Loading...
HomeMy WebLinkAboutC-5524 - PSA for Determination of Coastal Sheltered Water Flood Levels Balboa Island - Newport HarborAMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT U WITH DHI WATER & ENVIRONMENT, INC. FOR DETERMINATION OF COASTAL SHELTERED WATER FLOOD LEVELS BALBOA ISLAND — NEWPORT HARBOR THIS AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Three") is made and entered into as of this 15th Day of August, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and DHI Water & Environment, Inc., an Oregon corporation ("Consultant'), whose address is 100 Second Avenue South, Suite 302-N, St. Petersburg, Florida 33701, and is made with reference to the following: RECITALS A. On June 27, 2013, City and Consultant entered into a Professional Services Agreement ("Agreement') to provide a determination of Coastal Sheltered Water Flood Levels for Balboa Island — Newport Harbor ("Project'). B. On February 10, 2014, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not included in the Agreement and to increase the total compensation. C. On June 30, 2014, City and Consultant entered into Amendment No. Two to the Agreement ("Amendment No. Two") to extend the term of the Agreement to June 30. 2015. D. City desires to enter into this Amendment No. Three to extend the term of the Agreement to June 30, 2016. E. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement as amended shall be amended in its entirety and replaced with the following: `The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2016, unless terminated earlier as set forth herein." 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. Three to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: ,8 / / J //Y CITY OF NEWPORT BEACH, a California m me}pal corporation Date: / By: ((• r By: Aaron C. FYarp Nn,. a1jz4iy Kimberly Brandt, AICP City Attorney Community Development Director ATTEST: ,jj CONSULTANT: DHI Water & Date: 3D I7 Environment, Inc., an Oregon corporation koy�� Dated -17 •/f! By: By: Leilani I. Brown jCity Clerk ets e es' nt and Acting Secretary [END OF SIGNATURES] DHI Water & Environment, Inc. Page 2 7- N N J) AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT "J WITH DHI WATER & ENVIRONMENT, INC. FOR DETERMINATION OF COASTAL SHELTERED WATER FLOOD LEVELS BALBOA ISLAND — NEWPORT HARBOR THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Two") is made and entered into as of this 30th Day of June, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and DHI Water & Environment, Inc., an Oregon corporation ("Consultant'), whose address is 100 Second Avenue South, Ste. 302-N, St. Petersburg, FL 33701, and is made with reference to the following: RECITALS A. On June 27, 2013, City and Consultant entered into a Professional Services Agreement ("Agreement') to provide a determination of Coastal Sheltered Water Flood Levels for Balboa Island — Newport Harbor ("Project'). B. On February 27, 2014, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One') to reflect additional services not included in the Agreement and to increase the total compensation. C. City desires to enter into this Amendment No. Two to extend the term of the Agreement to June 30, 2015. D. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement as amended shall be amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2015, unless terminated earlier as set forth herein." 2. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 2.�t - By: 4Ar Aaron C. H rp City Attorney ti ATTEST:'1 j 19 Date: 0. f CITY OF NEWPORT BEACH, a California munici al corporation Date:-� - I� T By: Kimberly Brandt, AICP Community Development Director CONSULTANT: DHI Water & Environment, Inc., an Oregon corporation Date: By: Ami�Dq��—By: , Leilani I. Brown City Clerk �Vy� L -I FO [END OF SIGNATURES] eld � id and Acting Secretary DHI Water & Environment, Inc. Page 2 N AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT `JWITH DHI WATER & ENVIRONMENT, INC. FOR DETERMINATION OF COASTAL SHELTERED WATER FLOOD LEVELS BALBOA ISLAND — NEWPORT HARBOR THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One') is made and entered into as of this 10th Day of February day ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and DHI Water & Environment, Inc., an Oregon corporation ("Consultant"), whose address is 100 Second Avenue South, Ste. 302-N, St. Petersburg, FL 33701, and is made with reference to the following: RECITALS A. On June 27, 2013, City and Consultant entered into a Professional Services Agreement ("Agreement") to provide a determination of Coastal Sheltered Water Flood Levels for Balboa Island — Newport Harbor ("Project"). B. City desires to enter into this Amendment No. One to reflect additional services not included in the Agreement and to increase the total compensation. C. City and Consultant mutually desire to amend the Agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A of the Agreement and Exhibit A of Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "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 Fifty Three Thousand Six Hundred Eighty Dollars and 00/100 ($53,680.00), 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." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Ten Thousand Eighty Dollars and 00/100 ($10,080.