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HomeMy WebLinkAbout09 - Semeniuk Slough Dredging Project — Amendment to PSATO: FROM: CITY OF NEWPORT BEACH City Council Staff Report October 27, 2015 Agenda Item No. 9 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Bob Stein, Assistant City Engineer PHONE: 949-644-3322 TITLE: Semeniuk Slough Dredging Project — Amendment No. 1 to the Professional Services Agreement with Noble Consultants, Inc. ABSTRACT: As approved, Noble Consultants, Inc. (Noble) will perform field surveys, and modify the construction document and permit applications for the Semeniuk Slough Dredging project to include additional slough -related maintenance tasks requested by Caltrans. RECOMMENDATION: Approve Amendment No. 1 to the Professional Services Agreement with Noble Consultants, Inc., (Noble) of 2201 Dupont Drive, Suite 830, Irvine, CA 92612-7509, to perform topographic and bathymetric surveys, modify contract documents, and modify permit applications to extend the limits of dredging within Semeniuk Slough to include clearing the box culvert (owned by Caltrans) that drains into the Semeniuk Slough at a not -to -exceed cost of $56,972.00, and authorize the Mayor and City Clerk to execute the Agreement. FUNDING REQUIREMENTS: The current adopted budget includes sufficient funding for this recommendation. The project will be expensed to the Caltrans Contribution account in the Public Works Department, 13501-980000-15X17. DISCUSSION: City Council approved a professional services agreement on April 22, 2014 with Noble to provide complete engineering services for a dredging project in Semeniuk Slough, which includes preparing a bathymetric survey, sediment sampling and assessment plan, feasible dredging concept, CEQA clearance and permit applications, and Semeniuk Slough Dredging Project — Amendment No. 1 to the Professional Services Agreement with Noble Consultants, Inc. October 27, 2015 Page 2 construction contract documents. We expect that the dredging will be accomplished by first installing a cofferdam near the Newport Shores Clubhouse and then dewatering the slough to allow excavation equipment to directly enter the slough and remove material. Through the City's routine coordination with Caltrans, Caltrans staff realized the City's Semeniuk Slough dredging project provided an excellent opportunity for Caltrans' forces to gain access to the box culvert that enters the slough from the south and remove material that has accumulated in the culvert. To facilitate Caltrans' maintenance efforts, under this amendment, Noble would modify the construction documents, permit applications and CEQA document to include (1) excavation of the area shown as Area "A" on the attached Location Map and haul it offsite, and (2) collect and haul off the material removed from the box culvert by the Caltrans' contractor and stockpiled outside the culvert in Area B. Caltrans will reimburse Noble for the extra design, permitting, coordination and additional construction efforts necessary for the project. The cooperative agreement with Caltrans covering these terms is in preparation and City staff expects to bring the agreement to City Council by January 2016. The Semeniuk Slough Dredging project, including the additional tasks requested by Caltrans, has been through the initial review with the Army Corps of Engineers' Dredged Material Management Team (which includes the Regional Board, California Coastal Commission, US Fish and Wildlife Service and California Department of Fish and Wildlife) and there were no objections. These additional design and construction tasks will not impact the projects anticipated construction start in October 2016 or the expected project duration. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this project exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301(c) (maintenance activities with negligible expansion) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). 9-2 Semeniuk Slough Dredging Project — Amendment No. 1 to the Professional Services Agreement with Noble Consultants, Inc. October 27, 2015 Page 3 ATTACHMENTS: Attachment A — Location Map Attachment B — April 22, 2014 Professional Services Agreement Attachment C — Amendment No. 1 to the Professional Services Agreement 9-3 Attachment A 9-4 Attachment B PROFESSIONAL SERVICES AGREEMENT WITH NOBLE CONSULTANTS, INCORPORATED FOR SEMENIUK SLOUGH DREDGING PROJECT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 23rd day of April, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NOBLE CONSULTANTS, INCORPORATED, a California corporation ("Consultant"), whose address is 359 Bel Marin Keys Blvd, Suite 9, Novato, California 94949, 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 prepare a bathymetric survey, sediment toxicity analysis, feasibility plan, entitlement documents and construction documents for the dredging of Semeniuk Slough ("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: TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on September 30, 2016, 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. TIME OF PERFORMANCE 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 9-5 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 Two Hundred Forty Three Thousand Two Hundred Ninety Six Dollars and 00/100 ($243,236.00), 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 Noble Consultants, Incorporated 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 Jon T. 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. 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. 5. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director 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. 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 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. Noble Consultants, Incorporated Page 3 9-7 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 under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall: be construed as authorizing any award of 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 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. No Noble Consultants, Incorporated Page 4 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 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 (54%) or more of the voting Noble Consultants, Incorporated Page 5 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, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information 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. f=urther, 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 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; Noble Consultants, Incorporated Page 6 9-10 (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 the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 17.4 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City `As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by consultant represents the consultant's 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 consultant or contractor bids or actual cost to City. 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 expressly authorizes in writing the release of information. 20. 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. r •-� 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, Noble Consultants, Incorporated Page 7 9-11 expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. Noble Consultants, Incorporated Page 8 9-12 26. NOTICES 26.1 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. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Robert Stein, Assistant City Engineer Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at- Attn: Jon T. Moore Noble Consultants, Incorporated 359 Bel Marin Keys Blvd, Suite 9 Novato, CA 94949 27. 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 et seq.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure Noble Consultants, Incorporated Page 9 9-13 such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole 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. 29. STANDARD PROVISIONS 29.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 29.2 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. 29.3 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. 29.4 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. 29.6 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 29.6 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. 29.7 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. Noble Consultants, Incorporated Page 10 9-14 29.8 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. 29.9 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. 29.19 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. 29.11 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. 29.12 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] Noble Consultants, Incorporated Page 11 9-15 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY AW •Y'S OFFICE Date: By: Aaron C. Harp b City Attorney CITY OF NEWPORT BEACH, a California _muriicbal.&rporation Rush N. Hill rI M Mayor ATTEST: CONSULTANT: Noble Consultants, Date: �� Incorporated, a California corporation Date: 5 �I By:' 'Ng�' Leilani I. Brown Ronald 1V6ble City Clerk President and Chief Executive Officer WIM.- Date: '5-(0 Scott M. Noble Senior Vice President and Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Noble Consultants, Incorporated Page 12 9-16 Noble Consultants, Incorporated Page A-1 9-17 NOBLE CONSULTANTS, INC. SI MENIUK SLOUGH DREDGING PROJECT A. Task Related A.1 Project Understanding Semeniuk Slough is a narrow tidal channel that drains into the Lower Santa Ana River Marsh near the mouth of the Santa Ana River. The 1,700 -foot long slough separates the Newport Banning Ranch parcel on the east and the community of West Newport Beach on the west. Tides are muted within the channel as they are controlled by the federal tide gates at the Santa Ana River levee. Semeniuk Slough is relatively shallow with no recent record of maintenance dredging. Sediments that have deposited in the channel over the years are predominantly fine grained material that likely originated from runoff from the Banning Ranch property, discharge from the Pacific Coast Highway storm drain, and fine sediment plumes that may have propagated upstream from the marsh area or the Santa Ana River itself. In 2004, the City authorized NCI to study and document existing conditions, propose a maintenance dredging plan, and pursue restoration of deeper channel depths. The potential cost of performing the dredging work within the logistically confined space led to postponement of a City stand-alone project at that time. Efforts to restore the slough restarted when federal project plans to restore the lower Newport Slough and adjacent areas of the Lower Santa Ana River Marsh initiated. The City vigorously pursued a collaborative project plan with the U.S. Army Corps of Engineers in hopes of piggy -backing Semeniuk Slough dredging with the proposed federal maintenance dredging scope. In support of that effort, the City commissioned AMEC in 2011 to update the original 2004 sediment analysis report. The latest sediment