HomeMy WebLinkAbout08 - Newport Coast ASBS Runoff Reduction ProgramI folp
CITY OF
NEWPORT BEACH
City Council Staff Report Agenda Item No. 8
September 13, 2011
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644 -3311, sbadum @newportbeachca.gov
PREPARED BY: Robert Stein, Assistant City Engineer
949 - 644 -3322, rstein @newportbeachca.gov
APPROVED: O. K
LJ �
TITLE: NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM -
APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH
VALLEY SOIL, INC.
ABSTRACT:
The City proposes to execute a Professional Services Agreement with Valley Soil, Inc.
(Valley Soil) to manage a three -year program to install weather -based irrigation
controllers within the Newport Coast ASBS watershed as part of the City's program to
assist property owners to reduce over - irrigation of landscape areas. The first year of the
program will be funded from the City's Proposition 84 grant award.
RECOMMENDATION:
Approve a Professional Services Agreement with Valley Soil for managing installation of
weather -based irrigation controllers and related customer service activities at a not to
exceed cost of $750,000.
FUNDING REQUIREMENTS:
First -year funding of $750,000 will be provided from the City's $2.5 million State Water
Resources Control Board Proposition 84 grant award, accepted by City Council on May
14, 2011, for protection of the Newport Coast ASBS project.
NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM - APPROVAL OF PROFESSIONAL SERVICES
AGREEMENT WITH VALLEY SOIL, INC.
September 13, 2011
Page 2
Account Description
Proposition 84 Grant Funds
TOTAL
DISCUSSION:
Account Number
7255- C5002007
Amount
$ 750.000.00
$ 750,000.00
In order to protect the coastal canyons and the sensitive marine life areas along
Newport Coast, the City has a significant interest in reducing dry- weather runoff in the
canyons caused by over - irrigation practices. Over - irrigation in Newport Coast has
caused the groundwater table to increase by an estimated 30 to 40 feet. This
groundwater mound subsequently discharges to the canyon where the streams now run
perennially. The canyon streams carry fertilizer, pesticides, bacteria and metals into the
sensitive marine life area along Newport Coast.
One of the keys to reducing over - irrigation is for property owners to install weather -
based irrigation controllers, also known as Smart controllers that have proven
efficiencies in water application. These controllers meter out the proper amount of water
to plants based on a set of parameters including weather conditions, sunlight, soil type,
plant type, property slope and valve precipitation rate. In 2007, the City launched a
similar successful project using grant and City funds that resulted in installation of over
650 irrigation controllers in Newport Coast. Under this new program, staff hopes to
encourage the installation of another 500 Smart controllers within the Newport Coast
area.
The Request for Proposals for this Professional Services Agreement was sent to five
consulting firms. Three consultant proposals were submitted to the City. The evaluation
committee was composed a staff person from MWDOC, IRWD and the City. Each
proposal was evaluated for team qualifications, past experience on similar projects, and
project understanding. Valley Soil was rated highest. References were first checked and
then Valley Soils was invited to the City to negotiate the contract. During negotiations, a
detailed scope of work was completed and the fee agreed upon. The contract requires
Valley Soil to lead the effort on marketing the program, evaluating irrigation systems,
installing irrigation controllers, providing comprehensive customer service and trouble
shooting, and providing data on program effectiveness. (See Attachment A.)
This is a three -year program. Funding for Years 2 (FY 12/13) and 3 (FY 13/14) will be
provided by grant match fund requirements with IRWD and the City each providing a
total contribution of $150,000 (combined total $300,000). A Memorandum of
Understanding with IRWD for its contribution is in preparation.
NEWPORT COAST ASBS RUNOFF REDUCTION PROGRAM - APPROVAL OF PROFESSIONAL SERVICES
AGREEMENT WITH VALLEY SOILS, INC.
September 13, 2011
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Director
Attachments: A. Professional Services Agreement
B. Location Map
Attachment A
PROFESSIONAL SERVICES AGREEMENT WITH
VALLEY SOIL, INC. FOR
INSTALLATION OF SMART IRRIGATION CONTROLLERS
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement') is made
and entered into as of this day of , 201.1 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and VALLEY SOIL,
INC., a California corporation ( "Consultant'), whose address is 38125 E. Benton Road,
Temecula, CA 92592 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 encouraging water conservation in high landscape irrigation water usage
areas.
C. City desires to engage Consultant to design and implement a marketing outreach
program for Installation of Smart Irrigation Controllers ( "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 Eric
Anderson.
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:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on September 30, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. Consultant shall diligently perform all the services
described in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of
the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
3.1 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.
