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Home My WebLink AboutC-3032 - Landscape Architecture Services for Upper Castaways ParkAMENDMENT NO. 7 CONSULTANT AGREEMENT Upper Castaways Park for Landscape Architecture Services 0 C307Y / THIS AMENDMENT NO. 1 TO AGREEMENT, made and entered into this (O '7� day of 1997, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and the firm of purkiss- rose•rsi, whose address is 801 North Harbor Boulevard, Fullerton, California, 92632 (hereinafter referred to as "CONSULTANT'), is made with reference to the following: RECITALS: A. On August 9, 1995, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT." B. CITY and CONSULTANT mutually desire to amend the AGREEMENT as provided herein. NOW, THEREFORE, the parties hereto agree as follows: 1. In addition to the services described in SECTION 2 of the AGREEMENT, CONSULTANT agrees to perform the following services: a) Provide additional design services, attend meetings and make presentations to the Parks, Beaches and Recreation Commission as requested by City staff, as outlined in letter from CONSULTANT, herein attached to this AMENDMENT AS EXHIBIT "A ". b) Revise the design for bluff top landscape and irrigation as requested by City staff, and as outlined in EXHIBIT "A ". 2. The maximum compensation set forth in AGREEMENT was $27,650.00, which was subsequently modified to $23,150.00. That amount is hereby I increased by $1,250.00 to cover services described herein this Amendment No. 1 for a new total of $28,900.00. 3. CONSULTANT shall be compensated in accordance with this Amendment, and the terms and provisions of the original agreement. 4. Except as expressly modified herein, all other provisions, terms and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS, WHEREOF, the parties hereto have executed this AMENDMENT NO 1 to AGREEMENT on the date first above written. APP D O FORM: City Attorney CITY OF NEWPORT BEACH, a municipal corporation M Public Works Director CONSULTANT )urkiss- rose•rsi City Clerk f:\ groups \pubworks\agmt\purkiss4.doc 2 EXHIBIT A. Purkisse-rose -rsi April 9, 1997 City of Newport Beach c/o Mr. Emmet Berkery 3345 Newport Blvd. #215 Newport Beach, CA 92663 SUBJECT: ADDITIONAL SERVICES, AMENDMENT TO ORIGINAL CONTRACT FOR CASTAWAYS PARK Dear Emmet: This is to confirm the additional services we have provided at the City's request as well as additional services we anticipate associated with the expanded improvements at Castaways Park and Newport Lutheran Church. The overall extension of this project coupled with.,the division of improvements between the park and church properties has required more meeting and coordination time. Likewise the expansion of the site improvements associated with the church property and revised grading will require additional design hours beyond our original scope. As in the past we will assist the City in any way we can to maintain progress on this project. Additional Services to Date: Attendance at a site walkthrough to describe the intended improvements and get input from the local councilmembers and City staff. Principals 6 hours Attendance at meeting with City staff and two councilmembers to review trail design and materials and security lighting Principal 2 hours Attenaance at three meetings with Church and City representatives to discuss the improvements associated with the renovation and expansion of the parking area. Principal 8 hours Attendance at meeting with City staff and Electrical Engineer to review additional lighting improvements Principal 2 hours Project Manager 2 hours Attendance at multiple Park & Recreation Commission Meetings for project review Principal 6 hours Landscape Architecture Recreation and Park Planning 801 Borth llarbor Boulevard Fullerton, Cahfomia 92832 FAX: (714) 8714 188 (714) 8713838 a Page 2 Principal 2 hour TOTAL ADDITIONAL TIME SPENT Principal 26 hours @ $110.00 1hr . .................... $2,860.00 Project Manager 2 hours @ $75.00 /hr. 1$ 500 SUBTOTAL $3,010.00 Additional Services for Expanded Scope of Improvements: Based ^n our .^...._...r"sat : cn }h yCL' e :pend'n g the .- Mowing hours to modify uhc irrigation and planting plans to correspond to the revised grading plan (as submitted by Engineering) and the additional church parking area and associated memorial area. Bluff Top Planting _& Irrigation We understand that you want to revise the irrigation plans on the bluff top. Reduce improvements to a mainline system with quick couplers for a temporary "on- grade" system, which will be provided by the Contractor to germinate the erosion control seeding as necessary. Our redesign would be limited to the expanded graded area encircled by the walk system. Review with staff. (2 meetings) Principal 8 hours @ $110.00 1hr . ..................... $880.00 Project Manager 16 hours @ $75.00 1hr . ................ $1,200.00 Draftsperson 12 hours @ $ 55.001hr . ................... $660.00 SUBTOTAL $2,740.00 TOTAL $5,750.00 If you have any questions or need additional information do not hesitate to call. Sincerely, Steven N. Lang, A.S.L. Landscape Architect #17 CONSULTANT AGREEMENT LANDSCAPE ARCHITECTURE SERVICES for CASTWAYS PARK THIS AGREEMENT, entered into this 6tday of xfi 1997, by and between CITY OF NEWPORT BEACH , a Municipal Corp ration (hereinafter referred to as "City "), and purkiss -rose r.s.i. whose address is 801 North Harbor Boulevard, Fullerton, CA 92632 (hereinafter referred to as "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 the City. Rose. B. The principal members of Consultant are Steve Lang and Steve C. City desires to engage Consultant to provide consultant services for the design of Castaways Park and Newport Harbor Parking Lot Construction upon the terms and conditions contained 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 1st day of April 1997, and shall terminate on the 31st day of December, 1997, unless terminated earlier as set forth herein. • i 2. SERVICES TO BE PERFORMED Consultant shall perform the tasks set forth in Exhibit "A ", attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT Consultant shall be compensated for services performed pursuant to this Agreement in the amount and manner set forth in Exhibit "A ", attached hereto and incorporated herein by this reference. The maximum fee shall not exceed $5,000.00. 4. STANDARD OF CARE All of the work 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. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of the 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 express terms of this Agreement. No civil service status or other right of employment with City will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including, but not limited to, unemployment insurance, worker's compensation plans, vacation and sick leave, are available from City to Consultant, its employees or agent. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments or other purposes normally associated 2 f: \g roups\pubworks\ag mt\purkiss.doc 4/18/97 0 0 with an employer - employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 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 The Consultant shall assign the project to a Project Manager, who shall coordinate all phases of the project. This Project Manager shall be available to the City at all times. The Consultant has designated Steve Lang to be its Project Manager. 8. TIME OF PERFORMANCE The taskWs to be performed by Consultant shall be in accordance with the schedule specified in Exhibit "A ". Consultant shall receive no additional compensation if completion of its obligation under this Agreement requires a time greater than as set forth herein, unless such extension is caused solely by the conduct of the City. Each party hereby agrees to provide timely notice to the other of any violation occurring under this Section and the cause thereof. 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 requirements and be subject to approval of the Project Administrator and City Council. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the 3 f:\groups\pubworksNagmtVurkiss.doc 4/16/97 9 0 work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant agrees to indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suites, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, attorneys fees and court costs arising from any and all negligent actions of Consultant, its employees, agents or subcontracts in the performance of services or work conducted or performed pursuant to this Agreement. Consultant shall indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies arising from or in any manner connected to the Consultant's negligent performance of services or work conducted or performed pursuant to this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Such policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies, with the exception of Professional Errors and Omissions, shall add as additional insured the City, its elected officials, officers and employees for all liability arising from Consultant's services as described herein. 4 f:\groups\pubworks\agmt\purkiss.doc 4/18/97 9 0 Prior to the commencement of any services hereunder, Consultant shall provide to city certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements, and copies of policies, if requested by City, of the following insurance, with Best's Class A7 or better carriers; unless otherwise approved by the City Risk Manager: A. Worker's compensation insurance covering all employees and principals of the Consultant, per the laws of the State of California; 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; C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. Professional errors and omissions insurance which covers the services to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000.00). Said policy or policies shall be endorsed to state that coverage shall not be suspended, voided nor canceled by either party, or reduced in coverage or in limits except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give to City prompt and timely notice of claim made or 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 own judgment 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 and automotive liability insurance, that s f:\groups\pubworks\agmt\purkiss.doc 4/16/97 Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City 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. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any interest in 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, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of an attempted assignment, hypothecation or transfer. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint venture. 15. REPORTS Each and every report, draft, work product, map, record and other document reproduces, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. No report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. Consultant shall, at such time and in such forms as City may require, furnish reports concerning the status of services required under this Agreement. 