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HomeMy WebLinkAbout11 - Newport Terrace Landfill Contract & Budget AmendmentCITY OF NEWPORT BEACH City Council Staff Report Agenda Item No. 11 April 10, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Municipal Operations Department Mark Harmon, Municipal Operations Department Director 949 644 -3055, mharmon @newportbeachca.gov PREPARED BY: Kathryne Cho APPROVED: 1 TITLE: Newport Terrace Landfill Gas Collection and Control System — Award of Contract and Budget Amendment ABSTRACT: Award of contract to GC Environmental, Inc. (GCE) for perform operation, maintenance and monitoring (OM &M) services on the Newport Terrace Landfill Gas Control System (System) and budget amendment to fund the remaining OM &M services for Fiscal Year 2011 -2012 (FYI 1-12). RECOMMENDATION: Approve an annual contract for $88,080.00 with (GCE) for the OM &M services of the (System) and authorize the City Manager and City Clerk to execute the Contract on behalf of the City. 2. Approve a Budget Amendment transferring a total of $21,180.00 from Environmental Liability unappropriated fund balance, 292 -3605, to Environmental Liability, Maintenance and Repair, 3155 -8030, to fund the remaining OM &M services, possible carbon /sulfa -treat change -outs and emergency repair costs for FY11 -12. Budget Amendment No. BA12 -031 FUNDING REQUIREMENTS: The Budget Amendment records and appropriates $21,180.00 in increased expenditure appropriations from Environmental Liability unappropriated fund balance. A breakdown of the budget amendment is as follows: Newport Terrace Landfill Gas Collection and Control System — Award of Contract and Budget Amendment April 10, 2012 Page 2 Purpose Vendor Account Account Amount Description Number Routine OM &M GCE Environmental $15,530.00 Routine Testing & GCE $2,560.00 Lab Analyses Liability, Carbon /Sulfa -treat GCE Maintenance and 3155 -8030 $13,250.00 Change-Out Repair Emergency GCE $7,000.00 Repairs T &M FY 11 -12 Estimated Remaining Cost $38,340.00 Available Fund Balance $17,160.00 FYI 1-12 Budget Amendment $21,180.00 BACKGROUND: The Newport Terrace residential community is located at the northeasterly corner of 19th Street and Balboa Boulevard along the westerly boundary of Costa Mesa. The property was acquired by the City of Newport Beach and used as a solid waste disposal site (landfill) in the 1950s and early 1960s. It was sold to a private company in the early 1970s and developed with residential condominium units along both sides of the landfill area. A gas collection system was installed as part of the residential project's construction and the homeowner's community association (Newport Condominium Association, or NCA) was responsible for the system's operation and maintenance. By October 2004, that responsibility evolved into litigation between the NCA and the City which culminated in a Settlement and License Agreement in November 2006. The Agreement established that the City was responsible for: (1) the design and construction of an up- graded System, and (2) the ongoing OM &M of the System after completion of construction. The Agreement also provided that the construction costs and OM &M costs are to be shared equally between the City and the NCA. The firm of SCS was hired by the City to prepare plans and specifications for construction of the System, as well as to provide support during the bidding and construction phases. Construction of the System was performed by Innovative Construction Solutions (ICS) under Contract No. 3651. Construction work began in September 2007 and was completed in May 2008, with formal acceptance by the City Council on May 27, 2008. On June 9, 2009, Council approved an award of contract to GCE. Since that date, GCE has provided OM &M services for the System. Due to the expiration of GCE's contract, Newport Terrace Landfill Gas Collection and Control System — Award of Contract and Budget Amendment April 10, 2012 Page 3 staff was advised to re -bid the contract and now another award of contract is recommended. DISCUSSION: Five firms attended a mandatory on -site pre - proposal meeting on December 8, 2011 and submitted complete proposals on January 4, 2012. The proposals were ranked based on a two -step evaluation process. The first step involved the review of proposals with scores based on the following: 1.) Qualifications of the firm and the proposed personnel; 2.) Operational experience of the proposing firm; 3.) Operational methodology of LFG system maintenance and operation; and 4.) Responsiveness of the proposal. The second step of the evaluation process involved a ratio of costs analysis performed on all proposals. In the end, GCE was rated as the highest qualified firm for this project based on receiving the highest rated proposal and having the lowest proposed cost. A summary of the proposal evaluation process may be found in Attachment B. A Notice of Intent to Award was mailed to all firms on February 11, 2012. On March 1, 2012, GCE met with City and NCA to discuss contract procedures and basis of cost. GCE evaluated the cost for in -house Source Testing which resulted in a reduction of $1,000.00 from the specific line item cost. With the concurrence of the NCA, Staff recommends award of the OM &M service contract to GCE for a period of five (5) years with an annual budget of $88,080.00. A breakdown of the annual budget is as follows: Purpose Vendor Account Account Amount Description Number Routine