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HomeMy WebLinkAbout04 - Lower Bay DredgingAgenda Item No. 4 May 8, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FRONT: Public Works Department Stephen G. Badum, Public Works Director 949 - 644 -3311, sbadum @newportbeachca.gov PREPARED BY: Chris Miller, Harbor Resources Manager APPROVED: A TITLE: Professional Services Agreement with Anchor, QEA, L.P., for Water Quality and Field Management Services for the Lower Bay Federal Dredging Program ABSTRACT: Anchor QEA is providing services for water quality monitoring during the upcoming Lower Bay dredging project as a required by the Santa Ana Regional Water Quality Board. RECOMMENDATIONS: 1. Approve and execute the Professional Services Agreement with Anchor QEA for water quality monitoring. 2. Approve a Budget Amendment 12BA- 036 transferring $388,017 from Account No. 7231- C4402004 and $15,000 from Account No. 7231- C4402007 in project savings to Account No. 7231- C4402003. FUNDING REQUIREMENTS: Anchor QEA is proposing to perform water quality monitoring for a not -to- exceed cost of $403,017.00. Surplus savings are available from recently completed or recently awarded projects including $388,017 from the Rhine Channel Contaminated Sediment Cleanup project (Account No. 7231- C4402004) and $15,000 from the Bulkhead and Seawall Repairs project (Account No. 7231- C4402007.) DISCUSSION: The federal government/Corps of Engineers ( "Corps ") is planning to dredge the Lower Newport Bay in May 2012 after nearly ten years of planning. As a condition of the Professional Services Agreement with Anchor, QEA, L.P., for Water Quality and Field Management Services for the Lower Bay Federal Dredging Program May 08, 2012 Page 2 Corps' permit to dredge, the Santa Ana Regional Water Quality Control Board ( "Water Board ") requires a water quality monitoring program to be instituted throughout the project. However, due to a budget shortfall within the Corps, the Corps was unable to perform the required monitoring, and asked the City to intervene to prevent the project from stalling via possible legal action from the Water Board. The City was therefore forced to react quickly in order to prevent the project from any more delays especially with the Port of Long Beach disposal deadline rapidly approaching. Because Anchor QEA had previously assisted the City in negotiating this same type of program for the recent Rhine Channel project, the Public Works Department decided to execute a sole source agreement with Anchor QEA in order to capitalize on their previous, relevant experience, and to save as much time as possible by avoiding any unnecessary delays. In addition to developing and implementing a water quality and sediment monitoring program, several technical studies are required to further refine the dredge design to account for apparent high spots throughout the harbor. Scope of Services Task 1: Water Quality Monitoring Plan Negotiations Because Newport Harbor is subject to the Water Board's sediment and water total maximum daily load ( "TMDU) program, there is raised awareness with regards to sediment residual layers and potential water quality impacts during dredging. To address these elevated concerns, the Water Board required a much more rigorous Monitoring and Reporting Plan ( "MRP ") than is typical for federal dredging projects. Anchor QEA reviewed the Water Board's initial MRP requirements, then negotiated and developed a more reasonable program through their recent experience on a similar program for the Rhine Channel dredging project. This effort required several conference calls and heavy negotiating. The project costs for this task are $35,500. Task 2: Water Quality and Sediment Sampling The final negotiated MRP details specific requirements for the program as summarized below: • A total of 65 days of water quality monitoring for two people • A total of 21 water chemistry samples. • A total of 13 additional total suspended solid samples. Professional Services Agreement with Anchor, QEA, L.P., for Water Quality and Field Management Services for the Lower Bay Federal Dredging Program May 08, 2012 Page 3 0 A total of 5 quality assurance and quality control water chemistry samples. 0 10% rush charges for 5 -day turnaround time and a 5% contingency for chemistry samples. 0 Water column toxicity test for 8 samples. 0 A total of 9 surface water interface toxicity tests. 0 A total of 9 sediment chemistry grab samples. 0 A total of 2 field days for sediment sampling. 0 A maximum of 4 monthly water quality monitoring reports. 