sampling and analysis results raised questions related to potential chemistry concerns. The findings indicated that more detailed sediment analysis would be required before questions about beneficial reuse compatibility could be fully answered. Because of timing and other issues, the City was ultimately unable to partner with the Corps of Engineers' project, and the federal dredging project moved forward without a Semeniuk Slough option. Newport Slough was dredged in early 2013. We understand that the City has a renewed interest to pursue a stand-alone dredging project once again to remove accumulated sediment from Semeniuk Slough and restore appropriate channel depths. Given the uncertainties associated with Tier III bioassay analysis and no guarantees that more extensive sediment study would permit local placement of sediments excavated from Semeniuk Slough, a preliminary project plan that entails upland disposal of material appears to be the most viable project plan to pursue at this time. Given this background history we have formulated a study plan that would most efficiently complete the necessary CEQA and regulatory requirements and allow the City to dredge the Slough in the most economic manner possible. Therefore the purpose of our services shall be to assist the City to design an appropriate maintenance dredging scope of work, secure the necessary regulatory entitlements, and prepare the construction contract documents that would enable the City to solicit formal construction bid proposals. As a stand-alone project, the keys to formulating and executing the most cost effective project plan will include the following strategies: Learn from the successes and failures of the Corp's Newport Slough dredging project. 2. Specify land disposal of sediment. Given the uncertainties associated with the chemical content of some sediments in the Slough, more extensive and uncertain sediment testing protocol will be required before nearshore disposal or local placement option can be considered. Obtaining regulatory entitlements will proceed much quicker if inland disposal is specified. Portions of the Corps of Engineer's recent Lower Santa Ana River Marsh dredging project were successfully conducted in this manner. Page 1 of 8 MW NOBLE CONSULTANTS, INC. SEMENIUK SLOUGH DREDGING PROJECT 3. invoke Section 15304(g) of the California CEQA Guidelines that declares maintenance dredging to be "categorically exempt" if all dredging material is deposited in a spoil area authorized by all applicable state and federal agencies. Inland disposal of dredged material supports this documentation strategy. 4. Prepare contract documents that maximize use of conventional earth moving equipment to the maximum extent possible. Dewatering and use of excavators was successfully employed during the Corps' Newport Slough project. Techniques that worked there can be reviewed and referenced where appropriate to support a simplified dredging plan for the City project. Given this general project approach, our specific scope of services is outline in the following section. A.2 Scope of Services Our proposed scope of services is intended to follow a progressive series of tasks to finalize the sediment analysis approvals, review and confirm a preferred dredging plan and methodology, address CEQA requirements, obtain regulatory entitlements, and prepare the final design and construction contract documents. An outline of our proposed scope of services is listed below. Task 1 Bathymetric and Culture Survey Our subconsultant, Nearshore and Wetland Surveys shall perform a precision, shallow water survey of the Semeniuk Slough channel to document existing depths. The survey shall be performed using single beam equipment as follows: Near -continuous digital sounding data will be collected along a minimum of three channel parallel transects. Near -continuous digital sounding data will be collected along channel perpendicular transects with a nominal ten -foot spacing. The digital depth sounder will be calibrated by obtaining speed of sound measurements each day prior to the onset and following the completion of data collection. The draft of the depth sounder transducer will be determined by either bar or rod checks conducted each day prior to the onset and following completion of the data collection. The data will be adjusted to the project datum based on water levels recorded at a tide gauge established prior to the survey and tied to existing USAGE benchmarks. The raw sounding data will be processed and adjusted for tide, draft, and speed of sound variation. Position data will be obtained during the survey with a differentially corrected GPS receiver. Position cheeks will be made to tie the survey to existing USACE benchmarks. A cultural survey (docks, guide piles, etc.) shall be performed in conjunction with the bathymetric survey. We shall locate the position of man-made structures including but not limited to docks platforms, guide piles, and culverts withinn the slough. A differentially corrected GPS receiver shall be used to perform this portion of the survey. Deliverable: Bathymetric chart showing soundings and one foot elevation contours; ASCII formatted file of the survey data in PNEZD format. Horizontal datum shall be NAD 83 California State Plane Zane d. Vertical datum ,shall be Mean Lower Low Water 83-01 epoch to match USACE vertical datum for their Lower Santa Ana River Marsh survey data. Page 2 of 8 9-19 NOBLE CONSULTANTS, INC . SEMENIUK SLOUGH DREDGING PROJECT Task 2. Sediment Sampling and Testing Sediment sampling