OM &M GCE Environmental $37,300.00 Routine Testing & GCE $15,680.00 Lab Analyses Liability, Carbon /Sulfa -treat GCE Maintenance and 3155 -8030 $15,100.00 Change-Out Repair Emergency GCE $20,000.00 Rep airs (T &M) OM &M Annual Budget $88,080.00 Under the terms of the Settlement and License Agreement, the NCA is obligated to reimburse the City for 50% of the actual costs incurred. Reimbursement will be accomplished by submittal of a City invoice which is expected to be done on a monthly basis. Newport Terrace Landfill Gas Collection and Control System —Award of Contract and Budget Amendment April 10, 2012 Page 4 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 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). Mark Harmon � Municipal Operations Department Director Attachments: A. Project Site Location B. Request for Proposal Memo (Proposal Packets Available Upon Request) C. GC Environmental Inc. Contract (Complete OM &M Manual Available Upon Request) Newport Terrace Landfill 0 N�-- +W+ 0 1,000 2,000 4,000 Feet PROJECT SITE WAY ST- Attachment A sr Attachment B CITY OF NEWPORT BEACH FINANCE DEPARTMENT Accounting • Finance • OMB • Revenue March 28, 2012 TO: Mark Harmon, Municipal Operations Director FROM: Anthony Nguyen, Senior Buyer SUBJECT: Newport Terrace Landfill Gas System Operation and Maintenance On Thursday, February 2 "d, 2012 the evaluation panel for the Newport Terrace Landfill Gas (LFG) System project convened to evaluate and discuss the responses to the City's Request for Proposal (RFP). The purpose of this memorandum is to provide you with a synopsis of the panel's ratings as well as a summary of the RFP process thus far. Evaluation Panel The evaluation panel for this project consisted of the following individuals: George Murdoch, Utilities General Manager (Municipal Operations Department), Kathryne Cho, Junior Civil Engineer (Municipal Operations Department) and Anthony Silva, representing the Newport Terrace Condominium Association. Proposal Evaluation This solicitation yielded proposals from the following firms: Environ Strategy, GC Environmental, G.E.O. Inc., SCS Field Services and Shaw Environmental. This project entailed a two -step evaluation process, with an optional third step. The first step involved the evaluation panel reviewing and scoring the proposals based on the following criteria: 1. Qualifications of the firm and the proposed personnel; 2. Operational experience of the proposing firm; 3. Operational methodology of LFG system maintenance and operation; and 4. Responsiveness of the proposal. Each of the aforementioned categories was assigned a weighted multiplier based on significance and relevance to the project, resulting in a possible score of 100 points for each proposal. Exhibit A is a summary of the results from the proposal evaluations: EXHIBIT A: PROPOSAL EVALUATION RESULTS The second step of the evaluation process involved a ratio of costs analysis performed on all of the proposals. Because of their recurring, constant and necessary nature, three costs were isolated for this analysis: (1) Routine Operations and Maintenance Services; (2) Laboratory Analyses; and (3) Landfill Gas Source Testing. The lowest cost proposal was awarded 100 points and subsequent cost proposals were awarded a percentage of points in direct relation to the percentage difference of cost from the lowest cost proposal. Exhibit B is a summary of the results from the ratio of costs analysis: EXHIBIT B: RATIO OF COSTS ANALYSIS Environ Strategy GC Environmental G.E.O., Inc. SCS Field Services Shaw Environmental Panelist 70.00 84.67 45.00 75.00 80.33 Kathryne Cho 72 83 29 88 83 George Murdoch 75 80 40 80 72 Anthony Silva 63 91 66 57 86 TOTAL 210 254 135 225 241 AVERAGE 70.00 84.67 45.00 75.00 80.33 The second step of the evaluation process involved a ratio of costs analysis performed on all of the proposals. Because of their recurring, constant and necessary nature, three costs were isolated for this analysis: (1) Routine Operations and Maintenance Services; (2) Laboratory Analyses; and (3) Landfill Gas Source Testing. The lowest cost proposal was awarded 100 points and subsequent cost proposals were awarded a percentage of points in direct relation to the percentage difference of cost from the lowest cost proposal. Exhibit B is a summary of the results from the ratio of costs analysis: EXHIBIT B: RATIO OF COSTS ANALYSIS Evaluation Results The scores from the first two steps were then tabulated to quantitatively rank the proposals. The evaluation panel was advised that a third optional step, which involved interviewing the top - qualified firms, could be initiated upon the panel's request if none of the top - qualified firms distinguished themselves and further information or clarification was needed. Exhibit C is a summary of the aggregate scores of all five (5) proposing firms (overall rank in parenthesis): EXHIBIT C: AGGREGATE SCORES OF PROPOSALS Environ Strategy GC Environmental G.E.O., Inc. SCS Field Services Shaw Environmental Operation and 70.00 84.67 45.00 75.00 80.33 Maintenance Annual Cost $47,275.00 $45,565.00 $64,850.00 $44,650.00 $51,495.25 Proposed 164.45(4) 182.66(l) 113.85(5) 175.00(2) 167.04(3) Ratio of Costs 94.45 97.99 68.85 100 86.71 Evaluation Results The scores from the first two steps were then tabulated to quantitatively rank the proposals. The evaluation panel was advised that a third optional step, which involved interviewing the top - qualified firms, could