0 No more than one Water Quality and Sediment Monitoring Plan prior to dredging. 0 One final Water Quality and Sediment Report 0 A total of 80 hours for project management/meetings and field observations of construction activities not associated with general water quality monitoring. The project costs for this task are $350,334. Task 3: Lower Newport Bay Bathymetry Survey Several potential high spots in the harbor, not previously identified by the Corps, have been reported to Harbor Resources. Anchor QEA investigated these high spots using a multi -beam sonar as a way to verify these claims so the data could be incorporated into the current dredge plan if possible. This effort required one field day with one field survey crew with subsequent data analysis. The project costs for this task are $11,500. Task 4: Marina Park/Lido Isle North Sampling and Analysis Sediment core sampling and analysis is required at two target dredge areas adjacent to the Marina Park and Lido Isle North dredge areas to better assess the required dredge depths relative to existing site conditions and chemical concentrations. Previous investigations relied on composite samples over the entire dredge profile to determine material disposal suitability. Changes to the planned dredge depths necessitate an additional investigation to verify contaminant depths. The project costs for this task are $5,683 Professional Services Agreement with Anchor, QEA, L.P., for Water Quality and Field Management Services for the Lower Bay Federal Dredging Program May 08, 2012 Page 4 -A l9I;TeRL'd=I:rIFa1aN=kIrAI�h�F This federal project has been evaluated by the Army Corps of Engineers, South Pacific Division, Los Angeles District under the National Environmental Policy Act as an Environmental Assessment which concluded that the project will not have a significant adverse impact upon the existing environment or the quality of the human environment. 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: Badum s Director Attachments: A. Vicinity Map of Lower Newport Bay — Current Project Areas B. Professional Services Agreement C. Budget Amendment ���\r,�_� ,�CC� �' _� X1!1 � � ���9^ �`� ATTACHMENT B PROFESSIONAL SERVICES AGREEMENT WITH ANCHOR QEA, L.P. FOR WATER QUALITY AND FIELD MANAGEMENT SERVICES FOR THE LOWER NEWPORT BAY DREDGING THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this day of 2012 by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and, ANCHOR QEA, L.P., a California Limited Partnership ( "Consultant'), whose address is 26300 La Alameda, Suite 420, Mission Viejo, California 92691 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City plans to assist the Army Corps of Engineering with the Lower Newport Bay Federal Dredging Program by performing water quality monitoring for the project. C. City desires to engage Consultant to assist with Water Quality and Field Management Services for the Lower Newport Bay Dredging ( "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 Steve Cappellino. 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 June 30, 2013 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED City and Consultant 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 (as defined in Section 6 below) 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 Four Hundred Three Thousand, Seventeen Dollars and no /100 ($403,017.00) 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. ANCHOR QEA, L.P. 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. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Steve Cappellino to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Chris Miller, Harbor Resources 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. 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. ANCHOR QEA, L.P. Page 3 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 the negligence, recklessness, or willful misconduct of the Consultant or 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. 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, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The ANCHOR QEA, L.P. Page 4 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 /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE 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. 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 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. ANCHOR QEA, L.P. Page 5 14.2.1 Consultant shall procure and maintain for the duration of the Agreement 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 subcontractors. 