 West Pico Blvd. Suite 201
Los Angeles, CA 90064
Phone -- 310/475 -0797 extension 1 and
Fax -- 310/475 -6797
E -mail -- efeldman @ccint.org
23. TERMINATION
In the event either party hereto fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, that party shall be deemed in default in the
performance of this Agreement. If such default is not cured within a period of two (2) days, or if
more than two (2) days are reasonably required to cure the default and the defaulting party fails
to give adequate assurance of due performance within two (2) days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure such
default, the nondefaulting party may terminate the Agreement forthwith by giving to the
defaulting party written notice thereof.
City shall have the option, at its sole discretion and without cause, of terminating this
Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon
termination of this Agreement, City shall pay to the Consultant that portion of compensation
specified in this Agreement that is earned and unpaid prior to the effective date of termination.
• •
24. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
25. WAIVER
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant or condition contained herein, whether of the same or a different character.
26. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the Parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall
be held to vary the provisions herein. Any modification of this Agreement will be effective only
by written execution signed by both City and Consultant.
27. PATENT INDEMNITY
The Consultant shall indemnify City, its agents, officers, representatives and employees
against liability, including costs, for infringement of any United States' letters patent, trademark,
or copyright infringement, including costs, contained in Consultant's drawings and specifications
provided under this Agreement.
28. SHARING OF TASKS AND WORK PRODUCTS
The City recognizes and acknowledges that certain tasks that will be performed and final
work products that will be produced by Consultant pursuant to the terms of this agreement are
being funded by both the City and the State Coastal Conservancy ( "Conservancy "). The City
acknowledges and agrees that the costs associated with such tasks and final work products
shall be shared by the City and the Conservancy, pursuant to the agreements with each
respective entity, and that the costs of such tasks and work products shall be allocated by the
Consultant to each entity pursuant to the respective approved project budget. Consultant shall
deliver all final work products to both entities regardless of the allocation of costs relating to
such work products.
All materials and work products produced by Consultant as a result of this agreement
are the property of both the City and the Conservancy. Consultant shall receive copies of all
such materials and work products and shall have an irrevocable right to use all such materials
and work products for any lawful and appropriate use in the normal course and scope of its
activities.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED
0
•
�WR. Burnham,
Attorney
CITY OF NEWPORT BEACH
A Municipal Corporatic
in
Homer Bluda ity Manager
for the City of Newport Beach
CONSULTANT
By:
Esther Feldman, President
for Community Conservancy Int'I
9
n
L�
Exhibit A
Scope of Work
Big Canyon Creek Restoration Project
Scope of Work
• 10
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:
1. Conduct detailed aerial and ground survey of Big Canyon Nature Park and relevant
portion of Big Canyon Creek;
2. Conduct a biological assessment of the project area;
3. Analyze biological, hydrological, geotechnical and engineering data and public
access needs and prepare restoration plan alternatives;
4. Retain a landscape architectural firm to prepare a conceptual plan for public access
and trails, and to integrate such plan with the overall restoration goals and plan;
5. Retain a financial analyst to review all plans and prepare preliminary cost estimates
for implementation of the restoration plan;
6. Provide necessary project management of all sub - consultants;
7. Evaluate all technical recommendations and ensure integration of all site
components and needs;
8. Contact all involved public agencies and request their participation in the planning
process;
9. Conduct meetings of technical consultants and involved public agencies throughout
the planning process;
10. Conduct one public workshop;
11. Develop and evaluate preliminary alternative restoration concepts, and develop one
alternative into a recommended conceptual restoration plan for purposes of
conducting engineering review and preparation of a final report and related
documents; and
12. Working with Coastal Resources Management, prepare necessary planning
documents and reports, and coordinate the reproduction and dissemination of all
materials and plans to all necessary organizations and public agencies.
• • 11
Exhibit B
Payment Provisions
Consultant shall invoice City for work completed in accordance with the Budget in this Exhibit B.
Each invoice shall indicate the tasks completed, hours worked, and percentage of work
completed during the period being invoiced, shall include a progress report on each component
of the project, and shall attach copies of deliverables as completed. City shall pay Consultant
for time worked and materials and expenses incurred during each invoice period, and shall
reimburse Consultant for all sub - consultant fees and direct expenses invoiced. Total
compensation shall be no more than one hundred ten thousand dollars ($110,000) at the close
of the contract period, unless previously amended in writing.
