Loading...
HomeMy WebLinkAbout25F - AGMT - NATIVE PLANT NURSERYREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: MARCH 21, 2011 TITLE: AGREEMENT WITH BACK TO NATIVES RESTORATION TO ESTABLISH A NATIVE PLANT NURSERY AT THE SANTIAGO PARK NURSERY SITE CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ? As Recommended ? As Amended ? Ordinance on 1s` Reading ? Ordinance on 2nd Reading ? Implementing Resolution ? Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached agreement with Back to Natives Restoration to establish a Native Plant Nursery at the Santiago Park Nursery, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION Back to Natives Restoration (BTN), is a California Non-Profit Public Benefit Corporation (501 c 3). BTN is dedicated to the restoration and conservation of Orange County and California wild lands, through education and restoration programs featuring native plants and biodiversity as a centralizing theme. Back to Natives Restoration was first introduced to the City of Santa Ana Parks, Recreation and Community Services Agency (PRCSA) last year by Park Santiago community members in the hopes of establishing a relationship with the non-profit to further develop the agency's goal of maintaining high quality native landscapes. The agreement for BTN to transform the Santiago Park nursery into a native plant nursery will support restoration activities in Santiago Park and throughout the City. BTN will identify and target native plants for propagation and install and manage a native plant nursery at the Santiago Park Nursery where targeted species can be grown. BTN will also work with PRCSA to plan and implement facility improvements at the Nursery that will maximize the use of the site for the successful propagation of native plant species. BTN will provide the City with plant materials grown at the Native Plant Nursery to be used for restoration, education and volunteer projects. Through this partnership with PRCSA, Back to Natives hopes to increase public understanding and appreciation of our quickly diminishing resources and to inspire the community to use resources wisely and respectfully. Back to Natives will provide this service free of charge in exchange for the use of the Santiago Park Nursery area. This proposed partnership was presented and discussed at the February 23, 2011 Board of Recreation and Parks meeting and members remarked that this partnership is both creative and positive for the community. 25F-1 Back to Natives Restoration March 21, 2011 Page 2 FISCAL IMPACT There is no fiscal impact associated with this item. f Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency 25F-2 DO NOT RECORD OPERATING AGREEMENT BETWEEN THE CITY OF SANTA ANA AND BACK TO NATIVES THIS AGREEMENT ("Agreement") is made and entered into this 21" day of March, 2011, by and between the City of Santa Ana, a charter city and municipal corporation, duly organized and exiting under the constitution and laws of the State of California, herein referred to as "City", and Back to Natives Restoration, a California non-profit public benefit corporation, herein referred to as "BTN". RECITALS: A. City owns the real property and facilities located at 600 E. Memory Lane, Santa Ana, California, commonly known as Santiago Park. B. The City desires to retain a consultant having special skill and knowledge in the field of restoration and conservation, to transform the Santiago Park Nursery into a native plant nursery C. BTN is knowledgeable in the field of habitat restoration and preservation through education and restoration programs. D. BTN represents that it is qualified to provide a program to implement and operate a native plant nursery and support restoration activities in the Park and throughout the City. E. In undertaking the performance of this Agreement, BTN represents that it is knowledgeable in this field and that any service performed under this Agreement will be performed in compliance with all required professional standards of conduct and in accordance with the terms and conditions of this Agreement, including all attachments hereto. NOW THEREFORE, in consideration of the respective and mutual covenants and promises hereinafter contained and made, and subject to all terms and conditions hereof, the parties agree as follows: 1. Use of Facilities. City hereby licenses the use of the Santiago Park Nursery to BTN on all of the terms and conditions set forth in this Operating Agreement. 2. Term. The Term of this Agreement (the "term") shall commence on April 2, 1011, and shall expire on March 31, 2012, if not terminated earlier pursuant to the 25F-3 DO NOT RECORD terms of this Agreement. This Agreement is subject to four (4) one-year renewals upon the written approval of the City Manager. 3. BTN Responsibilities. As consideration for this Agreement, BTN shall: a. Identify and target native plants for propagation and install and manage a native plant nursery to grow targeted species at the Santiago Park Nursery. b. Work with City staff to plan and implement facility improvements at the native plant nursery that will maximize the use of the site for successful propagation of native plant species. c. Provide the City with plant materials grown at the native plant nursery to be used for restoration and education projects throughout the City. d. Establish a methodology for propagation of each species using the findings documented by volunteers and compile data collected to produce a Propagation Manual, which will be provided to City in an electronic format for future City reference. e. Conduct presentations regarding the successful and unsuccessful propagation methods identified from research findings as well as other educational activities related to the plant propagation process, restoration accomplishments, and other activities. f. Coordinate with the City to develop a regular schedule of activities that BTN will conduct in the nursery and at Santiago Park Nature Center, including restoration activities, volunteer work projects, abatement of weeds and non-native species, educational programs aimed at promoting sustainability, planting of native plants, habitat restoration and conservation. g. Work with the City to promote activities and recruit volunteers for propagation and restoration activities. h. Provide contact information for volunteers and maintain volunteer records, including volunteer activities, number of volunteers, days and times, accomplishments, etc. i. BTN shall maintain staffing levels sufficient to comply with its responsibilities pursuant to this Agreement. The facility shall be staffed by BTN at all times during Operating Hours. Operating Hours shall be from Sam to IOpm, Monday through Friday; and from 8:00am to 8:00pm on Saturday and Sunday. BTN shall be responsible for supervision of the entire nursery premises. 