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] DHI Water & Environment, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a California municipal corporation Date: 6_f Date: By: I By: Aaron C. Harp Kimberly Brandt, AICP City Attorney Community Development Director ATTEST: Date: 6qv-- Leilani I. Brown City Clerk `PORN= CONSULTANT: DHI Water & Environment, Inc., an Oregon corporation Date:3 12olly By: ��sP�n q'ite-President7 [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services AmL)'Np- LA?&Sc.1&0 Agern Alle 5 2DK-2970 Horsholrn ®H' Denmark +45 4516 9200 Tel +45 4516 9292 Fax www.dhigroup.com DHI Water & Environment, Inc. Page 3 EXHIBIT A SCOPE OF SERVICES A DHI Water & Environment, Inc. Page A-1 Ll -.;Pl c-. a. e. JA y yM1 e } t �"M ti�H Click here to enter text. Prepare Letter of Map Revision (LOMR) for Adjustment of Base Flood Elevation at Balboa Island Balboa Island — Newport Harbor City of Newport Beach, CA Prepared for City of Newport Beach Represented by Seimone Judis Chief Building Official Proposal number __ 41802139 Revision 0.0 © DHL All rights reserved. No parts of this document maybe reproduced transmitted or otherwise disseminated in any form or by any means outside the recipient's organisation without the prior wntten permission of DHI. Software for WATER ENVIRONMENTS 1 DH Introduction This proposal submitted by DHI Water & Environment, Inc (DHI) to the City of Newport Beach (the City) is based on a request following a meeting at the City on October 30, 2013 where results from the study titled "Determination of Coastal Sheltered Water Flood Levels" (Ref. /1/) were presented. This proposal is for DHI to prepare a Letter of Map Revision (LOMR) for FEMA to request an adjustment to the Base Flood Elevation (BFE) inside Newport Bay, particularly at Balboa Island. The previous study was able to satisfactorily determine how the coastal Base Flood Elevation (BFE) was determined in previous studies, and what that BFE should be if the analysis were performed today, if waves are ignored. The previous analysis by FEMA also ignored waves. 2 Proposed Scope of Work 2.1 Overview Currently the FEMA FIS report shows a BFE of 8.3 feet, NAVD 88, and shows a 9 -foot contour on the current floodmaps. This leads to two statements making the case for the LOMR. the current BFE is published at 8.3 NAVD88, then the BFE contour should round -down to 8 - feet, NAVD88, not up to 9 -feet. based on DHI's recent tide level analysis, the BFE should be 7.6 feet, NAVD88, rounding up to an 8 -foot contour. The 1 -foot lowering of the BFE will not solve the problem of the seawall freeboard, but it will likely reduce the flooding footprint around the island, and at a minimum reduce the flood depth by 1 -foot which should result in some lowering of insurance rates. 2.2 LOMR Preparation We anticipate the LOMR submittal will require 4 main components from DHI: Complete form mt24orm 1 _OC — Overview and Concurrence Form httpJ/www.fema.gov/media-library-data/20130726-1449-20490-8600/rnt2_form 1_oc.doc Complete form mt2-form4CA — Coastal Analysis Form http://www.fema.gov/med _is -I i brary-d ata/20130726-1449-20490-3010/mt2_form 4_ca. doc Since DHI has performed the analysis and will provide to FEMA, we believe the LOMR fee should be waived by FEMA. Prepare a report based on the previous study to specifically address the Still Water Level BFE as backup to the LOMR submittal. This will essentially be a cut-down version of the original . report, removing the discussion of waves. Submit the LOMR, answer comments, attend one meeting at the City. Software for WATER ENVIRONMENTS AN DHI'I 3 Deliverables, Cost and Schedule 3.1 Deliverables DHI will deliver a report (digital PDF) to the City that describes all aspects of the study. This will include: Completed form MT2-F0RM1_0C Completed form MT2-FORM4_AC Analysis backup report Submittal package, response to comments This study does not include: Additional analysis Any discussion of wave effects LOMR submittal fee, we believe it should be waived. 3.2 Cost Costs are shown in the table below and billed on a time and materials basis, not to exceed the total of $10,080, unless authorized by the City. %'l Y r Task DesCf,PGonIGOst 1 Completion of Forms $1,440 2 Prepare Analysis Report $2,880 3 LOMR Submittal $2,880 4 Respond to comments, 1 -meeting at the City $2,880 TOTAL $10,080 3.3 Schedule DHI anticipates that submittal information can be ready to submit within 2 weeks of notice to proceed. Extra time should be allowed for review comments and responses, and possible follow-up meeting. Software for WATER ENVIRONMENTS 3 4 References /l/ "Determination of Coastal Sheltered Water Flood Levels". DHI DRAFT Report for City of Newport Beach. October 2013. Software for WATER ENVIRONMENTS Mayor & Members of City Council Closed Session Memorandum for Meeting of February 11, 2014 Page: 4 treats the issue as a question of law, treating the proposal as a modification of the 2006 General Plan appears to be plausible. In particular: • The applicant in both instances is the same (the City); • The Initial Study makes clear that surgical amendments are proposed, rather than a comprehensive update (as opposed to the 2006 General Plan, which the City expressly characterized as a comprehensive update); • The proposal appears to involve relatively surgical amendments to discrete portions of the land -use element; and • Although some time has passed, the 2006 General Plan is not so old that it is in need of a comprehensive update, and the 2006 General Plan EIR contains information that remains relevant. Although the law is unsettled, we believe it is appropriate for the City to treat the update as a modification to a previously approved General Plan. If a reviewiong court treats this issue as a purely legal question, however, there is an unavoidable risk that the court will conclude the City should treat the proposal as a "new," project, in which case supplemental review would not be appropriate. We do not think this risk is substantial, but it does exist. 