and testing has previously been performed for the City by AMSC Geomatrix, Inc. Their draft data transmittal report was prepared in May 2011. We understand that the City presented AMEC's proposed sediment sampling and analysis plan (SAP) to the Southern California Dredge Material Management Team (SC-DMMT) at an earlier date and obtained their approval to proceed with the SAP. For our Scope of Services, we shall retain AMSC as our subconsultant to finalize their earlier draft report and present it before the Southern California Dredge Material Management Team (SC- DMMT) for final approval. Specific services shall consist of the following tasks: 2.1 The draft data transmittal report shall be finalized for submittal to the SC-DMMT. 2.2 The report and its findings together with a brief description of the proposed project shall be presented in person before the SC-DMMT at the Los Angeles District office of the USACE for review and approval. We shall prepare a brief PowerPoint presentation to describe the proposed dredging project and summarize the pertinent findings of AMEC's SAP study. In making the presentation, it shall be assumed that all sediments dredged during the proposed Semeniuk Slough Maintenance Dredging Project shall be disposed at an unknown and suitable inland site that will ultimately be the responsibility of the dredging contractor to select and procure. Accordingly we do not anticipate any significant review comments or issues from the SC-DMMT, and their concurrence of the AMEC study findings and project proposal recommendations is assumed by this Proposal. 2.3 Additional time to revise AMEC's report, furnish additional sediment collection data or analysis, or respond to questions from regulatory agencies regarding the results and findings of the AMEC SAP after the conclusion of the SC-DMMT presentation shall be at additional expense in accordance with our Standard Schedule of Charges and as approval by the City. Deliverable: 2a) Digital copy of the Final Data Transmittal Report in PDF format and four hard copies. Task 3. Determine Feasible Dredging Plan Based upon the results of Task 1 and concurrent with Task 2, we shall develop the most feasible plan to dredge the Semeniuk Slough. The following tasks shall be performed: 3.1 We shall obtain the post -dredge survey from the Corps of Engineers' Lower Santa Ana River Marsh Dredging Project to confirm their project limits, dredged depths, and transition bathymetry to the limits of the City project. We shall interview Corps of Engineer's staff to clarify what work was done and determine any lessons learned from that effort that alight be applicable and benefit to the City's scope of work. 3.2 We shall review alternative means and methods to dredge and dispose of the dredged material. Alternatives shall be limited to those that are relevant to inland disposal. This analysis shall be driven by review of site access constraints, operational logistics, and available equipment located within the Western United States construction market that is capable and potentially available to do the proposed work. Site access for the project is limited and a critical factor. We shall identify, review, and ultimately select the most appropriate area(s) that a contractor may utilize to support the dredging work. We shall review City records to obtain property owner contact information and contact the appropriate public and private parties to obtain permission to list their property on the contract documents as available for temporarily use during construction. Our fee estimate includes Page 3 of 8 9-20 NOBLE CONSULTANTS, INC. SEMENIUK SLOUGH DREDGING PROJECT a budget allowance to research property ownership, identify and review candidate sites, and obtain consent to list private property for construction access in the City's contract documents. The property search shall be limited to those parcel areas immediately adjacent to the Semeniuk Slough project site. In the event that adjacent property owners do not wish to cooperate with the City project and allow access, additional time to address alternative access strategies may be necessary. Additional effort, if required, shall be at additional expense as authorized in consultation with City staff. 3.3 We shall prepare a preliminary dredge template, dredge prism, and scope of work plan. 3.4 We shall prepare a preliminary opinion of the probable construction cost to complete the proposed dredging work. The City shall provide us with the following to expedite our services during this task: a) Digital copy of standard City base sheet and title sheet formats b) Digital copy of the City's most recent color aerial photography coverage of the project site. Digital files shall be geoferenced TIFF or similar format that are capable of being imported into AutoCad Civil 3D 2014 software. Deliverables: 3a) 30% complete construction plans that illustrate existing conditions, proposed dredge template, typical dredge cross sections, and estimated dredge volume; the plans shall be prepared in AutoCad Civil 3D 2014 digital format and delivered as 24"x 36" size drawings in PDFformat; 3b) Memorandum to staff summarizing our preliminary opinion of probable construction cost. Task 4 Regulatory Entitlements Using the results of Task 3, we shall prepare the appropriate level of CEQA documentation, prepare and submit permit applications, and coordinate permit processing. We shall be assisted during this task by our subconsultaant Chambers Group, Inc. The following tasks shall be performed. 