HomeMy WebLinkAboutC-3790(A) - PSA for the Balboa Island Beach Study• • NAO
PROFESSIONAL SERVICES AGREEMENT WITH
MOFFATT AND NICHOL ENGINEERS
FOR THE BALBOA ISLAND BEACH STUDY
THIS AGREEMENT is made and entered into as of this JAay of Sane. ,
2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and Moffatt and Nichol Engineers, a California Corporation whose address is
3780 Kilroy Airport Way, Suite 600, Long Beach, California, 90806 ( "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 California and the Charter of
City.
B. City is planning to investigate the means available to improve the annual Capital
Improvement Plan (CIP) projects of sand replenishment on Balboa Island
beaches. This project has many constraints due to presence of significant
nearshore eelgrass beds around the perimeter of Balboa Island and adjacent to
many street end beaches on the peninsula. The small amount of sand that can
be pushed up to reestablish a user friendly beach usually lasts only for about six
weeks before it is lost due to local wind and wake induced erosion.
C. City desires to engage Consultant to investigate the feasibility of various erosion
control measures including potential structural solutions to more effectively
maintain user friendly beaches on Balboa Island. In addition, the consultant will
prepare a report delineating beach management alternatives that the City may
chose to employ to maintain and improve the beaches. ( "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 Chris Webb.
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:
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1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31 day of December, 2007, 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
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
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 Forty Nine Thousand Nine Hundred and Ninety Five Dollars and
no1100 ($49,995) without prior written authorization from City. No billing rate
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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 writing
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
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 performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
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 Chris Webb 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
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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.
S. ADMINISTRATION
This Agreement will be administered by the Harbor Resources Division of the
City Manager's Department 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
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. By
delivery of completed work, Consultant certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and
local laws and the professional standard of care.
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8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties) from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court
costs) of every kind and nature whatsoever (individually, a Claim; collectively,
"Claims'), which may arise from or in any manner relate (directly or indirectly) to
the negligence, recklessness, or willful misconduct of the Consultant or its
principals, officers, agents, employees, vendors, suppliers, 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.
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 at all times during the term of this Agreement.
B. Signature. 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
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Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
D. Coveraae Reauirements.
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 (10 calendar days written notice of non-
payment of premium) 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.
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:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insureds with
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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 (10 calendar days
written notice of non - payment of premium) 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.
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.
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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. The City is an intended beneficiary of any work
performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and the 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
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. 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.
19. INTELLECTUAL PROPERTY INDEMNITY
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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.
20. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or 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.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
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24. 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.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
Attn: Tom Rossmiller
Harbor Resources Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3041
Fax: 949 - 723 -0589
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Chris Webb
Moffatt and Nichol Engineers
3780 Kilroy Airport Way, Suite 600,
Long Beach, California, 90806
Phone: 562 - 426 -9551
Fax: 562-424 -7489
26. 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
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give adequate assurance of due performance within two (2) calendar days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure
the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
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.
27. 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.
28. WAIVER
A waiver by either parry 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. 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.
30. 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.
31. 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
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reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
32. 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.
33. 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.
34. 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.
35. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APP VED AS TO FORM:
ity Attorney
for the City of Newport Beach
ATTEST:
By -.L2
LaVonne Harkless,
City Clerk
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CITY OF NE RT BEACH,
A ipal orp ration
By:
ayor
for the City of Newpo Be ch
CONSULTANT:
By: ✓ Oe�
(C rpoorate Officer)
Title: a"r A2'5W1_te-X
Print Name: /l%CNAoc_ V A6 /
EM
• s
(Financial Officer)
Title:
Print Name:
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
F A users\ caflsharedlContractTemplatesPublishedon IntranetlFORMPSA.doc
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CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
� %Ilao-7-va7 L-3'?qo tA-)
Agenda Item No.! 15
June 12, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Harbor Resources Division (City Manager's Office)
Tom Rossmiller, Manager Harbor Resources, 949 - 644 -3041
trossmillerOcity .newoort- beach.ca.us
Dave Kiff, Assistant City Manager, 949 - 6443002
dkiffecity. newoort- beach.ca.us
SUBJECT: Balboa Island Beach Sand Study
ISSUE:
Should the Newport Beach City Council authorize a professional services agreement
with Moffatt and Nichol Engineers for a Balboa Island Beach Sand Study and a transfer
of funds to make up for anticipated grant funding that is currently not available from the
California Department of Boating and Waterways?
