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HomeMy WebLinkAboutC-3460(G) - Back Bay Science Center Operating AgreementBACK BAY SCIENCE CENTER COMPLEX OPERATING AGREEMENT This Operating Agreement (Agreement), dated F40A A!K is made by and among the City of Newport Beach (City), the County of Orange (County), the California Department of Fish and Game (DFG), and The Regents of the University of California on behalf of the University of California at Irvine (UCI) (each a Party and, together, the Parties). RECITALS A. This is the Operating Agreement provided for in Section 7 of the Cooperative Agreement for the Back Bay Science Center (Shellmaker Island), dated August 17, 2004, among the Parties (the Cooperative Agreement). Upon approval and execution by the Parties, this Agreement shall be attached to the Cooperative Agreement as Exhibit G. Initial - capitalized terms used in this Agreement and not otherwise defined in it shall have the meaning set forth in the Cooperative Agreement. B. The Project includes certain facilities and improvements being constructed on a portion of Shellmaker Island, which the Parties refer to as the Back Bay Science Center Complex (BBSC Complex). The BBSC Complex is comprised of three new buildings containing a total of four wings (the BBSC Buildings), as well as parking areas, common areas and walkways, but excluding planted berms, interpretive pathways, and the demonstration marsh. The BBSC Complex is depicted on Exhibit A attached to this Agreement. The BBSC Complex will contain space and amenities: (i) to conduct educational and interpretive programs for students in grades K -12 as well as workshops and seminars for students and adults; (ii) for an estuarine research and resource center for students and adults with a research emphasis geared towards Grades 7 -12, • • Operating Agreement Page 2 of 15 June 18, 2007 community college, and university -level science; (iii) for a top -level water quality testing facility to be operated and maintained by the County of Orange Health Care Agency Public Health Laboratory (County Laboratory); and (iv) for administrative offices and equipment storage for DFG staff as well as volunteers. C. Some or all of the Parties have previously entered into or approved various documents pertaining to the Project, including: (i) a Memorandum of Understanding dated as of August 2, 2002, in which the Parties and certain other interested parties agreed to work collaboratively towards the establishment of a Back Bay Science Center on Shellmaker Island; (ii) the Cooperative Agreement; (iii) the Interagency Agreement for Planning and Design Services for a Marine Studies Center at Upper Newport Bay Ecological Reserve dated as of May 1, 2002, as amended February 1, 2003, between DFG and the City; (iv) the Interagency Agreement for Construction of a Back Bay Science Center at Upper Newport Bay Ecological Reserve dated as of April 1, 2004, as amended 2/28 2007 between DFG and the City; and (v) a Memorandum of Understanding between DFG and UCI regarding Academic Collaboration at Shellmaker Island (DFG -UCI MOU). The Parties recognize that the County and the City are not parties to the DFG -UCI MOU, and are not bound by its obligations. D. Concurrently with this Agreement, DFG and the City have entered into the Standard Form Lease Agreement dated as of 10/31 , 2007 (City Lease), covering the approximately 4,000 square foot portion of the BBSC Buildings designated as the Water Quality Lab (Leased Premises), and the City and County have entered into the Sublease dated as of 2/26/0$ _,__7997 covering the Leased Premises (County Sublease). E. The City began construction of the BBSC Complex in March 2006 and expects to complete construction by October 2007. 2 • • Operating Agreement Page 3 of 15 June 18, 2007 F. The Cooperative Agreement anticipates that this Agreement will cover at least the following topics: (i) establishing a Facilities Working Group and a Programs Working Group for the BBSC Complex; (ii) defining the roles and responsibilities of the Parties for the operation, maintenance and improvement of the BBSC Complex and its programs; (iii) providing for the development, evaluation and delivery of educational and research programs, materials and exhibits; (iv) coordinating the educational efforts of the Parties; (v) managing volunteers, educators and students who are involved, or wish to become involved, in the educational or research programs of the BBSC Complex; and (vi) developing a long -term funding plan for maintenance and enhancement of the BBSC Complex. NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS: (1) FACILITIES MANAGER (A) The City, as part of the consideration for the City Lease, is to be the Facilities Manager for the maintenance of the BBSC Complex and is responsible to operate, maintain and repair the BBSC Complex in accordance