4.1 In accordance with Section 15304 (g), Maintenance Dredging, of the CEQA Guidelines, the proposed project should qualify as being Categorically Exempt as all dredged material shall be "deposited in a spoil area authorized by all applicable state and federal regulatory agencies." Chambers Group shall prepare a categorical exemption document. The City shall pay any required filing fee(s). Should the resource agencies, interested stakeholder, or third party object to the categorization during the CEQA review period indicating that a different document type will be required, we shall prepare that documentation for additional fees in consultation with and as approved by the City. 4.2 I.n support of the permit application effort, Chambers Group will obtain and review relevant documents pertaining to environmental issues at the Project site. These documents will include documents prepared by the USACE for the recent Corps dredging project in the Lower Santa Ana River Marsh as well as other relevant materials, including the California Natural Diversity Database. This task assumes that a cultural resources record search was completed by the USACE an additional records search is not necessary. Page 4 of 8 9-21 NOBLE CQN5ULTANTs, INC. SEMENIUK SLOUGH DREDGING PROJECT 4.3 Chambers Group will prepare a report that discusses the biological resources that potentially could be affected by the dredging work and identifies potential impacts to any identified sensitive habitat and/or species. If necessary, the report will recommend measures to avoid impacts to sensitive resources. This task assumes the report will contain no more than 15 pages of text, tables, graphics, and appendices, and one round of comments by regulatory agency staffs. 4.4 We shall prepare and submit permit applications for the following regulatory entitlements: a) Section 404 from the Department of the Army b) Section 401 from the Santa Ana office of the California State Waterboards C) Coastal Development Permit from the California Coastal Commission d) California State Lands Commission (assumed to be not required since no State tidelands are involved) We shall prepare and compile all descriptive narrative and documents required for each application. We shall visit the City to obtain copies and certifications of all land title documents, names and addresses of adjacent property owners, or other legal or property ownership data or information that may be requested by each agency. The City shall be responsible to pay for any and all permit application fees. 4.5 We shall coordinate processing of all regulatory permits that we have submitted on behalf of the City as its designated and authorized agent. This task shall be limited to response to Resources Agency and USACE staffs to address questions and review comments. Our fee estimate includes one round of response to comments to each agency. Additional time to address multiple rounds of questions by regulatory staffs, attend public meetings, or respond to stakeholder or third party concerns shall be at additional expense and in consultation with City staff. Deliverables: 4a) Completed permit applications for Department of the Army, State Waterboards, and California Coastal Commission. Applications shall be prepared in the various formats required of each agency. 4b) Biological resources report in Word and PDF digital formats, Task 5. Final Design and Preparation of Contract Documents We shall prepare the detailed engineering design, construction plans, and contract documents for the Semeniuk Slough Maintenance Dredging Project. The following tasks shall be performed: 5.1 We shall perforin the final engineering design to specify the dredge template, dredge volume prism, and disposal plan for the Project. 5.2 We shall prepare the final construction plans and contract documents to specify work requirements and specifications. At this time we envision the documents to consist of the following items: Page 5 of S 9-22 NOBLE CONSULTANTS, INC. Construction Plans 1. Title Sheet 2. Site Survey and Survey Control 3. Staging and Storage Area 4. Construction Notes 5. Dredging Plan 6. Dredging Sections 7. Dredging Sections 8 Dredging Sections SEMENIUK SLOUGH DREDGING PROJECT Contract Documents 1. Notice Inviting Bids 2. Instructions to Bidders 3. General Conditions and Bonds 4. Contract 5. Proposal 6. Special Provisions 5.3 We shall prepare the final opinion of probable construction cost. Deliverable: 5a) 75% complete plans and technical specifications 5b) 90% complete plans and contract documents 5c) 100% complete plans and contract documents Plans shall be prepared in AutoCad Civil 31) 2014 digital format and submitted as 24"x 36" size drawings in digital PDP format for subsequent reproduction by the City as required. Contract documents shall be prepared in Microsoft Word 2007 digital format and submitted in digital PDF format for subsequent reproduction by the City as required. We shall require digital Word files of the City's boiler fate in order to prepare and assemble the complete contract documents package. 5d) Memorandum to staff that summarizes our opinion of probable construction cost at the 75%and 100% complete milestones. Task 6. Consultation During Construction We are prepared to assist the City throughout the construction phase by providing some or all of the following Services: 6.1 Support during bid solicitation including response to requests for information (RFIs), recommendations of qualified dredging contractors, and review of bid proposals. 