Loading...
HomeMy WebLinkAbout20 - C-3636 - Semeniuk Slough Engineering StudyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 10 June 22, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Robert Stein, P.E. 949 - 644 -3311 rstein @city. newport- beach. ca. us SUBJECT: SEMENIUK SLOUGH PRELIMINARY ENGINEERING STUDY - CONTRACT NO. 3636 — APPROVAL OF A PROFESSIONAL SERVICES AGREEMENT WITH NOBLE CONSULTANTS, INC. RECOMMENDATION Approve a Professional Services Agreement with Noble Consultants, Inc., (Noble) of 2201 Dupont Drive, Suite 620, Irvine, CA 92612 -7509, for a preliminary dredging investigation in the Semeniuk Slough at a contract price of $39,203 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: Dredging in the eastern portion of the slough has not occurred over the last 15 years and the slough how has accumulated large deposits of sediment. It is possible that any dredging in the slough will encounter contaminated sediments, and therefore will not qualify as beach sand or for off -shore disposal. As such, disposal costs can be expected to be prohibitive if this is a stand -alone project. The costs for this dredging project would be manageable if this work could be coupled with any future Army Corps of Engineers (Corps) work in the Semeniuk Slough. This contract is explicitly tailored to provide sediment sampling and testing that can be shared with the Corps and provide a quantitative basis for exploring options to combine this project with the Corps larger project. Five firms were invited to submit proposals to provide dredging investigative services and all five firms responded with proposals: • Everest International Consultants, Inc. • Moffatt & Nichol Engineers • Noble Consultants, Inc. • Van Dell and Associates, Inc. • WRC Consulting Services, Inc. SUBJECT: Serreniuk Slough Preliminary Engineering Study- Contract No. 3636 — Approve a Professional Services Agreement with Noble Consultants. Inc. June 22, 2004 Page 2 The proposals were reviewed by an in -house committee composed of three engineers to evaluate each firm's qualifications, project understanding and past experience on similar projects before ranking Noble the highest. Upon selection, staff negotiated with Noble to provide the necessary scope of services for a fee of $39,203. Noble has completed dredging investigative studies competently and professionally on similar projects for other local agencies in Southern California. The scope of dredging investigation professional services includes: 1. Preliminary bathymetric survey 2. Screening level sediment sampling and testing study 3. Investigating the integration of this project with the Army Corps of Engineers' Santa Ana River dredging project. Funding Availability: Funds for this project are available in the following account: Account Description Account Number Amount Tide and Submerged Land 7231- C5100719 $39,203.00 Environmental Review: This project falls under the Information Gathering class of projects and is therefore categorically exempt per CEQA Guidelines, Article 19, Section 15306. Prepared b Robert Stein, P.E. Principal Civil Engineer Attachment: Professional Services Agreement Submitted by: Stephen m Public Works Director PROFESSIONAL SERVICES AGREEMENT WITH NOBLE CONSULTANTS, INC. FOR SEMENIUK SLOUGH PRELIMINARY ENGINEERING STUDY THIS AGREEMENT is made and entered into as of this _ day of 200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation and NOBLE CONSULTANTS, INC. a corporation whose address is 2201 DuPont Drive, Suite 620, Irvine California, 92612 -7509 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of Califomia and the Charter of City. B. City is investigating the feasibility of maintenance dredging in Sememiuk Slough. C. City desires to engage Consultant to perform a limited bathymetric survey and sediment testing within the eastern slough, and investigate the feasibility of interagency project coordination with the Corps of Engineers and other jurisdictional agencies ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member] of Consultant for purposes of Project, shall be Mr. Jon Moore. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31' day of December, 2005, 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. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule as outlined in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Thirty -Nine Thousand Two Hundred Three Dollars and no /100 ($39,203.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this 2 Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Jon Moore 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. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Stein, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such 3 materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects (if the 12 design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. I 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. mature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. 