2. Is a Supplement to a Program EIR allowable under CEQA? The 2006 General Plan EIR was a program EIR. The issue is whether Public Resources Code section 21166 applies where the document to be supplemented is a program EIR. The CEQA Guidelines provide that a program EIR is the appropriate document to analyze the impacts of a general policy document, such as a General Plan. (CEQA Guidelines,§§ 15165, 15168.) Consistent with this guidance, the City's 2006 General Plan EIR is identified as a "program EIR." Two published decisions imply that, where an agency prepares a program EIR to adopt a plan, and later proposes an action that does not fall within the scope of that plan, the agency must prepare a new, stand-alone analysis. Both cases therefore raise questions about whether the agency has the option to prepare supplemental review of the latter proposal. Here, the argument would be that, because the proposed General Plan amendments are outside the scope of the 2006 General Plan, the City must prepare a stand-alone environmental analysis of the impacts of the proposed amendments. There is no judicial determination on this issue and no case law goes so far as to hold that supplemental review is never appropriate in the context of an earlier program EIR. In Mayor & Members of City Council Closed Session Memorandum for Meeting of February 11, 2014 Page: 5 fact, none of the published cases involving supplemental review directly addresses this issue. Based on a review of the case law, and the CEQA Guidelines, we have concluded that the City has the option of performing supplemental review in this case, even though the prior EIR was a "program EIR." B. Traffic Impacts A preliminary analysis of traffic impacts was recently presented to the LUE Committee and is included in Attachment No. 2. The project description for the Supplemental EIR identifies the following changes in land use designation and allowable development capacity in the airport area. 2006 General Plan Proposed Changes ADT Location Designation Allowable Designation Capacity Increase Changes Airport Office Saunders Mixed Use 1.2 million 6685 and Supporting 575,000 SF Properties Horizontal SF office D s 10,840 685 DUs Uses (AO) (MU -H2) 685 DUs The General 288 264 SF General 278,264 SF Hangars g Commercial office Commercial office 11,800 NC 342 Office (CO -G) (GC) SF retail Mixed Use 11650 22350 Lyon Homes Horizontal (MU- replacement NC replacement 700 DUs 0 1-12) units; 500 units additive units Revise Anomaly #6 Mixed Use to allow UAP Horizontal (MU- 46,044 SF more floor 0 Companies H2) area for trip neutral congregate care only Mixed Use NC: Allow Fletcher Horizontal (MU- automobile 0 Jones H sales in (MU-HS2) Mayor & Members of City Council Closed Session Memorandum for Meeting of February 11, 2014 Page: 6 Our office is concerned with the inclusion of the amendments to the airport area for three reasons. First, the area of the airport area is currently being analyzed in an EIR as part of the approval of the JWA Settlement Agreement. The Notice of Preparation for the JWA EIR predated the City's Notice of Preparation for the LUE update and therefore is included in the baseline analysis for the purposes of analyzing traffic under the Supplemental EIR. As the JWA EIR is not yet completed, we believe it's premature and potentially problematic for the City to provide an analysis of the impacts of the JWA Settlement Agreement. If the airport area amendments are included in the project, the Supplemental EIR will have to included a detailed analysis of the impacts JWA Settlement Agreement. If, however, this area is not included, a truncated discussion on the JWA Settlement Agreement will likely be deemed to meet the requirements of CEQA. Second, some of the proposed Land Use Designation and Development Capacity changes in the airport area are significant and given the ADT changes will provide sufficient basis to challenge to the determination by the City that a Supplemental EIR is appropriate. Third, among other things, the preliminary analysis indicates an impacted intersection at Von Karman Avenue and Alton Parkway in the City of Irvine, which raises issues remarkably similar to the issues raised by the City in the IBC litigation. If the airport amendments are removed from the LUE Update, the traffic analysis may modify the severity of impacts in the airport area and thus reduce the likelihood of a challenge to the City's Supplement EIR. These individual issues will cumulatively provide a