6 f:\groups\pubworks\agmt\purkiss.doc 9/18/97 0 0 16. CONFIDENTIALITY The information which results from the services in this Agreement is to be kept confidential unless the release of information is authorized by the City. 17. CITY'S RESPONSIBILITIES City shall furnish to Consultant base, maps, existing studies, ordinances, data and other existing information as shall be requested by Consultant and materials in City's possession necessary for Consultant to complete the work contemplated by this Agreement. City further agrees to provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. The Public Works Director or his /her designees shall be considered the Project Administrator and shall have the authority act for the City under this Agreement. The Project Administrator or his /her authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. EXTRA WORK Consultant shall receive compensation for extra work authorized by City in accordance with the schedule of billing rates set forth in Exhibit "B." All extra work must be authorized in writing by the Project Administrator and Consultant shall not be entitled to extra compensation without authorization. 20. RECORDS Consultant shall keep records and invoices in connection with its 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 during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the f: \g roups\pubworks\agmflpurkiss.doc 9/18/97 9 0 Agreement for a period of three (3) years from the date of final payment under this Agreement. 21. REIMBURSEMENT FOR EXPENSES Consultant shali not be reimbursed for any expenses unless authorized in writing by City. 22. MONTHLY INVOICES Consultant shall submit invoices to the City on a monthly basis in accordance with Consultant's schedule of fees contained in Exhibit "A" hereof. Each invoice will be itemized. Each invoice shall show the number of hours worked per person /consultant and the nature of the work performed. 23. PAYMENT OF COMPENSATION City shall make payments to Consultant within thirty (30) days of receiving a monthly invoice unless City disputes the amount Consultant claims is owned under this Agreement. 24. 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 its work for a period of thirty (30) days from the date of withholding 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. The determination of the City Manager with respect to such matter shall be final. 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. 25. ERRORS AND OMISSIONS In the event that the Project Administrator determines that the Consultant's negligence, errors or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such s f:\groups\pubworks\agmt\purkiss.doc 4/18/97 0 0 negligence, errors or omissions in the plans or contract specifications, Consultant shall reimburse City for the additional expenses incurred by the City including engineering, construction and /or restoration expense. Nothing herein is intended to limit City's rights under any other sections of this Agreement. 26. NONDISCRIMINATION BY CONSULTANT Consultant represents and agrees that Consultant, its affiliates, subsidiaries or holding companies do not and will not discriminate against any subcontractor, consultant, employee or applicable for employment because of race, religion, color, sex, handicap or national origin. Such nondiscrimination shall include, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 27. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with this project. 28. 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 foreseeable be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeable 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 the City. The Consultant shall indemnify and hold harmless the City for any claims for damages resulting from the Consultant's violation of this Section. 29. SUBCONTRACTING A. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior approval of City. 9 fAg ro u ps \pubworks \ag mt\pu rkiss.doc 4/18/97 E Ll B. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 30. 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 second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 Attention: Emmet Berkery, P.E. All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: purkiss -rose r.s.i. 801 North Harbor Boulevard Fullerton, CA 92632 Attention: Steve Lang 31. TERMINATION In the event Consultant hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant 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 Consultant fails to give adequate assurance of due performance within two (2) days after receipt by Consultant from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. 10 f.\ groups \pubworks\agmt\purkiss.doc 4/18/97 0 City shall have the option, at its sole discretion and without cause, of terminating this Agreement without cause by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 32. COST OF LITIGATION If any legal action is necessary to enforce any provision hereof or for damages by reason for an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses in such amount as the court may adjudge to be reasonable attorneys' fees. 33. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 34. WAIVER A waiver by City 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. 35. 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 hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. fAg rou ps \pu bworks \ag mt\purkiss.doc 4%18%97 i 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 ATTORNEY CITY OF NEWPORT BEACH A Municipal Corporation By: /& CONSULTANT PURKISS -ROSE R&. . 12 f:\groupsApubworks\agmt\purkiss.doc 4/18/97 E xW 16 1 T P\ i purkiss e-rose, -YSl April 9, 1997 City of Newport Beach c/o Mr. Emmet Berkery 3345 Newport Blvd. 1/215 Newport Beach, CA 92663 SUBJECT: PROPOSAL FOR SERVICES, CASTAWAYS PARK Dear Emmet: This is a proposal for services associated with the expansion of improvements at the Newport Lutheran Church. These improvements include the planting and irrigation associated with the small parking area off 16th Street and the child care area as well as the memorial area off the small parking lot. As in the past we will assist the City in any way we can to maintain progress on this project. Additional Planting & Irrigation Design @ Church parking area off 16th St. Field check existing irrigation system for church and modify as necessary to accommodate additional parking area at 16th Street and revisions to existing child care turf area. Prepare planting plan to tie in with new and existing site improvements. Meet with City & Church representatives to review. (2 meetings) Principal 10 hours @ $110.001hr. $1,100.00 Project Manager 24 hours C $75.001hr . ................ $1,800.00 Draftsperson 16 hours C $ 55.001hr . ................... $440.00 SUBTOTAL $3,340.00 Memorial Improvements a church oarkine area Prepare details & plan for small memorial and bench off church parking area. Meet with staff to review. (1 meeting) Principal 4 hours @ $110.001hr . ..................... $440.00 Project Manager 6 hours 0 $75.001hr . .................. $450.00 Draftsperson 4 hours a $ 55.001hr . .................... $220.00 SUBTOTAL $1,110.00 Reimbursable Reproduction Costs .......................... $550.00 TOTAL $5,000.00 Landscape Architecture Recrwtion and Park Planning 801 Borth Harbor Boulevard Fullerton, Califomia 92832 FAX: (714) 871.11BE, (714) 871-3638 0 0 Page 2 If you have any questions or need additional information do not hesitate to call. Sincerely, Steven N. Lang, A.S. A. Landscape Architect AMENDMENT NO. 1 TO CONSULTANT AGREEMENT LANDSCAPE ARCHITECTURE SERVICES UPPER CASTAWAYS PARK THIS AMENDMENT NO. 1 TO AGREEMENT, made and entered into this day o — ,1996, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY "), and the firm of PURKISS•ROSE -RSI, whose address is 219 North Harbor Boulevard, Fullerton, CA 92632, (hereinafter referred to as "CONSULTANT "), is made with reference to the following: RECITALS: A. On March 23, 1995, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT ". B. CITY and CONSULTANT mutually desire to amend AGREEMENT as provided herein. NOW, THEREFORE, the parties hereto agree as follows: 1. In addition to the services described in the AGREEMENT, CONSULTANT hereby agrees to perform the following services: a. Prepare a 60 scale exhibit depicting the proposed Upper Castaways active and passive park improvements, the proposed modification to the Newport Harbor Lutheran Church, and the proposed modification to 16th Street easterly of Dover Drive. The exhibit shall include, among other things, the proposed grading and walkways within the passive view park. b. Provide support and assistance to CITY staff as required to complete CITY's application for a Coastal Development Permit. C. Revise construction drawings for active park to accommodate proposed modification to 16th Street easterly of Dover Drive as requested by the Castaways residential builder and as approved by CITY staff. d. Attend meetings with CITY staff and representatives from Taylor Woodrow Company to discuss interface between active park and adjacent residential development. Prepare exhibits and sketches and revise construction plans as a result. e. Prepare studies for active park entry monument treatment. f. Prepare exhibits for Parks, Beaches and Recreation Commission and City Council meetings as requested by CITY staff. g. Prepare active park play field subdrain plan. h. Revise electric plans and expand park lighting system as requested by CITY staff. i. Revise project irrigation plans as requested by CITY staff. 2. The maximum fee to be paid to CONSULTANT to cover services described herein is increased by $16,000 for a new total of $84,000. 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS, WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 to AGREEMENT on the date first above written. CITY OF NEWPORT BEACH, a municipal corporation BY: Ci y snag r APPROVED AS TO FORM: zffin� City Attorney Con-so R—a-r' r Purkiss•Rose - RSI ATTEST: AG\Purkis5.doc • 4k CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 To: FINANCE DIRECTOR FROM: CITY CLERK DATE: March 24, 1995 (714) 644 -3005 SUBJECT: Contract No. C -3032 Description of Contract Landscape Architecture Services for Upper Castaways Park Effective date of Contract March 23 1995 Authorized by Minute Action, approved on FebruaX:y 13 1995 Contract with Purkiss- Rose -RSI Address 219 North Harbor Blvd Fullerton CA 92632 Amount of Contract (See Agreement) "74a6'6e Wanda E. Raggio City Clerk WER:pm Attachment 3300 Newport Boulevard, Newport Beach ,k-� 0 • CONSULTANT AGREEMENT Landscape Architecture Services for Upper Castaways Park THIS AGREEMENT, entered into this o -3124- day of 1995, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and PURKISS -ROSE - RSI, whose address is 219 North Harbor Boulevard, Fullerton, CA 92632 (hereinafter referred to as "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 the City. B. CITY has previously conditionally approved Tentative Tract No. 15012, filed by The Irvine Company, for the subdivision of a 56.7 acre parcel of land, commonly referred to as the Upper Castaways site, which is bounded by Upper Newport Bay, Polaris Drive, Dover Drive and a bluff located approximately 400 -500 feet northerly of Coast Highway. The conditions of approval for said tenative tract required the dedictiation of a 4.8 acre lot at the northeasterly corner of 16th Street and Dover Drive for public park purposes, and the dedication of the most southerly 16.9 acres of Upper Castaways, including adjacent bluffs, for open space and view park purposes. C. CITY wishes CONSULTANT to provide professional landscape architectural design services relative to the two park sites within Upper Castaways. D. CITY and CONSULTANT now desire to enter into an agreement for landscape architecture services related to the Upper Castaways Park. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1. TERM The term of this Agreement shall commence on February 14, 1995, and shall terminate on December 31, 1996, unless terminated earlier as set forth herein. �� 0 SECTION 2. SERVICES TO BE PERFORMED BY THE CONSULTANT CONSULTANT shall complete all services and work as outlined herein and more fully described in the Letter Proposal dated February 10, 1995, attached hereto and identified as Exhibit "A ". A. ACTIVE CASTAWAYS PARK (16th Street and Dover) Task I Conceptual Planning Phase Task II Construction Documents B. PASSIVE CASTAWAYS PARK Task I Conceptual Planning SECTION 3. COMPENSATION TO CONSULTANT CONSULTANT shall be compensated for services performed pursuant to this Agreement in the amount and manner set forth in Exhibit "A ", the Proposal, which is attached hereto and incorporated herein by this reference. The maximum fee shall not exceed $68,000.00. SECTION 4. STANDARD OF CARE CONSULTANT agrees to perform all services hereunder in a manner commensurate with the community professional standards and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the CITY nor have any contractual relationship with CITY. SECTION 5. INDEPENDENT PARTIES CITY and CONSULTANT intend that the relation between them created by this Agreement is that of employer- independent contractor. 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 express terms of this Agreement. SECTION 6. HOLD HARMLESS CONSULTANT shall indemnify and hold harmless CITY, its CITY Council, boards and commissions, officers and employees from and against any loss, damages, liability, claims, suits, costs and expenses, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit arising from or in any manner connected to CONSULTANT's negligent performance, errors or omissions of services conducted or performed pursuant to this Agreement. SECTION 7. INSURANCE Without limiting the CONSULTANT's indemnification of CITY, CONSULTANT shall obtain and provide and maintain at its own expense during the term of this Agreement, policy or policies of liability insurance of the type 2 0 0 and amounts described below and satisfactory to the CITY. Such policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must filed with the CITY prior to exercising any right or performing any work pursuant to this Agreement. All insurance, with the exception of professional liability and workers' compensation insurance policies, shall add as addional insured the CITY, its elected officials, officers and employees for all liability arising from CONSULTANT's services as described herein. A. REQUIRED COVERAGE Prior to the commencement of any services hereunder, CONSULTANT shall provide to CITY, certificates of insurance from an insurance company certified to do business in the State of California with original endorsements and copies of policies, if requested by CITY, of the following insurance with carriers having a Best's rating of Class B or better: 1. Worker's compensation insurance covering all employees of the CONSULTANT, per the laws of the State of California; 2. 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; 3. Commercial auto liability and property insurance covering any owned and hired vehicles of CONSULTANT in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. 4. Professional liability insurance which includes coverage for the professional acts, errors, and omissions of the CONSULTANT in the amount of at least $1,000,000. Said policy or policies shall be endorsed to state that coverage shall not be canceled or reduced in coverage or limit except after thirty (30) days' prior notice has been given in writing to CITY. CONSULTANT shall give to CITY prompt timely notice of claim made or 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 own judgment may be necessary for its proper protection and 3 0 prosecution of the work. B. SUBROGATION WAIVER 0 CONSULTANT agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that CONSULTANT shall look solely to its insurance for recovery. CONSULTANT hereby grants to CITY, on behalf of any insurer providing comprehensive general and automotive liability insurance to either CONSULTANT or CITY 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. C. FAILURE TO SECURE If CONSULTANT at any time during the term hereof should fail to secure or maintain the foregoing insurance, CITY shall be permitted to obtain such insurance in the CONSULTANT's name or as an agent of the CONSULTANT and shall be compensated by the CONSULTANT for the costs of the insurance premiums at the maximum rate permitted by law computed from the date written notice is received that the premiums have been paid. D. ADDITIONAL INSURED With the exception of workers' compensation and professional liability insurance, CITY, its City Council, boards and commissions, officers, and employees shall be named as an additional insured under all insurance coverage required by this Agreement. The naming of an additional insured shall not affect any recovery to which such additional insured would be entitled under this policy if not named as such additional insured. An additional insured named herein shall not be held liable for any premium, deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. SECTION 8. PROHIBITION AGAINST TRANSFER CONSULTANT shall not assign, sublease, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of CITY. Any attempt to do so without said consent shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. 4 0 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of CONSULTANT, or of the interest of any general partner or joint venturer or syndicate member or cotenant if CONSULTANT is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of CONSULTANT, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power of the corporation. SECTION 9. PERMITS AND LICENSES CONSULTANT, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required in connection with the performance of services hereunder. SECTION 10. REPORTS Each and every report, draft, work - product, map, record and other document reproduced, prepared or caused to be prepared by CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of CITY. CITY shall make no use of materials prepared by CONSULTANT pursuant to this Agreement, except for construction, maintenance and repair of the Project. Any use of such documents for other projects, and any use of uncompleted documents, shall be at the sole risk of the CITY and without liability or legal exposure of the CONSULTANT. No report, information or other data given to or prepared or assembled by the CONSULTANT pursuant to this Agreement shall be made available to any individual or organization by the CONSULTANT without prior approval by CITY. CONSULTANT shall, at such time and in such form as CITY may require, furnish reports concerning the status of services required under this Agreement. SECTION 11. RECORDS CONSULTANT shall maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by CITY that relate to the performance of services required under this Agreement. CONSULTANT shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and ' shall be clearly identified and readily accessible. CONSULTANT shall provide free access to the representatives of CITY or its designees at all proper times to such books and records, and gives CITY the right to examine and audit same, N1 • w and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. SECTION 12. 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 second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter approved. All notices, demands, requests, or approvals from CONSULTANT to CITY shall be addressed to CITY at: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Attention: John Wolter, Project Manager (714) 644 -3311 All notices, demands, requests, or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: Purkiss -Rose - RSI 219 North Harbor Boulevard Fullerton, California 92632 Attention: Steven Lang (714) 871 -3638 SECTION 13. TERMINATION Either party may terminate this Agreement at any time and for any reason by giving the other party seven (7) days' prior written notice; notice shall be deemed served upon deposit in the United States Mail, postage prepared, addressed to the other party's business office. In the event of termination due to the fault of CONSULTANT, CITY shall be obligated to compensate CONSULTANT for only those authorized services which have been completed and accepted by CITY. If this Agreement is terminated for any reason other than fault of CONSULTANT, CITY agrees to compensate CONSULTANT for the actual services performed up to the effective date of the Notice of Termination, on the basis of fee schedule contained above, subject to any maximum amount to be received for any specific service. SECTION 14. COST OF LITIGATION If any legal action is necessary to enforce any provision hereof or for 6 `J r-I LJ damages by reason of an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses in such amount as the court may adjudge to be reasonable attorneys' fees. SECTION 15. COMPLIANCES CONSULTANT shall comply with all laws, state or federal, and all ordinances, rules and regulations enacted or issued by CITY. SECTION 16. WAIVER A waiver by CITY 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. SECTION 17. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind of 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 hereof. Any modification of this Agreement will be effective only by written execution signed by both CITY and CONSULTANT. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. CITY OF NEWPORT BEACH, a municipal corporation BY: MAYOR APPROVED AS TO FORM: I¢ity Attorney CONSULTANT BY: C CONSULTANT ATTEST: CITY CLERK 0��r , �P qC! FQR� 7 FEB 10 '95 10:46 P��RDSE /RSI • A-qo P01 • Alk rl u-Y ass•rose -rs] ,09� LANDSCAPE ARCHITECTURE RMEIREATION AND PARK PLANNINE5 FACSIMILE TRANSMITTAL To: FROM: TELECOPY NUMBER X44 -'3250 COMPANY /AGENCY CITY Df' Nr --We0 tfi KF=; 1 ATTENTION MQjdJ) WCj?nE = t L-AgET be�� NAME L AMI.O 4- � -Ue rl PROJECT REFERENCE SAhT7� W/ria"1 }Diil2l� DATE TIM1c _ T13TAL NUMBER OF PAGES —4-- (INCLUDE THIS PAGEI TRANSMITTED FOR: C 7 YOUR USE YOUR INFORMATION ] AS REQUESTED [I REVIEW AND COMMENTS []APPROVAL I IF YOU DO NOT RECEIVE ALL PAGES, PLEASE NOTIFY US AS -OOH AS POSSIBLE_ AT (7) 4) B91 -362 S. pu -rkiss • rose- -rsi 21 9 NORTH HARBOR QLVD. rULLERTON, CA 92632 TELEPHONE (714) 871-3638 FAX (71 4) 67 1 -1 1 BB FEB 10 '95 10:47 P* ,/ROSE/RS I & -130 P02 FEE PROPOSAL CITY OF NEWPORT BEACH The following fee proposal is based on the amount of time we estimate to spend on each phase of work. As discussed, our proposal is presented on a time and material basis with a not to exceed fee. The design fee for the Active Castaways Park is based on a scope of improvements with an estimated construction value of $800,000. Our scope of work is summarized as follows: ACTIVE CASTAWAYS PARK (At intersection of Dover Drive and 16th) Work with the City, Sports Groups and Community to finalize the conceptual drawings Attend meetings necessary to obtain conceptual approval Develop coordination Grading Plan with Developer Develop construction documents for the active park site based on approved plan Develop construction cost estimates for site improvements Provide construction observation. services Assist in Coastal Commission approval (Coastal Development Permit, Environment Assessment Form & Conditional Use Permit) Construction Documents include: Grading and Drainage Plan*] Sewer/Water /Srorm Drainage Plans Irrigation Plan Planting Plan Security Lighting /Service Plan Staking Plan (layout, parking lot, sports fields, play area, walks, plazas Architectural Plans (Restroorn with concession & storage) Site Amenities Plan (drinking fountains, benches, rabies, trash receptacles, etc.) Details and Specifications Notes: "1.) Plans to be prepared for construction as a part of the Upper Castaways Housing Project 2.) Plans will be submitted for 70 %, 90%, and 100% complete for plan check. Plans will meet all ADA & Title 24 requirements. L Purkiss Rose -RSI FEB 10 '95 10:47 PLGS ^IRDSE /RSI Scope of Work continued PASSIVE CASTAWAYS PARK • .