Notwithstanding this Exhibit, the City reserves the right to withhold payment if the services
described in the Scope of Work are not completed in a timely manner or if this contract is
terminated., except as provided in paragraphs 8 and 28 above.
Upper Newport Bay
Big Canyon Creek Restoration Project
Budget and Cost Allocation by Funder
Project Task
Aerial and ground survey
GIS mapping
Engineering
Hydrology and soil analysis
Biological assessment
Restoration analysis and planning
Landscape architecture, trail planning
Financial analysis
Proj. Mgt, Site Design, Tech Review, Meetings, Doc. Prep
Printing and reproduction, final report
Postage and mailing
Project expenses
Miscellaneous
Total
Coastal City of
Conser- Newport
vancy
Beach
Total
3,000 8,000
12,000
12,000
5,000
11,460 17,460
5,000
25,000
25,000
25,000
25,000
45,000
10,650
55,650
19,000
16,600
35,600
18,000
18,000
4,000
4,000
32,000
34,290 66,290
5,000
3,000 8,000
2,000
2,000
6,000
11,460 17,460
3,000
3,000
Ili ��11
C3�IyJ)
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 6
January 14, 2003
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY CO O"Mmm—A
FROM: City Manager's Office JAN 14 2003
Dave Kiff, Assistant City Manager
949/644 -3002 or dkiff @city.newport- beach.ca.us AVPHUVLA
SUBJECT: Big Canyon Creek Restoration Project --Contract for Planning and t6 A - 0 33
Technical Studies
ISSUE:
Should the City of Newport Beach approve a Professional Services Agreement with
Community Conservancy International (CCI) to conduct planning and technical studies
associated with the grant - funded Big Canyon Creek Restoration Project?
RECOMMENDATION:
1. Approve a Professional Services Agreement with Community Conservancy
International (CCI) in an amount not to exceed $110,000 for Planning and
Technical Studies ( "Studies ") associated with the Big Canyon Creek Restoration
Project, and authorize the Mayor and the City Clerk to execute the Agreement.
2. Authorize the City Manager to pursue construction funding for the Big Canyon
Creek Restoration Project as the Studies are underway.
3. Adopt a Budget Amendment ( #BA- _) authorizing the expenditure of $110,000
from the Upper Newport Bay Restoration Account for the Studies.
4. Authorize the City Manager to make changes as necessary to the scope of work
and budget for the Studies providing that the terms and deliverables remain
substantially in accordance with the approved scope of work and budget.
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
than sixty different commercial ventures, rowing clubs, yacht races, millions of visitors
annually, and more.
489984.1
H.WyI umrnuWSha Pmjc - -2WM3 I -Ia Al Big Canyon Planning and iah gwdim,.
• Big Canyon Creevestoration Project — Contract
January 14, 2003
Page 2
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 Feasibility Study. This US Army Corps
of Engineers -led (US ACE) study is the "Big Dredge" now set for 2003 or 2004,
depending upon federal funding. 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 will also identify locations in the San
Diego Creek watershed to 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 arguably still will face significant
problems in the future 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 Ms. Esther Feldman of the
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 advocated and planned for two square miles of park and open space in the
689980.1
• Big Canyon Creegestoration Project -- Contract
January 14, 2003
Page 3
Baldwin Hills (near Ballona Creek in southwestern Los Angeles). CCI succeeded in
securing $36 million in state funding for the Baldwin Hills.
The Restoration Proposal & State Grant. 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. CCI envisions a project
-- tentatively entitled the Big Canyon Creek Restoration Project -- that would address:
• 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
Planning and Technical Studies ("Studies"). associated with the Project. On October 31,
2002, the SCWRP approved a grant of $167,000 for the Studies.
499964.1
Big Canyon Creek Restoration Project — Contract
January 14, 2003
Page 4
We offered to match the SCWRP grant with $110,000 from the City's Upper Newport
Bay Restoration Account. We anticipate in -kind support of $27,000 from the Newport
Bay Naturalists and Friends and from CCI itself. Without considering the in -kind
support, we anticipate that the Studies will cost $277,000.
State Coastal Conservancy Grant
City's UNB Restoration Account
Total
$ 167,000
110,000
277 0
About the Upper Newport Bay Restoration Account. 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).