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 subcontractor'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. 14.5 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. 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. ANCHOR QEA, L.P. Page 6 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 subcontractors. 14.8.1.2 Enforcement of Agreement 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 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. ANCHOR QEA, L.P. Page 7 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 prior written authorization 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. 17.3 All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. 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 in writing the release of information. 20. 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. 21. 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. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or 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. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by ANCHOR QEA, L.P. Page 9 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 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. 25.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals 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: Chris Miller Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644 -3043 Fax: (949) 723 -0589 ANCHOR QEA, L.P. Page 10 26.2 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Steve Cappellino ANCHOR QEA, L.P. 26300 La Alameda, Suite 240 Mission Viejo, CA 92691 Phone: (949) 347 -2780 Fax: (949) 334 -9646 27. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, 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.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole 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. 29. STANDARD PROVISIONS 29.1 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. 29.2 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 ANCHOR QEA, L.P. Page 11 breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29.3 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. 29.4 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. 29.5 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 29.6 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. 29.7 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. 29.8 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. 29.9 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. 29.10 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. 29.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES NEXT PAGE] ANCHOR QEA, L.P. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: ' Aaron Harp City Attorney ATTEST: Date: By: CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Nancy Gardner Mayor CONSULTANT: ANCHOR QEA, L.P., a California Limited Partnership Bv: Leilani I. Brown Steve Cappellino City Clerk Senior Partner [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates ANCHOR QEA, L.P. Page 13 EXHIBIT A Mr. Chris Miller April 3, 2012 TASKS • Task 1: Water Quality Monitoring Plan Negotiations • Task 2: Water Quality and Sediment Sampling • Task 3: Lower Newport Bay Bathymetry Survey • Task 4: Marina Park/Lido Isle North Sampling and Analysis Task 1: Water Quality Monitoring Plan Negotiations The U.S. Army Corps of Engineers (USACE) is responsible for dredging Lower Newport Beach and, therefore, also for monitoring water quality during dredging operations. The RWQCB Section 401 Water Quality Certification (WQQ provides Clean Water Act authorization for the USACE to dredge. Specific monitoring requirements are detailed in an associated Monitoring and Reporting Plan (MRP) that is appended to the Section 401 WQC. Because Newport Harbor is subject to the RWQCB's sediment and water total maximum daily load (TMDL) program, there is a raised awareness with regards to sediment residual layers and potential water quality impacts during dredging. To address these elevated concerns, the RWQCB requested the USACE implement a much more rigorous monitoring program than is typical for federal dredging projects. An initial assessment of the proposed program put its implementation cost estimate at slightly more than $500,000. The USACE rejected the request and the entire project was in jeopardy of failure before the City assumed the liability for negotiating and implementing a fair and reasonable program. Because of our familiarity with regional water quality monitoring requirements and our strong relationships with RWQCB