be initiated upon the panel's request if none of the top - qualified firms distinguished themselves and further information or clarification was needed. Exhibit C is a summary of the aggregate scores of all five (5) proposing firms (overall rank in parenthesis): EXHIBIT C: AGGREGATE SCORES OF PROPOSALS GC Environmental was rated as the highest qualified firm for this project by virtue of having the highest rated proposal and lowest proposed cost. The panel was impressed with the experience Environ Strategy GC Environmental G.E.O., Inc. SCS Field Services Shaw Environmental Proposal Average Score 70.00 84.67 45.00 75.00 80.33 Ratio of Costs Score 94.45 97.99 68.85 100 86.71 Aggregate Score 164.45(4) 182.66(l) 113.85(5) 175.00(2) 167.04(3) GC Environmental was rated as the highest qualified firm for this project by virtue of having the highest rated proposal and lowest proposed cost. The panel was impressed with the experience and operational knowledge demonstrated by GC Environmental in their proposal. Since there was a significant difference between GC Environmental and the second highest qualified firm (SCS Engineers) and there were no points of clarification needed, the panel deemed that interviews were not necessary and recommends the City negotiate with GC Environmental toward a contract for this project. Attachment C AGREEMENT FOR OPERATION AND MAINTENANCE SERVICES WITH GC ENVIRONMENTAL, INC. FOR NEWPORT TERRACE LANDFILL GAS CONTROL SYSTEM THIS AGREEMENT FOR OPERATION AND MAINTENANCE SERVICES ( "Agreement") is made and entered into as of this 10°i day of April, 2012 ( "Commencement Date ") by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City"), and GC ENVIRONMENTAL, INC., a California corporation ( "Contractor"), whose principal place of business is 1230 N. Jefferson Street, Suite J, Anaheim, California 92807 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 requires operation and maintenance ( "O &M ") service related to the Newport Terrace Landfill Gas Control System ("System "), as described and depicted in the Operation and Maintenance Manual, dated March 13, 2009 and revised by the City November 8, 2011, • attached hereto as Exhibit "A" and incorporated herein by this reference. C. City desires to engage Contractor to perform the O &M for the System, as described in Exhibits "A" and "B ", attached hereto and incorporated herein by this reference ("Project"). D. Contractor has examined the location of all proposed work, carefully reviewed and evaluated the specifications set forth by the City for the Project, and is familiar with all conditions relevant to the performance of services and has committed to perform all work required for the price specified in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The tern of this Agreement shall be for a period of five (5) years and shall commence on the Commencement Date, and shall terminate on March 31, 2017, unless terminated earlier as set forth herein. 2. SCOPE OF WORK 2.1. City and Contractor acknowledge that the above Recitals are true and correct and are hereby incorporated by reference. Contractor shall perform all the work described in the Scope of Work attached hereto as Exhibit A and incorporated herein by this reference ( "Services" or "Work "). As a material inducement to the City entering into CC ENVIRONMENTAL, INC. Page 1 this Agreement, Contractor represents and warrants that Contractor is a provider of first class work and Contractor is experienced in performing the Work contemplated herein and, in light of such status and experience, Contractor covenants that it shall follow the highest professional standards in performing the Work required hereunder and that all materials will be of good quality. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one or more first -class firms performing similar work under similar circumstances. 2.2. Contractor shall perform everything required to be performed, and shall provide and furnish all the labor, materials, necessary tools, expendable equipment and all utility and transportation services necessary for the Project. 3. TIME OF PERFORMANCE 3.1. Routine O & M Services. Time is of the essence in the performance of Services under this Agreement. Contractor shall perform the Routine O & M Services, identified in items 1 thru 3 in Exhibit B, in accordance with the schedule included in Exhibit A. The failure by Contractor to strictly adhere to the schedule may result in termination of this Agreement by City. 3.1.1. Notwithstanding the foregoing, Contractor shall not be responsible for delays due to causes beyond Consultants 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. 3.1.2. Contractor shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than two (2) 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 Consultants control. 3.1.3. 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. 3.2. On -Call Services. Upon verbal or written request from the Project Administrator (as defined below in Section 5), Contractor shall provide a letter proposal for on -call Services requested by the City including, the Services identified as items 4 thru 7 in Exhibit B (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: 3.2.1. A detailed description of the Services to be provided; 3.2.2. The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; 3.2.3. The estimated number of hours and cost to complete the Services; and 3.2.4. The time needed to finish the specific Project. GC ENVIRONMENTAL, INC. Page 2 3.3. No on -call Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Contractor shall diligently perform the duties in the approved Letter Proposal. 