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,
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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.
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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;
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(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
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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
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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
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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
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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;
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• 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
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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
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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.
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Operating Agreement
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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
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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
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THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA
Operating Agreement
Page 13 of 15
June 18, 2007
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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
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