-e.i0 P03 Work with the City and community in the development of Design Alternatives for the passive site Finalize the Design Alternatives into an approved Master Plan Develop construction cost estimates for site improvements Attend whatever meetings are necessary in the Conceptual Planning Process Assist in Coastal Commission approval (Coastal Development Permit, Environment Assessment Form & Conditional Use Permit) Our fee to prepare these drawings is based on the estimated amount of time it will take to complete each task. The following "not to exceed" fees have been prepared with input from the total design team of landscape architects, architects and engineers. ACTIVE CASTAWAYS PARK (At intersection of Dover Drive and 16th) Conceptual Planning Phase ......................... $ 5,000 Construction Documents for Site Improvements *1 ......... $ 18,000 Construction Observation Phase *2 ................... S 10,500 *1 Fee is estimated at 6% of construction cost *2 Estimated Fee - to be Authorized prior to construction PASSIVE CASTAWAYS PARK Conceptual Planning Phase ......................... $12,000 Reproduction: Blueprinting will be billed at cost plus 15%. We recommend a reproduction allowance of $3000 from which we can bill against. Once the plans are approved, mylars will be given to the City so they can make their own prints as necessary for bidding and construction. If additional services are requested we will utilize the following rate schedule: Principal ....... ............................... $ 90.00 /hour Project Manager ... ............................... $ 65.00 /hour Project Captain ... ............................... $ 50.00 /hour Draftsperson ..... ............................... $ 45.00 /hour Clerical and Word Processing Staff ................ I ..... $ 35.00 /hour Electrical Engineer Principal .......................... $100.00 /hour Electrical Associate . ............................... $ 55.00 /hour Electrical Project ManagerlDesigner .............. ....... $ 75.00 /hour 2 Purkiss Rose -RS! FEB 10 '95 10:48 PO SSiROSE /RS I • 430 PO4 Hourly Rates continued Civil Engineer Principal ............................. $135.00 /hour Civil Engineer Project Manager /Land Surveyor ............... $ 90.00 1hour Civil Engineer Senior Designer ............. $ 80.00 /hour Civil Engineer Design Engineer $ 64.00 /hour Civil Engineer Engineering Associate ..................... $ 55.00 /hour Civil Engineer Draftsman /CARD Operator ................. $ 44,00 /hour 2 -Man Survey Crew ............................. . . $145.00 /hour X1raff Geotechnical Investigation Services - Active Castaway Park .......... $ 3,500 City Furnished Materials: It is our understanding that the City will provide a topographic survey of each site, easements, underground utilities, deed restrictions, studies, environmental information, street alignments, existing street plans, Irvine Co. development construction plans, points of connection for all utilities. City will process all CDP's and CUP's. 3 Purkiss Rose -RJ/ February 13, 1995 CITY COUNCIL AGENDA SUPPLEMENTAL AGENDA ITEM NO. .LC TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PUBLIC WORKS DEPARTMENT SUBJECT: CASTAWAYS PARKS C -:361-32- RECOMMENDATIONS: Discussion: I. Receive and file the letter from Tom Redwitz, Vice - President of The Irvine Company dated. February 7, 1995, regarding Upper /Lower Castaways. 2. Based on the letter from The Irvine Company, direct the staff to proceed with the design of an active park at the 16th Street and Dover Drive 4.8 acre site. 3. Direct the staff to prepare additional conceptual evaluations of the Viewpark on Upper Castaways which provide adequate public access, parking, traits, view points, and grading for slope erosion control. The main site access road will intersect Dover Drive opposite Cliff Drive. Cancel the February 27 public hearing on the alternative park plans and direct staff to discuss the Viewpark conceptual evaluations on Upper Castaways with concerned and interested parties. Schedule City Council consideration of the conceptual evaluations within 60 days. 4. Authorize the Mayor and City Clerk to execute a professional services agreement with the Landscape Architectural firm of Purkis -Rose - RSI to prepare plans and contract documents for the active park and additional conceptual evaluation of the Upper Castaways Viewpark. In December the City Council asked the Staff to prepare a conceptual plan for the Upper /Lower Castaways Park. This plan was to take advantage of an offer made by The Irvine Company to trade the 4.1 acre Lower Castaway Marina site plus 0.7 acre of added Upper Castaways land for u SUBJECT: CASTAWAYS PARKS February 13, 1995 Page 2 the.4.&.actiu" park site at Dover Drive and 16th Street. At the January 7, N: 1.995V10%V49 it meeting, the Staff presented the attached Concept No. 2 j' plan. TFie ff as asked to meet with community groups to receive input on t�h_e, original laq (attached as Concept No. 1) and the Concept No. 2 plan. A tfYaFt iconipa ing'the two concepts is attached for reference. On February 7, 1995, . The, rvi a Company sent the attached letter to Mayor Hedges withdrawing th it offer to make the land trade and requesting that consideration of Concept No. 2 be discontinued. If the City Council concurs with this request, further consideration of Concept No. 2 should be abandoned. Since January 7, the Staff has met or corresponded with representatives from the following groups to discuss the two park concepts: AYSO (west side), Newport Harbor Little League, Newport Harbor Lutheran Church, Cliffhaven Community Association, Bayshores Community Association and The Newport Conservancy. A Community Forum sponsored by the Cliffhaven Association was held on February 1. This was attended by about 125 -130 people. A public hearing was held by the Parks, Beaches and Recreation (P.B.& R.) Commission on February 7 and a presentations was made to The Newport Conservancy on February 8. At the February 7 and 8 presentations, The Irvine company letter was distributed and it was assumed that Concept No. 2 was no longer being considered. At the February 1 meeting the almost unanimous consensus of the group was that Upper Castaways should be left as natural as possible for passive uses only. At the February 7 and 8 meetings, the Viewpark uses were discussed and the sentiment of those voicing opinions was that no parking should be provided on Upper Castaways. They felt that adequate access could be developed from 16th Street and that parking on the Lutheran Church property, adjoining commercial development, public streets, the Newport Harbor High School lot, Westcliff Park on Polaris and other adjacent areas would be adequate to serve public needs. Attached is a copy of the May 24, 1993, Coastal Commission staff report which supported the approval of the Circulation Improvement and Open Space Agreement (CIOSA). Please note the discussion on Pages 12 and 13 concerning access and parking for the Upper Castaways Viewpark. The report and the City's planned community text requires that adequate parking and access be provided to allow the public to gain access to Upper Castaways. v 0 0 SUBJECT: CASTAWAYS PARKS February 13, 1995 Page 3 The Concept No. 1 plan attached to this report shows a conceptual plan approved by the P.B.& R. Commission in December 1994. The active use park plan seems to be generally acceptable to the various groups contacted. The sports groups want to work with the City's design team to make sure the design will consider all the varying needs of both soccer and baseball. The concept for the Upper Castaways Viewpark shows a 40 space parking lot, access road, trails, berms and a flat graded area. The plan was approved by the P.B.& R. Commission in December (minutes attached). The February 7 testimony before the P.B.& R. Commission was against any parking on the Upper Castaways site. Most testimony wanted the site left as natural as possible. This same concern and sentiment was raised at the February 8 Newport Conservancy meeting. In consideration of the sentiment raised at the February 7 and 8 meetings, it is suggested that the Viewpark conceptual plan be reviewed. This review should consider the City adopted Planned Community requirements and the Coastal Commission requirements for public access and parking, as well as input from concerned and interested parties. The Irvine Company is proceeding forward with implementation of development plans for their Castaway's development and anticipate beginning construction in June or July. A number of the tract conditions require slope repairs, bluff top trails, an access road, drainage improvements, grading and other improvements that affect the 4.8 acre active park and the Upper Castaways Viewpark. It is important for the City to work with The Irvine Company to develop both of these parks along with the Castaways development. There is the potential for the City to save substantial funds if the park grading can be done at the same time the development is graded. It is recommended that the Staff be directed to proceed with the design of the active park and the additional conceptual evaluations of the Upper Castaways Viewpark. Within 60 days the conceptual evaluation will be brought back to the City Council. In anticipation of the need to prepare park development plans, the Staff has conducted a Landscape Architect selection process that interviewed five firms. The firm of Perkis -Rose - RSI was determined to be the most qualified of the firms interviewed. It is recommended that they be retained to prepare the plans and contract documents for the 4.8 active park site at Dover Drive and 16th Street. The basic plan is to follow the concept 3 0 0 SUBJECT: CASTAWAYS PARKS February 13, 1995 Page 4 shown on Concept No. 1 with input on the design from both the AYSO and Little League groups. It is further recommended that Perkis -Rose - RSI prepare an additional conceptual evaluation of the Upper Castaways Viewpark. This evaluation should consider site access from the Dover Drive /Cliff Drive intersection, adequate public access, parking trails, viewpoints and grading for site and slope erosion control. Input from the Coastal Commission staff and local groups are to be