6.2 Support during construction including response to RFIs, response to unforeseen field issues, review of pay requests, full time resident inspection, and other miscellaneous support. 6.3 Pre -dredge and post -dredge construction surveys to verify work compliance and pay quantities. The scope of these services may be more accurately determined, better estimated, and submitted to the City for review during execution of our Task 5 services when the complete nature and scope of the Project will be understood and known in more detail. Page 6 of 8 9-23 NOBLE CON 5 LJ L T A N T 5 , INC. SENIENIUK SLOUGH DREDGING PROJECT A.3 Project Schedule Our proposed project schedule is shown on the fallowing page. We estimate that Task 1 through S services shall be complete within approximately 46 weeks from receipt of our Notice to Proceed as shown on the attached project schedule chart. This duration includes an estimated minimum time of six months to secure all regulatory entitlements. The actual duration of our services will depend upon the time it will take each agency to complete its regulatory review and permitting process, internal City reviews, and other factors. Page 7 of S 9-24 NOBLE CONSULTANTS, INC. Task 1. Bathymetric Survey SEMENIUK SLOUGH DREDING PROJECT Condition survey. 4 R = Review milestone for City Site culture s urvey (docks, piles, etc.):,` Prepare base map Task 2. Sediment Sampling & Testing 4 2 6=Approximate task duration in weeks Prepare final report 1 Prepare for/meet with SC-DMMT w 4,a Task 3. Preliminary Design Prepare dredge template 3 Estimate dredge prism 2 Means and methods review 3 Locate construction staging area(s) 3 Opinion of probable construction cost 3 Prepare 30% complete plans 4 Meeting with City R Plan revisions 1 QA/QC re view 1 Task 4. Regulatory Entitlements Prepare Categorical Exemption 2 search for environ info Perform lit,.. � ,,, ,� 2 Biological resources survey/report 2 Permit application and processing Section 404 Section 401 2 2 CDP Permit processing Task S. Final Design/Contract Documents 2 �. - AIMWy r 24 b Final dredge plan Final dredge volume prism 2 1 Construction Plans 75% complete ' �w.:. U.." � 4 90% complete4 100% complete 2 Contract Documents 75% complete ;., 2 90% complete _ 100% complete m s 2 1 Opinion of probable construction cost _ 75% completeONE, 1 100% complete 1 Review meetings with City (3) R R R QA/QC Re vi e w 1 Consultation during Construction (tbd) Notes: ia) Presentation before SC-DMMT depends upon number of applications being processed and meeting schedule by USACE. b) Permit processing time depends upon actual review time spent by resource agency staffs, stakeholder interest, and degree of controversy of project Page 8 of 8 9-25 . rr r; � ,� i� w Noble Consultants, Incorporated Page B -'l 9-26 Semeniuk Slough Dredging Project Fee Proposal Summary Task Firm NO N&WS AMEC Chambers Task Total Task 1.8athymetric Survey $13,208 $12,042 $25,250 Task 2. Sediment Sampling & Testing $7,248 $6,200 $13,448 Task 3. Determine Feasible Dredging Plan $68,800 $68,800 Task 4. Regulatory Entitlements $54,936 $12,600 $67,536 Task 5. Final Design/Contract Documents $66,712 $66,712 Task 6. Consultation During Construction (tbd) Expenses $1,550 $1,550 Totals $212,454 $12,042 $6,200 $12,600 $243,296 Noble Consultants, Inc. Page 1 of 3 March 17, 2014 9-27 Semeniuk Slough Dredging Project riome t_onsu iiants, Inc NCI staff SPE PE Proj E2 C Est WP $584 Hourly billing rate $280 s $234 i $146 $135 i $76 NCI Subtotal Biological resources survey/report 4 $936 Condition survey$ 12 $3,624 Site culture survey (docks, piles, etc.) i $ i 12 88 $3,624 Prepare base map i 8 !I! j 2$ i ! $5,960 Section 401 I 8 32 16 Prepare final report ( 6 I 8 32 s $1,404 Prepare for/meet with SC-DMMT 10 1 24 40 1100 $5,844 M-, p.€3. Prepare dredge template i E 8 I 10 ( 1 $4,748 $3,332 Estimate dredge prism 4 8 1 10 I E i Construction Pians $3,332 Means and methods review 48 16 i 24 $16,808 Locate construction staging area(s) 84 80 I 8 16 $33,632 Opinion of probable construction cost $12,504 100% complete 16 40 1 $2,160 Prepare 30% complete plans Contract Documents i 8 j 24 p $5,376 Meeting with City I 1 4 fi 16 $6,832 $936 Plan revisions 16 1 4 8 $4,352 100% complete $2,104 QA/QC review 4 1 $2,480 Opinion of probable construction cost $1.120 Prepare Categorical Exemption 4 $584 Perform lit search for environ info Biological resources survey/report 4 $936 Permit application and processing i Obtain ownership documents/ addresses s 8 88 $8,560 Section 404 i 8 24 I $5,376 Section 401 I 8 32 16 $7,760 CDP I 8 32 s 16 $7,760 Permit processing/responsetocomments 40 1100 $23,960 ; v Final dredge plan i ... 8 1 16 ` 4 1 $4,748 Final dredge volume prism 4 8 I $2,104 Construction Pians 75% complete 8 80 $13,552 90% complete 16 ( 60 $12,504 100% complete 16 � 40 1 $9,584 Contract Documents 75% complete I 24 i 16 $6,832 90%complete 16 8 $4,352 100% complete 8 ( j 8 $2,480 Opinion of probable construction cost i € 75%complete 8 } 8 i $2,952 100%camp lete 4 4 i $1.,476 Review meetings with City (3) 12 $2,808 C1A/QC Review 8 8 i 53-320 !Noble Consultants, Inc. Respond to bidder RF Is Attend Pre -Construction meeting (1) Submittals review Respond to Contractor RFls Respond to field issues Site visits/inspection Totals 12 404 I 620 72 i 16$ Page 2 of 3 March 17, 2014 Serneniuk Slough Dredging Project Subconsultants Nearshore and Wetlands Surveys N and WS staff Eng Tech CAD Hourly billing rate $86 1 $59 $59 Subtotal Task 1. Bathymetric Survey Mobilization 14 6 $1,558 Condition survey 24 24 $3,480 Site culture survey (docks, piles, etc.) 6 6 $870 Data processing and