sufficient basis to challenge the decision to adopt a supplemental EIR. We therefore recommend that these amendments be eliminated from consideration. In order to accommodate the. November 2014 election, we have been working with City staff to identify the modified project (i.e. without airport amendments) as an alternative project. Pursuant to CEQA, and the CEQA Guidelines, in considering the project in the Supplemental EIR, the City is required to identify alternative projects which may reduce environmental impacts. In this instance, we think it is appropriate for the City to consider an alternative project, which does not include the airport amendments, and that will reduce traffic impacts. To this end, we have worked closely with staff of CDD as well as Urban Crossroads and The Planning Center to provide for sufficient analysis of the modified project. In addition, this alternative will be presented to the LUE Committee in April following completion of the traffic analysis as well as an identification of potential alternatives. CONCLUSION As explained above, we can think of two potential arguments challenging the City's decision to rely on a Supplemental EIR: (1) that, as a matter of law, the proposed modifications must be treated as a "new" project, and (2) that the rules governing PROFESSIONAL SERVICES AGREEMENT WITH DHI WATER & ENVIRONMENT, INC. FOR DETERMINATION OF COASTAL SHELTERED WATER FLOOD LEVELS BALBOA ISLAND — NEWPORT HARBOR THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 27th day of June, 2013 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and DHI WATER & ENVIRONMENT, INC., a Florida corporation ("Consultant"), whose address is 100 Second Avenue South, Suite 302-N, St. Petersburg, FL 33701, 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 desires to engage Consultant to provide a determination of Coastal Sheltered Water Flood Levels for Balboa Island — Newport Harbor (`Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. 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 Effective Date, and shall terminate on June 30, 2014, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 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 within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein 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. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by 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 Forty Three Thousand Six Hundred Dollars ($43,600.00), 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) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 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 DHI Water & Environment, Inc. Page 2 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 Dale Kerper 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. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Community Development Department. City's Chief Building Official or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. 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 the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. DHI Water & Environment, Inc. Page 3 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and 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. 8.4 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, 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, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or indirectly) to any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent, reckless, and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' 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 Consultant. DHI Water & Environment, Inc. Page 4 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. No civil service status or other right of employment shall accrue to Consultant or its employees. 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 of the Work 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 informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 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 DHI Water & Environment, Inc. Page 5 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 co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat, DHI Water & Environment, Inc. Page 6 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 19, INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. f+3111:7xdi]N Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. DHI Water & Environment, Inc. Page 7 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 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. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, 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. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Seimone Jurjis, Chief Building Official Community Development Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Dale Kerper DHI Water & Environment, Inc. 100 Second Avenue South, Ste. 302-N St. Petersburg, FL 33701 DHI Water & Environment, Inc. Page 8 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant'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 Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 of seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 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. DHI Water & Environment, Inc. Page 9 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 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. 