RECOMMENDATION:
1.) Approve the Professional Services Agreement with Moffatt and Nichol Engineers to
investigate the feasibility of various measures to control bay -front beach erosion on
Balboa Island for $49,995; and 2.) Approve a transfer of $40,000 from General Fund
unappropriated reserves to account 7231 — C2360893 which currently contains
$10,000.
DISCUSSION:
Background
An annual priority Capital Improvement Plan (CIP) project of the City has been the Bay
and Street End Beach Replenishment Project. This project has many constraints due to
presence of significant nearshore eelgrass beds around the perimeter of Balboa Island
and adjacent to many street end beaches on the peninsula. The small amount of sand
that can be pushed up to reestablish a user friendly beach usually lasts only for about
six weeks before it is lost due to local wind and wake induced erosion. Harbor
Resources proposed to hire a consultant to investigate the feasibility of various erosion
• Balboa I *d Beach Sand Study
June 12, 2007
Page 2
control measures including potential structural solutions. When the project was •
formulated, the California Department of Boating and Waterways indicated that the
project would qualify for a matching grant, if funds were available. Unfortunately, funds
are not currently available this fiscal year in this Boating and Waterways funding
category and the near -term future for this source of funding is not good. This study is
critical to a development of effective methods to retain usable and sustainable beaches
on Balboa Island.
Moffatt and Nichol Engineers performed a similar Beach Replenishment
Reconnaissance Study for Balboa Island in 1982 and their attached proposal
demonstrates an excellent understanding of the problems and potential solutions. The
proposed alternatives, analysis and development of a management plan are an
important step in successfully acquiring permits to perform any future projects in this
highly constrained environmental setting. Moffatt and Nichol Engineers are
recommended for this contract based on the qualification based selection process
outlined in the City Council Policy F -14.
Environmental Review: All tasks fall under the information gathering class of projects
and are therefore categorically exempt pursuant to CEQA Guidelines, Article 19,
Section 15306.
Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act. •
(72 hours in advance of the public meeting at which the City Council considers the
item).
Funding Availability: With the approved Budget Amendment, sufficient funding will be
available in the following account for the project:
Account Description Account Number Amount
Tide and Submerged Lands 7231— C2360893 $50;000
Alternatives: Request grant funding from Department of Boating and Waterways when
funds become available.
Prepared by: Submitted by:
Tom Rossmiller, Harbor Resources Manager Dav iff, Assistant City Manager
Attachments: Professional Services Agreement .
a.
• PROFESSIONAL SERVICES AGREEMENT WITH
MOFFATT AND NICHOL ENGINEERS
FOR THE BALBOA ISLAND BEACH STUDY
THIS AGREEMENT is made and entered into as of this _ day of ,
2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and Moffatt and Nichol Engineers a California Corporation whose address is
3780 Kilroy Airport Way, Suite 600, Long Beach, California, 90806 ( "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 California and the Charter of
City.
B. City is planning to investigate the means available to improve the annual Capital
Improvement Plan (CIP) projects of sand replenishment on Balboa Island
beaches. This project has many constraints due to presence of significant
nearshore eelgrass beds around the perimeter of Balboa Island and adjacent to
• many street end beaches on the peninsula. The small amount of sand that can
be pushed up to reestablish a user friendly beach usually lasts only for about six
weeks before it is lost due to local wind and wake induced erosion.
C. City desires to engage Consultant to investigate the feasibility of various erosion
control measures including potential structural solutions to more effectively
maintain user friendly beaches on Balboa Island. In addition, the consultant will
prepare a report delineating beach management alternatives that the City may
chose to employ to maintain and improve the beaches. ( "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 Chris Webb.
