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HomeMy WebLinkAboutC-3597 - Phase I of the West Bay Trail, Boardwalk and Restoration ProjectCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 14 January 28, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport- beach.ca.us SUBJECT: West Bay Trail, Boardwalk & Restoration Project ISSUE: To protect sensitive and endangered species and to provide habitat - sensitive public access, should the City of Newport Beach coordinate the restoration of wetlands and bluff habitats and the development of a trail and boardwalk system along the west side of Upper Newport Bay near the Upper Newport Bay Nature Preserve? RECOMMENDATION: Authorize the City Manager to: (a) Enter into an agreement or memorandum of understanding with the County of Orange to formally allocate up to $800,000 in the County's share of American Trader Oil Spill settlement proceeds towards this Project; and (b) Upon execution of the City- County Agreement and adoption of a Budget Amendment by City Council, enter into a sole- source Professional Services Agreement with Community Conservancy International (CCI) for Phase I of the Project as described herein. DISCUSSION: Background: Along much of the western, northern, and easterly sides of Upper Newport Bay, visitors can enjoy the Bay's views, learn about and see its habitat, and walk, bike, ride, or run along its boundaries. A paved trail system, including Back Bay Drive and a boardwalk bridge, links Irvine Avenue (near Santiago) to Jamboree Road. Hundreds of thousands of people use this trail system annually. The trail system provides access to two major park and natural habitat areas -- the Upper Newport Bay Nature Preserve (administered by the County of Orange and within West Bay Trail, erdwalk & Restoration Project January 28, 2003 Page 2 the region's Natural Communities Conservation Plan or "NCCP ") and the Newport Bay Ecological Reserve (administered by the California Department of Fish and Game). The Peter and Mary Muth Interpretive Center - a facility operated by the County of Orange's Harbors Beaches, and Parks Division -- sits within the Nature Preserve off of University Drive. The City of Newport Beach plays a role, too, because the city owns and operates Back Bay Drive and co -owns certain parts of the Nature Preserve along with the County. The West Bay. The West Bay suffers from a number of serious problems, primarily due to inappropriate public use, that threaten the long -term health of the Bay and of many sensitive and endangered species. The areas immediately bayward and west of the Interpretive Center -- still within the Nature Preserve -- are among the most heavily visited sites around the Bay. Although a paved multi - purpose trail links the Center to Irvine Avenue, continuing west along Irvine Ave until it hits Santiago Drive, and a decomposed granite ( "DG ") trail traverses the top of the bluffs nearby, visitors to the Nature Preserve have developed miles of their own unauthorized trails throughout the bluff tops, slopes and wetlands in this area. Often they unknowingly enter the most sensitive parts of the Preserve and the DF &G Ecological Reserve. These visitors do not realize the serious damage they cause. This continued public use is destroying fragile native wetlands and uplands habitat, further eroding steep slopes and drainages, contributing to on -going costly maintenance problems, and impacting critical nesting and feeding areas of the endangered light- footed clapper rail and other sensitive native species. Left unaddressed, these problems -- caused by inappropriate public uses in the West Bay -- threaten the long -term integrity of the West Bay and of Upper Newport Bay, and pose particularly serious threats to the survival of the light - footed clapper rail. This aerial photograph illustrates some of the inappropriate trails: • West Bay Trail, Awalk & Restoration Project January 28, 2003 Page 3 Threat to the Light- footed Clapper Rail: The wetlands and salt marsh immediately adjacent to these illegal trails are critical nesting and feeding habitat for the Light- Footed Clapper Rail (Rallus longirostris levipes, federally listed as endangered in 1970). Some experts believe that Upper Newport Bay is the only remaining region in the world where the Light- footed Clapper Rail is successfully reproducing. The numbers of nesting pairs in the Bay has been steadily decreasing, with only 104 nesting pairs counted in 2002. The West Bay is the best habitat in the Bay for these birds and is vital to their survival. Additional damage to this area could push the numbers of nesting pairs to dangerously low levels. This ground- nesting bird is easily frightened by people and dogs entering the wetlands from the illegal trails paralleling the wetlands' edge. This area is also important habitat for the Salt Marsh Bird's Beak (Cordylanthus maritimus, listed as endangered in 1978). Light- footed Clapper Rail Salt Marsh Bird's Beak Threats to Belding's Savannah Sparrow and California Coastal Gnatcatcher. Illegal trails up and down the drainages and steep slopes of the West Bay and Nature Preserve pose similar problems for the endangered Belding's Savannah Sparrow (Passerculus sandwichensis beldingi, State listed) and the California Coastal Gnatcatcher (Polioptila californica californica, federally listed as "threatened" in 1993), who depend on natural habitat in these areas for survival. People do not realize that their "made" trails, which provide them with convenient access bewteen the wetlands and the bluff tops, go through sensitive habitat areas and frighten these birds from their nesting and feeding areas. Continued public use can result in the