with the City Lease and this Agreement. The City shall carry out such obligations in cooperation with the Facilities Group (as defined below). The obligations of the City as Facilities Manager shall include, at minimum, the following: (1) To propose an annual budget and plan for maintenance, repair and improvement of the BBSC Complex (Facilities Plan), for consideration of adoption by the Facilities Group; (2) To recommend updates to the Facilities Plan from time -to -time to reflect changes in conditions and operation of the BBSC Complex, for consideration of adoption by the Facilities Group; (3) To perform or cause to be performed, in accordance with the City Lease and this Agreement, maintenance, repairs and replacements reasonably necessary to preserve the BBSC Complex in good order, condition and repair, and any alterations required to comply with applicable government regulations or insurance requirements; 01 • • Operating Agreement Page 4 of 15 June 18, 2007 (4) With prior approval of the Facilities Group and DFG, as landowner and Lessor, to enter into contracts with contractors, tradesmen and other independent contractors to perform maintenance and repair services for the BBSC Complex (excluding the County Laboratory, in which maintenance and repairs shall be handled in accordance with the City Lease and the County Sublease), and supervise the administration and monitor the performance of all work and services to be rendered under such contracts; and (5) To collect as and when due all cost reimbursements, if any, payable by a Party or any third party for maintenance, repair or improvement of the BBSC Complex. (B) The City Manager or his /her designee shall serve as the City's project manager /coordinator of all maintenance, repair /replacement and improvement activities related to the BBSC Complex. The City Manager or his/her designee shall provide the Facilities Group with annual written reports and verbal reports at each Facilities Group meeting, regarding the status and costs of all work related to the maintenance, repair or improvement of the BBSC Complex. Any capital improvement not specifically set forth in the Facilities Plan adopted by the Facilities Group must be approved in advance by the Facilities Group. (C) The City shall establish and maintain complete and accurate books of account, records and other documentation pertaining to the maintenance, repair and improvement of the BBSC Complex, in accordance with generally accepted accounting principles and practices. The City shall retain said records throughout the term of this Agreement and for at least three years after its expiration or termination. Not less frequently than semi - annually, on a schedule to be established by the Facilities Group, the City shall furnish to the Facilities Group a statement of all receipts, disbursements, delinquencies, accounts payable and all other matters necessary to reflect the activities of the City as Facilities Manager. In addition, the City shall make said records available (or 2 • • Operating Agreement Page 5 of 15 June 18, 2007 cause them to be made available) to each of the Parties for inspection and audit purposes during normal business hours. (D) Nothing in this Agreement is intended as or shall be deemed to constitute authorization to the City to make any structural changes in any building which is a part of the BBSC Complex, or to incur any expense chargeable to any of the Parties, other than in accordance with the annual budget and plan for maintenance and repair of the BBSC Complex adopted by the Facilities Group, except for any emergency repairs which may be required because of danger to life or property, or for the preservation and safety of the BBSC Complex or the tenants and occupants thereof. The City shall, however, as soon as possible, notify DFG and the Facilities Group in detail concerning such emergency repairs. (E) City shall act under this Agreement as an independent contractor. Nothing contained in this Agreement shall be construed as creating a partnership, joint venture, or principal — agent, employer - employee, or other relationship between City and DFG, or between City and any of the other Parties to this Agreement. (2) FACILITIES WORKING GROUP (A) Establishment/Composition. The Parties hereby establish the Facilities Working Group (Facilities Group). The Facilities Group is comprised of the Project Administrators designated by the respective Parties pursuant to Section 12 of the Cooperative Agreement, a copy of which set forth as Exhibit B attached to this Agreement. The Public Works Director and Building Director of City shall each be an ex- officio, non - voting /advisory, member of the Facilities Group. The City Manager shall be the Chair of the Facilities Group with the Vice Chair position rotating annually among the Parties, as determined by the Facilities