2 25F-4 DO NOT RECORD j. BTN will maintain the nursery facilities in a safe and clean condition, order and repair, including paying at its own cost and expense for custodial services. 4. City Responsibilities. a. City shall pay for all utility services furnished to the nursery for the use, operation and maintenance of the nursery during the Term of this Agreement, or any extension thereof, including paying for all charges for heat, gas/water, trash, electricity charges used during the term of this agreement. BTN will be responsible for payment of other utilities not listed herein, including payment of telephone and cable charges. b. City will be responsible for the maintenance of all Park areas excluding the nursery as set forth in Section c. In the event of damage, destruction or vandalism by third parties of any of the premises, the City will contribute to the repair and restoration as provided in section 9 of this agreement. 5. BTN's Equipment and Personal Property. BTN shall hold title only to BTN's equipment or personal property, but not plant material, placed on the Facilities by BTN. All of BTN's equipment or personal property shall remain the property of BTN and are not fixtures. BTN has the right to remove all of BTN's equipment or personal property at its sole cost and expense on or before the expiration or termination of this Agreement; provided that such removal shall be done in a professional and careful manner, without interference or damage to any other equipment, structures or operations on the Premises, including the use of the Premises by City or any of City's, assignees, licensees or lessees. 6. Facility Alterations. BTN agrees all changes or modifications to any of the Premises require prior written approval of the Executive Director of Parks, Recreation and Community Services. All requests for such changes or modifications shall be submitted by BTN to City by utilizing its current Field/Facility Modification Request process, and City reserves the right to approve or deny such requests. A copy of the City's current Field/Facility Modification Request process form is attached hereto as Exhibit 2. 7. Indemnification, Defense Hold Harmless. BTN shall protect, defend, indemnify and save and hold harmless City, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with BTN's performance of this Agreement or BTN's failure to comply with any of BTN's obligations contained in the Agreement by BTN, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of 25F-5 DO NOT RECORD City. In the event City is named as codefendant, BTN shall notify City of such fact and shall represent City in such legal action unless City undertakes to represent itself as codefendant in such legal action, in which event City shall bear its own litigation costs, expenses and attorney's fees. BTN further agrees to indemnify, hold harmless, and pay all costs for the defense of the City, including fees and costs for special counsel to be selected by City, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. City may make all reasonable decisions with respect to its representation in any legal proceeding. 8. Insurance. a. BTN shall obtain and furnish to City, a policy of general public liability insurance, commercial general liability and property insurance covering the nursery facilities and naming the City, its officers, agents and employees as additional insured(s). The policy shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence arising out of BTN's operations in the performance of this Agreement, including, without limitation, acts involving vehicles, and shall provide coverage in not less than the following amount: combined single limit bodily injury, personal injury and property damage, liability, of $1,000,000 per occurrence. The policy shall include an Additional Insured Endorsement, which shall name City, its agents, officers, employees and volunteers as Additional Insureds, and shall specifically provide that any City insurance coverage which may be applicable shall be deemed excess coverage and that BTN's insurance shall be primary, and contain a standard separation of insureds provision. b. The following requirements apply to the insurance to be provided by BTN pursuant to this section: (i) BTN shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement. (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. C. If BTN fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement. 4 25F-6 DO NOT RECORD 9. Indemnification Regarding Hazardous Material. BTN covenants and agrees to indemnify City from and against any contamination of the Property with Hazardous Materials occurring after commencement of this License. BTN further agrees to defend and hold harmless the City from and against any and all actions, agreements, attorneys' fees, causes of action, claims, contracts, costs, covenants, damages, debts, demands, expenses, judgments, lawsuits, liabilities, liens, losses, obligations, and orders which arise during or after the term of this License related to the existence of Hazardous Materials (from whatever cause) on the Property or in the groundwater on or under the Property except for the cost of any remediation of Hazardous Materials deposited in the soils of the Property by the City or its employees, agents and contractors. This indemnification includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material present in the soil or groundwater on or under the Property. As used herein, the term "Hazardous Material" shall be interpreted broadly to mean any hazardous or toxic substance, material, or waste which now is or hereafter becomes regulated by any local governmental authority, the State of California or the United States Government. 