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HomeMy WebLinkAbout05 - Design Criteria for Harbor Construction RevisionCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 5 January 25, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager, (949) 644 -3002 dkiffacity. newport- beach.ca.us Tom Rossmiller, Harbor Resources Manager trossmiller a -city. newport- beach.ca.us SUBJECT: Design Criteria for Harbor Construction Revision — Amendment No. 1 to Professional Services Agreement with Cash and Associates ISSUE: As part of the implementation phase of the waterfront Uniform Fire Code Compliance Program, the City Council has authorized a Professional Services Agreement (PSA) with Cash and Associates to revise the outdated Design Criteria for Harbor Construction. Should the City Council approve an amendment to the PSA for the not to exceed amount of $15,000? RECOMMENDATION: Approve Amendment No. 1 to the Professional Services Agreement with Cash and Associates and authorize the Mayor and City Clerk to execute the Amendment. DISCUSSION: Background: On October 28, 2003, the City Council approved the Action Plan recommended by the Newport Beach Harbor Commission related to vessel berthing and enforcement of the provisions of the Uniform Fire Code. Ongoing inspections and enforcement have resulted in substantial compliance with the provisions of the Fire Code related to safety and installation of the proper fire equipment. In fact, out of 71 commercial docks in Newport Harbor, only three commercial docks remain out of compliance with the fire equipment and safety requirements. The Harbor Commission's Action Plan provides for giving the commercial dock operators until January 31, 2005 to comply with the multiple berthing issues provided Design Criteria for Harbor Construction Revision January 25, 2005 Page 2 they have submitted an implementation plan that was approved by the Fire Chief. Some of the implementation plans involve modifications to the dock. The Harbor Commission's Action Plan recognized that the reconfiguration or modification to the docks should be accomplished in accordance with the latest building and construction standards and that the current City dock standards do not appropriately address conditions necessary to safeguard users of docks especially for loading, unloading and queuing of passengers. To assist the City in developing revised design criteria for harbor construction, the Council authorized a PSA with Cash and Associates in the amount of $46,000. The design criteria and several iterations of changes were accomplished by the consultant within the authorized amount; however, there were many rounds of unforeseen and additional comments from the Harbor Commission, City Departments, local marine contractors and interested citizens in our internal review and public outreach program. As a consequence, we are requesting an additional $15,000 to finalize design criteria and produce graphics for dock system cases that more completely address the highly variable and complex scenarios unique to Newport Harbor. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M Brown Act (72 h ours i n a dvance o f t he p ublic meetings a t w hich t he C ity C ouncil c onsiders t he item). Funding Availability: Funds are available as a line -item in the Fiscal Year 2004 -05 breakdown of the 2371 -8080 account for Dock Construction Standards. Alternatives: Submit Design Criteria for Harbor Construction to the Harbor Commission and City Council for consideration without further consultant revision and refinement. Prepared by: Tom Ross filler, Harbor Resources Manager Submitted by: lJ� Dav Ki f, Assistant City Man ger 2 Design Criteria for Harbor Construction Revision January 25, 2005 Page 3 Attachments: Amendment No. 1 to PSA Professional Services Agreement Previous Related Staff Report (October 28, 2003) 3 AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH CASH AND ASSOCIATES FOR DESIGN CRITERIA FOR HARBOR CONSTRUCTION THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this day of , 20_, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City ") and Cash and Associates, whose address is 5772 Bolsa Avenue, Suite 100, Huntington Beach, 92647, California, 92647, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. On October 23, 2003, CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "Agreement', for engineering services for the Design Criteria for Harbor Construction, hereinafter referred to as 'Project'. This Agreement is scheduled to expire on December 1, 2004, B. City and Consultant have entered into no separate Amendments of the Agreement. C. City desires to enter into this Amendment No. 1 to reflect additional services not included in the Agreement or prior Amendments and to extend the term of the Agreement to April 1, 2005. D. City desires to compensate Consultant for additional professional services needed for Project. E. City and Consultant mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 1 ", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall be compensated for services performed pursuant to this Amendment No 1. according to "Exhibit A" dated November 15, 2004 attached hereto. 