To fund construction of the Project, the City co- signed a letter with the cities of Costa
Mesa and Irvine, the Irvine Ranch Water District, the County of Orange, the Newport
Bay Naturalists and Friends, and the Irvine Company. We sent the letter to the Director
of the California Department of Fish and Game, Mr. Robert Hight, asking for his support
for allocating $4 million in Proposition 40 (and 12, 13, and 50) bond funds towards
construction of the projects identified via the planning and technical studies. 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 phase.
Public Notice: This agenda item requires standard Brown Act notice.
Funding Availability- Funding for this PSA requires a budget amendment. The City is
required to set funds aside for projects like this via the Upper Newport Bay Restoration
Account. To date, we have not spent moneys in this Account for any purpose.
Submitted by:
Dave Kiff
Assistant City Manager
Attachments: Professional Services Agreement with CCI (including Scope of Work and Budget)
Budget Amendment (BA #__)
48"84.1
• Big Canyon Creekl estoration Project -- Contract
January 14, 2003
Page 5
PROFESSIONAL SERVICES
AGREEMENT
THIS AGREEMENT, entered into this _ "' 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.
follows:
B. City intends to provide for the improvement, restoration, and habitat protection of Big
Canyon Creek and the Big Canyon Creek Nature Park ( "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 desires to engage Consultant to provide project management, sub - consultant
contracting, and any other work relating to the Project.
E. The principal member of Consultant, is for purposes of this Project, Ms. Esther
Feldman.
F. City has reviewed the previous experience and evaluated the expertise of
Consultant, and desires to contract with Consultant under the terms and conditions
provided in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as
TERM
The term of this Agreement shall commence on the _th day of January, 2003, and shall
terminate on the 30th of June, 2004., unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the duties set forth in the Scope of Work, attached
hereto as Exhibit "A" and incorporated herein by reference.
4899841
• Big Canyon CreeXF2estoration Project -- Contract
January 14, 2003
Page 6
3. COMPENSATION TO CONSULTANT
The total estimated costs for services described in Exhibit A are $277,0000. City shall
pay Consultant for the services in accordance with the provisions of this Section and the
scheduled billing rates, attached hereto as Exhibit "B" and incorporated herein by reference. No
rate changes shall be made during the term of this Agreement without prior written approval of
City. City's obligation to compensate Consultant for all work performed in accordance with this
Agreement shall not exceed the total contract price of one hundred ten thousand dollars
($110,000.00). Consultant agrees the remaining costs will be paid by the SCC Grant.
3.1 Consultant shall maintain accounting records of its billings which includes the
name of the employee, type of work performed, times and dates of all work which is billed on an
hourly basis and all approved incidental expenses including reproductions, computer printing,
postage, airfare, travel expenses and mileage.
3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30)
days of receipt of invoice subject to the approval of City.
3.3 Consultant shall not receive any compensation for extra work without prior written
authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "B"
and incorporated herein by reference. City shall reimburse Consultant only for those costs or
expenses which have been specifically approved in this Agreement, or specifically approved in
advance by City.
4. STANDARD OF CARE
4.1 Except to the extent provided in paragraph 19 below, all of the services shall be
performed by Consultant or under Consultant's supervision. Consultant represents that it
possesses the professional and technical personnel required to perform the services required
by this Agreement, and that it will perform all services in a manner commensurate with the
community professional standards. Consultant shall use only qualified and experienced
personnel who are not employed by City to perform all services as set forth in Exhibit A (Scope
of Work). Consultant represents and warrants to City that it has or shall obtain all applicable
licenses and permits, if any, required of its profession, including registration, if applicable, as a
person or entity authorized to advocate before state and local officials or departments.
Consultant further represents and warrants that it shall keep in effect all such licenses and
permits during the term of this Agreement.
4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible
for damages or be in default or deemed to be in default by reason of strikes, lockouts,
accidents, or acts of God, or the failure of City to furnish timely information or to approve or
disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or
governmental agencies, or any other delays beyond Consultant's control or without Consultant's
fault.
5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and Consultant is not an
employee of City. The manner and means of conducting the work are under the control of
489984.1
• Big Canyon CreePestorafion Project — Contract
January 14, 2003
Page 7
Consultant, except to the extent they are limited by statute, rule or regulation and the expressed
terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or
any of Consultant's employees or agents, to be the agents or employees of City. Consultant
shall have the responsibility for and control over the details and means of performing the work
provided that Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement which may appear to give City the right to direct Consultant as to the details of the
performance of the services or to exercise a measure of control over Consultant shall mean that
Consultant shall follow the desires of City only with respect to the results of the services.
6. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator, and any other agencies which may have jurisdiction or interest in the work to be
performed. City agrees to cooperate with the Consultant on the Project.
PROJECT MANAGER
Consultant shall assign the Project to a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable times
during the Project term. Consultant has designated Esther Feldman as its Project Manager.
Consultant may designate other personnel as necessary to fulfill project management
obligations.
Consultant, at the sole discretion of City, shall remove from the Project any of its
personnel assigned to the performance of services upon written request of City. Consultant
warrants that it will continuously furnish the necessary personnel to complete the Project on a
timely basis as contemplated by this Agreement.
8. TIME OF PERFORMANCE
Time is of the essence in the performance of the services under this Agreement and the
services shall be performed by Consultant in accordance with the schedule specified in the
Scope of Work (Exhibit A). The failure by Consultant to strictly adhere to the schedule, may
result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall
not be responsible for delays which are due to causes beyond Consultant's reasonable control
as set forth further in paragraph 4.2 above. However, in the case of any such delay in the
services to be provided for the Project, each party hereby agrees to provide notice to the other
party so that all delays can be addressed. The City recognizes and acknowledges that the
selection of sub - contractors, the Budget (Exhibit B) and the Scope of Work (Exhibit A) are all
subject to the review and approval of the State Coastal Conservancy, and that this review and
approval may result in changes or delays to the Budget, Scope of Work and /or overall project
timeline.
8.1 Consultant shall submit all requests for extensions of time for performance in
writing to the Project Administrator not later than ten (10) calendar days after the start of the
condition which purportedly causes a delay, and not later than the date upon which performance
is due. The Project Administrator shall review all such requests and may grant reasonable time
extensions for unforeseeable delays, which are beyond Consultant's control.
489984A
• Big Canyon Creefestoration Project -- Contract
January 14, 2003
Page 8
8.2 For all time periods not specifically set forth herein, Consultant shall respond in
the most expedient and appropriate manner under the circumstances, by either telephone, fax,
hand delivery or mail.
9. CITY POLICY
Consultant will discuss and review all matters relating to policy and project direction with
the Project Administrator in advance of all critical decision points in order to ensure that the
Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state and
federal law, regulations and permit requirements and be subject to approval of the Project
Administrator and City.
11. HOLD HARMLESS
Consultant shall indemnify, defend, save and hold harmless City, its City Council,
officers, and employees (collectively "Indemnitees ") from and against any and all loss,
damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any
nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property
damages, or any other claims arising from any and all negligent acts or omissions of Consultant,
its employees, agents or subcontractors. in the performance of services conducted or performed
or products provided pursuant to this Agreement, excepting only the sole negligence, active
negligence, or willful misconduct of Indemnitees, and shall include attorneys' fees and all other
costs incurred in good faith and in the exercise of reasonable discretion in defending any such
claim. Nothing in this hold harmless agreement shall be construed as authorizing any award of
attorneys' fees or other costs in any action on or to enforce the terms of this Agreement.
12. INSURANCE
Without limiting Consultant's indemnification of Indemnitees, and prior to
commencement of work, Consultant shall obtain and provide and maintain at its own expense
during the term of this Agreement, the following policies of insurance:
A. Worker's compensation insurance covering all employees and principals of
Consultant, per the laws of the State of California; and
B. Commercial general liability insurance covering third party liability risks, including
without limitation, contractual liability, in a minimum amount of $1 million combined
single limit per occurrence for bodily injury, personal injury and property damage. If
commercial general liability insurance or other form with a general aggregate is used,
either the general aggregate shall apply separately to this Project or the general
aggregate limit shall be twice the occurrence limit.
City shall be added as an additional insured to Consultant's general liability insurance
policy. Certificates of Insurance for the above - required policies shall be signed by a person
authorized by the applicable insurer to bind coverage on its behalf and must be filed with City
prior to exercising any right or performing any work pursuant to this Agreement.
489981.1
• Big Canyon Creetestoration Project — Contract
January 14, 2003
Page 9
All insurance policies shall be issued by an insurance company currently authorized by
the Insurance Commissioner to transact the business of insurance in the State of California,
with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or
larger) in accordance with the latest edition of Bests Key Rating Guide, unless otherwise
approved by the City Risk Manager.
Said policy or policies shall be endorsed to state that coverage shall not be canceled by
either party, except after thirty (30) days prior notice has been given in writing to City.