10. Taxes. The parties agree that if the Facilities are assessed any taxes or similar fees or charges due to the activities of BTN or BTN's permitted users, then BTN shall bear the entire cost of said taxes, fees or charges. 11. Liens. BTN will not permit any mechanics' or materialmens' or other liens to stand against the Facilities by reason of any use or occupancy by BTN, or any person claiming under BTN. 12. Non-Discrimination. BTN shall not discriminate as to the employment of persons relative to the use or operation of the Property, nor shall it discriminate as to the persons or entities which may use the Property, on the basis of race, color, national origin, ancestry, gender, disability, sexual orientation, or medical condition, in violation of state or federal laws, or on any other basis otherwise prohibited by state or federal law. 13. Termination of Agreement This Agreement shall be terminable by the City upon the occurrence of any of the following: A. Use of Facilities. BTN ceases operation of a native plant nursery; or, B. Unauthorized Transfer. BTN transfers or attempts to transfer any rights or interest in the Property in any fashion without the City's consent. 14. Force Majeure. Should the performance of any act required by this Agreement to be performed by either City or BTN be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault of the party required to perform the act, the time for performance of the act will be 5 25F-7 DO NOT RECORD extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused, provided, however, that nothing contained in this section shall excuse the prompt payment of compensation by BTN as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, City or BTN, required to perform the act. 15. Access. City shall provide access to the nursery facilities to BTN, and its employees, agents, contractors and subcontractors, twenty-four (24) hours a day, seven (7) days a week. City represents and warrants that it has full rights of ingress and egress to and from the nursery facilities, and hereby grants such rights to BTN to the extent required to maintain, and operate BTN's program within the facilities. BTN's exercise of such rights shall not cause undue inconvenience to City. 16. Restrictions on Assignment. This Agreement is entered into specifically with the parties in mind. Therefore, neither party shall assign any or all of its rights under this License without the prior written consent of the other party, in its sole and absolute discretion. 17. Notices. All written notices required to be given pursuant to the terms hereof shall be delivered to the following addresses, or to such other address as the receiving party may from time to time specify by written notice to the other party: To BTN: Back To Natives Restoration P.O. Box 6539 Irvine, CA. 92612-6539 Attn: Reginald 1. Durant, Program Director Telephone No.: (949) 509-4787 Fax No.: () ****** E-mail: Info@backtonatives.org To the City: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Attn: Clerk of the City Council Telephone No.: (714) 647-6520 Fax No.: (714) 647-6956 With a copy to: Executive Director of the Recreation & Comm Services Agency 26 Civic Center Plaza Santa Ana, California 92701 Telephone No.: (714) 571-4200 Fax No.: (714) 571-4221 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall 6 25F-8 DO NOT RECORD be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 18. Contract Administrator. The Executive Director of the Parks, Recreation and Community Services Agency, or his/her designee, shall be City's Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. 19. Construction. The parties acknowledge that each party and its counsel have reviewed and revised this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments hereto. 20. Governing Law. This Operating Agreement shall be construed and interpreted in accordance with and shall be governed and enforced in all respects according to the laws of the State of California, without regard to conflicts of laws principles. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 21. Entire Agreement. This Operating Agreement contains the entire understanding of the parties and supersedes any and all other written or oral understanding. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. 22. Captions. Any captions or headings to the Sections and subsections in this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of validity of this Agreement or any provision hereof. 23. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable term or provision had never been contained herein. 24. No Waiver. Any waiver, consent or approval by either party of any breach, default or event of default of any provision, condition or covenant of this agreement must be in writing and shall be effective only to the extent set forth in writing. No waiver of any breach, default or event of default shall be deemed a waiver of any later breach, default or event of default of the same or any other provision of this Agreement. Any failure or delay on the part of either party in exercising any power, right or privilege under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude any further exercise thereof. 7 25F-9 DO NOT RECORD 25. Rights and Remedies. No right or remedy conferred by any of the specific provisions of this Agreement is intended to be exclusive of any other right or remedy given hereunder or hereafter existing at law or in equity. The exercise of any one or more rights or the election of any one or more remedies by any party shall not constitute a waiver of the right to exercise other available rights or pursue other available remedies. In the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. 26. Non-Recording. Neither party shall record this Operating Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Operating Agreement to be executed by and through their authorized officers the day, month and year first written above. ATTEST: MARIA D. HUIZAR Clerk of the Council CITY OF SANTA ANA DAVID N. REAM City Manager APPROVED AS TO FORM: Joseph Straka, Interim City Attorney By: Laura Sheedy Assistant City Attorney RECOMMENDED FOR APPROVAL: BACK TO NATIVES RESTORATION: Gerardo Mouet, Executive Director Parks, Recreation and Community Services Agency REGINALD I. DURANT Program Director Tax ID 8 25F-10