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HomeMy WebLinkAbout15 - Balboa Island Beach Sand StudyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 15 June 12, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Harbor Resources Division (City Manager's Office) Tom Rossmiller, Manager Harbor Resources, 949 - 644 -3041 trossmiller(o)city. newport- beach.ca.us Dave Kiff, Assistant City Manager, 949 -644 -3002 dkiff(u)city. newport- beach.ca.us SUBJECT: Balboa Island Beach Sand Study ISSUE: Should the Newport Beach City Council authorize a professional services agreement with Moffatt and Nichol Engineers for a Balboa Island Beach Sand Study and a transfer of funds to make up for anticipated grant funding that is currently not available from the California Department of Boating and Waterways? RECOMMENDATION: 1.) Approve the Professional Services Agreement with Moffatt and Nichol Engineers to investigate the feasibility of various measures to control bay -front beach erosion on Balboa Island for $49,995; and 2.) Approve a transfer of $40,000 from General Fund unappropriated reserves to account 7231 — C2360893 which currently contains $10,000. DISCUSSION: Background An annual priority Capital Improvement Plan (CIP) project of the City has been the Bay and Street End Beach Replenishment Project. This project has many constraints due to presence of significant nearshore eelgrass beds around the perimeter of Balboa Island and adjacent to many street end beaches on the peninsula. The small amount of sand that can be pushed up to reestablish a user friendly beach usually lasts only for about six weeks before it is lost due to local wind and wake induced erosion. Harbor Resources proposed to hire a consultant to investigate the feasibility of various erosion Balboa Island Beach Sand Study June 12, 2007 Page 2 control measures including potential structural solutions. When the project was formulated, the California Department of Boating and Waterways indicated that the project would qualify for a matching grant, if funds were available. Unfortunately, funds are not currently available this fiscal year in this Boating and Waterways funding category and the near -term future for this source of funding is not good. This study is critical to a development of effective methods to retain usable and sustainable beaches on Balboa Island. Moffatt and Nichol Engineers performed a similar Beach Replenishment Reconnaissance Study for Balboa Island in 1982 and their attached proposal demonstrates an excellent understanding of the problems and potential solutions. The proposed alternatives, analysis and development of a management plan are an important step in successfully acquiring permits to perform any future projects in this highly constrained environmental setting. Moffatt and Nichol Engineers are recommended for this contract based on the qualification based selection process outlined in the City Council Policy F -14. Environmental Review: All tasks fall under the information gathering class of projects and are therefore categorically exempt pursuant to CEQA Guidelines, Article 19, Section 15306. 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: With the approved Budget Amendment, sufficient funding will be available in the following account for the project: Account Description Account Number Amount Tide and Submerged Lands 7231— C2360893 $50,000 Alternatives: Request grant funding from Department of Boating and Waterways when funds become available. Prepared by: Submitted by: Tom Rossmiller, Harbor Resources Manager Dav iff, Assistant City Manager Attachments: Professional Services Agreement ON PROFESSIONAL SERVICES AGREEMENT WITH MOFFATT AND NICHOL ENGINEERS FOR THE BALBOA ISLAND BEACH STUDY THIS AGREEMENT is made and entered into as of this day of 2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and Moffatt and Nichol Engineers a California Corporation whose address is 3780 Kilroy Airport Way, Suite 600, Long Beach, California, 90806 ( "Consultant "), 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 is planning to investigate the means available to improve the annual Capital Improvement Plan (CIP) projects of sand replenishment on Balboa Island beaches. This project has many constraints due to presence of significant nearshore eelgrass beds around the perimeter of Balboa Island and adjacent to many street end beaches on the peninsula. The small amount of sand that can be pushed up to reestablish a user friendly beach usually lasts only for about six weeks before it is lost due to local wind and wake induced erosion. C. City desires to engage Consultant to investigate the feasibility of various erosion control measures including potential structural solutions to more effectively maintain user friendly beaches on Balboa Island. In addition, the consultant will prepare a report delineating beach management alternatives that the City may chose to employ to maintain and improve the beaches. ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Chris Webb. F. 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: 3 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31 day of December, 2007, 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. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. 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 to the other party so that all delays can be addressed. 3.1 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 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. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT 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 Forty Nine Thousand Nine Hundred and Ninety Five Dollars and no1100 ($49,995) without prior written authorization from City. No billing rate 2 4 changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 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) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. 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. 4.3 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. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER 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 Chris Webb 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 3 5 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. 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. 6. ADMINISTRATION This Agreement will be administered by the Harbor Resources Division of the City Manager's Department shall be 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. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. 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. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 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. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 4 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in 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, or 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 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (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, attorney's 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 the negligence, recklessness, or willful misconduct of the Consultant or 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. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's 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 the Consultant. 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. 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 5 7 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 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 and /or his /her duly authorized designee 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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 6 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. I. _Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this 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 for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with 7 respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional 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. 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 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 cotenancy, 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 orjoint- venture. 8 10 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and 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. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the 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 Each and every report, draft, map, record, plan, document and other writing produced (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. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 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. 18. 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 authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY 0 yJ The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all 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. 20. 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 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. 21. 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 his /her 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. 22. 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 paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 10 I� 24. CONFLICTS OF INTEREST The 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. 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 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. 25. NOTICES All notices, demands, requests or approvals 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Tom Rossmiller Harbor Resources Division City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3041 Fax: 949 - 723 -0589 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Chris Webb Moffatt and Nichol Engineers 3780 Kilroy Airport Way, Suite 600, Long Beach, California, 90806 Phone: 562 - 426 -9551 Fax: 562 - 424 -7489 26. TERMINATION 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 to cure the default and the defaulting party fails to 11 13 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. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving 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. 27. 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. 28. 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. 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. 30. 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. 31. 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 12 reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 32. 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. 33. 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. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govem 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. 35. 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 of race, religion, color, national origin, handicap, ancestry, sex or age. 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 Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation 0 Mayor for the City of Newport Beach CONSULTANT: 0 (Corporate Officer) Title: Print Name: 0 13 15 (Financial Officer) Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F:\ users\ cat \shared \ContractTemplatesPubl ishedon I ntra netT0 R M PSA. doc 14 i� 1/. MOFFATT & NWHOL Exhibit A January 30, 2007 City of Newport Beach 829 Harbor Island Drive Newport Beach, CA 92660 Attn: Mr. Tom Rossmiller, Manager, Harbor Resources Division Subj: Balboa Island Beach Sand Study, Proposal for Consulting Services Dear Mr. Rossmiller: Moffatt & Nichol is pleased to present this proposal for consulting services to assess sand management and beach improvement options for Balboa Island. The City presently pushes sand up high on the dry beach along the south - facing shore (South Bayfront) and it remains for between 60 and 90 days before sloughing off to lower portions of the beach profile and becomes unavailable for recreational use. The City needs to quantify existing conditions of sediment transport and effects on the beach from natural changes and from man - induced influences for management. Man - induced changes include private maintenance dredging and beach nourishment, and City maintenance actions. The study will primarily focus along the South Bayfront from Garnet Avenue to Jade Avenue. Other Island shorelines will also be assessed as part of this study including the North Bayfront from Garnet Avenue to Grand Canal, and the entire East Bayfront. An image is attached showing project reaches. The focus of the study will be the on -going problem area along the South Bayfront, with a lower level of effort being expended on analyzing conditions at the North and East Bayfronts due to the reduced degree of beach maintenance required at those locations. The proposed scope of work, fee, and schedule are provided below for your consideration. Proposed Scope of Services The tasks proposed for this study are presented below. 1. Gather and Review Existing Site Data —Review existing data provided by the City including: a. historic and recent aerial photos; b. historic and recent beach profiles, particularly any showing degradation of the City - constructed profile over time after a maintenance event; 1 vil: ,;2s -sss! li City of Newport Beach Mr. Tom Rossmiller January 30, 2007 Page 2 c. historic and recent sediment testing; d. general conditions of existing groins or continued existence of those noted in the 1982 report; and e. the historic report (2002) entitled " Economic Analysis of the Recreational Benefits of a Nourishment Project on Balboa Island, Newport Beach" by Phillip G. King Ph.D. 2. Perform Site Visit and Interviews — Perform a site visit and interview knowledgeable City staff and Balboa Island Improvement Association representatives. 