7 G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. 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 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. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and 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 Q* 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. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after 10 the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Robert Stein Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3322 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Mr. Jon Moore NOBLE CONSULTANTS, INC. 2201 DuPont Drive, Suite 620, Irvine California, 92612 -7509 Phone: 949 - 752 -1530 Fax: 949 - 752 -8381 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. 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, 11 county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: IIn LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation LIM Mayor for the City of Newport Beach NOBLE CONSULTANTS, INC.: LIM Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 13 NOBLE CONSULTANTS, 1NC. JUN R. 2004 ` f June 9, 2004 Mr. Robert Stein, P.E. Design Engineer City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 RE: Amended Proposal Seminiuk Slough Dredging Project For the City of Newport Beach Dear Mr. Stein: In accordance with our meeting last Thursday, Noble Consultants, Inc. (NCI) together with our subconsultants is pleased to present this amended Proposal to initiate an investigation into the feasibility of maintenance dredging within the Seminiuk Slough. The purpose of our study shall be to perform limited field sampling and testing of the sediments within the eastern slough channel, investigate the feasibility of interagency project coordination, and recommend a next course of action. SCOPE of SERVICES Our Scope of Services shall be limited to the following tasks. Task 1. Sediment Sampling and Testing Our sub - consultant, MEC- Weston, shall conduct a limited sediment sampling and testing study. Core sediment samples to a target depth of five feet below the mudline will be collected from four locations within the eastern portion of the slough channel. The four samples will then be composited into a single sample for chemical and physical analysis. Samples will be collected utilizing a piston core deployed from a 12 -foot inflatable raft. Piston coring is a process of obtaining continuous well- preserved sediment samples from water saturated, unconsolidated sediments. Penetration of the core tube is achieved by manually pushing the tube into the sediment via application of downward pressure on aluminum extensions attached to the piston core. To prevent compaction of the core during penetration, a plunger within the tube is set at the sediment water interface and maintains static pressure ensuring core integrity. To increase penetration, a hammering device may be utilized to drive the core deeper into sediments. EXHIBIT A C NO \'Al'0:359 BICL MARIN FF.I'S BIA'D..SL'ITE 9, NOVATO, C1 94949.5(;37 (411) 884.0727 FAX(41i)884-07,35 IRVINE: 2201 DUPONT DR.. SUITE 620, IRVINE, CA 92612.7509 (949)752-1530 FAN(949)752-838I SAN DIEGO: 9326 OAKBOURNE RD.. SANTEE, CA 92071 ?314 (619) 596 -9510 FAX ((,19) 448.20'2 hirp://uvw.nobleconsultints.com Mr. Robert Stein, P.E. City of Newport Beach Seminiuk Slough Dredging Project June 9, 2004 Page 2 of 5 Refusal due to the presence of rocks and debris or consolidated clay and/or native material may occur prior to reaching the target depth of five feet below the mudline at some or all of the locations. If this occurs, samples will be collected to the depth of refusal. Once the core is retrieved to the boat, the core tube will be cut to length and capped for later processing onshore. The four core samples will be measured and examined for sediment type, texture, smell, and color. The samples will then be composited in a large stainless steel mixing bowl into a single sample for chemical and physical analysis. In order to proceed with a sediment sampling and testing program, we shall prepare a sediment sampling and analysis work plan (SAP) for approval by the U.S Army Corps of Engineers, U.S. EPA, and the California Regional Water Quality Control Board. The approved SAP shall constitute the regulatory agency permissions to perform the field work and their endorsement of the analysis methodology. Task 2. Preliminary Assessment of Dredging Volume We shall conduct a one -day bathymetric survey of the eastern slough channel in order to provide a preliminary assessment of existing depths within the channel. The results of the survey shall be used to estimate the