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HomeMy WebLinkAbout10 - Harbor Wide Sediment Sampling in the Nearshore Areas Under Residential Slips and Commercial MarinasP0 m CITY OF z NEWPORT BEACH cl't City Council Staff Report </ FO RN September 12, 2017 Agenda Item No. 10 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Chris Miller, Harbor Resources Manager, cmiller@newportbeachca.gov PHONE: 949-644-3043 TITLE: Approval of Professional Services Agreement with Anchor QEA, LLC for Harbor Wide Sediment Sampling Necessary for the City's Regional General Permit (RGP-54) for Dredging in the Nearshore Areas Under Residential Slips and Commercial Marinas ABSTRACT: To satisfy the requirements of the City's existing RGP-54 dredging permit, the harbor's sediment along the nearshore area must be tested every five years to verify compatibility with both nearshore and offshore disposal. Since the current 5 -year sediment characterization will expire in July 2018, a new round of testing must be performed to keep the City's permit valid. Public Works staff requests City Council approve a single source Professional Services Agreement with Anchor QEA, LLC to perform the sediment characterization, analyze the results, and seek final approval from the regulatory agencies. RECOMMENDATION: a) Determine that the action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines because it will not result in a physical change to the environment, directly or indirectly; b) Approve a Professional Services Agreement with Anchor QEA, LLC for nearshore sediment sampling services at a not -to -exceed fee of $280,305.00, award the Agreement pursuant to a single source justification, and authorize the Mayor and City Clerk to execute the Agreement; and c) Approve Budget Amendment No. 18BA-007 transferring $280,305.00 from Account No. 10001-980000-181-107 (Harborwide Dredging Planning) to Account No. 10001- 980000-18H01(Regional General Permit - RGP54). 10-1 Approve Professional Services Agreement with Anchor QEA, LLC for Sediment Sampling for the City's Regional General Permit (RGP-54) for Dredging in the Nearshore Area Under Residential Slips and Commercial Marinas September 12, 2017 Page 2 FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this contract. It will be expensed to the Capital Improvement Program, Account No. 10001-980000-18H01. DISCUSSION: The City's Federal RGP-54 permit provides residential and commercial property owners with a streamlined approval process for small maintenance dredging projects at their respective docks and marinas. As a condition of this permit, the City commits to a full harbor -wide nearshore sediment testing program every five years to ensure the sediment is clean and suitable for either beach or open ocean disposal. The testing involves full material grain size, toxicity and biological sampling, and includes post project analysis and approval. In general, prior testing has yielded consistent results throughout the harbor from each prior sampling episode; therefore, Public Works staff is not expecting any significant concerns. However, the sampling is still required as a continuing confirmation that conditions have not changed. During the last permit iteration with the regulatory agencies, staff again requested a longer sampling interval, but was denied. The proposed work involves sampling from a vessel at 54 previously approved locations over ten days using vibracore equipment, and includes a single reference sediment sample site in the ocean. Sediment chemistry analysis includes total organic carbon, total solids, metals, polycyclic aromatic hydrocarbons, polychlorinated biphenyl (PCB) congeners, organochlorine (OC) pesticides, organotins and pyrethroids. Biological testing includes solid phase and suspended particulate phase bioassays, and bioaccumulation tests. A final Sampling and Analysis Report will be prepared to document the results, and will be presented for approval by the Dredged Material Management Team (DMMT), which is a group of Federal and State regulatory agencies who approve all dredging sampling programs. Public Works staff is requesting that the City Council award this agreement to Anchor QEA based on a recent RFP selection process, in which Anchor QEA was awarded an On -Call Contract with the City for marine related engineering services. Anchor QEA specializes in marine -related projects with a local emphasis on comprehensive dredging projects both large and small. They have previously assisted the City with various iterations of the RGP-54 program including sediment testing, permitting negotiations and the approval of the City's unique eelgrass impact program. Their experience in the Southern California region with various ports and harbors is extensive. Anchor QEA was chosen for this project because of their previous sediment testing knowledge for this same program in 2013, their intimate familiarity of the permit details and nuances that were negotiated during the entitlement process and their ability to react immediately before the rainy season this fall (Turbidity from rainfall affects sampling accuracy). In addition, Anchor QEA assisted the City prepare the Sampling and Analysis Plan which has already been approved by the DMMT, so this project is ready to proceed immediately. 10-2 Approve Professional Services Agreement with Anchor QEA, LLC for Sediment Sampling for the City's Regional General Permit (RGP-54) for Dredging in the Nearshore Area Under Residential Slips and Commercial Marinas September 12, 2017 Page 3 The proposed scope of work will have a not -to -exceed fee of $280,305.00. Anchor QEA fees, hours and rates are reasonable and competitive. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Attachment A — Professional Services Agreement Attachment B — Budget Amendment 10-3 ATTACHMENT A PROFESSIONAL SERVICES AGREEMENT WITH ANCHOR QEA, L.P. FOR SEDIMENT SAMPLING FOR THE CITY OF NEWPORT BEACH REGIONAL GENERAL PERMIT (RGP) 54 THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 12th day of September, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ANCHOR QEA, L.P., a California limited partnership ("Consultant"), whose address is 27201 Puerta Real, Suite 350, Mission Viejo, California 92691, and 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 desires to engage Consultant to provide sediment sampling in order to update City's Regional General Permit (RGP) 54 sediment suitability determination. ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 Effective Date, and shall terminate on December 31, 2019, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 10-4 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Eighty Thousand Three Hundred Five Dollars and 001100 ($280,305.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. Anchor QEA, L.P. Page 2 10-5 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate 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 Agreement term. Consultant has designated Steve Cappellino to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 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. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 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 community professional standards and with the ordinary degree of skill and care that would be used by other reasonably Anchor QEA, L.P. Page 3 10-6 competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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, 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. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence orwillful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Anchor QEA, L.P. Page 4 10-7 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for 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 means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement orfor other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any Anchor QEA, L.P. Page 5 M. of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. Anchor QEA, L.P. Page 6 10-9 17.4 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 17.5 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to Consultant or contractor bids or actual cost to City. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. Anchor QEA, L.P. Page 7 10-10 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular 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 to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant 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 designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 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 any 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. 25.2 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 immediate termination Anchor QEA, L.P. Page 8 10-11 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. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of 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. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Steve Cappellino Anchor QEA, LP 27201 Puerta Real, Suite 350 Mission Viejo, CA 92691 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). P*�1:4N hIIill YIN IEel i! I 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required Anchor QEA, L.P. Page 9 10-12 to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. STANDARD PROVISIONS 29.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 29.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.3 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. 29.4 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. 29.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. Anchor QEA, L.P. Page 10 10-13 29.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 29.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 29.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 29.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 29.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Anchor QEA, L.P. Page 11 10-14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S , OFFICE Date: / By: Aaron C. Harp g. 3o 17 City Attorney ATTEST: Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: Kevin Muldoon Mayor CONSULTANT: Anchor QEA, L.P., a California limited partnership Date: By: Leilani I. Brown Steve Cappellino City Clerk General Partner [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Anchor QEA, L.P. Page 12 10-15 EXHIBIT A SCOPE OF SERVICES ANCHOR QEA, L.P. - SEDIMENT SAMPLING FOR THE CITY OF NEWPORT BEACH REGIONAL GENERAL PERMIT (RGP) 54 Task 1 – Mobilize Field Equipment and Collect Sediment Samples Consultant will conduct sediment sampling at 54 stations within five distinct composite areas. Sampling locations and composite areas are consistent with those previously sampled during the 2013 program, with only minor exceptions. Specifically, seven sampling locations from 2013 were dredged or are planned for dredging under the existing RGP 54 and, therefore, were slightly moved. Sediment cores will be collected using an electric vibracore to the maximum authorized dredge depth of -10 feet mean lower low water (MLLW) plus 2 feet of overdepth, except for Stations 1-5 and 4-12, which will be sampled to a reduced depth of -7 feet MLLW plus 1 foot of overdepth. During the 2013 program, elevated mercury was measured at these stations in the bottom intervals of each core. In addition, the Zdayer (the 0.5 -foot interval below project depth plus overdepth) at each of the 54 stations will be collected and archived to characterize the new surface layer, if requested by the Dredged Material Management Team (DMMT). Multiple cores may be required at each station to obtain a sufficient volume for analysis. Individual cores from each area will be combined to create composite samples for chemical analysis and biological testing. Reference sediment will be collected in close proximity to the LA -3 disposal site and used for comparative purposes. Site water will be collected and used to create elutriate samples for bioassay testing. A Health and Safety Plan (HASP) has previously been developed for sediment sampling in Newport Bay; therefore, only minimal—if any—updates are anticipated. The HASP will be distributed to the project team for review and acknowledgement prior to sampling activities. Assumptions are as follows: • Vibracore sampling will be performed at 54 stations within five composite areas. • Two Consultant personnel will spend 10 days in the field performing vibracore sampling (consistent with the 2013 program). • Subcontractor (Leviathan Environmental Services) will provide vibracore equipment and a sampling vessel. • The City will provide a location to dock the sampling vessel for the duration of the sampling