considered in the preparation of the conceptual plan or plans. The plan or plans will be brought to the City Council within 60 days for approval before final plans are prepared for the Upper Castaways Viewpark. A proposal has been received from Perkis -Rose - RSI to prepare the park design and conceptual evaluation. They have agreed to perform the work for a fee not to exceed $68,000. It is recommended that the Mayor and City Clerk be authorized to execute a professional services agreement with Perkis -Rose - RSI for the preparation of active park plans and contract documents for the Dover Drive /16th Street site and a conceptual evaluation for the Upper Castaways Viewpark site. Funds for this professional services agreement have been budgeted and will come from the park in -lieu fees. Don Webb Public Works Director DW:so Attachments: The Irvine Company Letter dated February 7, 1995 Concept No. 1 Concept No. 2 Chart comparing Concept Nos. 1 and 2 Coastal Commission Minutes a Cj N ■ 7, N ION -4e I 4 b � I T4 z A eo I Nit, cc COD b � I L j THE IRVINE COMPANY February 7, 1995 The Honorable John W. Hedges Mayor of Newport Beach and City Council 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 Subject: Castaways Park Plan Dear Mayor Hedges: At the city council's request and direction, city staff has been studying (over the past two months) the city's idea of providing public park uses on the Lower Castaways site in exchange for an offer to allow The Irvine Company to develop additional homes on the Upper Castaways site. City staff has done a commendable job exploring this concept and we now have a better understanding of the current issues involved with your proposed concept which we wish to share with you. When the city approached us regarding the proposal late last year, it appeared to be a potential win -win scenario. On one hand we have heard over the past years from some members of the council and community that it was desirable to retain the Lower Castaways site for public open space rather than have The Irvine Company construct the 71 -slip marina which is now approved for development. On the other side, while we would be allowed to build additional homes on Upper Castaways, we would still not exceed (in total) the maximum number of homes allowed under the terms of the Circulation Improvement and Open Space Agreement which the property is subject to. Further, the concept was that The Irvine Company would continue to donate the same exact amount of open space to the city as called for by our existing approvals. In general, the alternative plan that has been conceptualized by city staff does accomplish some noteworthy city objectives. It retains Lower Castaways as public open space, it provides more activity areas for the community, and it creates a contiguous public park area at a dramatic location in the city. The alternative plan currently proposed, however, has raised some concerns. When the city began exploring this idea we indicated we would be willing to consider it if it did not impact our currently approved development plan and our schedule. The current city alternative though does impact our approved plan and we believe the issues related to the alternative plan will take significant time to examine. 14d�.CPP 560 Newport Center Drive, Suite 350, P.O. Box 6370, Newport Beach, California 82656 -6370 Phone; (714) 720-2332 FAX: (714) 720-2425 The Honorable John W. Hedges Mayor of Newport Beach and City Council February 7, 1995 Page 2 We believe the leadership you and the council have taken in suggesting this proposal has been valuable, and we believe we have done our part in responding to the city to consider it. At this time, however, since there is not consensus on an alternative plan acceptable to our needs, we are proceeding forward with our current approved plans for Upper and Lower Castaways. Sincerely, Tom Redwitz Vice President Development Entitlement ged,..CPP Allwo r or 9 0 UPPER/LOWER CASTAWAYS PARK SITES 2/10/95 C' CONCEPT NO. 1 CONCEPT NO. 2 Dover 16th & Upper Castaways Upper/Lower Castaways Total Upper Castaways Area 56.6 Acres 56.6 Acres Total Lower Castaways Area 4.1 Acres 4.1 Acres Total Combined Area 60.7 Acres 60.7 Acres Open Space Areas to City Upper Castaways 30.6 Acres 26.5 Acres Lower Castaways 0 Acres 4.1 Acres Total 30.6 Acres 30.6 Acres Development Acreage Upper Castaways 26.0 Acres 30.1 Acres Lower Castaways 4.1 Acres 0 Acres Total 30.1 Acres 30.1 Acres 2/10/95 C' 0 0 UPPER/LOWER CASTAWAYS PARK SITES 2/10/95 `v CONCEPT NO. 1 CONCEPT NO. 2 Dover /16th & Upper Castaways Upper /Lower Castaways Non Slope Acrea a for Active Uses 4.8 Acres Upper - 7.0 Lower - 3.5 Non Slope Acreage for Passive Uses 8.1 Acres w /Park 2.0 -2.3 Acres Totals 12.9 Acres 12.5 to 12.8 Acres Parking On Site - Passive - Active 40 Upper Castaways 45 Dover Drive/16th Street 100 Upper 40 Lower Parking On Street 25 - 16th Street 14 - 16th Street Totals 110 154 Facilities Provided Little League Diamonds 2 2 Soccer Field 1 1 Basketball Court 0 1 Playfield Part of unimproved passive area 1 1 Dog Park 0 1 Tot Lot 1 1 Bluff Top Trail Yes Yes View Areas Yes Yes Restrooms 1 at 16th Street & Dover Drive 1 Upper 1 Lower Bay Access No Yes ACCESS Pedestrian Access To Upper Castaways from Dover Drive from Dover Drive from 16th Street 2/10/95 `v 0 0 UPPERILOWER CASTAWAYS PARK SITES 2110195 11 CONCEPT NO. 1 CONCEPT NO. 2 Dover /16th & Upper Castaways Upper/Lower Castaways Reduced Wetlands Retained Yes 0.2 to 0.3 ac Yes 02. to 0.3 ac Dover Drive/Cliff Drive Intersection Improvements Yes Yes Access to Lower Castaway Yes to Marina or Other Commerical Use Yes to Park Uses Traffic Signal Cliff Drive Yes Yes Church Property Exchange Replace Property if Dover is Widened Yes Yes Improve Church Building Site No Yes Proximity of Houses to Active Use Park Existing Houses New Houses Upper Lower Exist New New Exist Distance to Facing 0 -100 Houses in Feet 100 -200 200 -300 300 -400 400 -500 50000 0 0 0 0 0 0 8 8 4 3 0 0 0 0 0 4 4 3 3 0 0 0 0 0 0 0 4 2 3 0 0 0 0 0 0 0 Lighting For Active Uses None Basketball Court PB &R Request For Security & Safety Yes Yes Park Continuity Separate Sites Connected Sites Houses to be Built 119 135 -137 2110195 11 •TALE Of CAUFORNM —T1E tf$"as A•. r7E • KTE yAti$O*4. G., CALIFORNIA COASTAL COMMISSION SOVTN (.OAST AREA 745 W. MOADWAr, STE. M P.O. Pox 14" LONG 9EA0E G 900024416 (310) "05071 DATE: May 24, 1993 TO: Commissioners and Interested Persons FROM: Chuck Damn, South Coast District Director Teresa Henry, South Coast Asst. District Director Meg Vaughn, Staff Analyst SUBJECT: Public Hearing and Commission Action on a Development Agreeme Between the City of Newport Beach and the Irvine Company involving the proposed Circulation Improvement 6 Open Space Agreement (for the ConEnission meeting of June 10, 1993). EXECUTIVE SUMMARY Pursuant to California Government Code Section 65869, a development agreement is not valid for any development project located in an area for which a Local Coastal Program (LCP) is required to be prepared and certified unless the Commission approves such development agreement by formal Commission action. The City of Newport Beach Land Use Plan was certified by the Commission in Hay 1982; however, no implementation plan has ever been submitted. Therefore, no Local Coastal Program for Newport Beach has been certified to date. The proposed development agreement would affect nine sites within the Newport Beach coastal zone (the development agreement affects eleven sites total within the City). Of those nine, five represent land uses which differ from those uses described in the City's certified Land Use Plan. The changes proposed under the development agreement range from increased open space to a change in allowable land use at a given site. As the standard of review is the chapter three policies of the Coastal Act, rather than the Land Use Plan, the development agreement will be reviewed for consistency with chapter three of the Coastal Act. The proposed development agreement would provide the City with certain traffic improvements and increased open space area and the Irvine Company certain development entitlements. As originally submitted, the proposed development agreement raised concerns regarding hazards, sensitive habitat areas and public access. To address these concerns the City and the Irvine Company have submitted an addendum to the development agreement. The addendum is specifically incorporated into the development agreement and where there is a conflict between the agreement and the addendum, the addendum controls. As modified by the addendum, the proposed development agreement is consistent with the Chapter 3 policies of the Coastal Act. ADDITIONAL INFORMATION Questions concaarning the subject Development Agreement should be directed to Meg Vaughn, South Coast District Office of the California Coastal Commission, 245 W. Broadway, 9380, Long Beach, CA 90802, (310) 590 -5071. Newpo .08 h /Irvine Company DevelopNOA ement rcuiation Improvements and Open pace Page 2 SUMMARY OF STAFF RECOMMENDATION Staff is recommending that the Commission approve the development agreement as submitted as it is consistent with the chapter three policies of the coastal Act. The motion and resolution for approval is found on page LIST OF EXHIBITS A. Development Agreement and Addendum B. Vicinity Map C. Location Map D. San Diego Creek South Site Plan E. San Diego Creek North b Jamboree /MacArthur Site Plan F. Upper Castaways Site Plan G. Bay View Landing Site Plan H. Newporter North 6 Newporter Knoll Site Plan I. Corporate Plaza West Site Plan J. Bluff Setback Criteria K. City's Letter Regarding LUP Consistency L. Widening Alternatives M. Possible Public Parking Layout for Newporter North Public Park I. STAFF RECOMMENDATION Staff recommends that the Commission approve the development agreement as submitted as it is in conformance with the Chapter 3 policies of the Coastal Act. Following are the motions and resolutions to carry this out: Motion 1 I move that the Commission approve as submitted the City of Newport Beach /Irvine Company Circulation and Open Space Development Agreement, as modified by the attached addendum, in Exhibit 1. Staff Recommendation Staff recommends a YES vote, and the adoption of the following resolution and findings. An affirmative vote by a majority of the Commissioners present is needed to pass the motion. Resolution to approve the development agreement as submitted The Commission hereby approves the City of Newport Beach /Irvine Company Circulation Improvement and Open Space development agreement, as modified by the addendum, as submitted for the reasons discussed below and that the submittal meets the requirements of and conforms to the policies of Chapter 3 of the Coastal Act to the extent necessary and that it will not have significant adverse impacts on the environment within the meaning of the California Environmental Quality Act. l Newpof ch /Irvine Company Developmel reement Circulation Improvements and Open Space Page 3 II. FINDINGS FOR APPROVAL AS SUBMITTED A. Protect Description and Background The Circulation Improvement and Open Space Development Agreement involves the eleven remaining undeveloped parcels owned by the Irvine Company within the City of Newport Beach. Of the eleven, nine are within the coastal zone boundary. The