destruction of what remains of these sensitive habitats. Belding's Savannah Sparrow West Bay Trail, ordwalk & Restoration Project January 28, 2003 Page 4 California Coastal Gnatcatcher Costly Erosion and Drainage Problems: The problems resulting from erosion and sedimentation in the Bay have been well- documented. There are several drainages in the West Bay area which cut through the bluffs and enter the Bay. Heavily used by the public as unofficial "steps" and trails, these drainages and other steep slopes continue to erode badly. They pose threats to public safety, cost the county every year and deposit unwanted sediments into the Bay. A Proposed Remedy. Bay advocates and restoration experts believe that we need to provide appropriate public access at the West Bay in order to provide Bay users with a high - quality experience -- while at the same time protecting the sensitive wetlands and steep slopes of the West Bay and the Nature Preserve. We fully recognize that the public wants access to the wetlands and water's edge, and that the majority of visitors are unaware of the damage their current uses cause. Therefore, the City, the County and DF &G have proposed constructing a well- designed and habitat- sensitive network of public access points using trails and an elevated pedestrian boardwalk with viewing areas along the wetlands edge and connecting from the wetlands to the existing bluff top trails and overlooks. This pedestrian boardwalk and trail network would re- direct visitors from sensitive habitat anc dangerously eroding slopes and keep them on existing bluff -top trails and the new boardwalk and trail system. The 2 -mile elevated pedestrian boardwalk and trail system would stretch from University Avenue to 23`d Street, allowing people appropriate access to the edge of the Bay's wetlands and shoreline -- including places at the toe of the bluff near the water's edge -- but keeping people out of the wetlands and mudflats. We anticipate that the boardwalk will have viewing platforms, bird viewing blinds, and interpretation and signage that will assist visitors in learning about the sensitive habitat that they view. We also propose restoring long- barren bluff tops and slopes with native habitat consistent with the land's role as a part of the Natural Communities Conservation Plan (NCCP), and slope and drainage stabilization with an emphasis on utilizing native • West Bay Trail, Bowalk & Restoration Project January 28, 2003 Page 5 vegetation and long -term sustainability. We intend to remove unauthorized trails and then re- vegetate the area with native plants. These improvements are badly needed to reduce on -going maintenance costs, stabilize bluffs eroding due to the wrong kind of public uses, and prevent future flooding and serious erosion into the Bay. At a meeting held on January 7, 2003, the US Fish and Wildlife Service (US F &WS) gave initial (albeit informal) support to this West Bay Boardwalk and Restoration Project (the "Project "). US F &WS is the agency primarily responsible for protecting federally - listed endangered species. The goals of the Project are to: • Install two -miles of habitat - sensitive trails and elevated pedestrian boardwalks, public access points and viewing platforms along the wetlands' edge; • Protect highly sensitive wetlands habitat and nesting areas for the Light- Footed Clapper Rail; • Integrate high quality interpretation into the trails /boardwalk and public access points; • Restore damaged wetlands, salt marsh, riparian and coastal sage scrub habitats; • Protect and restore habtiat for the Belding's Savannah Sparrow and California Coastal Gnatcatcher; • Remove unauthorized trails & non - native vegetation; Restore eroding and currently barren bluffs, drainages and upland areas with native plants; Develop a comprehensive trail and access system that connects to existing bluff -top trails and to the Peter and Mary Muth Interpretive Center; • Prevent costly and damaging erosion and improve public safety; and • Develop plan for ongoing maintenance emphasizing sustainability. Why & Where Boardwalks Work. Elevated boardwalks in sensitive habitats can provide the following benefits -- they: 1) Allow visitors to experience sensitive habitats in a meaningful way without damaging the plants and animals found there. 2) Prevent soil compaction and enhance water infiltration potential; minimize erosion; and restore natural water flows and drainage patterns, which protect native plants and animals. 3) Provide sustained protection to restored areas. 4) Protect ground dwelling and ground nesting birds and other species. 5) Protect sensitive vegetation, birds' and other species' habitat from human disturbance, dogs, trampling and other related impacts. 6) Provide close wheelchair, disabled and senior citizen access to otherwise inaccessible habitat areas. • West Bay Trail, Ordwalk & Restoration Project January 28, 2003 Page 6 7) Minimize risk/injury/liability due to safety concerns in unstable or rough terrain. 8) Provide viewing areas and benches for rest, quiet observation and interpretation opportunities. 