28.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 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, State of California. 28.10 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, age or any other impermissible basis under law. 28.11 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. 28.12 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 (1) and the same instrument. [SIGNATURES ON NEXT PAGE] DHI Water & Environment, Inc. Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY Date: ATT��AEI '�S OFFICE LM Aaron C. Harp � City Attorney N\ � � Ili ATTEST: Date: �+ /� 13 By: Mai - hft�' Leilani I. Brown City Clerk �,,�■� v mac, Foa�% 1= CITY OF NEWPORT BEACH, a California municip I corporation Date: (� �7 - 11 By: l \-/' 0 Kimberly Brandt, AIC Community Development Director CONSULTANT: DHI Water & Environment, Ing., a Florida corporation Date: '-7- //S / / '? By:�.. �, l Timothy J. HaJeA President & Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements DHI Water & Environment, Inc. Page 11 EXHIBIT A SCOPE OF SERVICES DHI Water & Environment, Inc. Page A-1 Determination of Coastal Sheltered Water Flood Levels Balboa Island — Newport Harbor City of Newport Beach, CA VAIATER SPMROMMMM Z� E')Hiy� Determination of Coastal Sheltered LUTISM a 9 15979TO 1 WM- City of Newport Beach, CA Prepared for City of Newport Beach presented by Seirrione Jurjis, Chief Building Official ILProposal manager Dale Ke per Proposal number V 4180187.3 Revision 1'0 0 DHL All rights reserved. No parts of this document may be reproduced, transmitted or o0tairwise disseminated in any form or by any means Outside the recipients orginisahon without the prior written permission of DHI. r. ',) WATERENVIRONMENTS Introduction The following proposal to study coastal flood levels for Balboa Island in Newport Harbor, for the City of Newport Beach, is submitted to Mr. Simeone Jurgjis at the City of Newport Beach, based on a request from Scott Lyle, Lyle Engineering, on behalf of the City, sent to Dale Kerper of DHI, in an email dated April 22, 2013. Our understanding from communications and from inspection of FEMA floodmaps is that the entire Balboa Island is designated to be in a Special Flood Hazard Zone AE, and that the City want to investigate this flood zone designation and what would be needed to get the island removed from this designation. In that correspondence, the following scope of work items were requested: 1) Verify the existing Flood Insurance Study that the City of Newport Beach is operating under. Verify that the Base Flood Elevation is accurate at 9.0 feet, NAVD88. This BFE level puts the entire Balboa Island in a special flood hazard zone. 2) Determine the BFE using data and FEMA -approved methodologies that would be used today. 3) Determine the minimum seawall height required to apply for a Letter of Map Revision (LOMR) to move out of the floodplain. This proposal will address these three main tasks in the following sections DHI is an independent, international consulting and research organization with corporate headquarters located north of Copenhagen, Denmark. International offices operate in North America, Europe, Australia, New Zealand, Asia and South America. Worldwide, DHI has a staff of approximately 1,000 people, the majority of them having post -graduate qualifications and several years of consulting, research and development experience. DHI offers a broad spectrum of services, model test facilities and software tools. Our expertise includes coastal and marine engineering; fluvial, coastal and estuarine sediment transport and morphology; port hydraulics; integrated water resources; river, take, reservoir, water quality, and ecology; urban hydraulics; flow monitoring and forecasting; and environmental engineering. DHI is a full service research and consulting organization that is actively involved in many projects dealing with all aspects of the water environment. Projects have been conducted in more than 140 countries. DHI has broad experience performing flood hazard studies, applying FEMA's guidelines in riverine, coastal and sheltered water environments. DHI's subsidiary was incorporated in the United States in 1997 as part of the global DHI Group. Since our inception we have expanded with offices in Portland, OR; Boise, ID; San Diego, CA; Dallas, TX; Atlanta, GA; St. Petersburg, FL; Philadelphia, PA; and New York, NY. We provide specialized hydrologic and hydraulic consulting services delivering high-end solutions for complex engineering problems. Our staff is comprised of professional engineers and scientists with post- graduate qualifications and several years of consulting and development experience, In the past, DHI was a FEMA Region IX study contractor through the FEMA MAPMOD program from year 2003 through 2010 through a Joint Venture with Nolte Associates, called FEMA Services Group (FSG). DHI is currently a subcontractor to the BakerAECOM FEMA Riskmap team in Region IX, currently acting in a review role for the BakerAECOM CCAMP studies. A list of DHI's relevant project related experience includes: Technical Working Group (TWG) Member — Development of Guidelines and Specifications for performing FEMA FIS Studies on the Pacific Coast of the US. From this work, DHI has a thorough understanding of the FEMA guidelines relevant to this study. 