4. COMPENSATION 4.1. City shall pay Contractor 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. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Contractor's total annual compensation per calendar year from the Commencement Date of the Agreement for Services performed in accordance with this Agreement, including all reimbursable items, shall not exceed Eighty Eight Thousand Eighty Dollars and 001100 ($88,080.00) without written amendment to the Agreement. The total compensation over the full term of the Agreement shall not exceed Four Hundred Forty Thousand Four Hundred Dollars and 001100 ($440,400.000) without written amendment to the Agreement. 4.1.1. Routine O & M Services. As full compensation for the performance and completion of the Routine O & M Services as identified as items 1 thru 3 on Exhibit B, City shall pay Contractor and Contractor accepts as full payment the sum of Fifty Two Thousand Nine Hundred and Eighty Dollars and 001100 ($52,980.00) per calendar year from the Commencement Date of the Agreement, subject to the annual adjustment in proportion to changes in the Consumer Price Index more particularly described in Section 4.2 below. Compensation for the Routine O & M Services, identified as items 1 and 2 on Exhibit B shall be paid in twelve (12) equal monthly installments. Services identified in item 3 of Exhibit B shall be paid on a Unit Price rate as outlined in Exhibit B, with written approval from the City and upon completion of work. 4.1.2. On -Call Services. For all other Services the City shall pay Contractor 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. 4.2. Consumer Price Index. Upon the first anniversary of the Commencement Date and upon each anniversary of the Commencement Date thereafter, the rates to be paid by the City as set forth in Exhibit B items 1 thru 3 shall be adjusted in proportion to changes in the Consumer Price Index, subject to the 3.0% maximum adjustment increase set forth below. Such adjustment shall be made by multiplying the original rate by a fraction, the numerator of which is the value of the Consumer Price Index for the calendar month three (3) months preceding the calendar month for which such adjustment is to be made and the denominator of which is the value of the Consumer Price Index for the same calendar month one (1) year prior. For example, If the adjustment is to occur effective June 1, 2011, the index to be used for the numerator Is the index for the month of March 2011 and the index to be used for the denominator is March 2010. The "Consumer Price Index" to be used in such calculation is the Consumer Price Index, All Urban Consumers (All Items) for the Los Angeles Anaheim Riverside Metropolitan Area, published by the United States Department of Labor, GC ENVIRONMENTAL, INC. Page 3 Bureau of Labor Statistics (1982 84 = 100). If both an official index and one or more unofficial indices are published, the official index shall be used. If said Consumer Price Index is no longer published at the adjustment date, it shall be constructed by conversion tables included in such new index. In no event, however, shall the amount payable under this agreement be reduced below the Rate in effect immediately preceding such adjustment. The maximum increase to the Rate, for any year where an adjustment is made in proportion to changes in the Consumer Price Index, shall not exceed 3.0% of the Rate in effect immediately preceding such adjustment. 4.3. Contractor shall submit monthly invoices to City describing the Work performed the preceding month. Contractor's bills shall include the name of the person and /or classification of employee who performed the Work, a brief description of the Services performed and/or the speck task from the Scope Services attached hereto 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 Contractor no later than thirty (30) days after approval of the monthly invoice by City staff. 4.4. City shall reimburse Contractor only for those costs or expenses specifically approved in the Scope of Services attached hereto. Unless otherwise approved, such costs shall be limited and include nothing more than the actual costs and /or other costs and /or payments specifically authorized In advance in writing and incurred by Contractor in the performance of this Agreement. 4.5. Contractor 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 the Project Administrator (as defined in Section 5 below) to be necessary for the proper completion of the Project, but which is not included within the Scope of Work and which the City and Contractor did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 1J,I11111- 110 "AdN]11 This Agreement will be administered by the Municipal Operations Department. George Murdoch, Utilities General 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. 6. TYPE AND INSTALLATION OF MATERIALS /STANDARD OF CARE 6.1. Contractor shall use only the standard materials described in Exhibit A in performing Services under this Agreement. Any deviation from the materials described in Exhibit A shall not be installed unless approved in advance by the Project Administrator. 