3. Record Beach Profiles - Record new beach profiles at historic locations on the South Bayfront (at up to, but not more than, 12 locations). 4. Sample and Test Sand for Grain Size - Sample sand at one location (to be determined with City Staff) at each profile and test for grain size. S. Install Current Meter - Install one wave /current meter (an InterOcean S -4DW) at an appropriate location and leave it in for at least two weeks to measure longshore currents. 6 Evaluate Existing Wind Data - Evaluate wind speed and direction data available from Orange Count Sheriff's Harbor Patrol to relate to any longshore currents. 7. Identify Eelgrass Constraints on Nourishment - Identify issues related to eelgrass habitat and beach nourishment that may affect planning at Balboa Island. 8. Assess the Need for Nourishment to Protect Infrastructure - Identify if beach nourishment is necessary to protect public infrastructure on the Island (the public walkway and shallow depth bulkhead at 0 to -4 feet MLLW). 9. Assess Potential Contributions to Erosion by Storm Drainage - Identify any localized erosion problems caused by storm drain outlets and suggest possible modifications to the grade, depth, position, or configuration of the outlets to reduce impacts. 10. Update the Status of Dredging and Nourishment Regulations - Update the status of dredging and nourishment permits and regulations as they pertain to Balboa Island. 11. Prepare Concepts for Management - Prepare three concept alternatives to retain sand with existing or new structures, or to perform new nourishment, or modify maintenance activities, and provide probable costs. Concepts may include: a. Modification of the existing groin field to retain sand (optimized groins); b. Lengthening existing piers and relocating docks farther into the bay, while widening the beach through nourishment, sand retention or both; c. Nourishment -only with very coarse sand hauled in from off -site; d. A perched beach; and e. Possibly a different option or options based on City input and results of data review. 12. Prepare Reports - Prepare a draft report for review, and a final report based on staff comments. 13. Attend and Present at Meetings - Attend two meetings to report progress and present results. 18 Proposed Fee City of Newport Beach Mr. Tom Rossmiller January 30, 2007 Page 3 The scope of work can be completed for an estimated fee of $49,995. The table on the following page shows the fee by task. Proposed Schedule The project can be completed within five months from Notice -to- Proceed. Thank you for the opportunity to assist the City on this important project and please contact me with any questions or comments regarding this proposal. Sincerely, MMOOFFATT & NIC /HOL Michael J. McCarthy, P.E. Vice - President PROPOSED FEE City of Newport Beach Mr. Tom Rossmiller January 30, 2007 Page 4 Task Number Description Estimated Fee 1 Gather and Review Existing Site Data $1,936 2 Perform Site Visit and Interviews $1,406 3 Record Beach Profiles $2,772 4 Sample and Test Sand for Grain Size $1,350 5 Install Current Meter $1,334 6 Evaluate Existing Wind Data $968 7 Identify Eelgrass Constraints on Nourishment $12308 8 Assess the Need for Nourishment to Protect Infrastructure $22900 9 Assess Potential Contributions to Erosion by Storm Drainage $22928 10 Update the Status of Dredging and Nourishment Regulations $1,452 11 Prepare Concepts for Management $112796 12 Prepare Reports $152942 13 Attend and Present at Meetings $1,648 Not Applicable Reimbursable Expenses (Instrument lease, sieve tests, mileage, reproduction, telephone, mailing, etc.) $2,255 Grand Total $49,995 aD �1 J� f> s I j?i r I r A d A V 'boo s O Gl I'1 c e � � J W 1 ♦ A ♦ g g j V A A a La A r� u y 1 O A— Q +' 0 0 W ♦,M W n a n � w 0 o rIN k t `O Ln � � v d^rj a n i l^ 41 e4 s R� 1•t ��. y�y,4 �.. M �N t w 4� T� al Exhibit B e / RATE SCHEDULE FOR PROFESSIONAL SERVICES Effective July 2, 2006 Until Revised REIMBURSABLE EXPENSES (Unless Otherwise Provided in Written Agreement) Subcontracts or Outside Services CLASSIFICATION HOURLY RATES PROFESSIONALS Supervisory Engineer /Scientist $ 195.00 $4.00 /SF Senior Engineer /Scientist $ 179.00 $0.50 /SF Engineer /Scientist 111 $ 168.00 $0.10 /sheet Engineer /Scientist 11 $ 150.00 Prevailing IRS Engineer /Scientist I $ 129.00 Cost Staff Engineer /Scientist $ 103.00 TECHNICIANS Senior Technician $ 146.00 Designer $ 135.00 CADD 11 $ 112.00 CADD 1 $ 87.00 CLERICAL Word Processing $ 83.00 General Clerical $ 71.00 SPECIAL Principal Engineer /Scientist $ 220.00 Court Appearances $ 300.00 REIMBURSABLE EXPENSES (Unless Otherwise Provided in Written Agreement) Subcontracts or Outside Services Cost +15% Reproductions -In House Mylar Plots (B/W) $2.00 /SF Color Plots $4.00 /SF Vellum Plots (B/W) $ 1.00 /SF Bond Plots (B/W) $0.50 /SF Drawing Reproduction Cost +15% Document Reproduction $0.10 /sheet - Outside Reproduction Cost +15% Travel Company Auto Prevailing IRS Rental Vehicle Cost Airfare Cost Meals and Lodging Cost a� City of Newport Beach BUDGET AMENDMENT 2006 -07 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues X from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 07BA -078 AMOUNT: $40,000.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations to enter into a professional services agreement with Moffatt and Nichol Engineers to investigate the feasibility of various measures to control bay -front beach erosion on Balboa Island. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 General Fund - Fund Balance REVENUE ESTIMATES (3601) NO General Fund Account Fund /Division Account Description 9230 6000 NO Tide & Submerged Land - Transfers in EXPENDITURE APPROPRIATIONS (3603) Signed: Signed: Approval: Administrative Services Director Administrative Approval: City Manager Amount Debit Credit $40,000.00 ` $40,000.00 Automatic $40,000.00 $40,000.00 C]— 9-- Date Date Signed: City Council Approval: City Clerk Date Description Division Number 9010 NO General Fund Account Number 9900 Transfers Out Division Number 7231 Tidelands - Capital Account Number C2360893 Bay -Front Beach Erosion Control Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: Approval: Administrative Services Director Administrative Approval: City Manager Amount Debit Credit $40,000.00 ` $40,000.00 Automatic $40,000.00 $40,000.00 C]— 9-- Date Date Signed: City Council Approval: City Clerk Date