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HomeMy WebLinkAbout09 - Fats, Oil & Grease (FOG) CharacterizationCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 November 25, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Utilities Department Terresa Moritz, Administrative Analyst, 949 - 644 -3013 tmoritz @city. newport- beach. ca. us SUBJECT: Professional Services Agreement with Environmental Engineering & Contracting, Inc. (EEC) for Fats, Oil & Grease (FOG) Characterization ISSUE: Should the City conduct a specialized "FOG Characterization Study" to establish a foundation for a Grease Control Program to eliminate Sanitary Sewer Overflows (SSOs) to comply with new wastewater regulations? RECOMMENDATION: 1) Approve Professional Services Agreement with EEC for the contract price of $47,000, and authorize the Mayor and the City Clerk to execute the agreement. 2) Adopt Budget Amendment #BA -_ appropriating $47,000 from the un- appropriated balance of the Wastewater Enterprise Fund to account No. 7531- C5600691. DISCUSSION: Background: The California Regional Water Quality Control Board, Santa Ana Region (Regional Board), adopted 'Waste Discharge Requirements" via Order No. R8- 2002 -0014 to reduce SSOs. As a part of the Order, the Regional Board directed each city to come up with a program to control Fats, Oils, and Grease ( "FOG ") to prevent SSOs. In addition, the Order calls for mitigation efforts to improve infrastructure that could cause SSOs, to curb "urban run -off' and to reduce discharges to recreational waters. Eliminating these discharges is a primary concern of the City. PSA for FOG Characterization November 25, 2003 Page 2 The City previously worked with a firm called Environmental Engineering and Contracting, Inc ( "EEC" -- www.eecworld.com), a Santa Ana -based firm, via a countywide study (a cooperative study that included the Orange County Sanitation District, the County of Orange, and several other OCSD- member cities) to look at the problems associated with FOG and to determine what programs or efforts need to be taken to combat FOG related problems to reduce or eliminate SSOs. This information will be utilized to develop a program that meets the requirements of the Regional Board's order. Professional services are needed to review current City data and acquire additional required data to develop a database that will help the City develop a program to meet the Order. This "FOG characterization" will include the following items: • FOG Hot Spot Characterization — review City data, meet with staff and update as required, the sewer hot spots and SSOs identified on the City's GIS maps, the resulting new maps will be submitted to the City upon completion; • FSE Characterization — review City data, meet with staff, update as required, the Food Service Establishment ( "FSE ") locations on City maps and create a data base and enter all FSE inspection data provided by ECIS (the City's contractor doing FSE inspections) all data will be submitted in Access and linked to GIS for City use; and • FOG Source Characterization — assist City staff in assessing hot spots using Closed- Circuit Television (CCTV) inspection to confirm causes; factors causing hot spots will be identified as evidenced on CCTV and EEC will update the Hot Spot data base with this additional information which is linked to the GIS hot spot map. EEC met with Utilities and MIS staff to discuss the compatibility of the Access data base with the City's GIS mapping programs. The electronic data that EEC will be producing for the City will be incorporated into existing GIS software. Why a sole- source contract? EEC is a local company that specializes in these services. Staff considers EEC's knowledge and experience gained from the countywide study related to FOG will be beneficial to the City's FOG Study. Our staff was very satisfied with the firms work on the County -Wide Study. Once this characterization of the City's sewer system has been completed a plan will be developed to meet the requirements of RWQCB's order, that may result in changes to the City's Grease Ordinance which will come before the Council at a later date. Environmental Review: No environmental review is required for the professional services associated with this report. PSA for FOG Characterization November 25, 2003 Page 3 Funding Availability: Funding is available in account number 7533- C5600691 upon approval of the recommended Budget Amendment. Prepared by: T sa Moritz, Adrriaigfrative Analyst Attachments: Professional Services Agreement EEC Proposal Budget Amendment Submitted by: �9 . tx.cr Cr.� Eldon Davidson, Utilities Director PROFESSIONAL SERVICES AGREEMENT WITH ENVIRONMENTAL ENGINEERING AND CONTRACTING, INC. THIS AGREEMENT is made and entered into as of this day of November, 2003, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and Environmental Engineering and Contracting, Inc., a corporation whose address is 501 Parkcenter Dr., Santa Ana, California, 92705 ( "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 design and implement a Fats, Oil and Grease (FOG) Control Program to comply with the Waste Discharge Requirement (WDR) No. R8- 2002 -0014 of the Regional Water Quality Control Board (RWQCB), Santa Ana region, that states that an FOG Control Program must be implemented by December 2004, and this contract is a crucial step in determining the City's "Hot Spots" and FOG Characterization necessary to develop a program to meet the WDR. C. City desires to engage Consultant to update all Sanitary Sewer Overflow (SSO), Food Service Establishment (FSE), and "Hot Spot' location maps and correlate data from these maps and spreadsheet from the City's contract FSE inspector Jon Kinley with a new data base to tie all information into one complete report and map derived information network (Project). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Project shall be John Shaffer and Stan Steinbach. 