6.2. All of the Services shall be performed by Contractor or under Contractor's supervision. Contractor represents that it possesses the personnel required to perform GC ENVIRONMENTAL, INC. Page 4 the Services required by this Agreement, and that it will perform all Services in a manner commensurate with highest 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. 7. RESPONSIBILITY FOR DAMAGES OR INJURY 7.1. City and all officers, employees and representatives thereof shall not be responsible in any manner for any loss or damage to any of the materials or other things used or employed in performing the Project or for injury to or death of any person as a result of Contractor's performance of the Services required hereunder; or for damage to property from any cause arising from the performance of the Project by Contractor, or its subcontractors, or its workers, or anyone employed by either of them. 7.2. Contractor shall be responsible for any liability imposed by law and for injuries to or death of any person or damage to property resulting from defects, obstructions or from any cause arising from Contractor's Work on the Project, or the Work of any subcontractor or supplier selected by the Contractor. 7.3. To the fullest extent permitted by law, Contractor shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages; actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Contractor's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Contractor, 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). 7.4. Notwithstanding the foregoing, nothing herein shall be construed to require Contractor 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. 7.5. Contractor shall perform all Project Work in a manner to minimize public Inconvenience and possible hazard, to restore other work areas to their original condition and former usefulness as soon as possible, and to protect public and private property. Contractor shall be liable for any private or public property damaged during the performance of the Project Work. GC ENVIRONMENTAL, INC. Page 5 7.6. To the extent authorized by law, as much of the money due Contractor under and by virtue of the Agreement as shall be considered necessary by City may be retained by it until disposition has been made of such suits or claims for damages as aforesaid. 7.7. The rights and obligations set forth in this Section shall survive the termination of this Agreement. 8. INDEPENDENT CONTRACTOR City has retained Contractor as an independent contractor and neither Contractor nor its employees are to be considered employees of the City. The manner and means of conducting the Work are under the control of Contractor, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Contractor shall have the responsibility for and control over the means of performing the Work, provided that Contractor is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Contractor as to the details. of the performance or to exercise a measure of control over Contractor shall mean only that Contractor shall follow the desires of City with respect to the results of the Services. 9. COOPERATION Contractor 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 Contractor on the Project. 10. INSURANCE 10.1. Without limiting Contractor's indemnification of City, and no for to commencement of Work. Contractor 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. The cost of such insurance shall be included in Contractor's bid. 10.2. Coverage and Limit Requirements. 10.2.1. Workers' Compensation. Contractor shall maintain Workers' Compensation Insurance providing statutory benefits and employer's liability insurance with limits of at least one million dollars ($1,000,000) each type for Contractor's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code. In addition, Contractor 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, Section 3700 for all of the subcontractor's employees. The insurer issuing the Workers' Compensation insurance shall amend its policy by endorsement to waive all rights of subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers. Contractor GC ENVIRONMENTAL, INC. Page 6 shall submit to City, along with the required certificate of insurance, a copy of such waiver of subrogation endorsement. 10.2.2. General Liability. Contractor shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) General Aggregate and two million dollars ($2,000,000) Products and Completed Operations Aggregate for bodily injury, personal Injury, and property damage, including without limitation, blanket contractual liability. Coverage shall be at least as broad as that provided by Insurance Services Office form CG 00 01. None of the policies required herein shall be in compliance with these requirements if they include any limiting endorsement that has not been first submitted to City and approved in writing. 10.2.3. Automobile Liability. Contractor shall maintain automobile insurance covering bodily injury and property damage for all activities of the Contractor 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. 10.2.4. Builders Risk. For Agreements or Contracts with ConstructionBuilders Risk property exposures, Contractor shall maintain Builders Risk insurance or an installation floater as directed by City, covering damages to the Work for "all risk" or special form causes of loss with limits equal to one hundred percent (100 %) of the completed value of contract, with coverage to continue until final acceptance of the Work by City. At the discretion of City, the requirement for such coverage may include additional protection for Earthquake and/or Flood. City shall be included as an insured on such policy, and Contractor shall provide the City with a copy of the policy. 