2. Total additional compensation to Consultant for services performed pursuant to this Amendment No. 1 for all work performed in accordance with this Amendment, including all reimburseable items and subconsultant fees, shall not exceed Fifteen Thousand Dollars ($15,000). q 3. The term of the Agreement shall be extended to April 1, 2005. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. [INSERT] on the date first above written. APPROVED AS TO FORM: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk Attachment: Exhibit A f:\ users \pbw\shared\agreements%master templates \blank - amend.doc CITY OF NEWPORT BEACH, A Municipal Corporation 0 Mayor for the City of Newport Beach CONSULTANT: By: i I _ . , . (&n CASH & ASSOCIATES �► Engineering and Architecture November 11, 2004 City of Newport Beach 829 Harbor Island Drive Newport Beach, CA 92660 Attention: Mr. Tom Rossmiller Harbor Resources Manager Subject: CITY WATERFRONT GUIDELINES ADDITIONAL WORK (C &A Job No. 6060.00) Gentlemen: Elliott H. Boone Randy H. Mason Wilfrido B. Simbol Kerry M. Simpson EXHIBIT A Cash & Associates requires an amendment to our contract agreement in the not -to- exceed amount of $15,000 to cover the following additional work: 1. Response to unforeseen and additional comments from the Harbor Commission and other City Departments. 2. Production of graphics for both dock system "Cases' as well as details for piers and platforms. It is anticipated that these funds will be required to complete incorporation of comments to the documents submitted to the City of review. It is expected that this work will be completed within the next six (6) weeks. If there are any questions regarding this request, please feel free to call for further information. Very truly yours, CASH & ASSOCIATES Randy H. Mason, PE President RHM:rhm ref:99Projectstrhm/606000I SK. LTR 5772 Bolsa Avenue. Suite 100 • Huntington Beach. CA 92649 USA a TEL:714.895.2072 • FAX 71 4.895.1291 Web Site: www.cashassociates.com • A California Corporation G CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 October 28, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Tim Riley, Fire Chief Dave Kiff, Assistant City Manager Tom Rossmiller, Harbor Resources Division Manager dkiff @ city.newport- beach.ca.us or 949 - 644 -3002 tossmiller @city.newport- beach.ca.us or 949 - 644 -3041 SUBJECT: VESSEL BERTHING AND THE UNIFORM FIRE CODE; CONTRACT AWARD AND BUDGET AMENDMENT FOR COMMERCIAL DOCK STANDARDS PROJECT ISSUE: How should the City enforce the provisions of the Uniform Fire Code relating to vessel berthing and storage? RECOMMENDATION: 1. Approve the Action Plan recommended by the Newport Beach Harbor Commission; 2. Authorize the City Manager to enter into a $46,000 professional services agreement with Cash and Associates to review Newport Harbor's existing commercial and residential dock standards and to update same; and 3. Approve Budget Amendment #_ adding $46,000 to the City Manager's 0310- 8080 Account (Professional and Technical Services). DISCUSSION: Within Newport Harbor there are 63 Commercial Harbor Permittees. These commercial marinas provide vessel berthing for a range of users to include public recreational vessels, yacht clubs, sailing clubs, boat rentals, boat brokers, charter vessel berthing and shipyards. Because of robust demand, most of these facilities are full and maintain waiting lists for slip space. This demand has resulted in some vessel berthing practices that are in violation of the City's Fire Code and specifically standards developed by the National Fire Protection Association (NFPA) and incorporated within the Uniform Fire Code. NFPA is a national organization dedicated to reducing the burden of fire and other hazards by providing and advocating scientifically based standards on fire and other safety issues. As part of this process, the NFPA has developed a fire protection standard for marinas and boatyards, titled, "NFPA 303 ". This standard was originally adopted in the 1940s and has been revised over the years, the most recent edition being 2000. This standard has been adopted by the City of Newport Beach Fire Code and is the recognized standard for technical applications. The standard applies to the construction and operation of marinas, boat yards, yacht clubs, docking facilities and all associated piers, docks and floats. The purpose of the standard is to provide a minimum acceptable level of safety to life and property from fire and electrical hazards at marinas and related facilities. The section