probable maintenance dredging volume. Task 3. Strategic Planning Assessment Larry Paul from Tetra Tech, Inc, shall perform an initial strategic planning assessment of the proposed dredging project to explore avenues of inter - agency coordination and cost sharing, potential stake- holder issues, and possible obstacles that might prevent the dredging project from moving forward. The specific tasks shall be: a) Determine a preliminary footprint of the project with NCI b) Review the results of the Task 1 sediment sampling and testing analysis to see if there are any critical sediment compatibility and disposal issues related to grain size or chemical contamination that could seriously compromise the project's feasibility. If potential red flag issues are identified at this point, the study could be terminated or re- directed in consultation with staff. If the sediment appears to be compatible for nearshore disposal, than Task 2 would proceed to explore the following inter - agency project cooperation and project planning options. c) Work with the U.S. Army Corps of Engineers Los Angeles District to determine timing for both projects and the mutual cost benefits of doing both at the same time. d) Negotiate with the Corps of Engineer to allow the Seminiuk Slough dredged material to be placed in the nearshore zone. Mr. Robert Stein, P.E. City of Newport Beach Seminiuk Slough Dredging Project June 9, 2004 Page 3 of 5 e) Coordinate with the Corps of Engineers and regulatory agencies to determine expedited or jointly negotiated permits for both City and Corps of Engineers projects. f) Coordinate the interest of the County Flood Control District, Corps of Engineers, and the City regarding the potential phasing of this project. If the Santa Ana River maintenance dredging project takes place first, then the federal responsibility for the slough remains yet an uncompleted project that might still be coordinated with the City's project. g) Make some preliminary inquiries concerning beneficial reuse of the slough material for wetland restoration in the adjacent federal wetlands. h) Investigate the potential for a conservancy for future management of this general area, using federal funds as the initial annuity. Task 4. Recommendations Our study shall conclude with a brief memorandum report to staff summarizing our findings and recommendation. The memorandum shall include the following items: a) Sediment sampling and test results by MEC- Weston b) Summary of the potential for inter- agency project coordination and cost sharing. C) Recommended project goal FEE and SCHEDULE We proposed to perform the above services on a time and expenses basis in accordance with our Standard Schedule of Charges. We estimate that our not to exceed fee to perform the above tasks shall be as listed below. Task 1 Prepare SAP $5,290 Sediment sampling and testing 6,900 Coordination 1,356 Task 2 Preliminary survey/ volume estimate 10,000 Task 3* Strategic planning analysis 11,500 Coordination 2,556 Task 4* Memorandum report to staff 1,601 Total estimated fee $39,203 If Task I results are unfavorable, Task 3c through 3h and Task 4 may be terminated or re- directed in consultation with staff Mr. Robert Stein, P.E. City of Newport Beach Seminiuk Slough Dredging Project June 9, 2004 Page 4 of 5 The basis for the above fee is provided on the attached spreadsheet. Our schedule shall depend upon the time is takes for the regulatory agencies to certify our SAP submittal. Assuming that we receive a Notice to Proceed from the City by June 28a' and the agencies certify our SAP within two weeks after submittal, we estimate that Tasks 1 and 2 may be completed by August 13a'. Task 3 and 4 can be completed within approximately four to six weeks after receipt of the sediment test results. We appreciate the opportunity to present this proposal for your consideration. Should you have any questions regarding this proposal or need any additional information, please do not hesitate to contact us. Sincerely, NOBLE CONSULTANTS. INC. iINVJM Attachment: Fee estimate spreadsheet Mr. Robert Stein, P.E. City of Newport Beach Seminiuk Slough Dredging Project June 9, 2004 Page 5 of 5 Fee Estimate Spreadsheet Project: Seminiuk Slough Dredging Project Client: City of Newport Beach NOBLE CONSVLT.�NTS, INC. Date of Estimate: 7-Jun-04 Labor NCI Task 1 Coordination PIC $185 A 1 El $150 WP $60 nrS,iry �$105� Surv2 $86 Eng 11 $98 - Totals 1 Hoursl Dollars 1 $1,260 81 11 1 Task 2 Determine dredge volume 1-day bath metric survey 121 241 $3,324 Data processing 8 16 1 $2,216 Estimate dredge volume 8 1 16' 1 $2,768 I Task 3 Coordination 161 1 ' I $2,460 I Task 4 Report to staff 1 8 21 $1,505 I i I I 1 �- I I I I I I I I I ! 1 I I I I I I I i l l I I I I f 1 I I Sub - Totals 11 40! 