2004. Technical Advisory Panel (TAP) Member — Member of a 4 person panel, performing internal review of the California Coastal Analysis and Mapping Project (CCAMP), for both Northern and Southern California. The results of this study will update current flood levels in Newport Beach. Through the experience of this study, DHI has insight into the likely methodology that will be performed by BakerAECOM for FEMA in the future mapping program for Southern California. 2013. Alameda County Coastal Hazards Analysis — A Coordinating Technical Partnership (CTP) project with Alameda County and FEMA Region IX to assess coastal flood levels and wave run-up elevations for the shoreline of Alameda County in San Francisco Bay. 2013. San Francisco Bay Regional Model Study — DHI developed the regulatory model used to develop 1% (100 -year) coastal storm surge water levels covering the entire San Francisco Bay, including tide, storm surge, swell and sea waves. 2012. Del Norte County FEMA FIS — DHI performed the first FEMA FIS using the newly developed guidelines and specifications for performing Pacific Coast studies for Del Norte County as a pilot study contracted by FEMA. DHI used the guidelines and provided valuable feedback to FEMA to improve the guidelines for future users. The study included open coast hazards, combined with riverine flooding of the Smith River floodplain, and including the river inlet dynamics and a breached inlet to a lagoon, State-of-the-art 2D modeling methods were combined with other traditional FEMA approaches. 2008. The DHI Solana Beach Team Mr. Dale Kerper. MSCE. PE - Mr. Kerper has more than 20 years of experience performing coastal and marine engineering studies around the world and in the US. Dale has been performing FEMA flood studies in California since 2002, including participation as a TAP member of the on-going CCAMP project, previously a member of the TWG for developing guidelines and specifications for FEMA FIS studies on the Pacific Coast, and currently the Alameda County Coastal Hazards study. Dr. Julio Zyserman. PhD - Dr. Zyserman has more than 20 years of experience working on coastal studies at DNI, and has been working on FEMA projects in California since 2003. Julio has been a key member of the study teams for San Francisco Bay, Alameda County and Del Norte County FEMA FIS studies and was previously a member of the TVdG for developing guidelines and specifications for FEMA FIS studies on the Pacific Coast, Mr. Tao Shen, MS Oceanooraohv - Mr. Shen has 4 years of experience performing complex numerical modeling studies for DHI, including modeling and complex analysis for the San Francisco and Alameda County FIS studies. Full resumes are available upon request. v. ,�*'!'WATER EMMONl ENT"; 3 Proposed Scope of Work 3.1 Review of Existing BFE DHI will request available backup data from the FEMA Library to help determine the basis of how the BFE of 9.0 feet NAVD88 at Balboa Island was determined. FLOOD _ INSURANCE STUDY VO4.UME 10F3 ORANGE COUNTY, CALIFORNIA ry AND INCORPORATED AREAS Crange Covnty rneneuxm cmeuuwn CtlMMUNFlYNI.NE NV4B6ft CONMVIIT NAM6 NVHSEF B2ct,Gntp uuM. w.t>'em vxot emw niOY aoeua�•..._ zrra cma cxcrnw,raµ-+'av �+m+a cu�:.�h�r enema. osas canfx,c.^Ycr x::,r OM1W IKNrt,O[eL'� �tM ^S. tz�zW'a fE.uexpxifNLv o+,.af O}v,F vh'1+R' .CMW aNn,FN. Gni�.a xnm.�,gxy tA:YW `mew xxs. e:.*.e+ a:-sa' orrar — alis. Zwmn*narucnmw xenu +a,cmv aE L nw� a mm. �NVA�B.cmry usx u Nwrn.c*rn u:x. m.:a exm uavun, enrw' w�axe �ai�� uourcneeu.. e-. BE ceux, t.14.wI u.]�dLCVC! WE�51V.M. �'�'1'Cf .:Wl3f U4 JN1'M}�31. [.W OF C&'^e! �IX19+_M?,.C?t CP M3N "1 9E4Ei'BENS.2M4 Federal Emergency Management Agency tta,BtlliuNAMCE snrov xuMxiEN ecBsacvoe,e Figure 1 FEMA FIS Report for Orange County, December 2009. /Ref 31 Preliminary investigation indicates a Still Water Level (SWL) of 8.3 at the mouth of Newport Harbor. This was reportedly based on a study from Tetra Tech in 1982 /Ref 1t. It is still unknown precisely how these values were determined, and if some additional component from either waves or riverine influence was added to achieve the 9.0 foot total BFE, or was the number rounded up for some reason, One possibility is that during the DFIRM (Digital Flood Insurance Rate Map) conversion process in recent years, where maps were updated from vertical datum NGVD29 to NAVD88 (a conversion of about +2.3 feet based on Corpscon software), the same mapping contour line from NGVD29 was kept, but the nearest round number was attached to the same contour, similar to a rounding artifact. DHI will investigate this if the older maps are available to compare to the latest, and will resolve these questions. .:r i,,.WATVgF,th\'S f°a%,^dAMINTS According to the latest FEMA FIS report for Orange County, the Tetra Tech work is reportedly based on numerical modeling of storm surge and interpolation from various model reference points. DHI is in the process of locating the Tetra Tech report to find out exactly how the model was developed and applied. However, it is not likely that this methodology will be used in the future re- studies