mapping 26 14 $3,062 Expenses Other direct costs $1,272 In-house equipment $1,800 Totals 70 36 14 $12,042 AM EC AMECstaff Princ Assoc Snr CAD Support Hourly billing rate $250 1 $185 $140 1 $85 $65 Subtotal Task 2. Sediment Sampling & Testing Prepare final report 1 8 10 2 2 $3,430 Prepare for/meet with SC- DMMT 6 8 $2,620 Expenses 1 $150 Totals 7 8 181 2 2 $6,200 Chambers Group, Inc. Chambers Group staff PgM Sr. PjM As Bio GIS TechEd Hourly billing rate $174 1 $145 $93 $89 $76 Subtotal Task 4. Regulatory Entitlements Prepare Categorical Exemption 1 10 1 1 $1.,789 Perform lit search for environ info 3 8 12 2 $2,976 Biological resources survey/report 4 18 i 18 3 3 $5,437 Permit application and processing $0 Section 404 $0 CDP i $0 Permit process support/response to comments 6 6 2 $2,092 Expenses $306 Totals 1 14 421 30 81 4 $12,600 Noble Consultants, Inc. Page 3 of 3 March 17, 2014 9-29 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES I. 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 Noble Consultants, Incorporated Page C-1 9-30 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 ($1,000,040) 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 Re uirements. 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 Noble Consultants, Incorporated Page C-2 9-31 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 (rinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Noble Consultants, Incorporated Page C-3 9-32 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 4/17114 Dept./Contact Received From: Raymund Date Completed: 4/24/1.4 Sent to: Raymund - — By: Chris" Company/Person required to have certificate: Noble Consultants Type of contract: All Others 1. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 4/11/14-4/11/15 A. INSURANCE COMPANY: Travelers Property Casualty Company of America B. AM BEST RATING (A-: VII or greater): A+:XV -_ C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? 1,000,000/2,000,000 E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does F. not apply to Waste Haulers or Recreation) ® Yes 0 No G. ADDITIONAL INSURED FOR PRODUCTS AND El Yes ❑ No G. COMPLETED OPERATIONS ENDORSEMENT (completed ❑ Yes ® No H. Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes I❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION) (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No IL AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 4111/14-4/11/95 A. f oAmerica INSURANCE COMPANY: Travelers PropertyCasual( ,,., ._ YCompany. B. AM BEST RATING (A-: VII or greater) A+:XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min. for Waste Haulers): What is limits provided? 1,000,000 E, LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A El Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION:: ❑ N/A ® Yes ❑ No 9-33 III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 1/1/14-1!11'16 A. INSURANCE COMPANY: Old Republic Insurance Company B. AM BEST RATING (A-: VII or greater): A:XI C. ADMITTED Company (Must be California Admitted): D, WORKERS' COMPENSATION LIMIT: Statutory E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) F. WAIVER OF SUBROGATION (To include): Is it included? G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM H. NOTICE OF CANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO WHICH ITEMS NEED TO BE COMPLETED? Approved: (•`�gk Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 4/24/14 Date ® Yes ❑ No ® Yes ❑ No 1,000,000 ® Yes ❑ No ® N/A ❑ Yes ❑ No ❑ NIA ® Yes ❑ No ❑ NIA 0 Yes M No N/A ❑ Yes ❑ No ON/A El Yes ❑No *■ r RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/walver: Approved: Risk Management * Subject to the terms of the contract. Date 9-34 Attachment C AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH NOBLE CONSULTANTS, INCORPORATED FOR SEMENIUK SLOUGH DREDGING PROJECT THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 27th day of October, 2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NOBLE CONSULTANTS, INCORPORATED, a California corporation ("Consultant"), whose address is 359 Bel Marin Keys Boulevard, Suite 9, Novato, California 94949, and is made with reference to the following: RECITALS A. On April 23, 2014, City and Consultant entered into a Professional Services Agreement ("Agreement") to engage Consultant to prepare a bathymetric survey, sediment toxicity analysis, feasibility plan, entitlement documents and construction documents for the dredging of Semeniuk Slough ("Project"). B. City desires to enter into this Amendment No. One to reflect additional Services not included in the Agreement, to extend the term of the Agreement to June 30, 2017 and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is 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, 2017, unless terminated earlier as set forth herein." 2. 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 to the Agreement, and Exhibit A to this 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. 3. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Exhibit B to the Agreement and Exhibit B to Amendment No. One shall collectively be known as "Exhibit B." 9-35 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 Three Hundred Thousand Two Hundred Sixty Eight Dollars and 001100 ($300,268.00), 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 Fifty Six Thousand Nine Hundred Seventy Two Dollars and 001100 ($56,972.00). 4. 