9) Prevent dogs from disturbing bird and other species' habitat. Boardwalks in highly sensitive natural habitats have proven successful in the following places: Yosemite National Park: Cook's Meadow. This elevated boardwalk allows park visitors access to the middle of critically sensitive meadows in the heart of Yosemite Valley without tramping recently restored fresh -water wetlands. Water from the Merced River can now flow across the 35 -acre meadow, where native aquatic insects, azaleas and sedges will thrive again. • Grindstone Creek: Hamilton Harbour Fish & Wildlife Restoration Project (Canada). A one kilometer boardwalk constructed in 1995 enables visitors to visit the creek mouth marsh while protecting overused and trampled sensitive habitat along the creek at the west end of Lake Ontario. Broadmoor Wildlife Sanctuary, Natick, Massachusetts -- Operated by the Massachusetts Audubon Society, Broadmoor's nine miles of walking trails guide walkers through a variety of field, woodland, and wetland habitats. A new 1/4 -mile trail and boardwalk along the bank of Indian Brook and over its marsh is a new addition to the sanctuary. According to Elissa Landre, Director of the Sanctuary, Broadmoor "use(s) boardwalks in several ways to control human use of the property and for educational purposes. There is a sensitive habitat called a vernal pool. It is the breeding site for salamanders, woodfrogs and other creatures. We use the pool to educate school groups, scout groups, and individuals about these important habitats and their inhabitants. But walking along the edges of the pool compacts the soil and destroys the vegetation. So, we built a 60 foot long "pier ", 8 feet wide, that guides visitors over the pool and allows them ':o explore without damaging the habitat. We used helical pier supports which are galvanized steel and screw into the wetland with minimal damage..." Broadmoor Wildlife Sanctuary, Natick, Massachusetts O.cadmoul Coaldwa!k C jPr1y Howard RBtI BnY J.11 rI PBB J �' ,al / Beck II`I`II rum _- W'. llgc Bur 3. IOYW AYYf Mlw 0.I061 ❑Gntlu i bAnOr ! Win IBUBB Innon vl A In /t [nit �AntL�bltubB W i nYc n cO .�fn Cent Bnu jj�II/ do b F., [rurBnu • West Bay Trail, Bowalk & Restoration Project January 28, 2003 Page 7 Broadmoor Boadwalk Construction Drawings Manufacturer: A.B. Chance Co., Centralia, Missouri Camosun Bog (British Columbia, Canada) -- A 300 - meter, wheelchair - accessible boardwalk has successfully discouraged visitors and their dogs from straying onto the surface of the bog and damaging the sensitive and unique 2,000 - year -old bog habitat. Restoration experts in British Columbia are currently constructing an addition to the Camosun Bog nature walkway. A new phase of a boardwalk will wind through the Bog and link to an existing boardwalk. They plan several interpretive display areas around the walk along with interpretive signage to educate visitors on key natural features of the bog. A self - guided nature interpretation walk winds through Pacific Spirit Park and at the same time facilitates the restoration and preservation of the bog ecosystem. �77< Corkscrew Swamp, Naples, Florida -- This 2.25 -mile long boardwalk in Southeast Florida near Naples takes visitors directly through several types of habitats -- including pine flatwoods, freshwater marshes and prairies -- without a significant visitor impact. • West Bay Trail,1ardwalk & Restoration Project January 28, 2003 Page 8 The Project Team. The Project team will be led by Community Conservancy International ( "CCI" at www.ccint.org). CCI describes itself as "a non - profit organization dedicated to combining the protection and restoration of natural lands and waters worldwide with compatible community uses" With a focus on developing innovative solutions lo challenging conservation problems, CCI concentrates on the intersection between natural and human communities. CCI recently advocated and planned for two square miles of park and open space in the Baldwin Hills (near Ballona Creek in southwestern Los Angeles). CCI succeeded in securing $36 million in state funding for the Baldwin Hills. Other team members will be city staff (Public Works and the City Manager's Office), the County of Orange (from Harbors, Beaches, and Parks), US F &WS, DF &G, the Newport Bay Naturalists and Friends. Public Participation. Public participation is a critical component of any project that directly affects public access. From the start of this effort, CCI has proposed public workshops to gather public input and feedback on proposed plans. CCI also plans to conduct a public use survey that describes past use of the a team of experts will be retained to provide the biological, geotechnical, engineering, restoration, arecheological and interpretive data needed. Budget & Scope of Work. Planning and constructing a boardwalk, trail and comprehensive restoration project in a sensitive habitat area owned by at least three agencies (the City, the County, and DF &G) is complicated. As such, I propose that the Council agree to enter into a phased professional services agreement (PSA) with CCI to coordinate many aspects of the planning. Phase I of the Project will be the Research, Site Analysis and Schematic Design. I have described Phase I in detail at the end of the Professional Services Agreement within Attachment A. The draft budget shown on the next page would complete Phase I. Phase II of the planning effort would bring the project to permitting and environmental review under the California Environmental Quality Act (CEQA). Phase III would include final construction drawings and construction management. • West Bay Trail, Adwalk & Restoration Project January 28, 2003 Page 9 Phase I Budget -- Draft Task Amount Project Scoping & Initiation $ 27,036 Landscape Architecture $ 54,100 Biological Assessment $ 51,200 Archeological Assessment $ 10,000 Bio Constraints & Construction Impact Analyses $ 15,193 Public Use Survey $ 10,203 Engineering Survey & Topo $ 24,000 Geotechnical Analysis $ 27,225 Concept Development, Meetings & Reports $ 23,100 Geotechnical Slope Study $ 5,500 GIS Mapping $ 12,000 Restoration Specialist $ 11,780 Interpretive Design $ 15,000 Research, Meetings, Tech. Team & Agency Coord. (Phase IA) $ 25,700 Planning, Meetings, Tech. Team & Agency Coord. (Phase IB) $ 16,250 