41 201 401 1211 $13,533 . . MEC- Weston Task 1. Sediment sampling-and testing $10,600 Larry Paul, Tetra Tech, Inc. Task 2. Strategic planning analysis $10,000 I I Total Subconsultants Handling Change @ 15% - $3,090 Sub -total $23,690 Cadd Communications $100 Courier Expenses _ $100 Reproduction $150 Other Bath rmetric survey boat and equipment $1,372 1.4R bursable Ex pen Handlin Charge @ 15% = $258 Sub -total $1,980 6; . - $39,203 EXHIBIT B stein, P.E. .wport Beach ,K Slough Dredging Project .4, 2004 ,e 18 of 26 Glenn E. Gibson Mr. Gibson has over 40 years of construction analysis, construction Construction Evaluation management, supervision, cost estimating, and field inspection. In addition to his consulting background, he has been responsible for the construction of numerous civil works projects including marine terminals, breakwaters, dredging, deep foundations, bridges and piers. Duane E. Maddux Mr. Maddux has over 40 years of experience in marine geophysical Hydrographic Surveying and hydrographic surveying for federal, state and local government agencies, as well as industry and private sector clients. He. has managed numerous projects that have included design and construction of specialized instrumentation systems for geophysical, geotechnical, and engineering investigations. He holds ACSM Certification as both an inshore and offshore hydrographer and a USCG license to operate commercial vessels. Noel Davis, Ph.D. Dr. Davis has more than 25 years of experience in managing Marine Biologist/ estuarine, freshwater, and oceanographic environmental studies. Wetlands Specialist She is responsible for managing the aquatic and marine portions of EISs, EAs, and EIRs for both onshore and offshore projects. She has extensive experience in conducting marine studies and performing wetlands and water quality assessments in conjunction with 404 permit evaluations and environmental reports. Brian Riley Mr. Riley is a marine biologist with extensive experience in field Sediment Sampling monitoring, sediment sample collection and analysis, and chemical toxicity. He has conducted numerous field surveys and laboratory investigations to characterize the in situ sediments and water column. Mr. Riley's experience extends into Upper Newport Bay and the western portions of the Seminiuk Slough. Mr. Robert Stein, P.E. City of Newport Beach Seminiuk Slough Dredging Project May 14, 2004 Page 17 of 26 Ronald M. Noble, P.E. Mr. Noble has supervised and designed numerous coastal and ocean Principal -in- Charge design and planning projects over his 40 years of professional experience. His dredging experience includes the Upper Newport Bay enhancement project. He has been involved in various types of waterfront development in Newport Harbor throughout his professional career. His most recent projects include the Newport Harbor bulkhead, Balboa and Newport Pier Rehabilitation and numerous bulkheads. He is a recognized expert in the field of coastal and harbor engineering. Jon T. Moore, P.E. Mr. Moore was most recently the project manager for the City Study Manager municipal piers renovation. Over the span of his 33 -year career, he has been exclusively dedicated to maintenance dredging and the design and construction of coastal projects, marinas, bulkheads, promenades, piers, and other capital projects. Since 1987, he has provided consultation to the U.S. Army Corps of Engineers on numerous coastal projects. Lawrence R. Paul Mr. Paul has been directly responsible for the implementation and Program Implementatior. development of watershed management studies, federally authorized civil works projects, and coastal water resources projects within Orange County. His knowledge of technical, political, and stakeholder issues for coastal projects will provide a vital link toward the formulation and implementation of a consensus project. Chia -Chi Lu, Ph.D., P.E. Dr. Lu specializes in coastal and hydraulic engineering. He has Coastal Engineering extensive experience in the development of numerical models to simulate coastal and hydraulic processes and analyze engineering problems. Since his graduate work at the University of Miami, he has conducted numerous coastal investigations along the County of Orange shoreline, estuaries, and southern California coast. Dr. Lu was the principal investigator for the engineering assessment for the Bolsa Chica Wetlands Restoration EIS/EIR Scott M. Noble, P.E. Mr. Noble is a civil engineer with over 26 years of experience Dredging and Ecosystem specializing in the engineering analysis, design, cost estimating, and Restoration permitting of coastal, waterfront, and marina projects. This work has included coastal processes analysis, development of oceanographic design criteria, detailed design of marinas, shoreline protection, waterfront structures, ecosystem restoration, and the dredging of channels and lakes.