of the NFPA is standard applicable to this report is Chapter 5, dealing with berthing and storage, specifically, 5.1, "Wet Storage and Berthing ", which states, "Each berth shall be arranged such that a boat occupying a berth can be readily removed in an emergency without the necessity of removing other boats ". What this does in practical terms is prohibit either vessel rafting or multiple vessels berthing in a single slip. Rafting occurs when vessels are tied to each other, outside of the limits of a dock, such that interior vessels are confined by one or more exterior vessels. Multiple vessel berthing in a single slip occurs when one or more vessels utilize a single slip and some of the vessels cannot be moved without movement of other vessels in the same slip. Multiple vessel berthing in a single slip Raftini February 2002 Survey. A February, 2002 survey of the 63 commercial locations over City and County Tidelands in Newport Harbor found approximately 50% of the marinas in violation of the Fire Code. At the 32 sites found to be in violation, at that one snapshot in time, ten of the commercial locations had rafting violations, eight of the locations had encroachment violations and 29 of the locations had multiple vessels berthing in a single slip. If all of these locations in violation for the Fire Code were brought into compliance approximately 150 vessels would have to be moved to other locations. Unfortunately, the use of these marinas in violation of the Fire Code has become both routine and dangerous should a vessel fire occur. If the fire code was strictly enforced on that particular day, approximately 150 vessels would have had to have been moved to other locations. Attached to this staff report is a tabulation of the 63 commercial pier permittees and the pier usage at each location. The usages include marinas, slip rentals, charter boat terminals, boat sales, boat yards, yacht clubs, tour boats, sport fishing, boat rentals, gas docks and restaurant guest docks. This tabulation is provided to show that there are many different uses at these commercial locations. It is important to note that almost all of the different uses had occurrences of fire code violations and that fire code enforcement would not be directed specifically at any given use, but toward the problem as a whole. These violations have the potential of exacerbating a fire emergency by concentrating the fire fuel source. While no national database of marina fires exists, it is believed that most marine fires begin in a berthed vessel then spread to either other vessels or to the marina structure. Once a marina fire starts it burns at a much more rapid rate and with more intensity than a house fire. This is mainly due to the concentration of fuels existing in vessels including the fuels that power the vessel and the products that construct the vessel itself. Vessels berthed close together and unable to be separated have the potential to cause catastrophic results. At the meeting of October 23, 2002, the Harbor Commission received an oral staff report from Fire Marshal Dennis Lockard regarding commercial vessel berthing in Newport Harbor and application of the Uniform Fire Code. The Fire Marshal related his concerns relative to the fire danger both to property and personnel posed by illegal berthing. He felt strongly that this situation should be corrected as soon as it is practical. Recent discussions with both Long Beach and Dana Point Harbors revealed that they do not allow rafting or multiple vessels in slips because, among other reasons, fire concerns. Based on the above, the Harbor Commission directed staff to prepare a phased action plan for enforcement of the Fire Code and notice to the affected harbor permittees. A plan was submitted at the Harbor Commission meeting of December 11, 2002. The Harbor Commission assigned the issue to a sub - committee for review and report back. 9 The subcommittee informally presented their report at the meeting of February 12, 2003 and recommended a five -step plan for immediate action. The subcommittee's five -step plan was as follows: 1. The Harbor Commission asked Staff to send a revised draft of the proposed "initial notice" letter to all commercial harbor permittees to initiate the process. 2. The Harbor Commission asked its subcommittee, supported by Staff, to serve as continuing liaison with the Newport Beach Chamber of Commerce's Marine Committee (or a Marine Committee subcommittee) as representatives of the marine industry and of commercial marinas as a group on this issue. Subcommittee to hold meetings as appropriate. 3. The Harbor Commission directed Staff to create a Commercial Marina Field Inspection Team comprised of a Harbor Resources staff member, a representative from the Fire Department, a representative from the OC Sheriffs Harbor Patrol, and representatives of any other appropriate agencies. The Team would update the February 2002 survey, develop a consistent inspection format/reporting methodology, schedule, etc. and report back on inspection progress and findings to the Harbor Commission. 