3.1.1 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.
3.2 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.
3.3 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
4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Seven
Hundred Fifty Thousand Dollars and no /100 ($750,000.00) without prior written
authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) days after approval of the monthly invoice by City staff.
4.3 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:
4.3.1 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.
Valley Soil, Inc. Page 2
4.3.2 Approved reproduction charges
4.3.3 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.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
4.5 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
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Eric Anderson to be its
Project Manager.- Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. John
Kappeler, Water Quality Manager or his designee, shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator or his authorized representative shall represent City in all matters
pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 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.
Valley Soil, Inc. Page 3
7.1.2 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.
7.1.3 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.
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
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers, 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 any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent and /or willful acts, errors
and /or omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any
of them or for whose acts they may be liable or any or all of them).
Valley Soil, Inc. Page 4
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence 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 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 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,
14.1 Without limiting Consultant's indemnification of City, and prior to
commencement of Work, Consultant shall obtain, provide and maintain at its own
expense during the term of this Agreement, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
Valley Soil, Inc. Page 5
14.2 Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this contract. City reserves the right to require complete, certified
copies of all required insurance policies, at anytime.
14.2.1 Consultant shall procure and maintain for the duration of the
contract insurance against claims for injuries to persons or damages to property, which
may arise from or in connection with the performance of the Work hereunder by
Consultant, his agents, representatives, employees or subconsultants. The cost of such
insurance shall be included in Consultant's bid.
14.3 Acceptable Insurers. All insurance policies shall be issued by an
insurance company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders' Rating
of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the
latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
14.4 Coverage Requirements.
14.4.1 Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Consultant's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code In
addition, Consultant shall require each subconsultant to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with the
laws of the State of California, Section 3700 for all of the subconsultant's employees.
14.4.1.1 Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change.
14.4.1.2 Consultant shall submit to City, along with the
certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
14.6 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, blanket contractual liability.
14.6 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 accident.
Valley Soil, Inc. Page 6
14.7 Professional Liability (Errors & Omissions) Coverage. Consultant shall
maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) limit per claim and in the aggregate.
14.8 Other Insurance Provisions or Requirements.
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions:
14.8.1.1 Waiver of Subrogation. All insurance coverage
maintained or procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing insurance
evidence in compliance with these requirements to waive their right of recovery prior to
a loss. Consultant hereby waives its own right of recovery against City, and shall require
similar written express waivers and insurance clauses from each of its subconsultants.
14.8.1.2 Enforcement of Contract Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
14.8.1.3 Requirements not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
14.8.1.4 Notice of Cancellation. Consultant agrees to oblige
its insurance agent or broker and insurers to provide to City with thirty (30) days notice
of cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
14.9 Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement.
14.10 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
Valley Soil, Inc. Page 7
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 or joint- venture.
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
17.1 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.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
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.
Valley Soil, Inc. Page 8
19. INTELLECTUAL PROPERTY INDEMNITY
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.
24. CONFLICTS OF INTEREST
24.1 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
Valley Soil, Inc. Page 9
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination 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
25.1 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: John Kappeler
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3218
Fax: 949 - 644 -3318
25.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Eric Anderson
Valley Soil, Inc.
38125 E. Benton Rd.
Temecula, CA 92592
Phone: 951- 767 -2215
Fax: 951- 767 -2467
26. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
Valley Soil, Inc. Page 10
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement 'forthwith by giving to the defaulting party written
notice thereof.
27.2 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.
28. STANDARD PROVISIONS
28.1 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.
28.2 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.
28.3 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.
28.4 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.
28.5 Interpretation
Valley Soil, Inc. Page 11
The terms of this Agreement shall be construed in accordance with the meaning of the
language used and shall not be construed for or against either party by reason of the
authorship of the Agreement or any other rule of construction which might otherwise
apply.
28.6 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.
28.7 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.
28.8 Controlling Law And Venue
The laws of the State of California shall govern this Agreement and all matters relating
to it and any action brought relating to this Agreement shall be adjudicated in a court of
competent jurisdiction in the County of Orange.
28.9 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.
28.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
28.11 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
Valley Soil, Inc. Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE,OF TH CITY ATTORNEY
Date:
By:
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Date:
By:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Michael F. Henn
Mayor
CONSULTANT: Valley Soil, Inc., a
California Corporation
Date:
Eric Anderson,
President
Date:
By:
Terry Anderson,
Secretary
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Valley Soil, Inc. Page 13
�' 1
08/09/2011 TUB 15:19 FAX 7603764145
SCOPE OF WORK
August 2, 2011
A. Candidate Target Areas and Program Marketing
1. With the assistance of the City and IRWD, review water usage records to identify
high landscape- irrigation water usage in designated areas.