10.3. Other Insurance Provisions or Requirements. 10.3.1. Evidence of Insurance. Contractor 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 and an additional insured endorsement for general liability. Insurance certificates and endorsements must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current evidence of insurance shall be kept on file with City at all times during the term of this Agreement. All of the executed documents referenced in this Agreement must be returned within ten (10) working days after the date on the "Notification of Award; so that the City may review and approve all insurance and bond documentation. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 10.3.2. General liability insurance provisions. Primary and excess or umbrella liability policies are to contain, or be endorsed to contain, the following provisions: 10.3.2.1. City and the Newport Condominium Association ( "NCA "), their elected or appointed officers, agents, officials, employees, and volunteers GC ENVIRONMENTAL, INC. Page 7 are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of Contractor, including the Insured's general supervision of Contractor; products and completed operations of Contractor, premises owned, occupied or used by Contractor. The coverage shall contain no special limitations on the scope of protection afforded to City, its elected or appointed officers, officials, employees, agents or volunteers. Contractor shall submit to City a copy of the additional insured endorsement along with the required certificates of insurance. 10.3.2.2. Contractor's insurance coverage shall be primary Insurance and /or primary source of recovery as respects to City and the Newport Condominium Association ( "NCA "), their elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Contractor's operations or services provided to the City. Any Insurance or self - insurance maintained by City and the Newport Condominium Association ( "NCA "), their officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 10.3.2.3. Contractors insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurers liability. 10.4. 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. 10.5. Notice of Cancellation. Contractor agrees to oblige its insurance broker and insurers to provide to City with 30 days notice of cancellation (except for nonpayment for which 10 days notice is required) or nonrenewal of coverage for each required coverage except for builders risk insurance. The builders risk policy will contain or be endorsed to contain a provision providing for 30 days written notice to City of cancellation or nonrenewal, except for nonpayment for which 10 days notice is required. 10.6. Self - Insured Retentions. Contractor agrees not to self- insure or to use any self - insured retentions on any portion of the insurance required herein and further agrees that it will not allow any indemnifying party to self -insure its obligations to City. If contractors existing coverage includes a self- insured retention, the self- insured retention must be declared to City. City may review options with the contractor, which may include reduction or elimination of the self - insured retention, substitution of other overage, or other solutions. Contractor agrees to be responsible for payment of any deductibles on their policies. 10.7. Timely Notice of Claims. Contractor shall give City prompt and timely notice of any claim made or suit instituted arising out of or resulting from Contractors performance under this agreement. GC ENVIRONMENTAL, INC. Page 8 10.8. Waiver. 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 Contractor or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Contractor hereby waives Its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. 10.9. Enforcement of Agreement Provisions. Contractor acknowledges and agrees that any actual or alleged failure on the part of the City to inform Contractor of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 10.10. 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. 10.11..City s Remedies. City shall have the right to order the Contractor to stop Work under this Agreement and/or withhold any payment(s) that become due to Contractor hereunder until Contractor demonstrates compliance with the requirements of this article. In the alternative, City may purchase the required coverage and charge Contractor the cost of the premiums or deduct the cost from Contractor's payments. 10.12. Coverage not Limited. All insurance coverage and limits provided by contractor and available or applicable to this agreement are intended to apply to the full extent of the policies. Nothing contained in this agreement or any other agreement relating to the city or its operations limits the application of such insurance coverage. 10.13. Coverage Renewal. Contractor will renew the ooverage required here annually as long as Contractor continues to provide any Services under this or any other contract or agreement with the City. Contractor shall provide proof that policies of Insurance required herein expiring during the term of this Agreement have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. A coverage binder or letter from Contractor's insurance agent to this effect is acceptable. A certificate of insurance and /or additional insured endorsement as required in these specifications applicable to the renewing or new coverage must be provided to City within five days of the expiration of the coverages. 