Group. Decisions of the Facilities Group shall be made by consensus whenever possible. Should the Facilities Group be unable to reach consensus, the decision shall be made by DFG, as landowner and Lessor, in consultation with the City, as Facilities Manager and (to the extent the decision relates to the County Laboratory) the County. DFG shall not make any decision that will impair 5 • • Operating Agreement Page 6 of 15 June 18, 2007 the ability of the County to perform its water quality operations in the County Laboratory. The Facilities Group may create subcommittees as it deems necessary or appropriate. (B) Meetings. The Facilities Group shall meet no less than twice each fiscal year (July 1 — June 30) to identify facilities needs and plan for property maintenance and repairs, as well as capital projects and improvements, if any. The meetings may be conducted by teleconference and shall be held during the months of February and August, so that decisions regarding maintenance, repair and improvement can be reflected in the annual budget of the City, as Facilities Manager and Lessee under the City Lease, and each of the other Parties to the extent applicable. (C) Functions. The Facilities Group shall be responsible to coordinate with the City in the City's carrying out of its responsibility to maintain the BBSC Complex in good condition, order and repair, and to ensure that all improvements are functioning as intended. In performing its functions, the Facilities Group shall: • Coordinate with the Programs Group with respect to any proposal to improve the BBSC Complex so that the improvement is consistent with and satisfies the needs of those providing educational or research services and opportunities at the BBSC Complex. • Review and make recommendations to DFG and the City regarding all proposed contracts for repair, maintenance or improvement work. • Resolve any issues related to reimbursement of repair, maintenance or improvement costs. • Adopt and modify (as needed) an annual Facilities Plan, in response to proposals by the City in its capacity as Facilities Manager; (3) PROGRAMS WORKING GROUP (A) Establishment. The Parties hereby establish the Back Bay Science Center Complex Programs Working Group (Programs Group). The Programs Group is comprised of the City Manager of City; the Supervising in • • Operating Agreement Page 7 of 15 June 18, 2007 Biologist of DFG, South Coast Region, the County Laboratory Director; and the Director of Campus and Environmental Planning of UCI, or their respective designees. DFG shall serve as Programs Manager for the BBSC Complex and Chair of the Programs Group, with the vice -chair position rotating annually among the Parties as the Programs Group may determine. Decisions of the Programs Group shall be made by consensus whenever possible. Should the Programs Group be unable to reach consensus, the decision shall be made by DFG as Programs Manager. DFG shall not make any decision that will impair the ability of the County to perform its water quality operations in the County Laboratory. The Programs Group may create subcommittees as it deems necessary or appropriate. (B) Meetings. The Programs Group shall meet no less than quarterly during the first two years after the Effective Date (as defined below) and as frequently thereafter as the Programs Group determines to be necessary to identify programmatic needs and plan for educational and research programs and exhibits, including budgeting, staffing and scheduling. (C) Educational Objective. The primary educational objective of the Programs Group will be to provide high quality educational programs and exhibits for all age groups at the BBSC Complex efficiently utilizing available resources and coordinating programs with other facilities and providers in the Upper Newport Bay. The Parties agree that the education emphasis of the BBSC Complex shall be towards research -based education for Grades 7 -12 students and adults. The Parties acknowledge that DFG, if it so chooses, may use the Teaching Laboratory within the BBSC Complex (Teaching Lab) to provide education to any grade level in order to meet DFG's mission and goals for the Upper Newport Bay Ecological Reserve. The Parties also agree that the County Laboratory is in a unique position to provide community and adult education about water quality and water quality research. As such, the County in coordination with the Programs Group may lead seminars, workshops, and other programs utilizing the Teaching Lab and common facilities of the BBSC Complex. The Parties deem that this participation by the County meets the 7 • Operating Agreement Page 8 of 15 June 18, 2007 expectations of the Parties as to the County's participation as envisioned in Section 7(c) of the Cooperative Agreement. The Parties agree that the participation of UCI in Programs at the BBSC Complex shall be in accordance