that are being performed under the CCAMP program. At first inspection, it appears that the effect of waves or riverine influences are not considered inside the harbor, and the BFE (or SWL) from the entrance is projected into the harbor. DHI will attempt to verify all aspects and assumptions as necessary from a study of the backup data and reports obtained during the course of executing this task. 3.2 Determination of New BFE DHI will use its knowledge of the FEMA guidelines for coastal and sheltered water studies to derive our best estimate of the BFE at Balboa Island using the latest guidelines from FEMA. DHI, as a reviewer of the CCAMP study mentioned above, has a good insight into the methodology that FEMA will use in their comprehensive re -study of the southern California coastline, and will attempt to use similar methodologies as much as is practicable and reasonable so that the City will have a good idea of what will be coming out of the re -study. Essentially the methodology for determination of SWL will rely on long record tide gages from which return period extreme value analysis is performed for determination of 1% water levels. Some spatial adjustments may be made if tide gages are located far away from the point of interest, or if local gages are of a short record length, and have to be correlated to longer period tide records from farther away locations. Preliminary investigation shows only two NOAA gages in the Los Angeles area, and none in Orange County. The closest is the NOAA gage at the Port of Los Angeles. Although it is located some distance away, it does have nearly 90 years of recorded hourly observations (with some gaps) making it very attractive for use in the analysis. The nearest other stations are Santa Monica to the north with less than 20 years of hourly measurements, and La Jolla to the south, near San Diego, with nearly 90 years of record. These three gages would likely form the basis of the analysis of the determination of the 1% Still Water Level (SWL). The NOAA gage in San Diego Bay could also be used for some gap filling if deemed necessary. Though waves were seemingly not considered in the determination of the existing BFE, or perhaps determined to be negligible in the earlier FIS studies, it is warranted to take a further look at this. The methodology of the CCAMP studies for small harbors is essentially to project the open ocean SWL into the bays, and usually neglect waves. But some locations, such as Humboldt Bay, where large waves are known to propagate in between the inlet jetties, have been identified as requiring some further analysis to determine whether waves are important in the bay or not. It is not known if Newport has been identified similarly by the CCAMP study team yet, but given the sometimes very large wave conditions existing at the mouth of the harbor, this possibility should at least be given some consideration. DHI proposes to setup and test a 2D wave model of the harbor entrance, and test a number of typical extreme wave conditions that would likely occur during high water events to see if there is any likelihood that waves could propagate into the harbor and contribute to the total water level. The City may also have some insight into this, and DHI will seek out to team from their local experience. But to totally ignore it at this time could risk that CCAMP considers waves to be significant later on. DHI would use their MIKE 21 Spectral Wave (SW) model for these tests. The MIKE 21 SW model is approved for use in FEMA studies /Ref 4L If these tests show that waves could contribute to the overall BFE at Balboa Island, then DHI will propose a new detailed task (with new cost and schedule) to perform detailed and rigorous wave analysis that will comply with FEMA methods. We r."r' Sir IS;.aRF'NVM )kers"'N'r'3 cannot say at this time that we would be using exactly the same methodology as CCAMP, since they haven't yet submitted their methodology for the inner harbor wave height determinations. However, DHI have performed extensive sheltered water wave studies inside San Francisco Bay, and can develop a methodology that will meet FEMA requirements. And perhaps could even inform the CCAMP team in advance if we have some definitive answers on this matter. 3,3 Minimum Sea Wall Height DHI will provide a recommendation to the city of the minimum sea wall height required so that a LOMR could be submitted to remove Balboa Island from the Special Flood Hazard, AE Zone. IT is DHI's understanding that generally, a 3 -foot freeboard above the SWL is required and 1 -foot freeboard above the wave runup, or Total Water Level (TWL) is required. DHI will review FEMA standards and verify these are the relevant criteria. Besides freeboard requirements, the sea wall will also need to meet other structural requirements that are dictated by FEMA. DHI will not provide any structural analysis, but will point the City to the specific regulations so that they will be able to make this determination. 