technical staff, Anchor QEA was requested to assist in developing and negotiating an alternate monitoring plan. This process required reviewing the proposed program, comparing it to the previously conducted Rhine Channel contaminated sediment cleanup project and other regional projects, and developing an alternative monitoring plan. Several conference calls and meetings were required. Mr. Chris Miller Apri13, 2012 Task 2: Water Quality and Sediment Sampling The final negotiated MRP for Lower Newport Bay details the specific requirements of the program (Attachment A). The following summarizes the key aspects of the program used to develop our cost estimate: o A total of 65 days of water quality monitoring for two people (8 hour days plus one extra person for the first week to establish the program) a A total of 21 water chemistry samples (1 dredge location for one event plus 10 locations for two events) a A total of 13 additional total suspended solid samples (five for first week, plus four extra in Yacht Anchorage 1 and 2 [totaling 5 at each of these locations]) a A total of 5 quality assurance and quality control (QA /QC) water chemistry samples (equipment blank, field blank, and field duplicate [5 percent of samples]) a Ten percent rush charge for 5 -day turnaround time and 5 percent contingency for chemistry samples a Water column toxicity test for eight samples (four dredge areas plus reference for each dredge area) using bivalves • A total of nine surface water interface toxicity tests • A total of nine sediment chemistry grab samples • A total of 2 field days for sediment sampling (assumed multiple grabs for sufficient volume for toxicity testing and chemistry) • A maximum of 4 monthly water quality monitoring reports • No more than one Water Quality and Sediment Monitoring Plan prior to dredging • One Final Water Quality and Sediment Report • A total of 80 hours for project management/meetings and field observations of construction activities not associated with general water quality monitoring These assuanptions represent conservative (i.e., reasonable worst case) estimates based on anticipated results. It is possible that less or more intensive monitoring may ultimately be required once the program starts, which could result in additional expenses. Mr. Chris Miller April 3, 2012 Task 3: Lower Newport Bay Bathymetry Survey Several potential high spots in Lower Newport Bay, not previously known by the USACE, have been reported by boaters to the Harbor Resources Divison, The City plans to investigate these high spots using multi -beam sonar as a way to verify the claims and, if needed, work with the USACE to alter the planned dredge design to ensure any high spots are removed during the upcoming dredging program. For scoping purposes, a total of 10 target areas are assumed and no more than 1 field day with a field survey crew. All raw data will be processed and plotted using color depth contours for visual presentation and compared to the most recent USACE survey to evaluate potential differences in sediment elevation. Task 4: Marina Park /Lido Isle North Sampling and Analysis Sediment core sampling and analysis is required at two target dredge areas adjacent to the Marina Park and Lido Isle North dredge areas to better assess the required dredge depths relative to existing site conditions and chemical concentrations. Previous investigations relied on composite samples over the entire dredge profile to determine material disposal suitability. Changes to the planned dredge depths necessitate an additional investigation to verify contaminant depths. A total of 1 to 2 core samples are planned for each dredge area for chemical (mercury) and physical analysis. SCHEDULE Work on these tasks would begin as soon as authorization is received from the City. Dredging in Lower Newport Bay is scheduled to begin within the next 30 days and last for approximately 4 to b months. Tasks 1, 3, and 4 would be completed within 2 weeks, and Task 2 would last for the duration of the dredging program. SUMMARY OF COSTS Table 1 summarizes the costs for the above- mentioned tasks. A detailed cost breakdown is provided as Attachment B to provide supporting information and assumptions. These costs represent not -to- exceed time and materials estimates. Our standard rates are provided as Attachment C. Actual costs may be lower if less effort is required. EXHIBIT B ANCHOR QEA, I AQEA Lower Newport Bay Tasks 42- 12.xls _ ICity of Newport Beach Number. 