4. The Harbor Commission directed Staff to provide a central cleaning house /resource center of information and contacts for commercial marinas on this subject at the Harbor Resources Office and on City website. 5. The Harbor Commission requested the assistance of the Public Information Officer in preparing and distributing media information with full factual information about process, issues, contacts, etc. Subsequent to the sub - committee's report, the Harbor Commission requested staff to prepare a final action plan for implementation. As a result of that direction, Harbor Resources staff prepared a final Action Plan with Fire Department input. In view of the fact that the violations appear to have been of long duration and enforcement will require potential relocation of vessels and possible redesign of marinas with attendant economic impact, the Action Plan is phased in -- with some aspects occuring as soon as 6 months from the date of a warning letter and other aspects taking effect 12 months from the date of the letter. The Commission approved this Plan (called "6 +6 ") at its meeting of March 12, 2003. Subsequent to that meeting, the City Council heard about the Plan during a Study Session on October 14, 2003. HARBOR COMMISSION - APPROVED ACTION PLAN: 1. Transmit to each of the Commercial Harbor Permittees (63) a letter (attached) with an aerial photograph of their marina. If vessels are berthed in violation of the code, they will be identified in the photo. The letter will require that all permittees finalize an approved Fire Code Compliance Plan for their specific docking area within 6 months of receiving the letter. I(' If such a plan is approved by Harbor Resources and the Fire Marshal within 6 months, the permittee would have another 6 months to incrementally comply with the Uniform Fire Code. Incremental compliance means that, if a boat is removed from their permit area, it cannot be replaced with another boat if the other boat would be berthed in a manner that does not comply with the UFC. If the permittee does not secure an approved Fire Code Compliance Plan within 6 months of the letter's issuance, immediate enforcement of the UFC will commence. 2. Prepare an Enforcement Plan that identifies inspection team members, items to be covered and inspection schedule. The initial inspection and strategy development will include staff from Harbor Resources, the Fire Department, and Sheriffs Harbor Patrol. Periodic follow -up inspections would be accomplished by an abbreviated group of the above. 3. Establish a fee schedule to facilitate cost recovery of increased inspections and enforcement. 4. Prepare a "Best Management Practices" or "BMP" plan relative to fire safety in marina operations that will be provided to all marina operators. Establish "Special Circumstances" review board, made up of the Fire Chief (or his designee) and Harbor Resources to meet with commercial permittees on a case -by -case basis to discuss potential alternatives to compliance. Nothing in this section of the Plan requires the Fire Chief to grant any exceptions to the Uniform Fire Code. 6. Develop and implement an Interim Plan to alleviate as many of the fire code violations problems, as possible, prior to the expiration of the six and twelve month period. A potential Interim Plan could include, but not be limited to: • Construction of temporary piers and docks; • Additional, appropriately placed moorings within mooring areas; • Temporary moorings outside of mooring areas; • Different mooring devices which allow more vessels to be moored within mooring areas; The photo and exhibit shown on the next page show a new mooring design and a current problem with one of the mooring areas (note the amount of moorings that fall out of the pre- determined mooring area). 7. Bring all commercial marina facilities into compliance within one year of the date when the City issues the letter (compliance likely to be required by October 31, 2004). Moorings outside of proper mooring area Mooring designed to accommodate four vessels 0 . . . . . . . . . . . . . ZIP I k.1 Commercial Dock Standards. Linked closely to Fire Code compliance is an understanding by various Harbor experts -- including the members of the Harbor Commission and the Harbor Resources Director -- that any reconfiguration of docks should be done in accordance with the latest building and construction standards. The City has not looked at this since 1994 -- at the time, it did so in- house. As a result, commercial dock standards currently consist of a one -sheet drawing -- very similar to those applied to residential