nine parcels are known as San Diego Creek South, San Diego Creek North, Jamboree /MacArthur, Upper Castaways, Bay View Landing, Newporter North, Newporter Knoll, Newporter Resort and Corporate Plaza West. Seven of the nine parcels are adjacent to Upper Newport Bay. The traffic and circulation improvements proposed in the development agreement will enhance public access to the coast and Pacific Coast Highway by providing more efficient traffic flow. Also the elimination of 162,000 square feet of office entitlement will contribute to reduced traffic congestion further enhancing public access. The development agreement provides for grading for the residential developments that will result in drainage being directed away from the sensitive bluff areas. The increased amount of open space will result in a corresponding decrease in development entitlement, allowing more environmental open space area. The open space will also include public bluff top view parks and passive and active recreational parks. The provision of the public parks enhances public access and recreation in the area. The City of Newport Beach and the Irvine Company have negotiated a Development Agreement pertaining to all eleven parcels. The agreement would result in building entitlement for the Irvine Company in exchange for which the City would receive pre - payment of required "fair- share' road improvement fees, a commitment to construct road improvements adjacent to the proposed projects, and an interest free loan. These benefits will total approximately 20 million dollars. Further public benefit arising from the development agreement is the increased public open space over what is currently required in the City's certified Land Use Plan for the subject parcels. The LUP designates 67 acres of open space at the subject sites. The development agreement would result in 123 acres being dedicated as public open space. The proposed Irvine Company entitlement resulting from the development agreement is to be effectuated through planned community district regulations (PC Texts). These PC texts are incorporated into the development agreement and are attached to the development agreement as exhibit H. A separate PC text has been developed for each of the nine subject sites. The PC texts describe the amount, location and intensity of use to occur at the respective sites. As stated above, the development agreement provides the Irvine Company with specific entitlement in exchange for specific benefits to the City. In order for the Commission to approve the development agreement it must find the proposed entitlement to be consistent with the Coastal Act. More specifically, the Commission must find that the amount, location and intensity of the development described in the development agreement will not result in significant adverse impacts and is thus consistent with the Chapter 3 policies of the Coastal Act. Newo` ' ch /Irvine Company Develop ac-eement l :Lulation Improvements and Open _pe Page 4 Although there are many significant public benefits, the development agreement as originally submitted raised concerns regarding geologic hazards, protection of environmentally sensitive habitat areas including coastal sage scrub (gnatcatcher habitat), freshwater marsh and cumulative biological impacts, and public access. The City of Newport Beach and the Irvine Company have submitted an addendum to the development agreement which addresses these concerns. Following are descriptions of each of the nine sites subject to the development agreement that fall within the coastal.zone. 1. San Diego Creek South This is a 21 acre site and is bordered the east by Bonita Creek, on the south west by Jamboree Road (see exhibit D). of 300 multi - family residential units. allow 300 multi - family residential un1 2.4 acres. 2. San Diego Creek North on the north by San Diego Creek, on by University Drive, and on the The Land Use Plan allows a maximum The development agreement would is on 18.6 acres and open space on This is a 14.7 acre site bounded on the north and east by State Route 73 ramps, on the south by San Diego Creek Channel, and on the north and west by Jamboree Road (see exhibit E). The San Joaquin Hills Transportation Corridor is proposed to pass through the eastern portion of the site. A future freeway access ramp may pass across the western portion of the site. Bayyiew Drive may be extended to pass across the southern portion of the site. The Land Use Plan currently allows for 112,000 square feet „of"office space and reservation of 2.5 acres for a fire station. TW'; proposed development agreement would result in dedication of the site for open space and public facility uses and would eliminate the office use entitlement. 3. Jamboree /MacArthur This 4.7 acre site is bounded by MacArthur Boulevard on the east, a State Route 73 ramp on the south and southwest, and Jamboree Road to the north and northwest (see exhibit E). The LUP allows 50,000 square feet of office space development on the site. The development agreement would result in the dedication of the site to the City for open space and limited public facilities. The public facilities which may be permitted at this site under the agreement include transportation corridors and appurtenant facilities, arterial highways and vehicular access, fuel modification zones, drainage and flood control facilities, and off -site directional signs. 4. Upper Castaways This 56.6 acre site is bordered to the north and northeast by the Dover Shores residential community, to the east and southeast by Upper Newport Bay, to the southwest by the bluff separating the Upper and lower Castaways sites, and to the west by Dover Drive (see exhibit F). The LUP r Newpo� ch /Irvine Company Developme•., eement Circulation Improvements and Open Space Page 5 allows development of 151 residential units and designates 19.5 acres of the site as open space /park use. The proposed development agreement would allow 151 residential units and 30.6 acres of open space. Of the 30.6 acres of open space, a minimum of 11.5 acres is allocated for a view park and 4.8 acres for an active park. The adjacent Dover Drive would be widened into the site to provide a six lane divided facility. The development agreement would require completion of grading for widening of Dover Drive as a frontage improvement. 5. Bay view Landing This 16.1 acre site is bounded by Back Bay Drive to the northeast, Jamboree Road to the east, Coast Highway to the south and Newport Dunes Aquatic Park to the west. This site is divided into the 5 acre lower portion and the 11.1 acre upper portion (see exhibit G). The LUP designates the lower site for 10,000 square feet of restaurant use or 40,000 square feet for health club use. The LUP was recently amended to allow a third optional use at the lower Bay View site: 120 units of affordable senior housing if it is demonstrated that adequate visitor serving opportunities exist within the area. The upper, 11.1 acres are designated for open space uses. The proposal for this site under the development agreement is consistent with the LUP designation. 6. Newporter North This 77.2 acre site is bounded by San Joaquin Hills Road to the north, Jamboree Road to the east, the John Wayne Tennis Club and John Wayne Gulch to the south, and Upper Newport Bay and Back Bay Drive to the north and west (see exhibit H). The Newporter Knoll site is located adjacent and to the southwest of the site. The LUP allows development of 212 residential units. The proposed development agreement would allow 212 units on 30.0 acres. The development agreement would allow townhomes, condominiums, apartments, single - family detached units, model homes and sales offices, and recreational uses ancillary to residential uses. Bluff and natural areas consisting of 47.2 acres will be preserved as open space including a minimum 4.0 acre view park. This represents an increase of 15 acres of open space of the LUP requirement. 7. Newporter Knoll This 12 acre parcel is bounded by Upper Newport Bay and Back Bay Drive to the west, the Newporter North parcel to the north and John Wayne Gulch and John Wayne Tennis club to the southeast (see exhibit H). Under both the certified LUP and the proposed development agreement, Newporter Knoll is designated for environmental open space. 8. Newporter Resort This 23.9 acre site is bounded to the northeast by the Newporter North and Newporter Knoll sites, to the east by Jamboree Road, and to the south and west by Back Bay Drive. The LUP allows 479 hotel rooms. Currently, a 410 room hotel exists on the site. The development agreement would allow 68 hotel rooms in addition to the existing rooms, consistent with the LUP. The rooms are proposed to be added to the existing structure. f0 NewpoT` B h /Irvine Company Develop • I ,ement rculation Improvements and Oper, ,;pace Page 6 9. Corporate Plaza West This 12.1 acre site is bounded by the Balboa Say Tennis Club to the north, Newport Center Drive to the east, Pacific Coast Highway to the southwest, and is adjacent to Club House Drive to the west (see exhibit I). There are 21,000 square feet of existing office space and landscaping on 3.1 acres of the site. The LUP allows for an additional 94,000 square feet of office space on the remaining 9 acres of the site. Total entitlement at the site under the LUP is 115,000 square feet of office uses. The development agreement proposes no changes for this site. B. Analysis of Development Agreement Pursuant to California Government Code Section 65869, a development agreement is not valid for any development project located in an area for which a local coastal program is required to be prepared and certified unless the Commission approves it through formal action. No local coastal program for Newport Beach has been certified to date. Since the development agreement involves nine sites within the Newport Beach coastal zone, the City of Newport Beach and the Irvine Company ('applicants') have submitted the development agreement to the Commission for its approval. The development agreement will be reviewed for conformance with the Chapter Three policies of the Coastal Act. The following sections represent a discussion of the issues raised by the development agreement as originally submitted and how these concerns are addressed by the addendum to the development agreement. 