Consultant shall give City prompt and timely notice of a claim made or a suit instituted arising
out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own
cost and expense, any additional kinds of insurance, which in its sole discretion may be
necessary for its proper protection and prosecution of the work.
Consultant agrees that, in the event of loss due to any of the perils for which it has
agreed to provide comprehensive general liability insurance, Consultant shall look solely to its
insurance for recovery excepting only perils arising out of the sole negligence, active
negligence, or willful misconduct of indemnities. Consultant hereby grants to City, on behalf of
any.insurer providing comprehensive general liability insurance to Consultant with respect to
the services of Consultant herein, a waiver of any right of subrogation which any such insurer of
said. Consultant may acquire against City by virtue of the payment of any loss under such
insurance.
13. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for
the services to be performed under this Agreement, directly or indirectly, by operation of law or
otherwise without prior written consent of City. Any attempt to do so without consent of City
shall be null and void.
14. CONFIDENTIALITY
The information, which results from the services in this Agreement, is to be kept
confidential unless the release of information is authorized by City.
15. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to cooperate with Consultant in the development and production of display
materials, advocacy letters, background information, maps and related GIS data, and research
data, and to provide assistance in contacting and meeting with public agencies, elected officials
and other individuals.or entities where requested by Consultant, and to install display and public
information materials on site if deemed appropriate. City agrees to provide all necessary review
of the project's legal requirements and to meet with homeowners and golf course operators
adjacent to the project site to discuss water quality, runoff and drainage issues identified by
Consultant.
489986.1
• Big Canyon Creefestoration Project -- Contract
January 14, 2003
Page 10
16. ADMINISTRATION
This Agreement will be administered by the City Manager's Office. Dave Kiff shall be
considered the Project Administrator and shall have the authority to act for City under this
Agreement. The Project Administrator or his /her authorized representative shall represent City
in all matters pertaining to the services to be rendered pursuant to this Agreement.
17. RECORDS
Consultant shall keep records and invoices in connection with the work to be performed
under this Agreement. Consultant shall maintain complete and accurate records with respect to
the costs incurred under this Agreement. All such records shall be clearly identifiable.
Consultant shall allow a representative of City to examine, audit and make transcripts or copies
of such records during normal business hours. Consultant shall allow inspection of all work,
data, documents, proceedings and activities related to the Agreement for a period of three (3)
years from the date of final payment under this Agreement.
18. WITHHOLDINGS
City may withhold payment of any disputed sums until satisfaction of the dispute with
respect to such payment. Such withholding shall not be deemed to constitute a failure to pay
according to the terms of this Agreement. Consultant shall not discontinue work as a result of
such withholding. Consultant shall have an immediate right to appeal to the City Manager or his
designee with respect to such disputed sums. Consultant shall be entitled to receive interest on
any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of
any amounts found to have been improperly withheld.
19. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other consultants in connection with the Project. City
expressly acknowledges and agrees that Consultant shall have no liability whatsoever for the
acts or omissions of any person or entity engaged directly by City.
20. CONFLICTS OF INTEREST
A. The Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such
persons to disclose financial interest that may foreseeably be materially affected
by the work performed under this Agreement, and (2) prohibits such persons
from making, or participating in making decisions that will foreseeably financially
affect such interest.
B. If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for termination of
this Agreement by City. Consultant shall indemnify and hold harmless City for
any and all claims for damages resulting from Consultant's violation of this
Section.
489984.1
• Big Canyon Creevestoration Project -- Contract
January 14, 2003
Page 11
21. SUBCONSULTANT AND ASSIGNMENT
Except as specifically authorized under this Agreement, the services included in this
Agreement shall not be assigned, transferred, contracted or subcontracted without prior written
approval of City, except for design production of graphic or visual materials necessary to the
Project, which design and production by a subcontractor is hereby approved.
22. NOTICES
All notices, demands, requests or approvals to be given under this Agreement shall be
given in writing and conclusively shall be deemed served when delivered personally or on the
third business day after the deposit thereof in the United States mail, postage prepaid, first class
mail, addressed as hereinafter provided.