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] Noble Consultants, Incorporated Page 2 9-36 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOR E 'S OFFICE Date. By: V, Aaron C. Harp CALA tolv%ltir City Attorney ATTEST: Date: 1A Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Edward D Mayor Selich CONSULTANT: Noble Consultants, Incorporated, a California corporation Date: By: Ronald M. Noble President and Chief Executive Officer Date: By: Scott M. Noble Senior Vice President and Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Noble Consultants, Incorporated Page 3 9-37 EXHIBIT A SCOPE OF SERVICES Noble Consultants, Incorporated Page A-1 mm NOBLE I Vc` CONSULTANTS August 19, 2015 Robert Stein, PhD, PE Assistant City Engineer City of Newport Beach 100 Civic Center Drive, Newport Beach, CA 92660 RE: Amendment to Contract No. 5804 Professional Services Agreement Semeniuk Slough Dredging Project For the City of Newport Beach Dear Robert: 2201 Dupont Drive #830 Irvine, CA 92612 (949) 752-1530 Fax (949) 752-8381 Ronald M. Noble, A.E., President JN 782-08 The City of Newport Beach is considering entering into an agreement with the California Department of Transportation (CalTrans) District 12 to help remove sediment from the Pacific Coast Highway storm drain that discharges into Semeniuk Slough. CalTrans will be contributing funds to the City in exchange for engineering design, permitting, and construction services to assist the State with the sediment's removal and disposal. This proposal outlines the additional professional services we will perform in collaboration with City staff to include the additional CalTrans sediment removal work within the City's dredging project. Scope of Services Task AI —Surveying We will perform additional topographic and bathymetric surveying of the canal between the head of the Slough and the CalTrans culvert headwall to better define dredge quantities and existing features. Transects within the canal shall be sounded at approximately 10 -foot center spacing intervals. Topography shall be surveyed along the canal bank to map the terrain, culvert headwall geometry, culvert invert, and limits of the existing riprap slope protection. Task A2 — Contract Documents We shall amend the construction plans and contract documents to include the CalTrans sediment removal work within the City project. The State sediment removal work shall be confined to: the 300 -foot long narrow canal between the head of Semeniuk Slough and the storm drain headwall; and the first 300 feet of their culvert section between the discharge outlet and the Pacific Coast Highway. 9-39 NOBLE CONSULTANTS, INC. I GEC Robert Stein Proposal for Contract Amendment No. 1 Semeniuk Slough Dredging Project August 19, 2015 Page 2 of 3 Task A3 —Permitting We shall update the Semeniuk Slough dredging project description to include the proposed CalTrans sediment removal work. The final draft Sediment Analysis Plan Report (SAPR) shall be amended to include the CalTrans project description. We shall amend the permit applications to include the CalTrans storm drain sediment removal project component. Permits shall consist of applications to the California Coastal Commission, California Regional Water Quality Control Board, and Department of the Army. Time has been added to include outreach to the State Lands Commission to confirm that they have no tidelands interest in the project. Task 4 Meetings and Coordination We have added a budget allowance of time to accompany staff to attend meetings with CalTrans and respond to review comments by the State. Fee We proposed to complete the additional scope of services connected with the proposed CalTrans sediment removal project in accordance with our existing contract agreement with the City. We estimate that our fee to complete the above scope of services will be $56,972. The actual fee shall be determined by the time that may be required to address any additional regulatory agency comments or issues that may be associated with the CalTrans project component. A more detailed breakdown of our fee estimate is provided on the attached spreadsheet for your review. Sincerely, NOBLE CONSULTANTS, INC.IGEC Attachments: Fee estimate spreadsheet WN EXHIBIT B SCHEDULE OF BILLING RATES Noble Consultants, Incorporated Page B-1 9-41 NOBLE CONSULTANTS, INC. I GEC Robert Stein Proposal for Contract Amendment No. 1 Semeniuk Slough Dredging Project August 19, 2015 Page 3 of 3 Fee Estimate Spreadsheet Project: Semeniuk Slough Dredging Project Client: City of Newport Beach 0 0 0 0 NOBLE � Date of Estimate: 19 -Aug -15 0 0 0 0 .. • re $234 €A,—F a $206 Eng a CM wa $128 $142 $76 Totals 1 Hoursl Dollars Task A, Sumy _ _ _ Coordination _ 4 ry 4 4 $936 Task A2: Cract m ontDocuents W_Amend plans - WW_ 24 W� � 24 4 y-_ y�-52 _ e Amend contract documents 24 a 24 B � 16 a _ � v 72 _$9,256 $11,040 Amend cost estimate Task A2. Permitting 4 8 12 $2,072 Reuse project description Reuse DMMT presentation Obtain CCC permit a 8 ry 81 a 8 18 16 8 $2,896 $2896 $1,872 Obtain t1SACE permit 8 8 $1,872 Obtain CRWQCB permit 8 8 $1,872 _ Respond to comments — 16 W $3 744 Task A4: Meetings and Coordination Meetings with Ca)Trans(4) 4 Misc coordinatiorVreuew 16 24 € ^~ 8 24 m48 $6.6 6 Task A3: Consultation During Construction tbd Sub -Totals 152 96 20 16 284 $51,912 • • Nearshore and Wetlands Surrey Topo and bathy surrey of discharge canal a _-$4 200 Total SubconsultantsHandling Charge (g 15% _ $630 Sub -total $4,830 Expenses Cadd Communications Courier__...._._.,..,�.._..._.__......w.__._...___..__.......�............�.,.__...._......_�_......�..._.... ...��_ Expenses' $100 Reproduction $100 Other Total Reimbursable Expenses 1 Handling Charge @ 15% _ $30 Sub -total $230 - • • -M $56,972 9-42