with the DFG -UCI MOU. UCI is also encouraged to participate in education and research programs, including mentoring and serving as volunteers for the Teaching Lab programs, to a greater extent. The Parties deem that this participation by UCI meets the expectations of the Parties as to UCI's participation as envisioned in Section 7(e) of the Cooperative Agreement. (D) Educational Duties of the Programs Group. The Programs Group shall: • Ensure that Teaching Lab programs are compliant with State education standards for water quality, ecology, habitat restoration, and/or plant and marine life; Assure that all potential programs and exhibits have, or have identified, sufficient funding as a condition of approval; • Annually prepare a schedule for educational programs, workshops, and seminars at the BBSC Complex, subject to the approval of the Parties; • Identify the educational needs of the community in the areas of water quality, ecology, habitat restoration, and/or plant and marine life; • Identify and communicate with each entity that provides or seeks to provide educational programs or opportunities at or near Newport Bay and/or the BBSC Complex (Providers); • Identify the resources that each Provider has available with respect to the education programs it offers or seeks to offer, including paid personnel, volunteers and educational material; • Identify and evaluate existing educational materials and curriculum that may be appropriate for incorporation into new or existing education programs at the BBSC Complex; • Work with interested parties to coordinate educational events; • Coordinate educational program - related facilities needs with the Facilities Group; 3 • Operating Agreement Page 9 of 15 June 18, 2007 • Evaluate whether, and to what extent, the student or public education programs can or should be coordinated with research activities such as the Demonstration Marsh on Shellmaker Island; and • Coordinate with the County in its educational efforts, which may include development of an exterior interpretive panel on water quality testing, designing water quality - related curriculum, training educational personnel, assisting with higher level classes, and staffing a demonstration booth at special events at the BBSC Complex such as Earth Day. (E) Research Objective. The primary research objective of the Programs Group will be to accommodate reputable research programs that have the potential to improve knowledge about the environment of Upper Newport Bay or Southern California estuaries and waterways while ensuring that the research will not have any adverse impact on natural resources or the educational or other core programs at BBSC Complex. (F) Acknowledgment. The Parties acknowledge that the County Laboratory will carry out high level in -house research appropriate for a public health laboratory as part of its mission to advance the state of water quality testing and water quality overall. The Parties further acknowledge that the County Laboratory in -house research program does not come under the purview of the Programs Group, and that participation of the County Laboratory's facilities, staff and equipment in programs of the Programs Group is subject to the approval of the Director of the County Laboratory. (G) Research Project Applications. The Programs Group shall require prospective researchers who desire to utilize the BBSC Complex for all or a portion of a research project to submit an application, which shall be developed by the Programs Group, accompanied by a detailed description of the proposed project for review and consideration by DFG as Programs Manager and the Programs Group. Each potential research project must be "sponsored" by one or more of the Parties. The Programs Group shall approve or disapprove a research application unless (a) the research proposal involves activities subject to DFG jurisdiction, or (b) the research proposal does not involve the BBSC 7 • • Operating Agreement Page 10 of 15 June 18, 2007 Complex. If the research proposal involves activities subject to DFG jurisdiction, the role of the Programs Group shall be limited to making a recommendation to DFG to approve or disapprove the application. The Programs Group shall have no role in applications which do not involve the BBSC Complex. (H) Volunteer Management. The Cooperative Agreement anticipates that the Operating Agreement will address issues related to "the management of volunteers, educators and students who are involved, or wish to become involved, in the educational or research programs of the BBSC." The Programs Group will identify and provide for the staffing necessary to train, schedule, organize and monitor the activities of volunteers. (4) FUNDING PLAN The Cooperative Agreement commits the Parties, through the Operating Agreement, to develop a "long -term funding plan for maintenance and