All notices, demands, requests or approvals from Consultant to City shall be addressed
to City, attention Dave Kiff at:
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA 92658 -8915
Phone -- 949/644 -3002 and
Fax -- 949/644 -3020
E -Mail -- dkiff @city.newport- beach.ca.us
All notices, demands, requests or approvals from City to Consultant shall be addressed
to Consultant, attention Esther Feldman at:
Community Conservancy International
10951. West Pico Blvd. Suite 201
Los Angeles, CA 90064
Phone -- 310/475 -0797 extension 1 and
Fax -- 310/475 -6797
E -mail — efeldman @ccint.org
23. TERMINATION
In the event either party hereto fails or refuses to perform any of the provisions hereof at
the time and in the manner required hereunder, that party shall be deemed in default in the
performance of this Agreement. If such default is not cured within a period of two (2) days, or if
more than two (2) days are reasonably required to cure the default and the defaulting party fails
to give adequate assurance of due performance within two (2) days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure such
default, the nondefaulting party may terminate the Agreement forthwith by giving to the
defaulting party written notice thereof.
City shall have the option, at its sole discretion and without cause, of terminating this
Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon
termination of this Agreement, City shall pay to the Consultant that portion of compensation
specified in this Agreement that is earned and unpaid prior to the effective date of termination.
489984.1
• Big Canyon CreaRestoration Project — Contract
January 14, 2003
Page 12
24. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules and
regulations enacted or issued by City.
Pkj�'�7�119�:7
A waiver by either party of any breach, of any term, covenant or condition contained
herein shall not be deemed to be a waiver of any subsequent breach of the same or any other
term, covenant or condition contained herein, whether of the same or a different character.
26. INTEGRATED CONTRACT
This Agreement represents the full and complete understanding of every kind or nature
whatsoever between the Parties hereto, and all preliminary negotiations and agreements of
whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall
be held to vary the provisions herein. Any modification of this Agreement will be effective only
by written execution signed by both City and Consultant.
27. PATENT INDEMNITY
The Consultant shall indemnify City, its agents, officers, representatives and employees
against liability, including costs, for infringement of any United States' letters patent, trademark,
or copyright infringement, including costs, contained in Consultant's drawings and specifications
provided under this Agreement.
28. SHARING OF TASKS AND WORK PRODUCTS
The City recognizes and acknowledges that certain tasks that will be performed and final
work products that will be produced by Consultant pursuant to the terms of this agreement are
being funded by both the City and the State Coastal Conservancy ( "Conservancy "). The City
acknowledges and agrees that the costs associated with such tasks and final work products
shall be shared by the City and the Conservancy, pursuant to the agreements with each
respective entity, and that the costs of such tasks and work products shall be allocated by the
Consultant to each entity pursuant to the respective approved project budget. Consultant shall
deliver all final work products to both entities regardless of the allocation of costs relating to
such work products.
All materials and work products produced by Consultant as a result of this agreement
are the property of both the City and the Conservancy. Consultant shall receive copies of all
such materials and work products and shall have an irrevocable right to use all such materials
and work products for any lawful and appropriate use in the normal course and scope of its
activities.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and year first written above.
489984.1
• Big Canyon Creetestoration Project -- Contract
January 14, 2003
Page 13
APPROVED AS TO FORM:
0
Robert H. Burnham,
City Attorney
d8"M 1
CITY OF NEWPORT BEACH
A Municipal Corporation
in
Homer Bludau, City Manager
for the City of Newport Beach
CONSULTANT
0
Esther Feldman, President
for Community Conservancy Int'I
Big Canyon CreaRestoration Project -- Contract
January 14, 2003
Page 14
Exhibit A
Scope of Work
Big Canyon Creek Restoration Project
Scope of Work
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:
1. Conduct detailed aerial and ground survey of Big Canyon Nature Park and relevant
portion of Big Canyon Creek;
2. Conduct a biological assessment of the project area;
3. Analyze biological, hydrological, geotechnical and engineering data and public
access needs and prepare restoration plan alternatives;
4. Retain a landscape architectural firm to prepare a conceptual plan for public access
and trails, and to integrate such plan with the overall restoration goals and plan;
5. Retain a financial analyst to review all plans and prepare preliminary cost estimates
for implementation of the restoration plan;
6. Provide necessary project management of all sub - consultants;
7. Evaluate all technical recommendations and ensure integration of all site
components and needs;
8. Contact all involved public agencies and request their participation in the planning
process;
9. Conduct meetings of technical consultants and involved public agencies throughout
the planning process;
10. Conduct one public workshop;
11. Develop and evaluate preliminary alternative restoration concepts, and develop one
alternative into a recommended conceptual restoration plan for purposes of
conducting engineering review and preparation of a final report and related
documents; and
12. Working with Coastal Resources Management, prepare necessary planning
documents and reports, and coordinate the reproduction and dissemination of all
materials and plans to all necessary organizations and public agencies.