2. Create a customer /target group contact database.
3. Recommend the smart irrigation controllers) to be installed under this program —
for City review and approval. Provide costs, with backup information, for
furnishing and installing each type of controller for City review and approval.
4. Identify rebate potential based on the assumption that the regional wholesale/
retail provider (e.g. Municipal Water District of Orange County (MWDOC)) will
renew its rebate program.
5. Design and implement a marketing outreach program seeking participants for
site assessments and device installations. Develop targeted marketing materials
and preliminary customer packages highlighting: the City's logo and program
mission statement; the program's goals and methods of implementation; costs to
the customer; why the customer has been selected to participate and what
benefits the customer should receive; explain the program's funding source;
describe any tiered water rate structures; provide valley Soil's contact
information. Consultant shall submit marketing materials to the City for review
and approval. City will provide list of addresses, phone numbers, 3 -year historical
water usage and lot size. The marketing program shall consist of, as a minimum,
two mail -outs. This task shall be completed within 2 -4 weeks of receiving the
Notice to Proceed.
6. Consultant shall make, as a minimum, two phone calls to each address that does
not respond to the mail out and document phone calls.
7. Payment will be received 180 days after City acceptance of the marketing and
outreach program.
B. Scheduling, Installation and Customer Service
1. Identify staff and subcontractors working on this project and submit list to City for
approval. Consultant shall provide training for the subcontractors. City shall be
invited to the training sessions.
2. Each Friday, submit a weekly work plan to the City /IRWD that lists tasks to be
performed the following week. All Valley Soil's staff and subcontractors shall
wear clothing that includes the Valley Soil's Logo when on the job site.
3. Schedule and conduct site visits. Assess the viability or need at each site for
smart irrigation controllers or flow sensing devices that are compatible with the
smart controllers. Flow sensing will be limited to commercial sites and /or large
landscape sites, and will require City approval prior to installation.
4. Make basic recommendations for irrigation system repairs for interested
participants that may be beyond the scope of the City program. Send information
/0002/004
08/09/2011 TUB 15:19 FAX 7603764145 0003/004
to City. (Note: the consultant will not be asked to fix irrigation system leaks,
relocate sprinkler heads and /or repair irrigation valves, wiringi etc,): Present
system upgrade or repair information to customer that may need to be done prior
to program product installation, provide "leave behind" documentation for the
customer and deliver a copy to the City.
5. Complete and submit paperwork (e.g. application, water bill, invoice(s)
equipment and installation) needed for rebates, including waiver. All paperwork
shall be in triplicate and forwarded to City, IRWD and MWDOC.
6. Install equipment in accordance with manufacturer requirements, City municipal
code and HOA CCR requirements. Document that systems are working.
Deliver/install equipment and approved flow sensors (as required). Program
equipment and flow sensor coefficients per product manufacturer and site
specific survey data, activate data or communication products as necessary,
establish any 2 way operation points, .complete all operational testing and training
with customer, deliver all manuals to customers, have customer sign off on work,
log all training for recordation, enter the sign off and documentation into the
database, and recycle old units according to established a -waste guidelines. Old
units will be held for a minimum of 30 days after completion of City /IRWD post
installation inspection.
7. Train and educate the customers on the use and programming of the equipment.
Show the adjustment features and explain what the results are for each
adjustment Document all customer contact and programming notes. Leave a
copy with the customer and submit two copies to the City. The submitted copies
shall be separated out by category (residential vs. commercial) and by water
service area. Establish 2 -way communication protocols at the City's location and
train staff for accessing the information. Provide additional training as requested.
8. Track and monitor water use provided by City for all installations as required.
Provide customer results to the City and base comparisons on historical water
use and ET weather data compared to current water use and ET weather data.
9. Valley Soil to complete on site post installation equipment verification 14 to 21
calendar days after installation and provide site inspection report to City /IRWD.
City /IRWD will perform a post installation inspection within 30 calendar days of
receiving Valley Soil's post installation verification report.
10. Payment for installation will be made once City /IRWD completes their post
Installation inspection and the rebate amounts have been received by the City.
11. Design and maintain a database of outreach, installations and follow -up with
participants. Database shall be compatible with MWDOC /City database. Detail
customer complaints and resolution. Notify City and IRWD of any complaints
within 24 hours of receiving the complaint along with proposed action.