docks. The commercial dock standards that the City uses do not appropriately address conditions necessary to safeguard users of the docks -- especially in regards to the loading, unloading, and queuing of passengers. This past summer, the City issued a Request for Qualifications to various vendors who could update our commercial and residential dock standards. Three companies responded. A review panel of Tom Rossmiller, Faisal Jurdi, and Chris Miller followed existing Public Works Guidelines for consultant selection and identified Cash and Associates as the most qualified bidder. This Agenda Item asks the Council to authorize the City Manager to enter into a Professional Services Agreement in the amount of $46,000 with Cash and Associates to update Newport Harbor's commercial and residential dock standards. Doing so also requires a Budget Amendment. Commission and Committee Action: The Newport Beach Harbor Commission approved the proposed Action Plan. The City Council discussed it at a Study Session on October 14, 2003 and took public testimony. The Council specifically asked about how a Special Circumstances Review Board might work and what it might consider. On October 22, the Economic Development Committee (EDC) discussed the Commission's Plan. They suggested that an economic study be done so that the City would better understand the fiscal impacts to the City and the economic impacts to the Harbor that the Plan will have. Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Funding Availability: If the Plan is approved by the City Council, City staff may add an inspection fee not to exceed the cost of inspection to the Master Fee Resolution at a later date. Adding the Fee to the Master Fee Resolution would require a Council action. Alternatives: Instead of agreeing to the Harbor Commission's recommended plan, the Council could: • Refuse to adopt the Plan and continue to allow current practices to continue, some in violation of the Uniform Fire Code; • Offer amendments to the Plan and adopt it with those amendments; I3 • Offer amendments to the Plan and return the Plan to the Harbor Commission for additional review. Submitted by: Tom Rossmiller, Harbor Resources Manager Dave Kiff, Assistant City Manager Tim Riley, Fire Chief Attachments: Draft Letter to Permittees Results of February 2002 Survey Budget Amendment October 30, 2003 Re: Vessel Berthing at Commercial Marinas Dear Commercial Harbor Permittee: The City of Newport Beach Municipal Code and the Uniform Fire Code regulate vessel berthing at slips within the City of Newport Beach (copies attached). A recent survey of our commercial marinas identified a number of facilities that are out of compliance with the attached regulations. As such, they risk significant property damage and life- safety impacts in the event of a fire. Included in this letter is an aerial photograph of your marina taken within the last two years. Highlighted are any vessels berthed at that time in violation of the attached regulations. I am providing you with this information to assist you in determining whether your current berthing practices violate either the Municipal Code or the Uniform Fire Code. Please review this information and correct any violations as quickly as feasible. Doing so is the best way to protect your marina and its vessels from significant fire damage. Compliance in some locations may necessitate a reconfiguration of slips or relocating existing berthed vessels. As such we have set the date of September 30, 2004 for all marinas across Newport Harbor to be in full compliance with the code. In the meantime, field inspections will be conducted at all marinas in Newport Harbor. Follow -up letters and photos will be sent to those marinas that are out of compliance at the time of our field inspection. Harbor Resources staff and Fire Department staff will be available to you for questions and assistance. Please know that after September 30, 2004, the City fully intends to pursue harbor -wide inspections on a periodic basis to review areas for potential violations of the Code. Operators of marinas or docks that are out of compliance after September 30, 2004 will likely receive administrative citations that demand compliance along with a $100, $200, or $500 fine. If you have any questions or wish to discuss this please contact me at 949 - 644 -3041. 1 look forward to working with you in a participatory process to improve the Harbor's fire safety. 