4 Deliverables, Cost and Schedule 4.1 Deliverables DHI will deliver a report (digital PDF) to the City that describes all aspects of the study. This will include: investigation of the existing BFE designation (including a digital copy of all FEMA backup data that is acquired), determination of the most likely future BFE designation based on application of current FEMA methods recommendations for further studies (for example, if a detailed wave study is deemed necessary), recommendations for Sea Wall height (if the detailed wave height effort is not required) based on freeboard criteria estimate for performing detailed wave analysis if deemed necessary Not included: Does not include efforts to submit a LOMR Does not include sea wall structural analysis or determination if structure meets structural requirements for FEMA. Does not include detailed wave analysis if deemed required 4.2 Cost Costs are shown in the table below as fixed fee costs per task. If Task 2 determines that detailed wave modeling is required, then Task 3 will not be performed, until after the completion of the detailed wave analysis. It is assumed no field surveys will be required or performed, and all analysis will be based on public domain data (for example, NOAA tide gages, NOAA bathymetry), and perhaps data provided by the City (for example, sea wall heights). DHI assumes that no data will be purchased, other than some small fees to request data from the FEMA library. Task Description Cost 1 Review of Existing BFE $10,800 2 Determination of New BFE (including wave testing) $27,040 3 Recommendation of Minimum Sea Wall Height $5,760 TOTAL $43,600 WATER ENVIRONMENTS 4.3 Schedule DHI anticipated all work can be performed within 8 weeks of notice to proceed. This could depend somewhat on the time of response to a FEMA Library request This information can typically take up to 3 weeks to be received, once the request is submitted. ,... ,' CATERtu't;¢V3tE.fiaati¢'MENTS IN � v References /1/ Tetra Tech. 1982. Methodology for Computing Coastal Flood Statistics in Southern California. (Tetra Tech Report TC~3205.) Prepared for Federal Emergency Management Agency, Washington, DC. /2/ CCAMPproject website. h��pj/w,ww//An`mpor��/Pmg��/��an�p�Aa|nwo�// /3V FEMA. Orange County California Flood Insurance Study, December 3, 2009. Volume I of 3. Flood Insurance Study Number O0O59CYVV18 /4/ List nfnumerical models approved for use inFEMA Studies website. �/{�p��w�/vvYenmgov/nn�|m/a|4�uo.1insw/mo�w'p,o8/m/n'�on.�i'haza/�n/mppmB/nuo'�nrm\nx�/��mb- memMnA-mimmum-mw�u/rmmmn� EXHIBIT B SCHEDULE OF BILLING RATES DHI Water & Environment, Inc. Page B-1 4 Deliverables, Cost and Schedule 4.1 Deliverables DHI will deliver a report (digital PDF) to the City that describes all aspects of the study. This will include: investigation of the existing BFE designation (including a digital copy of all FEMA backup data that is acquired), determination of the most likely future BFE designation based on application of current FEMA methods recommendations for further studies (for example, if a detailed wave study is deemed necessary), recommendations for Sea Wall height (if the detailed wave height effort is not required) based on freeboard criteria estimate for performing detailed wave analysis if deemed necessary Not included: Does not include efforts to submit a LOMR Does not include sea wall structural analysis or determination if structure meets structural requirements for FEMA. Does not include detailed wave analysis if deemed required 4.2 Cost Costs are shown in the table below as fixed fee costs per task. If Task 2 determines that detailed wave modeling is required, then Task 3 will not be performed, until after the completion of the detailed wave analysis. It is assumed no field surveys will be required or performed, and all analysis will be based on public domain data (for example, NOAA tide gages, NOAA bathymetry), and perhaps data provided by the City (for example, sea wall heights). DHI assumes that no data will be purchased, other than some small fees to request data from the FEMA library. Task Description Cost 1 Review of Existing BFE $10,800 2 Determination of New BFE (including wave testing) $27,040 3 Recommendation of Minimum Sea Wall Height $5,760 TOTAL $43,600 �, kif,`VER Efr'w°&1'1ONM».ENTS INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. 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. 3. Coverage Requirements. A. Workers' Compensation insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 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. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, one million dollars ($1,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. C Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of 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 DHI Water & Environment, Inc. Page C-1 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. Professional Liability (Errors & Omissions) Insurance. 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) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. 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 from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence 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 and other endorsements as specified herein for each coverage. 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 DMI Water & Environment, Inc. Page C-2 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's 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. DHI Water & Environment, Inc. Page C-3