Complaints shall be resolved within five days and thereafter notify City /IRWD of
results.
12. Submit the installation and customer service database(s) monthly to the City,
attend monthly progress meetings, as required, and adjust the
marketing /outreach program as needed based on customer feedback.
Concurrently, enter collected customer contact data into the online database and
develop tracking /reporting forms and statistics.
08/09/2011 TUE 15:19 FAX 7603764145 (4004 /004
13. Cooperate with City's other consultants who are performing water quality
monitoring activities.
14. Transmit completed final database(s) to the City and IRWD.
15. Provide City Staff with information needed for its quarterly progress reports to the
State Water Resource Control Board (SWRCB).
16. Continue customer support (designated person) including field visits to address
customer complaints,
17. Assist City staff with its Final Report to the SWRCB.
18. Conduct follow -up contacts as needed or directed and conduct a customer .
survey. Offer further assistance and /or answer any questions. Compile and
submit the survey results to the City, including presentations at various City
committees. Valley Soil shall provide uninterrupted customer support for at least
a 2 year period, 5 years maybe required, to ensure customer "buy in" to the
conservation products and/or methods. Valley Soil traditionally remains in contact
with customers and associations for at least 5 years after project completion.
19. All invoices and progress payments shall include required backup
documentation.
20. Ten percent of the total project cost will be withheld and distributed pending
resolution of customer complaints and submittal of the Final Report to the
(SWRCB).
Project Schedule
The project shall be completed in accordance with the following schedule:
Task
General Description
Completion Date
Al -3
HOA Common Area Assessment
Residential Area Assessment
September 2017
A5
Marketing Materials Distributed
October2011
B3
Irrigation System Evaluations
November 2011
B6
Controller Installations
November 2011 to
December 2012
B15
Assist City with preparing
Progress Reports
Quarterly starting
December 2011
B17
Final Report
June 2013
An
P 95L. 67 =14 1 866.729.1754 'P:O. Slos 890595 Temecula. Co 92389
Fee Schedule 8/29/11
Function
R=tes
Unit
I -Iotus
Annual
Hour
Any nual
-lours.
Annual
Hours
Total
. mount
Notes
Program Set Up
Included
Included
Meetings
540.00/ Hour
3 Houn
25
51,000.00
Field and Office
Customer Bet Up
528.00
Hour
43
43
$1,204.00
Initial'I'mcking and Analysis
Direcr il4arkcting
54.75
Per Unit
282
. 282
51, 339.50
Tw,. Mailing. per Customer
Audit Contacts and Meeting Set Up
S23.00-
Herr
- -1.5 Flours-
-
294
$8,23200
196 Customers
Field Audits and $vxh:atinns
555.00
Hour
1'3 Flours
292
.576,060.00
196
Cuennucrs
Customer Audit Input
$28.00
Hour
0.75 Hour
28
60
included
her Audit or 196 Cnstomcn
Installations: labor
5225:00
193
543,45.00
2 -Wny, stamt
Insudlations: taboo
$170.00
268
545,560.00
1 -Way, est amt
Product Arcmge Cost.
57,965.00
193
$379,245.00
2 -Way, estemt
ProductAvemge Cosl
S820.00
268
VI 9,760.00
1 -Way, cstamr
Installations: Flow Sensor
5750.00
36
Gabor & Product
indudcd
527,000.00
Pending available witing 2 open area
Project Administration: usage 'rracking:
Actual and ET, City Reports
536.00/
$28.00
0:25 Flour
34
34
52;176.00
196 Customer.
Follow. Up Contacts
$28.00
Hour
0.75 Hunts
27
58
Included
Support and Field Xlwd.g,
Follow Up Field Service
$55.00
flour
1.5 Hours
92
Included
63 Customers
Follmy Up
ddminiirmuon
$28.00
hour
- 0.5 Hours
58
Included
Around Communication
Fees z^_
Monthly
5208.27
54.998.48
.Function Assigned to the:
Project Manager/
Field Staff
General Manager
- Customer
Administrator
Total not to Exceed Cost for year 1 of 2:
$750,000.00
Eric Anderson, President- Valley Sold, inc.
Date
FASHION
ISLAND
c oROmA
LITTLE
CORONA
nRE
mm�
\lI
NEWPORT
C
STATF PA Rk
0 0.25 0.5
I I I
Miles
08/23/2011
fP &!
RIDGE
COAST
Newport Coast Runoff Reduction Focus Area
QFocus Area Boundary
Residential Units in Focus Area
CRYSTAL COVE
STATE PARK