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O O O C E w U L O Q O V O p W C C C C L L 9 Q C U i fq F O fq N J J O -� O U L fq 0 L co 0 O U 10 U 10 C > Q 10 OO Q O O < O O C 9 N Go < Go w co 00 co O O O O a0 N aD N aD N aD N aD N co N CD N N Cf O M I� Ov r N r N r N r N r N r N r N r N r N r N N N w h N N N N N N N N N 1 N N N j ;� G PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 28th day of October, 2003, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City "), and Cash & Associates, whose address is 5772 Bolsa Ave., Suite 100, Huntington Beach, California, 92647, (hereinafter referred to as "Consultant "), is made with reference to the following: RECITALS A. City is a Municipal Corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. The City of Newport Beach currently is approving harbor groins, bulkheads, beach platforms, gangways, docks, piers, piles and related hardware based on standards developed in the 1970s with some more recent revisions as late as 1994. Many of the standard drawings reflect 1970s layout and design concepts. The revision of standards related to commercial docks is of special concern at this time. C. The City desires to retain the services of an engineering consultant to revise existing design criteria and standard drawings related to commercial and residential waterside facilities. Additional performance specifications related to structural components, layout, materials and methods will also be necessary to update the criteria and standards. D. The principal member of Consultant is, for purpose of Project, Randy Mason. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agre-id by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the 1st day of December, 2003, and shall terminate on the 1st day of December, 2004, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the total contract price of Forty -Six Thousand Dollars ($46,000.00). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly progress invoices to City payable by City within thirty (30) days of receipt of invoice. -2- 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized 66Mpensat'ion shall be paid in accordance with the schedule of the billing rates as set forth in Exhibit "B ". 3ACity shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 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 the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents to -3- City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. If Consultant is performirlY inspection or construction management services for the City, the assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City Staff; consultant's Nextel Direct Connect I.D. Number will be provided to City to be programmed into City Nextel units, and vice versa. Consultant further represents that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, failure of City to furnish timely information or to promptly approve or disapprove Consultant's work, delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control. 4.3The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or charge of, and shall not be responsible for Project's design, Project's contractor (hereinafter referred to as "Contractor "), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or charge of acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 5. INDEPENDENT PARTIES a City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and me -9'9 of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details and means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only in the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies, which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with Consultant on Project. 7. PROJECT MANAGER Consultant shall assign Project to a Project Manager, who shall coordinate all phases of Project. This Project Manager shall be available to City at all reasonable times during term of Project. Consultant has designated Randy Mason to be its Project Manager. Consultant shall not bill any personnel to Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretioh "Df City, shall remove from Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants it will continuously furnish the necessary personnel to complete Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and Consultant shall perform the services in accordance with the schedule specified within Exhibit C. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City and assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. CITY POLICY -6- C Consultant shall discuss and review all matters relating to policy and project direction with the Project Administrator in advance6f all critical decision points in order to ensure that Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims to the extent arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, excepting only the negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. 