04/02/12 Lower Newport Bay Dredging- Various Tasks Prepared: Cappellino Task I - Water Quality Monitoring Plan Negotiations - Task 2- Water Quality and Sediment Sampling and Analysis - Task 3- ll Newport Bay Bathymetry - - Task 4 - Marina ParVJLido Isle North Sampling and Analysis Labor Cate ones Billing Rate Task Task Ta sk3 Task - - - - - Total a 'Hours Total Dollars Principal CM/EagrILAJPIaNSCi Sr Managing AnalysVCM /Engr/WPIaNSci Managing AnalysUCMlEngr /LP1PianlSci Senior Analyst/CM /Engrll-A/PIal Staff 3 AnaWCWEngr /LNPIaNSci Staff 2 AnalysVCM /Engr /INPIaNBCi Staff 1 AnalystnCM/EngrILAIPlal Senior CAD Designer CAD Designer Project Coordinator (PC/PA) Technician ( ) National Export Consultant S 215 $ 195 $ 775 $ 155 $ 140 g 125 $ - 705 -$ 112 $ 95 S 89 8 89 5 350 60 80 0 0 12 0 -0 0 12 40 0 0 a2 54 18 78 800 gg 88 40 0 120 0 0 0 D 16 0 0 0 0 24 0 0 0 0 0 0 10 12 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 it 1 10 0 01 10 1111 h 1 1 60 1 1 1 1011 1111 1 1 01 1 1 1 d 416 1j11 0 0 I'�I 1�1 0 II' 0 .,, 11 ,E 0 "' 0 i;'', �1': D I cp 10 I 0 1 1 i7 01111 1.:1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 p 0 142 134 822 110 804 40 36 160 0 0 $ 30,530 $ 26,130 $ 14, 0 $ 115,080 $ 13,750 $ 84,420 $ q,g8p $ 3,420 $ 14;240 5 S _ S Total Hours Total Labor Average Hour Rate Subconsultants $ 731 208 S 35,300 2,090 S 266,810 40 $ 4,760 22 $ 2,900 0 $ _ $ 0 - I$ 1 �0 1 1111$ 11 1 1l1 1J 0111 1 + $ 0 $ 0 - 2,360 $ 309,770 Chemical Analyses(Calscience) TOXi lly Testing (Nautilus) Gahaga & Bryant Surveying TotalCost Markup oa subconseltants Reimbursables 5.0% S - $ - 3 - S - S - S - S 34,828 3 26,600 S - S S 61428 S 3077 $ - $ - $ 6000 $ $ 6000 $ 300 $ 2,100 S _ $ _ 3 - $ - $ 2,100 $ 105 T I1p1 1 111 15 r1 11 111 $ i $ $ 1$ $ I1 I f$Lf1 ji$1', I$1! �'1 S ;.$ $h',:1 - $ - $. $ - s _ $ $ - S $ $ $ 36,928 3 26,600 $ 6,000 $ $ S 69528 S 3,476 CADIComputer(Sfnr) Mileage (Vir le) Copies S/co P ( PY) Anchor boat ($ltlay) Fazes ($lfa{) Outside Expenses 510.00 80.500 $0.10 5300 $1.00 S - S 200 S - $ - S - S - S - 5 - S 8,000 S _ $ 440 $ - 3 _ $ - $ - $ - $ _ $ - $ -. $ _ $ - $ - $ - $. _ g - $ _ $ - $ _ $ 11 1r $ 111 111`$ g $ 5 $ 1$ "..1 1 -'1 I''!1-; $ $, $ -,. 1 1 „' S.. �' $ - $ - $ - $ - $ $ - $ $ $ _ $ - $ 440 S 200 8 5 8,000 $ - Truck Rental" ReprolPlottin9 Mail /FetlerJCourier Office /Boat Slip Rental Field Sampling Equipment Miscellaneous Total Cost Markup on outside expenses Field Equipment antl 5.0h 5 _ S - $ _ S - $ - $ 200 $ - $ 2,000 $ 1,500 $ - $ 5 ,000 S 2000 S 78,500 $ 525 $ - $. - $ 5 - $. - S 440 5 - $ _ $ _ $ _ s 550 S 550 S 28 - $ _ _ $ - S - 5 - S - $ - $ - $ $ - $ - $ - $ - $ 1 g $ $ -:-' '$ $ a _- $; j -1 $' $`_ $ $, 3', '.B .- $ $ - $ $ - $ $ - $ _ $ _ $ _ $ $ - $ $ $ _ 5 S 5 2,000 $ 3 7,500 $ ' $ 5,000 $ 2.550 $ 19,690 $ 553 Supplies Summary $ - $ - S _ $ 3 $' $ -` y$ . ' $ $ $ MaMUP Oa field supplies $ - $ - $ $ _ $ -.S - -', - d.$ - $ $ TOTAL COSTS $ 35,500 $ 350,334 $ 11,500 [S5 $ - $ S $. - $ - $ _ S 401 ATTACHMENT C City of Newport Beach BUDGET AMENDMENT 2011 -12 EFFECT ON BUDGETARY FUND BALANCE: Description Increase Revenue Estimates PX 7231 Increase Expenditure Appropriations AND Account Number Transfer Budget Appropriations SOURCE: Division Number 7231 from existing budget appropriations Account Number from additional estimated revenues Lower Harbor Dredging Division from unappropriated fund balance EXPLANATION: NO. BA- 12BA -036 AMOUNT: $ao3,o17.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance X No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To transfer savings in expenditure appropriations from the Rhine Channel Contaminated Sediment Cleanup project and the Bulkhead and Seawall Repairs project to the Lower Harbor Dredging project (Anchor contract) for water quality monitoring required by the Santa Ana Regional Water Quality Board. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description Description Signed: W6 Signed: Signed: Approval: City City Council Approval: City Clerk T Amount Debit Credit $388,017.00 $15,000.00 $388,017.00 $15,000.00 `I -a7 -12 Date 0111 Date Date Description Division Number 7231 Tidelands - Capital Account Number C4402004 Rhine Channel Dredging Division Number 7231 Tidelands - Capital Account Number C4402003 Lower Harbor Dredging Division Number 7231 Tidelands - Capital Account Number C4402007 Bulkhead Repairs /Sealing Rehab Division Number 7231 Tidelands - Capital Account Number C4402003 Lower Harbor Dredging Signed: W6 Signed: Signed: Approval: City City Council Approval: City Clerk T Amount Debit Credit $388,017.00 $15,000.00 $388,017.00 $15,000.00 `I -a7 -12 Date 0111 Date Date