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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