Document Preparation & Final Report (Phase IC) $ 6,577 Concept Illustrations $ 7,500 Project Expenses $ 21,260 Contingency @ 10% $ 36,362 Total Budget $ 399,987 Funding. As a part of the American Trader Oil Spill Settlement Agreement and at the City's request, the County of Orange has allocated about $800,000 of its settlement proceeds for this project. We intend to enter into a City- County Agreement (or Memorandum of Understanding) for the use of these funds, because the City will likely manage the CCI contract and the project itself. While much of the project is on County and State land, we believe that County staff may not be as able as we are (due to staffing considerations) to do the job. It is difficult to estimate the costs of Phases II and III until Phase I is complete -- but we believe that the Project's construction costs alone will be about $3,000,000.00. To fund construction of the Project, we co- signed a joint letter to the Director of the California Department of Fish and Game, Mr. Robert Hight, for his support for allocating $4 million in Proposition 40 (and 12, 13, and 50) bond funds towards construction of the projects identified via the planning and technical studies. Despite the State's current budget problems, we are optimistic that the Project, once planned and approved, will (7) • West Bay Trail, lardwalk & Restoration Project January 28, 2003 Page 10 successfully secure construction funding given that funding from the above - mentioned propositions is unaffected by the State budget. The Department of Fish and Game reports that staff to the Wildlife Conservation Board (WCB), a funding arm of DF &G which specifically receives Proposition 40 and 50 revenue, has visited the area, heard about the Project, and offered a verbal commitment to consider allocating a portion of the WCB's bond funding for it. Environmental Review: Environmental review is not required for Phase I, but will be required and completed as a part of Phase II. Public Notice: This agenda item requires standard Brown Act notice. Funding Availability: If the City were to enter into a contract with CCI for Phase I, the City will have to enter into an MOU to secure that portion of the County's American Trader Oil Settlement revenues to fund the Phase. A budget amendment will follow once the City- County Agreement/MOU is executed. Submitted by: I Dave iff 1�' Assistant City Manager Attachments: Attachment A -- Professional Services Agreement with CCI n • West Bay Trail, BSdrdwalk & Restoration Project January 28, 2003 Page 11 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this _`h day of January, 2003, by and between the City of Newport Beach ( "City "), a municipal corporation, and Community Conservancy International, a non - profit corporation whose address is 10951 West Pico Blvd. Suite 201, Los Angeles, CA 90064, ( "Consultant'), is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City intends to provide for the public access improvement and habitat restoration of the western portion of Upper Newport Bay via the West Bay Trail, Boardwalk, and Restoration Project ('Project'). C. City desires to engage Consultant to provide project management, sub - consultant contracting, and any other work relating to the Project. D. The principal member of Consultant, is for purposes of this Project, Ms. Esther Feldman. E. City has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the 28`h day of January, 2003, and shall terminate on the 301h of June, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the Scope of Work, attached hereto as Exhibit "A" and incorporated herein by reference. West Bay Trail, Boardwalk & Restoration Project January 28, 2003 Page 12 3. COMPENSATION TO CONSULTANT The! total estimated costs for services described in Exhibit A are $400,0000. City shall pay Consultant for the services in accordance with the provisions of this Section and the budget, attached hereto as Exhibit "B" and incorporated herein by reference. No changes shall be made during the term of this Agreement without prior written approval of City. City's obligation to compensate Consultant for all work performed in accordance with this Agreement shall not exceed the total contract price of one hundred ten thousand dollars ($400,000.00). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage, airfare, travel expenses and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit "B" and incorporated herein by reference. City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. 4. STANDARD OF CARE 4.1 Except to the extent provided in paragraph 19 below, all of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the community professional standards. Consultant shall use only qualified and experienced personnel who are not employed by City to perform all services as set forth in Exhibit A (Scope of Work). Consultant represents and warrants to City that it has or shall obtain all applicable licenses and permits, if any, required of its profession, including registration, if applicable, as a person or entity authorized to advocate before state and local officials or departments. Consultant further represents and warrants that it shall keep in effect all such licenses and permits dur.ng the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. • West Bay Trail, Adwalk & Restoration Project January 28, 2003 Page 13 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the details and means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 7. PROJECT MANAGER Consultant shall assign the Project to a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Project term. Consultant has designated Esther Feldman as its Project Manager. Consultant may designate other personnel as necessary to fulfill project management obligations. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with the schedule specified in the Scope of Work (Exhibit A). The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control as set forth further in paragraph 4.2 above. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. The City recognizes and acknowledges that the selection of sub - contractors, the Budget (Exhibit B) and the Scope of Work (Exhibit A) are all subject to the review and approval of the State Coastal Conservancy, and that this review and approval may result in changes or delays to the Budget, Scope of Work and /or overall project timeline. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance i 2 'J • West Bay Trail,bardwalk & Restoration Project January 28, 2003 Page 14 is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand delivE!ry or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, officers, and employees (collectively "Indemnitees ") from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services conducted or performed or products provided pursuant to this Agreement, excepting only the sole negligence, active negligence, or willful misconduct of Indemnitees, and shall include attorneys' fees and all other costs incurred in good faith and in the exercise of reasonable discretion in defending any such claim. Nothing in this hold harmless agreement shall be construed as authorizing any award of attorneys' fines or other costs in any action on or to enforce the terms of this Agreement. 12. INSURANCE Without limiting Consultant's indemnification of Indemnitees, and prior to commencernent of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement, the following policies of insurance: A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California; and B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. It 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. • West Bay Trail, Bd.`'dwalk & Restoration Project January 28, 2003 Page 15 City shall be added as an additional insured to Consultant's general liability insurance policy. Certificates of Insurance for the above - required policies shall be signed by a person authorized by the applicable insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact the business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide, unless otherwise approved by the City Risk Manager. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of a claim made or a suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its sole discretion may be necessary for its proper protection and prosecution of the work. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general liability insurance, Consultant shall look solely to its insurance for recovery excepting only perils arising out of the sole negligence, active negligence, or willful misconduct of indemnities. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general liability insurance to Consultant with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 13. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 14. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 15. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to cooperate with Consultant in the development and production of display materials, advocacy letters, background information, maps and related GIS data, and research data, and to provide assistance in contacting and meeting with public agencies, elected officials and other individuals or entities where requested by Consultant, and to install display and public information materials on site if deemed appropriate. City agrees to provide all necessary review of the project's legal requirements and to meet with homeowners and golf course operators adjacent to the project site to discuss water quality, runoff and drainage issues identified by Consultant. J • West Bay Trail, oardwalk & Restoration Project January 28, 2003 Page 16 16. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Dave Kiff shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all mattes pertaining to the services to be rendered pursuant to this Agreement. 17. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 18. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 19. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. City expressly acknowledges and agrees that Consultant shall have no liability whatsoever for the acts or omissions of any person or entity engaged directly by City. 20. CONFLICTS OF INTEREST A. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making decisions that will foreseeably financially affect such interest. B. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. • West Bay Trail, BOdwalk & Restoration Project January 28, 2003 Page 17 21. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City, except for design production of graphic or visual materials necessary to the Project, which design and production by a subcontractor is hereby approved. 22. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City, attention Dave Kiff at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 Phone -- 949/644 -3002 and Fax -- 949/644 -3020 E -Mail -- dkiff @city.newport- beach.ca.us All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant, attention Esther Feldman at: Community Conservancy International 10951 West Pico Blvd. Suite 201 Los Angeles, CA 90064 Phone -- 310/475 -0797 extension 1 and Fax -- 310/475 -6797 E -mail -- efeldman @ccint.org 23. TERMINATION In the event either party hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. • West Bay Trail, Boardwalk &Restoration Project January 28, 2003 Page 18 24. COMPLIANCES Corsultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 25. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 26. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 27. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 28. SHARING OF TASKS AND WORK PRODUCTS The City recognizes and acknowledges that certain tasks that will be performed and final work products that will be produced by Consultant pursuant to the terms of this agreement are being fundE +d by both the City and the State Coastal Conservancy ( "Conservancy "). The City acknowledges and agrees that the costs associated with such tasks and final work products shall be shared by the City and the Conservancy, pursuant to the agreements with each respective entity, and that the costs of such tasks and work products shall be allocated by the Consultant to each entity pursuant to the respective approved project budget. Consultant shall deliver all final work products to both entities regardless of the allocation of costs relating to such work products. All materials and work products produced by Consultant as a result of this agreement are the property of both the City and the Conservancy. Consultant shall receive copies of all such materials and work products and shall have an irrevocable right to use all such materials and work products for any lawful and appropriate use in the normal course and scope of its activities. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. • West Bay Trail, Boardwalk & Restoration Project January 28, 2003 Page 19 APPROVED AS TO FORM: 0 Robert H. Burnham, City Attorney CITY OF NEWPORT BEACH A Municipal Corporation By: Homer Bludau, City Manager for the City of Newport Beach CONSULTANT LIM Esther Feldman, President for Community Conservancy Int'I ���1 • West Bay Trail,loardwalk & Restoration Project January 28, 2003 Page 20 Exhibit A Scope of Work for Phase One: Research, Site Analysis and Schematic Design Community Conservancy International Upper Newport Bay: West Bay Trail, Boardwalk and Restoration Project Phase IA: Research and Site Analysis (October 02 -May 03) 1. CCI project scoping: background research; define project and site; define technical team; coordinate with City of Newport Beach (City) and Dept. of Fish and Game (DFG); determine project scope and legal requirements; determine mapping needs; prepare budgets; initial meeting with City, County, DFG, and United States Fish and Wildlife Service (USFWS). 2. Landscape Architect selection: assemble list; prepare and send RFQ; review qualifications; interview and select landscape architect; select technical sub - consultants; execute contract. 3. Retain technical team: engineer and geotechnical, archeological, project biologist, restoration specialist and interpretive consultant. 4. Gather all background materials, existing site and project data and maps; distribute to team. 5. Coordinate with City, County and DFG as necessary. Individual agency meetings as necessary with USFWS, Army Corps of Engineers (ACOE), Coastal Commission (CC), Regional Water Quality Control Board (RWQCB), City and County. 6. Establish partnership with L.A. and Orange County Conservation Corps (Conservation Corps) to provide labor and training for biological and public use surveys. 7. Engineering a. conduct aerial and ground site, trails and drainages survey and topographic mapping; prepare AutoCAD base map. b. drilling and sampling; soils analysis; prepare soils and seismic conditions report. c. geotechnical site walk; data collection; prepare opinion of conditions and geotechnical report. d. conduct geotechnical and civil review of site hydrology and flood history, drainages, slopes and existing erosion and drainage problems on site; prepare recommendations, concepts and estimates. e. advise on project permitting requirements. 8. Biological Assessment a. conduct wetlands delineation and literature review; establish wetlands boundaries; evaluate wetlands restoration needs; coordinate Conservation Corps members; GIS mapping; prepare report and maps. b. conduct California Gnatcatcher and general bird surveys in wetlands and upland areas; coordinate Conservation Corps members; GIS mapping; prepare report and maps. c. conduct plant survey in non - wetland areas; coordinate Conservation Corps members; GIS mapping; prepare report and maps. d. prepare constraints analysis; make wetlands and upland habitat restoration recommendations; evaluate and report on all permitting issues. 9. Public Use Survey (Feb -Sept 03): develop survey and protocol; train docents and Conservation Corps members; conduct survey of public uses in West Bay area (wetlands, bluffs and existing trails). Survey will be conducted two (2) weekdays and two (2) weekend f West Bay Trail, Adwalk & Restoration Project January 28, 2003 Page 21 days per month for eight (8) months. Prepare interim report on public use data and deliver to technical team. 10. Landscape Architecture a. coordinate sub - consultants; collect and synthesize technical and site data; mapping and preparation of related documents. b. review site history, uses, visitor information, trails, destinations, access and related data; review specific needs and concerns of City, County and DFG. c. prepare site analysis illustrations of site opportunities and constraints; prepare diagrams as necessary of uses, slopes, erosion, hydrology, soil types, views, habitat types, vegetation, public access and trails, interpretive elements. d. coordinate with CCI to prepare presentation materials for public workshop; attend workshop; synthesize and analyze workshop data for technical team. e. prepare preliminary concept plan alternatives. 11. Evaluate interpretive needs and priorities; develop initial interpretive concepts and plan for integration of interpretive elements into boardwalk, trails, public access and overlooks. 