11. SUBCONTRACTING City and Contractor agree that subcontractors may be used to complete the Work outlined in the Scope of Work provided the Contractor obtains City approval prior to the subcontractor performing any work. Contractor shall be fully responsible to City for all acts and omissions of the subcontractors. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation GC ENVIRONMENTAL, INC. Page 9 on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. 12. WITHHOLDINGS City may withhold payment to Contractor 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. Contractor shall not discontinue Work as a result of such withholding. Contractor shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Contractor 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. 13. CONFLICTS OF INTEREST 13.1. The Contractor 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 foreseeabiy be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeabiy financially affect such interest. 13.2. If subject to the Act, Contractor 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. Contractor shall indemnify and hold harmless City for any and all claims for damages resulting from Contractor's violation of this Section. 14. NOTICES 14.1. All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Contractor 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 Contractor to City shall be addressed to City at: Attn: George Murdoch Municipal Operations Department City of Newport Beach 3300 Newport Blvd. PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3011 Fax: 949 - 646 -1509 14.2. With a courtesy copy to: John Van Vlear, Esq., R.E.A. GC ENVIRONMENTAL, INC. Page 10 Voss Cook & Thai LLP 895 Dove Street, #450 Newport Beach, CA 92660 E -Mail: vv@vctlaw.com Phone: (949) 435 -4338 Fax: (949) 435 -0226 14.3. All notices, demands, requests or approvals from City to Contractor shall be addressed to Contractor at: Attn: Farideh Kia GC ENVIRONMENTAL, INC. 1230 N. Jefferson Street, Suite J Anaheim, California 92807 Phone: 714 -632 -9969 Fax: 714 -632 -9968 15. NOTICE OF CLAIMS 15.1. Unless a shorter time is specked elsewhere in this Agreement, before making its final request for payment under the Agreement, Contractor shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Contractor's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Contractor in writing as unsettled at the time of its final request for payment. The Contractor and the City expressly agree that in addition to all claims filing requirements set forth in the Agreement, the Contractor shall be required to file any claim the Contractor may have against the City in strict conformance with the Tort Claims Act (Govt. Code §§ 900 et seq.). 16. TERMINATION 16.1. 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 16.2. 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 Contractor. In the event of termination under this Section, City shall pay Contractor for Services satisfactorily performed and costs incurred up to the effective date of termination for which Contractor has not been previously paid. On the effective date of termination, Contractor shall deliver to City all materials purchased in performance of this Agreement. GC ENVIRONMENTAL, INC. Page 11 17. STANDARD PROVISIONS 17.1. Compliance with all Laws. Contractor 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. 17.2. Waiver. A waiver by City of any term, covenant, or condition in the Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition. 17.3. Intearated 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 Contract or implied covenant shall be held to vary the provisions herein. 17.4. Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Exhibits attached hereto, the terms of this Agreement shall govem. 17.5. Amendments. This Agreement may be modified or amended only by a written document executed by both Contractor and City and approved as to form by the City Attorney. 17.6. Effect of Contractots Execution. Execution of this Agreement by Contractor is a representation that Contractor has visited the Project Site, has become familiar with the local conditions under which the Work is to be performed, and has taken into consideration these factors in submitting its Project Proposal and Scope of Work. 17.7. Controllina 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. 17.8. Egual Opportunity Employment. Contractor 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. 17.9. Interpretation. The terns 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. 17.10. 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. GC ENVIRONMENTAL, INC. Page 12 17.11. No Attorneys Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys fees. 17.12. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURES ON NEXT PAGE] GC ENVIRONMENTAL, INC. Page 13 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: 3 2 l- v By: Aaron C. Harp City Attorney ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Nancy Gardner Mayor CONTRACTOR: GC ENVIRONMENTAL, INC., a California corporation By: Richard W. Prosser President and Chief Executive Officer Date: By: Farideh Kia Vice President and Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A - Operation and Maintenance Manual Exhibit B - Schedule of Billing Rates GC ENVIRONMENTAL, INC. Page 14 EXHIBIT A OPERATIONS AND MAINTENANCE MANUAL (CD) GC ENVIRONMENTAL, INC. Page A -1 EXHIBIT B SCHEDULE OF BILLING RATES Routine O eration & Maintenance Services Item No. Carbon Change -Out Quantities Total Price Provide lump sum costs for replacement of carbon ($) 4. Routine O &M Services LS Monitoring Pursuant to Regulations and as described in the b) $6,750 1 OM &M Plan, Other Monitoring and Maintenance LS $37,300 5 Parameters, and Reporting (as specified in RFP Section 1 -F (Annual) $8,350 and attached O &M Manual), exclusive of laboratory analyses. See Rate 6. Laboratory Analyses T &M a) $90 Provide unit cost for laboratory analyses of air/gas samples, Unit price 2. including See Rate 7. a) Total Gaseous Non - Methane Organics (TGNMOs) (12/yr) T &M b) 275 b Rule 1150.1 Toxic Air Contaminants ACs) (28/ 3. Landfill Gas Source Test Unit Price $6,900 On -Call Services • The GC Environmental, Inc. will obtain three bids or proposals from qualified subcontractors for any on -call services requested. GC Environmental, Inc. will provide the bids to the City for final approval before any work is started. • GC Environmental, Inc. shall use the lowest qualified bid received. GC ENVIRONMENTAL, INC. Page B -1 Carbon Change -Out Provide lump sum costs for replacement of carbon a) $4,900 4. adsorption media: LS a) for a single vessel b) $6,750 b for two vessels simultaneous) 5 Sulfa -Treat Chancre -Out Unit Price $8,350 Provide unit cost for replacement of Sulfa -Treat media. Non - Routine Services and Emergency Response See Rate 6. Provide rate schedule for T &M work, including labor and T &M Schedule equipment rates. Engineering Services See Rate 7. Provide rate schedule for T &M work, including labor and T &M Schedule equipment rates. GC ENVIRONMENTAL, INC. Page B -1 GC ENVIRONMENTAL, INC. - BASIS OF CHARGES Effective January 1, 2012 1. Listed herein am "cat prices for services most frequently perfomled by GC Environmental, Inc. Prices for other services not listed will be given upon request. 2. Invoices will be issued on a monthly basis, or upon completion of a project, whichever is sooner. The net cash amount of this imroiee is payable within 30 days of receipt and approval of the invoice. 3. For hourly workers, time worked in excess of eight hours per day and weekend work will be charged at 1.5 times the hourly rate. 4. Per ahem will be charged at a rate of S75 per day per person or expenses plus 1596, whichever is greater. Per Them will be charged for all projects in excess of SO miles from the GC Environmental, Inc. office. S. Outsido services will include a.1S%morkununless otherwise noted. 6. We are protected by Worker's Compensation Insurance, and wit furnish certificates thereof upon requesL We assume the risk, of damage to our own supplies and equipment. If your contract or purchase order places greater responsibilities upon us or requires funkier imurance coverage, GCE will, when specifically directed by you, take out additional insurance (if procurable) to protect us at your expense, but we shall not be responsible for property damage from any cause, including fire and explosion, beyond the amounts of coverage of our insurance. 7. All environmental samples may be retumed to clients at GC Environmental, Inn's discretion 30 days after submission of final repast, unless prior arrangements are made. S. Proper disposal or handling of soil boring cuttings, well development and purge waters, decontamination solutions, and other contaminatod/potentiaiy, contaminated materials is the responsibility of the client. GC Environmental, Inc, can provide containers for on•ste containment and an advise the client regarding proper handling procedures. 9. Expert witness, dcposigons and testimony at two times the regular fee. RegisteredProject Professional «»».»._...»».»».»..».........».».»..»».».».»..».»».»» . »..... ».».» » ». «». »_.. ».._ »._.. »..._.123 ProjeU Professional..____.._.____.»..«._..._«.._...____«.....»_».»... .._...._.... »..._... ».. »_.___.. »....__....._..._114 AssistantProfessional . ..... ....... ................ ............... _....»......... ...._ ................ _ ............... _ .... _.. _ ....... ...... ....... ...... ..79 Designer...«.»_».«.»..».»».»._..»«.__»...«._...__.».....»._»._»..»._»..._..».__..._...»..__._. ._.____.._.... »....... «..._..70 SeniorTechtd eldEngineer.«.....»»._.........«.......».».....»......».....» ..................... ...... » ..... _..._.._...». ............ _..62 Technician.. ............. _ . .................. « ..... _»._ .................... ...... » ...... ...... » ... ». ....... » ..... _ ... ................. ..... .» ........... ..54 Miiage__.««..___..««.».«._..»..._-._.....»...«.».»..».. .. »»..« ».....--- . ».. ». »»..» »... 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S55/day WeatherStation ......... _ ... .............. _....._...«..........,.,.........»...,.........«.....«...«.............. .. »...........».... ».. »..._..._ S1251d3y Ambient Air Sampling Equipment ( upgradienN downgradient) ..... .« ................. ».... ..._..._......._... «.. »..._...» Sloaday Truck._ ........... «. ......... _ .......... ». ........................ .»...«....»......._ ................. »........»...».. ....._..._..........._..345/day Truck& Tools ............. _ ............ .» .............. .,..,,...... .... .............. ................... ......... _ ... ........ _ .......... _.._...S75 /day 0sW#U BR0PWAt.W1ydNmpoa naA2012muborWagm NewpMdoe C"dS1a0N12- GC&WnommW.tm. AIIRighu Rewwd GC ENVIRONMENTAL, INC. Page B -2