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 _ day of November, 2003, and shall terminate on the _ day of November, 2004, 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 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 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. In no event shall Consultant's compensation exceed Forty -Seven Thousand dollars ($47,000) without additional authorization from City. No billing E rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit invoices to City describing the work performed the preceding period. A breakdown of costs associated with the percentage of work completed and billable is described in Section 3 "Cost Estimate" of Consultants Proposal as shown in Exhibit A. 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 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 sub - consultants 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 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 set forth in Exhibit B. 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 Stan Steinbach to be its Project Manager. Consultant shall not remove or reassign the Project 3 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. 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 Utilities Department. Terresa Moritz 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. a 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are 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 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and/or design defects [if the design originated with Consultant]) 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, 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 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. 5 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 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. 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 0 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 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. 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 subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days 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. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two 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. 3. 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. 4. 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: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with 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. iii. 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) days written notice has been received by City. G. 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. H. 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. i 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 venture or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization 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 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. i 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and 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. 22. 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 10 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 to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records 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 under this Agreement. 23. 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 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 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. 24. 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 any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. 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 termination of 11 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. 27. 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: Ms. Terresa Moritz Utilities Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3013 Fax (949) 646 -5204 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Mr. Stan Steinbach Environmental Engineering and Contracting, Inc. 501 Parkcenter Drive Santa Ana, CA 92705 (714) 667 -2300 Fax (714) 28. 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 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 12 Notwithstanding the above provision, 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. 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, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. 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. 32. 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. 33. 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. 13 34. 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. 35. 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. 36. 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: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: M CITY OF NEWPORT BEACH A Municipal Corporation 93 Steve Bromberg, Mayor for the City of Newport Beach CONSULTANT By: LaVonne Harkless John Shaffer, Principal -in- Charge CITY Clerk Environmental Engineering & Contracting, Inc. Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 14 City of Newport Beach tqa Environmental Engineering & Contracting, Inc. 501 Parkcenter Drive Santa Ana, California 92705 Sewer System Fats, Oils, and Grease (FOG) Characterization Study Proposal October 17, 2003 SECTION 1 ORGANIZATION AND CREDENTIALS ENVIRONMENTAL ENGINEERING & CONTRACTING, INC. Environmental Engineering and Contracting, Inc. (EEC) is based in Santa Ana, California and specializes in providing services in the fields of water resources, environmental engineering, construction, storm water, wastewater, and data management. EEC was founded in 1995 by three scientists from the fields of chemistry, geology, and environmental engineering to fulfill a need to provide technical excellence and personal service. This scientific diversity is present throughout the management and staff of EEC, which includes civil engineers, chemical engineers, geologists, hydrogeologists, computer scientists, geographic information system (GIS) specialists, and environmental