12. GIS Mapping: convert AutoCAD data to GIS maps as necessary; incorporate all GIS data; prepare 3- dimensional perspectives; coordinate technical aspects of map data collection, analysis and synthesis; prepare GIS presentation maps; coordination by CCI of map components, design and preparation. 13. Habitat Restoration Consultant a. review and analyze site vegetation and landscape aspect, slope and position; conduct upland area soils testing and analysis; prepare report. b. participate in analysis of site drainage and erosion issues; advise on permitting and related requirements; prepare recommendations. c. develop vegetation analysis and plant association recommendations for project area; prepare conceptual restoration and enhancement plan. d. participate in technical team as necessary. 14. Project Management: coordinate public agencies, technical team and public interface; participate in site planning and design; coordinate preparation and distribution of project materials; coordinate individual agency meetings; document meetings; project bookkeeping, invoicing and submittal of deliverables. 15. Design, advertise and conduct public workshop to be attended by Landscape Architect; prepare presentation materials as necessary. 16. Schedule and conduct technical team meetings: Meeting #1 - develop project goals and objectives; review existing site data and constraints; set schedule; Meeting #2 - review all site data, maps, consultant recommendations and constraints; conduct initial concept planning. • West Bay Trail, Boardwalk & Restoration Project January 28, 2003 Page 22 Phase IB: Schematic Design (June 03- October 03) 1. Integrate work of project engineers, project biologists, habitat restoration consultant, interpretive consultant and landscape architect into overall site design. Monitor for emphasis on sustainability and maximum sensitivity to habitat needs and public agency concerns. 2. Two technical team meetings to review and refine draft conceptual plan alternatives and develop preferred plan alternative for all components of two -mile elevated boardwalk, trail, overlooks and interpretive elements, including endangered species sensitive construction plan; discussions and design consultation between technical team members as necessary. 3. Landscape Architecture a. develop concept plan alternatives for trails, boardwalks, railings, ramps, overlooks, shade structures, irrigation and other improvements. b. prepare illustrations, alternative layouts, cross - sections, elevations, preliminary details, sketches and other materials as necessary to describe design elements. c. work with interpretive consultant to prepare concept sketches, diagrams and illustrations of all interpretive elements. d. develop presentation materials. e. develop preliminary construction cost estimates for project. 4. Engineering a. develop concepts for erosion repair and prevention and for drainage restoration that emphasize sustainability and soil bioengineering strategies; develop cross- sections describing materials and systems. b. prepare general arrangement sketches; prepare overall site grading concepts for proposed trails and overlooks and for portions of site requiring erosion repair and prevention. c. prepare concept alternative drawings, cross - sections, comparisons, structural concepts for boardwalk, bridges, shade structures and overlooks. d. prepare opinion of estimated costs and advise on project construction staging. 5. Biological Assessment a. consult with public agencies to prepare Endangered Species Biological Assessment per Endangered Species Act Section 7. Prepare report. b. review concept plan alternatives; advise on endangered species habitat protection needs; prepare Construction Impact Analysis. c. work with technical team to develop wetlands restoration plan as necessary. 6. Continue public use survey and deliver interim report on public use to technical team. 7. Coordinate with City, County and DFG as necessary. Individual agency discussions and meetings as necessary (USFWS, ACOE, CC, RWQCB). 8. Refine GIS maps as necessary. 9. Habitat Restoration Consultant a. work with technical team to refine habitat restoration (wetlands and uplands) and erosion repair concepts. b. prepare Habitat Restoration Plan including: methods for site preparation; plant/seed introduction; plant species lists for each habitat type identified for restoration and /or enhancement; seasonal schedule, implementation and maintenance protocol; plan phasing; analysis of expected improvement of habitat functions and values and ecosystem integration. 10. Agency Meeting to review draft conceptual plans, biological data, constraints analysis, permitting requirements and related information, and to discuss agency needs, issues and concerns. aWest Bay Trail, Boardwalk & Restoration Project January 28, 2003 Page 23 11. Project Management: Coordinate technical team meetings, information transfer, development of technical reports, maps, plan drawings and related detail; mail project update. 12. In conjunction with City Attorney's office, determine legal requirements of project; determine permitting requirements. Ensure maximum design and construction schedule sensitivity to wetlands and endangered species habitat issues. 13. Direct concept plan illustrations and development of public presentation materials; design, advertise and conduct public workshop to be attended by landscape architect. 