enhancement of the BBSC Complex, which addresses endowment(s) and other sources of long -term funding." The Programs Group shall develop, or appoint a subcommittee to develop, and consider for adoption a Long Term Funding Plan (LTFP) that addresses or incorporates at least the following: (A) Private Sources. The BBSC Complex has been funded, in part, through donations from non - governmental agencies and private parties. The Parties believe that other private sources of funding — including County residents and local, state or national organizations — may be willing to fund certain aspects of BBSC Complex development or operation. These sources, and the Party or Parties responsible for seeking funding from the sources, shall be identified in the LTFP. (B) Public Sources. The BBSC Complex has been funded, in large part, through contributions from the Parties — including tideland revenue and funds from the American Trader Oil Spill Settlement Agreement. The Parties believe that other public sources of funding — such as State or Federal water quality education grants — may be available. The LTFP shall identify possible 10 • • Operating Agreement Page 11 of 15 June 18, 2007 public sources of funding and the Parry or Parties responsible for seeking funding from those public sources. (C) Fundraising Activities. The LTFP shall identify fundraising activities that the Programs Group considers appropriate and the Party or Parties who will be responsible for planning and implementing those activities. (5) APPROPRIATIONS Any provision of this Agreement which calls for an expenditure of funds by DFG is subject to the availability of appropriated funds for such purpose. (6) OTHER AGREEMENTS If any provision of the MOU or the Cooperative Agreement conflicts with this Agreement then this Agreement shall take precedence. If any provision of this Cooperative Agreement conflicts with either the City Lease or the County Sublease, then the City Lease or the County Sublease, as applicable, shall govern and control. (7) EFFECTIVE DATE, TERM This Agreement shall become effective (Effective Date) when construction of the BBSC Complex is complete, as evidenced by the issuance of a Certificate of Occupancy by the City Building Department, and shall terminate upon the expiration or termination of the City Lease. (8) AMENDMENT This Agreement may only be amended or supplemented in a writing duly executed by all of the Parties. (9) NOTICES Notices and other communications under this Agreement shall be made in writing and may be given by personal delivery, U.S. Mail or receipt - confirmed facsimile to the Parties addressed to their respective Project Administrators. 11 Operating Agreement Page 12 of 15 June 18, 2007 IN WITNESS WHEREOF, the Parties have executed this Operating Agreement effective as of the Effective Date. CITY OF NEWPORT BEACH By: Steve Rosansky, Mayor APPROVED AS TO FORM: By: Robin Clauson, City Attorney COUNTY OF ORANGE By: Chair of the Board of S pervisors APPROVED AS TO FORM: By:---T'brnn�L 7' �''V� Deputy County Counsel STATE OF CALIFORNIA DEPARTMENT OF FISH & GAME Regional Manager South Coast Region m �� ►o SIGNED AND CERTIFIED THAT A COPY OF 5 THIS DOCUMENT HAS BEEN DELIVERED TO 'cam THE HAIRMAN OF THE BOARD PER G.C. EC. 251A03�,15 ATTEST. BLOOM CLERK OF THE BOARD OF SUPERVISORS ORANGE COUNTY, CALIFORNIA 12 Operating Agreement Page 12 of 15 June 18, 2007 IN WITNESS WHEREOF, the Parties have executed this Operating Agreement effective as of the Effective Date. CITY OF NEWPORT BEACH Steve Rosansky, Mayor APPROVED AS TO FORM: By: Robin Clauson, City Attorney COUNTY OF ORANGE By: Chair of the Board of Supervisors APPROVED AS TO FORM: By: �l/A_ Deputy County Counsel STATE OF CALIFORNIA,.DEPARTMENT OF FISH GAME By: qj Regional Manag r South Coast Region 12 THE REGENTS OF THE UNIVERSITY OF CALIFORNIA Operating Agreement Page 13 of 15 June 18, 2007 13 Exhibit B Section 12 of the Cooperative Agreement 12. PROJECT ADM INWg6JOR6 'I he Parkes have each designated a •'Project Administrator' to perform certain wrtivitige under this Agreemen[, and to ensue lhel the Prujeul is Coined out in a000rdanw with this Agreement Tha Project Administrators shall be the following: Newpor. Boash - H. arudau, City A.Aanagar 3300 Newport BoulevanL Newport Beach, CA 92668 -8916 Phone -(949) 644 -3000 Fax - Mg) 644 -3020 E -mail h .ua DFG - Regional M anger, South Coast Region 48WJ Viowridge Avenue, San Diego, CA 82123 Phone - (B56) 4674210 Fax - (858)467 -4238 E -mail craya6 rairario.ca.cm; County -, Manager, Facilities Acquisition and Management 405 W. 5" Street, Room 812, Santa Ana, CA 92701 Phone - (714) 834 -5150 Fax - (714) 834 -7695 E -mail ggrp3a!rxhce-cnrn , UK' I - ROW Aemedian. Director Campus and Environmental Planning - 1lniversity of Gaiifornts 750 University Tower, Irvine, CA 92607 -7475 Phune - (949)024.7056 E -mail acdemrriiYeWci.cru 21