scientists. This diversity allows EEC to manage a wide variety of projects ranging from design/build engineering projects to training programs and research studies and from storm water and water resource management projects to large data collection and management projects. EEC has provided an organizational chart and qualifications information in the Staffing section of this proposal to identify the key members of the project team and the roles each will serve towards a successful completion. If awarded this project, Mr. Shaffer will serve as the Principal - in- Charge and Program Manager. Mr. Steinbach will serve as the Project Manager. Mr. Shaffer and/or Mr. Steinbach will be involved with every aspect of this project to ensure that the FOG Characterization is thorough and beneficial to the development of a successful FOG Control Program. EEC has conducted numerous characterizations of industrial waste discharges, sewer collection systems, and storm water collection systems. These characterizations have involved source identification, treatment technology evaluation, wastewater sampling and analysis, toxicity analysis, and modeling. EEC has worked closely with industries and municipalities to resolve the inherent problems associated with monitoring and enforcement of dischargers. An example of EEC's ability to work with industries and agencies is the Industrial Wastewater Treatment Operator Training Program that EEC designed and teaches at Orange County Sanitation District (OCSD) for metal finishers and circuit board manufacturers. EEC has conducted three 7 -10 week courses to this point and is preparing to conduct an advanced course later this year. EEC has trained over 130 students. In these classes, EEC teaches industries about source control, waste minimization, treatment technologies, best management practices, operation and maintenance, and, most importantly, staying in compliance with their permit and OCSD's wastewater discharge limits. Many of the students in the course speak very little English. Therefore, EEC has designed the course with translated materials and hands -on demonstrations to communicate effectively with those students. City of Newport Beach I -1 EEC FOG Characterization Proposal Confidential Orange County FOG Control Study EEC recently completed Phase I of a comprehensive FOG Control Study for the cities and agencies in Orange County (including the City of Newport Beach). The City of Newport Beach received an interim report in November, 2002 and will receive a draft Phase I report by July 2, 2003. The study was performed to respond to the Santa Ana California Regional Water Quality Control Board (SARWQCB) Waste Discharge Requirements (WDR) No. R8- 2002 -0014, which requires all north and central Orange County cities and special districts to develop a FOG Control Program by December 2004 in order to reduce Sanitary Sewer Overflows (SSOs) caused by grease blockages. In the November 2002 "FOG Control Study" interim report, EEC identified that the majority of the cities and agencies lacked essential FOG related information that will be required to develop a FOG Control Program and recommended that all Orange County cities and agencies perform a FOG Characterization Study to obtain this information. This includes the identification and mapping of grease - related sewer line hot spots and the potential sources of those hot spots, and inspections of food service establishment (FSE) to determine their grease source control or waste minimization practices. In the development of the strategy and approach for an effective FOG Characterization Study, EEC organized meetings at OCSD and at our office for the north and central Orange County cities and agencies. Over 20 Orange County Cities and agencies, including the City of Newport Beach, were in attendance at these meetings where the details for an effective FOG Characterization were discussed. Additionally to receive FSE input, EEC has met with the local chapter of the California Restaurant Association on two occasions and has also organized and administered two FOG Control Work Group meetings to discuss the findings and recommendations of the FOG Control Study. The members of the FOG Control Work Group consisted of representatives of the California Restaurant Association, the California Grocers Association, the hotel industry, Yum Brands (KFC, Taco Bell, Pizza Hut), Burger King, Rubie's Diners, the Orange County Health Care Agency, the County of Orange and OCSD. In the Work Group meetings, the concept of FOG Characterization was discussed in detail and was widely supported by the group. Unique Qualifications Unique to EEC is our expertise in local sewer related projects and our training capabilities which has resulted in sole source contracts for the FOG Control Study for Orange County Sanitation District (with funding from the City of Newport Beach) and the Industrial Wastewater Treatment Training Programs. Additionally, EEC has been contracted by OCSD to conduct a FOG Characterization Study of their service area in support of the FOG Control Study's recommendations. Also unique to EEC is our complimentary data management and GIS services. These talents are critical for many municipal and large scale projects that involve collecting and processing large amounts of environmental information, and the need to present this information in a City of Newport Beach 1 -2 EEC FOG Characterization Proposal Confidential comprehensive and easy to understand manner. This expertise has resulted in recent projects that include: database development and GIS services for the County of Orange to track water pollution events, environmental and data management services for Northrop Grumman to aid in the evaluation of a regional groundwater plume and the negotiation of remediation options, and database and GIS services for the Ultramar Refinery to assist in the determination of site soil and groundwater cleanup goals. EEC developed a database for all of the research data in the FOG