1. Hazards Section 30253 of the Coastal Act states, in part: New development shall: (1) Minimize risks to life and property in areas of high geologic, flood, and fire hazard. (2) Assure stability and structural integrity, and neither create nor contribute significantly to erosion, geologic instability, or destruction of the site or surrounding area or in any way require the construction of protective devices that would substantially alter natural landforms along bluffs and cliffs. In conjunction with the proposed development agreement, an earth resources report was prepared for the development agreement's Environmental Impact Report. The report is titled 'Updated Geotechnical Constraints and Possible Mitigation Measures for the Circulation Improvement and Open Space Agreement (CIOSA)', and was prepared by Zeiser Geotechnical, Inc. The report is dated February 18, 1992. The report finds that potential negative impacts could result at all of the nine project sites. The geology report identifies potential impacts arising from the following geologic constraints at all the sites: faulting and seismicity, erosion, compressible /collapsible soil, expansive and corrosive soil, and near surface ground water. The geology report identifies further NewpoTL ch /Irvine Company Develop • reement Circulation Improvements and Open Space Page 1 potential impacts at the Jamboree/MacArthur, Upper Castaways, Newporter North, Newporter Knoll, Newporter Resort and Corporate Plaza west due to potential bluff /slope instability. Also identified are potential impacts from liquefaction at San Diego Creek South and North, Jamboree/MacArthur, Upper Castaways, Newporter North and Newporter Resort. As the development agreement was originally submitted, these potential impacts raised the concern that approval of the development agreement would lock in development entitlement including specific development areas without the necessary assurances that the intensity or location of development was geologically feasible. To address these concerns, the addendum specifically allows for future discretionary review during the coastal development permit stage that could require adjustments in the area to be developed. With this assurance specifically incorporated. into the development agreement via the addendum, the latitude remains, at the coastal development permit stage, to limit the area of development to areas demonstrated to be geologically feasible to accommodate it. 2. Land and Marine Resources a) Coastal Sage Scrub Section 30240 of the Coastal Act states: (a) Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only uses dependent on those resources shall be allowed within those areas. (b) Development in areas adjacent to environmentally sensitive habitat areas and parks and recreation areas shall be sited and designed to prevent impacts which would significantly degrade those areas, and shall be compatible with the continuance of those habitat and recreation areas. A biology report was included as part of the project EIR. It is titled Biological Assessment, Circulation Improvement & Open Space Agreement and is dated May 13, 1992. The report was prepared by S. Gregory Nelson, consulting biologist. The biological assessment studied each of the subject sites to determine the type and amount of biological resources that exist at each site. The biological assessment identified coastal sage scrub habitat on four of the nine subject sites: Newporter North, Newporter Knoll, Bayview Landing, and Upper Castaways. Regarding this habitat type, the biological assessment states: 'In addition to supporting a number of more common wildlife species, many areas of coastal sage scrub, including those found at Newporter North and Bayview Landing, are habitat for the California gnatcatcher, which is a candidate species for USfwS endangered status.' And regarding the California gnatcatcher, the assessment states: `i(I Newpe Bx h /Irvine Company Developmeo A ement ^c6.ation Improvements and Opei pa,.e Page 8 `The California gnatcatcher (Polioptila californica) is a USFWS Category 2 Candidate. It occupies coastal sage scrub habitat dominated by California sagebrush, and its numbers have declined dramatically because of habitat loss and fragmentation associated with regional development. Its former range extended from Ventura County south into Baja California, but is now absent from Ventura and most of Los Angeles counties. Previously, California gnatcatchers have been found in coastal sage scrub at other locations within the Upper Newport Bay (Marsh, 1990). More recently, Pacific Southwest Biological Services, Inc. (1991) found a pair of California gnatcatchers in coastal sage scrub at the foot of Vista del Playa within the upper Newport Bay Regional Park. Based on a detailed survey of potentially suitable habitat within the study area, California gnatcatchers are found to inhabit coastal sage scrub within Newporter North and Bayview Landing. At Newporter North, a total of four pairs and two lone males were observed. At Bay View Landing, one lone male was observed.• According to USFWS estimates, only about 750 pairs of California gnatcatchers are left in Orange County. Since the biological assessment was prepared, the California gnatcatcher has been officially listed by the United States Fish and Wildlife Service as a threatened species. As a result of the listing, the project is also subject to the Endangered Species Act (ESA). The Endangered Species Act: (1) prohibits any federal agency from authorizing an activity which would jeopardize the continued existence of a listed species; (2) requires federal agencies to formally consult with USFWS if a project they authorize `may affect' a listed species (Section 7 consultation); and (3) prohibits 'take' (e.g. harass, harm, kill) of a listed species unless formally authorized by USFWS. Any proposal that may result in a 'take' requires consultation with and approval from the USFWS. The development agreement addendum specifically states that any development affecting the habitat of any species listed as threatened or endangered under the state and federal endangered species acts is subject to the full regulatory authority of those acts. Further, the addendum requires the site specific coastal development permit applications to include approvals from the California Department of Fish and Game and the U.S. Fish and Wildlife Service where applicable. The biological assessment finds that significant adverse impacts to the coastal sage scrub habitat could occur at Newporter North, Newporter Knoll, Bay View Landing and Upper Castaways. The biological study finds that the degree of significant adverse impacts to the coastal sage scrub will depend on the layout and facilities to be a part of the view parks and public facilities, as well as possible bluff face stabilization /remediation work. There is potential for coastal sage scrub to be directly lost to construction and land use. This loss is an identified significant adverse impact. As with the potential geological impacts discussed above, the development agreement as submitted raised concerns that approval as submitted would lock in development that could result in substantial adverse impacts to the coastal sage scrub and to the California gnatcatcher. The geologic report found that bluff stabilization may be necessary at each of the sites where coastal sage scrub is present. The biological assessment found that bluff stabilization would result in significant adverse biological impacts. As originally submitted the development agreement did not indicate avoidance of impacts to the coastal sage scrub as the preferred alternative. Also specific mitigation New* Ich /Irvine Company Develop, lreement Cir,.ulation Improvements and Open Space Page 9 for any unavoidable impacts to the coastal sage scrub was not provided. This raised the concern that the least environmentally damaging alternative may not be employed for bluff stabilization and that adequate mitigation may not be required. The addendum to the development agreement, however, provides for future discretionary review at the coastal development permit stage so that the areas proposed for development can be reconfigured as necessary to prevent impacts to the coastal sage scrub habitat. Additionally, the addendum specifically prevents significant landform alteration of the bluff face for the residential development area and requires that existing erosion problems on the bluff face be corrected with the least possible amount of disturbance. Additionally, non - structural solutions, such as additional development setbacks, must be employed where feasible. The addendum, therefore, provides that no development inconsistent with Section 30240 of the Coastal Act is approved under the proposed development agreement. b) Freshwater Harsh Section 30233 of the Coastal Act strongly limits fill of wetlands including freshwater marshes. The diking, filling, or dredging of open coastal waters, wetlands, estuaries, and lakes is permitted only where there is no feasible less environmentally damaging alternative, where feasible mitigation measures have been provided to minimize adverse environmental effects, and if limited to one of the delineated allowable uses in Section 30233(a)(1) - (a)(8). The biological assessment prepared for the subject sites identified freshwater marsh on five of the nine sites: Upper Castaways, Jamboree /MacArthur, San Diego Creek North, San Diego Creek South and Newporter North. 1) On the Upper Castaways site, a 0.8 acre freshwater marsh exists along Dover Drive. The 0.8 acre fresh water marsh could be significantly impacted as a result of the proposed widening of Dover Drive. Grading in the right of way area for the widening is one of the Irvine Company's obligations under the development agreement. The biological assessment finds this loss of wetland area to be a significant adverse impact. 2) The entire 4.7 acre Jamboree /MacArthur site supports freshwater marsh. This site is proposed for open space and limited public uses. Uses allowed may include: preservation, restoration, and creation of habitat and wetland areas; ecological research; transportation uses including transportation corridors, appurtenant facilities, arterial highways and vehicular access; fuel modification zones; drainage and flood control facilities; off -site directional signs; and any grading necessary for these permitted uses. The biological assessment, regarding this site, finds: 'However, any recreation use beyond passive nature observation and study may have significant adverse effects, depending on the level of development and intensity of use.• 3) The 14.7 acre San Diego Creek North site contains 0.72 acre of freshwater marsh. 0.48 acre of that is proposed to be developed with some type(s) of public facility. 0.24 acre of existing freshwater marsh on site is proposed to be preserved and enhanced. No setback for development is defined from the 0 0 Newpo, Be,_n /Irvine Company Developme Ag.eement ,rculation Improvements and open Space Page 10 edge of the proposed enhancement area. The biological assessment finds that the loss of 0.48 acre of freshwater marsh is compensated by enhancement of the marsh elsewhere on site. 4) On the 21 acre San Diego Creek South site, 2.4 acres of wetland area exists adjacent to Bonita Creek. The 2.4 acres is proposed to be set aside as open space. The rest of the site is proposed for residential development. The biological assessment finds that any loss of wetlands here would be significantly adverse. 5) The Newporter North site contains freshwater marsh. 