48"" 1
• Big Canyon Creefestoration Project -- Contract
January 14, 2003
Page 15
Exhibit B
Payment Provisions
Consultant shall invoice City for work completed in accordance with the Budget in this Exhibit B.
Each invoice shall indicate the tasks completed, hours worked, and percentage of work
completed during the period being invoiced, shall include a progress report on each component
of the project, and shall attach copies of deliverables as completed. City shall pay Consultant
for time worked and materials and expenses incurred during each invoice period, and shall
reimburse Consultant for all sub - consultant fees and direct expenses invoiced. Total
compensation shall be no more than one hundred ten thousand dollars ($110,000) at the close
of the contract period, unless previously amended in writing.
Notwithstanding this Exhibit, the City reserves the right to withhold payment if the services
described in the Scope of Work are not completed in a timely manner or if this contract is
terminated., except as provided in paragraphs 8 and 28 above.
Upper Newport Bay
Big Canyon Creek Restoration Project
Budget and Cost Allocation by Funder
Project Task
Aerial and ground survey
GIS mapping
Engineering
Hydrology and soil analysis
Biological assessment
Restoration analysis and planning
Landscape architecture, trail planning
Financial analysis
Proj. Mgt, Site Design, Tech Review, Meetings, Doc. Prep
Printing and reproduction, final report
Postage and mailing
Project expenses
Miscellaneous
Total
489984.1
Coastal City of
Conser- Newport
vancy
Beach
Total
3,000 8,000
12,000
12,000
5,000
11,460 17,460
5,000
25,000
25,000
25,000
25,000
45,000
10,650
55,650
19,000
16,600
35,600
18,000
18,000
4,000
4,000
32,000
34,290 66,290
5,000
3,000 8,000
2,000
2,000
6,000
11,460 17,460
3,000
3,000
pity of Newport Beach
BUDGET AMENDMENT
2002 -03
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriations
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
PX from unappropriated fund balance
EXPLANATION:
NO, BA- 033
AMOUNT: 5110,000.00
Increase in Budgetary Fund Balance
AND X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
This budget amendment is requested to provide for the following:
To increase expenditure appropriations for the Big Canyon Creek Restoration Project.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
230 3755
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Tidelands - Upper Bay Restoration Reserve
Description
Signed:
Administrative AppXval: City Manager
Amount
Debit Credit
$110,000.00
$110,000.00
Date
11,710-3
Date
Signed:
City Council Approval: City Clerk Date
Description
Division
Number 7231
Tidelands - Capital
Account
Number C5100709
Big Canyon Creek Restoration Project
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed:
C.
Financial,Approval: Administrative Services Director
Signed:
Administrative AppXval: City Manager
Amount
Debit Credit
$110,000.00
$110,000.00
Date
11,710-3
Date
Signed:
City Council Approval: City Clerk Date
#ty of Newport Beach*
BUDGET AMENDMENT
2002 -03
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
X Increase Expenditure Appropriations
Transfer Budget Appropriations
SOURCE:
from existing budget appropriations
from additional estimated revenues
rx] from unappropriated fund balance
EXPLANATION:
+4 ("1
NO. BA- 033
AMOUNT: $110,000.00
Increase in Budgetary Fund Balance
AND X Decrease in Budgetary Fund Balance
No effect on Budgetary Fund Balance
This budget amendment is requested to provide for the following:
To increase expenditure appropriations for the Big Canyon Creek Restoration Project.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
230 3755
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
i A N 14 ii133
Amount
Debit
Description
Tidelands - Upper Bay Restoration Reserve $110,000.00
Description
Signed: /Ct&4.6e� cl .
Financial, Approval: Administrative Services Director
Signed:
Signed:
City Manager
City Council Approval: City Clerk
Credit
$110,000.00
Date
117103
Date
Date
Description
Division
Number
7231 Tidelands - Capital
Account
Number
C5100709 Big Canyon Creek Restoration Project
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed: /Ct&4.6e� cl .
Financial, Approval: Administrative Services Director
Signed:
Signed:
City Manager
City Council Approval: City Clerk
Credit
$110,000.00
Date
117103
Date
Date