Control Study and is providing data management and GIS recommendations to the stakeholders of the study as a separate deliverable to the Phase I report. This in -house data management, database development, and GIS experience makes EEC uniquely qualified to supply all of the data management and GIS tasks that may be included in this project. Relevant Project Experience Descriptions of relevant previous or on -going projects are provided on the following pages: City of Newport Beach 1 -3 EEC FOG Characterization Proposal Confidential SECTION 2 PROPOSED WORK PLAN AND SCHEDULE PROPOSED NVORK PLAN During the FOG Control Study, EEC developed the concept and approach for a FOG Characterization Study. EEC has met with City of Newport Beach's staff to identify the scope of work for those portions of FOG Characterization that the City of Newport Beach has requested assistance on. The scope of work will include: coordinating with the City of Newport Beach's sewer line maintenance staff to review and update, as required, the grease - related hot spots and SSO's; developing a data base and inputting the results of the FSE inspections; and assist in characterizing the sources of FOG that enter the sewer system from these FSEs. The FOG Characterization data will be entered into a database and linked to GIS, which will provide a valuable tool for City of Newport Beach to use to manage their FOG program. The proposed actions are divided into tasks as follows: Task 1 — FOG Hot Spot Characterization: EEC will meet with the City of Newport Beach's sewer line maintenance and engineering staff to review and update, as required, the sewer hot spots and the sanitary sewer overflows identified on the City's GIS Maps. The resulting maps will be submitted to the City of Newport Beach on completion. 2. The available data on hot spots and sanitary sewer overflows will be reviewed and entered into a data base and linked to the GIS Maps. Task 2 — FSE Characterization EEC will meet with the City of Newport Beach's sewer line maintenance and engineering staff to review and update, as required, the FSE locations identified on the City's GIS Maps. 2. EEC will create a data base and enter the FSE inspection data provided by ECIS or the City of Newport Beach. For the sake of this proposal, EEC is assuming to use Microsoft Access. This database will be linked to GIS to be used by the City of Newport Beach for its ongoing FSE inspections as part of a FOG control program. City of Newport Beach 2 -1 EEC FOG Characterization Proposal Confidential Task 3 — FOG Source Characterization EEC will work with the City of Newport Beach's staff to provide the following FOG source characterization activities: EEC will assist in assessing the hot spots using CCTV inspection to confirm the causes. Factors contributing to each hot spot (i.e. roots, FOG, offset joints, sags, etc.) that appear on the CCTV evidence will be identified. For the sake of this proposal, EEC is assuming 10 days of field oversight of the CCTV inspections. 2. EEC will update the Hot Spot data base with the information identified during these inspections which is linked to the G1S hot spot map. City of Newport Beach 2 -2 EEC FOG Characterization Proposal Confidential SECTION 3 COST ESTIMATE To complete the scope of work described in Section 2, EEC offers the following cost estimate: • FOG Characterization Support (Fixed Cost) $47,000 • The cost for each additional or reduced days of CCTV inspection oversight will be assessed at a unit cost rate of $1,100 per day (minimum of 5 days required). The proposed payment terms (net 30 days) for the FOG Characterization are as follows: 30% upon submittal of the Hot Spot and SSO data bases and the updated GIS Maps • 20% upon submittal of 50% of the FSE Characterization database inputs and updated GIS Maps 20% upon submittal of 50% of the FSE Characterization database inputs 30% upon completion of the FOG Source Characterization and updated FOG Characterization Database and GIS. Newport Beach 3 -1 EEC FOG Characterization Proposal Confidential City of Newport Beach NO. BA- 016 BUDGETAMENDMENT_ 2003 -04 AMOUNT: $a7,000.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance �X Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: from existing budget appropriations from future estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To appropriate $47,000 for a professional services agreement with Environmental Engineering & Contracting, Inc. for Fats, Oil & Grease Characterization. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Description Fund Account Description 530 3605 Wastewater Fund Balance REVENUE ESTIMATES (3601) Number Fund /Division Account Description EXPENDITURE APPROPRIATIONS (3603) Amount Debit Credit $47,000.00 ' Automatic $47,000.00 Date ate Date Description Division Number 7531 Sewer Main Replacement Account Number C5600691 Grease Control Devices Division Number Account Number Division Number Account Number Division Number Account Number Signed: nciciial_A�pprrovaal: Administrajo Services Director Signed: (Finn/ Administrative Appal: City Manager Signed: City Council Approval: City Clerk Amount Debit Credit $47,000.00 ' Automatic $47,000.00 Date ate Date City Council Meeting November 25, 2003 Agenda Item No. 9 PROFESSIONAL SERVICES AGREEMENT WITH • ENVIRONMENTAL ENGINEERING AND CONTRACTING, INC. THIS AGREEMENT is made and entered into as of this day of November, 2003, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City"), and Environmental Engineering and Contracting, Inc., a corporation whose address is 501 Parkcenter Dr., Santa Ana, California, 92705 ( "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 design and implement a Fats, Oil and Grease (FOG) Control Program to comply with the Waste Discharge Requirement (WDR) No. R8- 2002 -0014 of the Regional Water Quality Control Board (RWQCB), Santa Ana region. The WDR states that a FOG Control Program must be implemented by December 2004, and this contract is a crucial step in determining the City's "Hot • Spots" and FOG Characterization necessary to develop a program to meet the WDR. C. City desires to engage Consultant to update all location maps for Sanitary Sewer Overflows (SSO), Food Service Establishments (FSE), and sewer "Hot Spots" within the City. City also desires to have Consultant correlate data from the maps and additional data obtained during FSE inspections by the City's contract FSE inspector Jon Kinley, to create a new data base that ties all information into one complete report and map derived information network (Project). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Project shall be John Shaffer and Stan Steinbach. 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 _ day of November, 2003, and shall terminate on the _ day of November, 2004, 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 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 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. In no event shall Consultant's compensation exceed Forty -Seven • Thousand dollars ($47,000) without additional authorization from City. No billing 2 rate changes shall be made during the term of this Agreement without the prior • written approval of City. Consultant shall be paid according to the payment schedule provided in Section 3 of Consultant's proposal, attached as Exhibit A. 4.1 Consultant shall submit invoices to City describing the work performed the preceding period. 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 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 sub - consultants 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 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 set forth in Exhibit B. 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 Stan Steinbach 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 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 Utilities Department. Terresa Moritz 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. • a 8.2 Consultant represents and warrants to City that it has or shall obtain all • licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are 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 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 work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) 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, 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 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 5 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 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. 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 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. 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) days 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. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than two 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. 3. 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. 7 4. 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 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. iii. 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) days written notice has been received by City. G. 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. H. 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. is 0 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 venture or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization 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 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. 91 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer • or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept • confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and 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. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be • performed under this Agreement. Consultant shall maintain complete and 10 • 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 to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records 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 under this Agreement. 23. 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 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 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. • 24. 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 any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. 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. 11 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 Consultant's violation of this Section. 27. 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: Ms. Terresa Moritz Utilities Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3013 • Fax (949) 646 -5204 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Mr. Stan Steinbach Environmental Engineering and Contracting, Inc. 501 Parkcenter Drive Santa Ana, CA 92705 (714) 667 -2300 Fax (714) 28. 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 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 • 12 steps necessary to cure such default, the non - defaulting party may terminate the • Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. 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, regulations and permit requirements and be subject to approval of the Project Administrator and City. • 30. 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. 31. 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. 32. 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. 13 33. 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. 34. 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. 35. 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. 36. 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: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless CITY Clerk 14 CITY OF NEWPORT BEACH A Municipal Corporation Steve Bromberg, Mayor for the City of Newport Beach CONSULTANT A John Shaffer, Principal -in- Charge Environmental Engineering & • Contracting, Inc. • • Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 15