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. -7- )I 13. INSURANCE Without limiting consultant's indemnif 66fion of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies licensed to do business in the State of California and assigned Best's A + XV or better rating: A. Worker's compensation insurance, including "Wavier of Subrogation" clause, covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance, including additional insured and primary and non - contributory wording, covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance, including additional insured (and 9 primary and non - contributory wording for waste haulers only), covering any owned and rented vehicles of Consultant l a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. Professional errors and omissions insurance, which cover the services, to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000.00) per claim and policy aggregate. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, which Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing workers compensation, comprehensive general, and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be .performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the irit0rest of any general partner or joint venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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 as 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. Consultant shall, at such time and in such forms as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept -10- confidential unless City authorizes the release of information. 17.CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. City will provide access to and upon request of Consultant, provide one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without iridependent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting, CADD plotting, copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. City staff will provide usable life of facilities criteria and provide information with regards to deficient facilities. D. City will prepare and provide to Consultant street base digital file in AutoCAD (DWG) compatible format. 18. ADMINISTRATION The Harbor Resources Division will administer this Agreement. Tom Rossmiller shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this' Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20.WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Project. 23. CONFLICTS OF INTEREST 12 3i A. Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), whidh (1) requires such persons to disclose financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. B. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultants violation of this Section. 24. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Tom Rossmiller, Harbor Resources Manager City of Newport Beach 829 Harbor Island Drive Newport Beach, CA, 92660 (949) 644 -3041 Fax (949) 723 -0569 -13 -� All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Randy Mason, President Cash & Associates 5772 Bolsa Ave., Suite 100 Huntington Beach, CA 92647 (714) 895 -2072 Fax(714)895 -1291 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER -14- v A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a w615et 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. 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 hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her 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 contractor bids or actual cost to City. 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of 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 -15- 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 drawings shall be transmitted to the City in the City's latest adopted version of AutoCAD in ".dwg" file format. All written documents shall be transmitted to the City in the City's latest adopted version of Microsoft Word and Excel. 32. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation M Attornev f:\ users \pbw%shared\agreements\blank prof serv.doc By:� xoco/-� Homer Bludau ity Manager CONSULTANT ; CcisA 1, ffsso� ,. lev By: � /,o //Xz� -16- Exhibit A Scope of Services Frroject Approach Task One: Commercial Dock Consulting Evaluate existing City of Newport Beach design criteria, as well as other materials available from local counties, state and federal sources. 2. Review and comment regarding on Harbor Commission Subcommittee reports. 3. Provide the City of Newport Beach with a schedule for our team's involvement fro the work necessary to prepare Commercial Dock Guidelines. 4. Meet with various City of Newport Beach departments to discuss the guidelines and potential issues and improvement. Meetings with commercial vessel operators and tenants within Newport Beach and elsewhere may also be necessary to obtain a full understanding of the facility requirements and as -is conditions in Newport Beach. 