14. Research and identify potential funding sources for construction, including federal grants, state and local funding and private funding sources. Coordinate with City. 15. Public Workshop to review draft concept plan. 16. Coordination with City and County regarding legal requirements pursuant to CEQA and NEPA, permitting, phasing, phase II and construction funding. Phase IC: Document Preparation (November 03- December 03) 1. Complete public use survey, analyze data and prepare final report. 2. Integrate technical team work, reports and maps and other data and produce final digital copies as necessary. 3. Refine conceptual plans and refine preferred plan alternative for all project site components, including: boardwalk, railing, overlooks, trail, viewing areas and all interpretive detail; erosion control, grading and drainage and restoration plans. Drawings, diagrams and other illustrations will include layouts, cross - sections, elevations, preliminary details, sketches and product materials as necessary to describe design features. 4. Finalize and produce all GIS maps. 5. Prepare written narrative for project design elements. 6. Prepare final biological assessment report and all related GIS maps. 7. Prepare and finalize construction impact analysis. 8. Coordinate and prepare an overall opinion of probable cost. 9. Prepare report on recommendations for project implementation and construction funding and identify donor opportunity elements of boardwalk and other site improvements. 10. Prepare Phase II budget and timeline for presentation to City Council, 11. Produce final printed report and distribute to involved public agencies and key stakeholders. 12. Presentation to City Council. • West Bay Trailloardwalk & Restoration Project January 28, 2003 Page 24 Exhibit B Budget Task Amount Project Scoping & Initiation $ 27,036 Landscape Architecture $ 54,100 Biological Assessment $ 51,200 Archeological Assessment $ 10,000 Bio Constraints & Construction Impact Analyses $ 15,193 Public Use Survey $ 10,203 Engineering Survey & Topo $ 24,000 Geotechnical Analysis $ 27,225 Concept Development, Meetings & Reports $ 23,100 Geotechnical Slope Study $ 5,500 GIS Mapping $ 12,000 Restoration Specialist $ 11,780 Interpretive Design $ 15,000 Research, Meetings, Tech. Team & Agency Coord. (Phase IA) $ 25,700 Planning, Meetings, Tech. Team & Agency Coord. (Phase IB) $ 16,250 Document Preparation & Final Report (Phase IC) $ 6,577 Concept Illustrations $ 7,500 Project Expenses $ 21,260 Contingency @ 10% $ 36,362 Total Budget $ 399,987 January 24, 2003 William B. Anderson 2089 Orange Avenue Costa Mesa, CA 92627 (949 548 2553) • "RECEIVED AFTER A ENDA PRINTED:" 126 03 Honorable Mayor Bromberg and City Council Members City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Dear Mayor Bromberg and City Council Members: I wrote you a long letter concerning development at the west upper bay, but the enclosed letter by Rick Dayton (Daily Pilot (01- 23 -03) states my views very well. I will only add that a portion of the west back bay as yet uncluttered by the restorationists must be set aside for those who visit for the express purpose of briefly escaping the increasingly oppressive regimentation of our world. These are the dog walkers, joggers, equestrians, romping children, landscape painters, nature photographers and ordinary escapists. A good place for such a reserve exists at south end of the park bordered by the creek beyond 23rd Street. Access is at the Constellation Avenue cul -de -sac. Please leave some vestige of the original back bay for we humans. Sincerely yours, k� I I 1 I (_ 17, Ct4 CL, f 0__ William B. Anderson 175, ri � wt(,;h PL' �t,o C) �q � �Fi�«7 . h.` aC^ y .. _a. —x �: 0 January 28, 2003 Jennifer Winn 515 Gorgonia Newport Beach, CA 92660 TO: Newport Beach City Council Members FROM: Jennifer Winn SUBJECT: Proposed boardwalk along Newport Bay "RECEIVED AFTER AGENDA PRINTED:" fly \-()8'0'3 As a NB citizen living near the Upper Bay, I would like to express my support for the proposed boardwalk. I have observed this type of structure at Long Beach, WA, at Asilomar on the Monterrey Peninsula, at the west end of Convict Lake in the eastern Sierras, and at the Mono County Park on Mono Lake. Not only does it clearly mark the appropriate trail, by bridging the wetlands, it prevents their destruction and provides more comfortable and convenient access for human visitors. The City and County will face a huge challenge in halting the use of inappropriate trails. Unfortunately many of these predate the establishment of Upper Newport Bay Regional Park, and are viewed by long time users as "their" territory. Public education and enforcement will be a necessary part of making the boardwalk function effectively. I believe we must do everything within our power to protect this gem of Newport Beach. JAN -28 -2003 14:22 CROUL FAMILY P.01 Etmalc�. KINGSLEY R. CROUL, 1901 Bayadere Terrace, Corona del Mar, CA 92625 949- 673 -2717 TELECOPIER: 949 -673 -9012 FAX TRANSMISSION COVER SWEET DATE: Q�� n TO: DOCUMENTS TOTAL, INCLUDING THIS COVER SHEET Please 'call us immediately if there are any problems during this transmission. V o c_. h o CS, C� c_m,n c-^,-a 1:sL- � U - �c�. n �cay I �fi c, � Y a -N Yy cfQ z l.La �J rtl� m 71, eAsL- LA rri o TOTAL P.01 0 Brown, Leilani From: Oborny, Shirley Sent: Friday, May 30, 2003 9:23 AM To: Brown, Leilani Subject: Contract Update 0 Leilani, in reference to the City Council report from the January 28, 2003, that authorized a contract with Community Conservancy International (CCI), per Dove Kiff, that contract has not yet been executed because it was dependent upon the County's MOU allocating $800,000 of American Trader Oil Spill settlement proceeds, which may not occur. As of May 30, 2003, they are still working on it. Please file this memo in the file. Shirley Oborny City Manager's Office City of Newport Beach 949 -644 -3002 949 -644 -3008 (fax) i