program. • Subcontractor (Seaventures, Inc.) will collect reference sediment at LA -3 by using a pipe dredge. Task 2 – Sediment Laboratory Analysis Five composite samples and the LA -3 reference sample will be submitted for sediment chemistry and biological testing. In addition, it is anticipated that up to 20 Anchor QEA, L.P. Page A-1 10-16 discrete samples from individual stations or Z -layers may be submitted for analysis of mercury. All testing will be performed according to Ocean Disposal -Testing Manual (OTM) and Inland Testing Manual (ITM) guidelines. Sediment and tissue chemistry will be performed by our subconsultant, Eurofins Calscience, Inc., and biological testing will be performed by our subconsultant, Nautilus Environmental. Sediment chemistry of composite and reference samples will include grain size, total organic carbon, total solids, metals, polycyclic aromatic hydrocarbons, polychlorinated biphenyl (PCB) congeners, organochlorine (OC) pesticides, organotins, and pyrethroids. Biological testing will include solid phase and suspended particulate phase bioassays, and bioaccumulation tests. Upon completion of bioaccumulation testing, tissue samples will be submitted for chemical analysis. The final analyte list for tissue samples will be established based on sediment chemistry results. Consultant will negotiate a reduced analyte list with the appropriate regulatory agencies following the initial sediment testing. Based on previous RGP data from 2013, this cost estimate assumes that tissue chemistry will include lipids, mercury, PCBs, and OC pesticides; however, this is subject to DMMT approval. Consultant will perform data validation to ensure sediment and tissue chemistry meets the project data quality objectives. Assumptions are as follows: • Costs are based on constituents typically analyzed for dredged material assessments within the region. • Five composite samples and reference sediment will be submitted for sediment chemistry and biological testing. • Up to 20 discrete samples from individual cores or Zdayer samples will be submitted for mercury analysis. • 66 tissue samples will be submitted for lipids, mercury, PCBs, and OC pesticides; however, the reduced analyte list is subject to DMMT approval. • Samples will be archived at the chemistry laboratory for six months. Task 3 — Sampling and Analysis Report and Dredged Material Management Team Process Consultant will prepare a Sampling and Analysis Report (SAR) documenting all activities associated with collecting, processing, and analyzing sediment samples. The SAR will include chemical and biological results, statistical analyses, QA/QC summaries, and suitability assessments. Chemistry results will be compared to the reference sediment and appropriate sediment quality guidelines. Biological results will be compared to reference sediment and appropriate laboratory controls. A project map will be included with the actual sampling locations. Sediment core logs, chain -of -custody forms, laboratory reports, and data validation reports will be included as appendices. Consultant will represent the project at the DMMT meeting to obtain final concurrence on dredged material suitability. Anchor QEA, L.P. Page A-2 10-17 Schedule Consultant will begin this scope of work immediately upon authorization to proceed from the City, with the expectation of a renewed DMMT sediment suitability determination in advance of the July 2018 expiration. Anchor QEA, L.P. Page A-3 10-18 EXHIBIT B SCHEDULE OF BILLING RATES ANCHOR QEA, L.P. - SEDIMENT SAMPLING FOR THE CITY OF NEWPORT BEACH REGIONAL GENERAL PERMIT (RGP) 54 Task Description Proposed Cost 1 Mobilize Field Equipment and Collect Sediment Samples $113,066 2 Sediment Laboratory Analysis $137,045 3 Sampling and Analysis Report and Dredge Material Management Team Process $30,194 Total Costs: $280,305 Professional Level Hourly Rate Principal $249 Senior Manager $222 Manager $207 Senior Staff $184 Staff 3 $162 Staff 2 $145 Staff 1 $122 Senior CAD Designer $128 CAD Designer $107 Technician $104 Technical Editor $107 Project Coordinator $103 "Annual escalation rate of 3% will be applied of each year. to the above hourly rates only, effective January 1" Special Hourly Rates National Expert Consultant $412 Testifying Expert 1.5x the above professional level rates Expense Rates / Fees on Labor and Expenses Rate Computer Modeling $10 /hr Graphic Plots (varies with plot size) $3-$6 p/sf Mileage IRS Standard per mile Fee on pre -approved subcontractors/subconsultants 10% Fee on pre -approved Travel and Other Direct Costs 10% Fee on pre -approved Field Equipment and Supplies 10% Anchor QEA, L.P. Page B-1 10-19 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact 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 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Anchor QEA, L.P. Page C-1 10-20 Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: Anchor QEA, L.P. Page C-2 10-21 A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. Anchor QEA, L.P. Page C-3 10-22 G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Anchor QEA, L.P. Page C-4 10-23 City of Newport Beach BUDGET AMENDMENT 2017-18 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations X Transfer Budget Appropriations SOURCE: X from existing budget appropriations from additional estimated revenues from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: ATTACHMENT B NO. BA- 18BA-007 AMOUNT:J $280,305.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance X No effect on Budgetary Fund Balance To transfer expenditure appropriations from the Harbor Dredging/Planning project to the Regional General Permit-RGP54 project. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Object REVENUE ESTIMATES Org Object EXPENDITURE APPROPRIATIONS Description Description Amount Debit Credit Description Org Number 10001 Tidelands CIP Object Number 980000 CIP Exp Project Number 18H07 Harbor Dredging/Planning $280,305.00 Project String E -18H07 -UNASSIGNED -100 -UNASSIGNED Org Number 10001 Tidelands CIP Object Number 980000 CIP Exp Project Number 18H01 Regional General Permit-RGP54 Project String E -18H01 -UNASSIGNED -100 -UNASSIGNED Automatic Signed: Fina Approval: Finance irec or Signed: 14L— t" Administrative Approval: City Manager $280,305.00 tea- 5) - 1 �D Date Date Signed: City Council Approval: City Clerk Date 10-24