5. Provide special studies that may become required as a result of these meetings and a development of the various issues. Studies may include establishment of various pile /soil relationships within the City of Newport Beach. Due to the characteristics of the geology in Newport Beach, various guide pile materials and driving requirements are necessary. Additional studies may include wind and wavetwake criteria development, depending on conditions and locations of the projects. S. Confer with City of Newport Beach Building and Safety management and plan checkers to coordinate recommendations and assure that new procedures that may be proposed are understood and that Building Department input is incorporated into the final documents. 7. Prepare criteria, performance specifications, and sketches as necessary to provide the necessary design criteria required. Provide the necessary copies of these documents in the number of copies and media that is required by the City of Newport Beach. 8. Meet and present the results of this work product to City Staff, the Harbor Commission, the City Council, community groups, and others, if deemed appropriate. Special presentations to the City Council, the community groups and others, may be considered an extra service, as well as the presentation materials that may be required. Page 2 Exhibit A -17- Task Two Task Two of this project would involve the study, assessment and developmerft of recommendations for "Design Criteria and Standard Drawings for Harbor Construction ". This work would include recreational and commercial boat docks, dock anchoring systems, slope protection guidelines (to include dikes, revetments, seawalls, and various combinations thereof), dredging, etc. Optional Scope Items Geology Map Due to variable nature of subsurface conditions in Newport Beach; i.e., loose bay mud to hard shale (along the bluffs), the City may wish to provide a Geological Map of the harbor, which would serve as a guide to owners, engineers and contractors, as well as City Plan Check Engineers, regarding the potential conditions that may be encountered. This type of information would be extremely helpful in determining pile type (concrete, steel or hybrid), as well as driving conditions and costs. This map would be accompanied by standard pile drawings, with materials of construction ranging from prestressed concrete to structural steel piles. Exhibit B Billing Rates and Compensation / ■L CASH , ASSOCIATES July 1. 2003 °4l Engin ee rny and nranite <tare VVV ��, EXHIBIT-B.- RATE SCHEDULE FOR ENGINEERING SERVICES ON AA TIME AND MATERIAL BASIS HOURLY OVERTIME PROJECT DIRECTOR 150.00 150.00 TERMINAL PLANNING SPECIALIST 150.00 150.00 SR PROJECT MANAGER 135.00 135.00 PROJECT MANAGER 125.00 125.00 SENIOR ENGINEERING SPECIALIST 125.00 125.00 SENIOR ENGINEER /PROJECT ENGINEER 120,00 120,00 PROJECT ARCHITECT 100.00 100,00 ARCHITECT 95.00 95.00 ENGINEER III 110.00 110.00 ENGINEER II 100.00 100.00 ENGINEER 1 90,00 90.00 ENGINEER 80.00 80.00 COST CONTROL MANAGER 70.00 70.00 PROJECT DESIGNER 111 95.00 114.00 PROJECT DESIGNER II 85.00 102.00 PROJECT DESIGNER 1 80.00 96.00 SENIOR DESIGN ERICAD OPERATOR 111 75.00 90.00 DESIGNER/CAD OPERATOR 11 70.00 84.00 DRAFTERICAD OPERATOR 1 65.00 78.00 PERMIT PROCESSOR/COORDINATOR 70.00 84,00 SPECIFICATION PROCESSING 65,00 78.00 1NORDPROCESSOR 65.00 78.00 CLERICAL 50.00 60.00 Fa ar H E,me• P'", x. „unn .varnNa tl ymMil FtrN N 9 np:M In addition, for direct oulrof- ooclket expenses (it and wien They omur) we quote tho fallowing: I) In-House Repro: Blueprint S.10 to 51.50 Per square loot - depending on type of paper Plotting S,80 to 52.00 per square foot-depending on type of paper 2) Automobile: 5,365 Per mile 3) Tmval Expense; at Cost 4) Subsistence: Away from home oAxe more than one day: at Cost, not to exceed S150.001d2ylper mar. 5) Plan Check and Building Pem1t Fees: at Cost plus 1S% mark-up. 6) Third Party Services: at Cost plus 15-A mark-up, a) Surveying b/ Sous investigation c) lAmeria'a testing laboratory, work d) Consultant and subcontract omfessianal fees e) Outside reproduction sendoes Payments due under Ih6 schedule shall bear interest at the rate of ten perren: Per annum commencing miM (30) day, after the dale of mvoice, Terms are Net -Thirty Days. 5772 WjI.W Avenue. Suite 100 • I-k:nnngton Beatty, C49264� -f 134 USA • TEL: (714) 855 -2072 • 15621 426 -6145 • FA( (7111695-1291 Mail: P.0 Box 271 S. Hunlmafon Beach, C592647 0715 • k +et7 site u"1n+tcashassociales.COm • A esiiforMa (Z' 'n PC: mion Irl -t l -19- ��J S O W N O N O Z n v N l0 W N NS W N ' N W _ V ■yy O C O C W y O N N y ~ W N v E E r v f rn N C N c ° v � �2 N a ■ > li �- v A ro y A I .5 N �6 i T Ii�i 11� Q N lJ R3 'l7 i O O O O YZ fa la to N z a c7 IL 0 lL LLL LL i E 1 o O 0 lL 0 O C o 0 0 y G. A 35 c a c 1 c 'c4i i`o o c� o o vi v m 3 10 acv o o ° U 4 {I} °- a a a a aYia is w 'a a a a a a a m OO O N O O IN O 10 O O N O O O O I m a j U m c v �? c TL t o I 'S O m po V �Na •U I co U o lv m U lc 1 v v � rfi ° S Q 0 i w Iy Iv c 0 c c E 9 c ul 'a a �U v a S2 0 z Fy OK w 8 c . 0 U 2 n Z a v E v E f3 a 1 v E n nf w' v • rii o` m v U m ci aA z5 m� 0 m 0 Q - N M O 10 fp r W W O N M O 10 fp v Wyy O ��J