0.1 acre of that habitat type would be lost due to the construction of an access road to the proposed development areas on site. The biological assessment finds that the loss of this very small area is not significant because of its size. The Newporter North site originally required placement of fill in 0.1 acre of wetland to provide for a residential access road. Under the addendum, a bridge will be used eliminating the need for fill in the wetland. The addendum, however, allows that if during the coastal development permit process a bridge is determined not to be feasible, any fill proposed must meet the requirements of Section 30233 of the Coastal Act. With the exception of the Upper Castaways /Dover Drive widening, the development agreement addendum eliminates approval of any development within wetlands. The other sites with wetlands are not approved for any development within the wetland that is not consistent with Section 30233 of the Coastal Act. The development agreement addendum states that at the coastal development permit review stage, only those uses allowed under 30233 may be approved. The 0.8 acre wetland area adjacent to Dover Drive is a small isolated, cattail dominated marsh which appears to have been created when Dover Drive was originally constructed as a result of a depression which allowed water to pond. Section 30233 of the Coastal Act allows fill in wetland areas for allowable uses if feasible mitigation is provided and if there are no feasible, less environmentally damaging alternatives. The proposed widening of Dover Drive would result in the loss of 0.8 acres of freshwater marsh wetland. The widening of Dover Drive is required by the City because of future regional growth in the area and is not driven by the residential development described in the proposed development agreement. The City has looked at alternatives to the widening of Dover Drive to avoid impacts to the 0.8 acre freshwater marsh (See Exhibit Q. .However, no feasible alternative exists that would maintain an acceptable level of service along Dover Drive. Additionally, the City has indicated that Dover must be widened not only to maintain an acceptable level of service, but also for public safety reasons. Dover Drive includes curves and grade changes that create unsafe traffic conditions. The road widening is necessary to correct existing traffic safety deficiencies. It is not possible to widen other roads in the area to accommodate the j increased traffic demand generated by projected regional build -out. Widening the nearby road parallel to Dover Drive, Irvine Avenue, would require the removal of a large number of single family homes. Additionally, two schools are located on Irvine Avenue in the area requiring widening. It is considered Newp* :h /Irvine Company DevelopmeW eement Circulation Improvements and Open Space Page 11 undesirable to increase traffic next to the schools. Also, there is a 73 foot drop in approximately 540 along Irvine Avenue. To obtain the appropriate landings at the top and bottom of the slopes the roadway grade would approach a 20% grade. The City's maximum desirable grade for an arterial 7%. Finally, the spacing between major arterials along Coast Highway is more uniform with the Dover Drive connection than with an extension of Irvine Avenue. Accommodation of traffic demand generated by projected regional build -out is not the only reasoning for requiring the Dover Drive widening. The widening is also needed to improve the safety of the roadway between Cliff Drive and 16th Street. There have been 59 accidents on Dover Drive in the vicinity of Cliff Drive. In 1989 there was a fatality. Dover Drive does not provide adequate visibility due to the slope and curve of the current alignment. The widening is proposed to correct the existing unsafe conditions. In order for the Commission to determine if the 0.8 acre wetland fill is an incidental public service purpose, the Commission must determine that the 0.8 acre wetland fill is both incidental and a public service purpose. Since the fill would result from the widening of Dover Drive with an additional lane needed to safely support a pre - existing public transportation route, the fill is clearly for a public service purpose. In order for the fill to be incidental, the impacts must be temporary (as stated in the Statewide Interpretive Guidelines for Wetlands and other Commission precedent) or the fill must be incidental or secondary to the pre - existing public service purpose. As stated above, the widening of Dover Drive with an additional lane will result in the permanent loss of 0.8 acre of wetlands. Consequently, the impacts cannot be considered temporary. However, the fill associated with the widening of Dover Drive with an additional lane is needed to improve the safety of the pre - existing roadway between Cliff Drive and 16th Street. In the last 10 years there have been 59 accidents on Dover Drive to the vicinity of the 0.8 acre wetland area. The fill associated with the widening of Dover for public safety purposes can therefore be considered incidental to the primary pre - existing public transportation purpose. Regarding feasible mitigation, the addendum to the development agreement specifically requires mitigation for the loss of wetland area at a ratio of 4 square feet of wetlands created for each square foot lost. Additionally, the mitigation is required to occur within the vicinity of the Upper Newport Bay ecological reserve and within the coastal zone boundary. Further, the addendum requires that the coastal development permit application include a detailed wetland mitigation plan which includes phasing, planting and monitoring /maintenance provisions. The proposed mitigation requirements are consistent with what the Commission has required in past actions. Therefore, the Commission finds that the widening of Dover Drive as described in the proposed development agreement and associated addendum is consistent with Section 30233(x)(5) of the Coastal Act because as an incidental public service purpose it is an allowable use, is the least environmentally damaging alternative and provides for adequate mitigation. �2 NewpoPBe, /Irvine Company Developm4• Ag ,ment rculation Improvements and Open. ,pace Page 12 c. Cumulative Biological Impacts The development agreement EIR itself acknowledges that on an incremental level, the overall reduction in the general botanical and wildlife resources of the area through habitat loss will result in a significant cumulative impact. These impacts are considered significant, adverse, and unavoidable. However, with the addition of the addendum to the proposed development agreement, sufficient discretion remains at the coastal development permit stage to assure that adverse cumulative biological impacts resulting from the development described in the proposed development agreement will be lessened to the maximum extent feasible. The addendum specifically requires approvals from the California Department -of Fish and Game and the U.S. Fish and Wildlife Service to be submitted with coastal development permits when applicable to the proposed development. The review and approval of the agencies would clearly be necessary for the sites with identified wetlands and for those adjacent to the sensitive slopes and habitat of Upper Newport Bay. Additionally, the development areas may be further limited at the coastal development permit stage based on new /more specific biological or geotechnical information. Public Access Section 30210 of the Coastal Act states: In carrying out the requirement of Section 4 of Article California Constitution, maximum access, which shall be posted and recreational opportunities shall be provided consistent with public safety needs and the need to pro rights of private property owners, and natural resource use. Section 30252 of the Coastal Act states, in part: X of the conspicuously for all the people tect public rights, areas from over The location and amount of new development should maintain and enhance public access to the coast by (4) providing adequate parking facilities or providing substitute means of serving the development with public transportation. Two of the subject sites are proposed for substantial residential development on bluff tops above Upper Newport Bay: Upper Castaways (151 units) and Newporter North (212 units). These proposals include public bluff top parks. The planned community district regulations proposed for each site and incorporated into the subject development agreement would allow the streets of these proposed communities the option of being private. Also the planned community district regulations would allow these communities the option of being gated. Additionally, exhibit F of the proposed development agreement specifically states that: •the City will not require the Company to' provide, directly or indirectly, for parking related to public use of the conveyed lands.' The public nature of the bluff top parks could prove to be meaningless without the provision of adequate public parking. The parks instead could become de facto private parks for use of the future residents of the private community rather than the general public. The Commission has consistently found that provision of public parking is necessary to ensure maximum public access. ? Newp "••ch /Irvine Company Develop -reement ation Improvements and Op V.. .e Page 13 Other language within the Planned Community Text for the Upper Castaways site specifically addresses this issue. The Planned Community text is specifically incorporated into the development agreement. Item 15 under General Notes of the Planned Community text for Upper Castaways states: 'The design of the subdivision and /or public parks by the City, approved through the tentative tract map and site plan review process, shall provide for public access and parking for the view park and bluff top open space from either 16th Street or new intersection to be created at Cliff Drive. In making this requirement, if access is provided from 16th Street, the Planning Commission and /or City Council shall not stipulate that this access be provided directly through the residential area if the development includes private streets, is a gate guarded community, or would result in fragmentation of the residential area. The project proponent shall also consult with the adjacent Newport Harbor Luthern church in the final design of the project in regard to public access from 16th Street.' This language assures that public access to the proposed parks will be provided with site development. It requires a viable method for the general public to access the public park as well as adequate parking. Without these assurances, the Commission could not find the proposal consistent with the public access and recreation policies of the Coastal Act. With this language included, the proposed development agreement is consistent with Section 30210 of the Coastal Act regarding maximizing public access and recreation at the Upper Castaways site. At the Newporter North site, while there is no parking available along Jamboree Road, there is public parking available along San Joaquin Hills Road, which is adjacent to the site. Additionally the City has demonstrated that additional parking could be provided for the public bluff top park if desired (See Exhibit H). The need for additional parking will be determined at the coastal development permit stage. Finally, the coastal development permits for the two sites will consider whether signage indicating the location and public nature of the sites is necessary to assure that the public is aware of the coastal recreational resources. Therefore, the Commission finds the proposed development agreement and associated addendum is consistent with Sections 30210 and 30252 of the Coastal Act regarding public access. CONCLUSION The Comrnission finds that as modified by the addendum, the proposed development agreement is consistent with the Chapter Three policies of the Coastal Act. 8704E N A