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:
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1. TERM •
The term of this Agreement shall commence on the above written date, and shall
terminate on the 31 day of December, 2007, 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
the services shall be performed to completion in a diligent and timely manner.
The failure by Consultant to.perform the services in a diligent and timely manner
may result in termination of this Agreement by City.
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 Forty Nine Thousand Nine Hundred and Ninety Five Dollars and
no /100 ($49,995) without prior written authorization from City. No billing rate
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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 writing
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
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 performed
without the prior written authorization of City. As used herein, "Extra
Work" means any work that is determined by City to be necessary for the
proper completion of the Project, but which is not included within the
Scope of Services and which the parties did not reasonably anticipate
would be necessary at the execution of this Agreement. Compensation
for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
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 Chris Webb 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
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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 Harbor Resources Division of the
City Manager's Department 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 •
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 infonmation with regards to new
facilities or facilities to be rehabilitated.
8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City. By
delivery of completed work, Consultant certifies that the work conforms to
the requirements of this Agreement and all applicable federal, state and •
local laws and the professional standard of care.
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8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and
• expense, all licenses, permits, qualifications, insurance and approvals of
whatsoever nature that is legally required of Consultant to practice its
profession. Consultant shall maintain a City of Newport Beach business
license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties) from and
against any and all claims (including, without limitation, claims for bodily injury,
death or damage to property), demands, obligations, damages, actions, causes
of action, suits, losses, judgments, fines, penalties, liabilities, costs and
expenses (including, without limitation, attorney's fees, disbursements and court
• costs) of every kind and nature whatsoever (individually,, a Claim; collectively,
"Claims "), which may arise from or in any manner relate (directly or indirectly) to
the negligence, recklessness, or willful misconduct of the Consultant or its
principals, officers, agents, employees, vendors, suppliers, 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
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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.
COOPERATION
Consultant agrees to work
Project Administrator and
interest in the work to be
Consultant on the Project.
CITY POLICY
closely and cooperate fully with City's designated
any other agencies that may have jurisdiction or
performed. City agrees to cooperate with the
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.
PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his/her
duly authorized designee informed on a regular basis regarding the status and
progress of the Project, activities performed and planned, and any meetings that •
have been scheduled or are desired.
14. INSURANCE
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 at all times during the term of this Agreement.
B. Signature. 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
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Best's Key Rating Guide, unless otherwise approved by the City's Risk
Manager.
• D. Coverage Reguiremenfs.
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 (10 calendar days written notice of non-
payment of premium) 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. Endorsemenfs. 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 Consultants 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 (10 calendar days
written notice of non - payment of premium) 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.
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.
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16.. SUBCONTRACTING
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• 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. The City is an intended beneficiary of any work
performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and the 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
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. 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.
• 19. INTELLECTUAL PROPERTY INDEMNITY
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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.
20. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be •
deemed to constitute a failure to pay according to the terms of this Agreement.
Consultant shall not discontinue work as a result of such withholding. Consultant
shall have an immediate right to appeal to the City Manager or 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.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what
would have resulted if there were not errors or omissions in the work
accomplished by Consultant, the additional design, construction and /or
restoration expense shall be bome by Consultant. Nothing in this paragraph is
intended to limit City's rights under the law or any other sections of this
Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
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24. 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 Consultants
violation of this Section.
25. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, and conclusively shall be deemed served
when delivered personally, or on the third business day after the deposit thereof
in the United States mail, postage prepaid, first -class mail, addressed as
hereinafter provided. All notices, demands, requests or approvals from
Consultant to City shall be addressed to City at:
• Attn: Tom Rossmiller
Harbor Resources Division
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3041
Fax: 949 -723 -0589
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Chris Webb
Moffatt and Nichol Engineers
3780 Kilroy Airport Way, Suite 600,
Long Beach, California, 90806
Phone: 562 -426 -9551
Fax: 562 - 424 -7489
26. 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
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give adequate assurance of due performance within two (2) calendar. days after
receipt of written notice of default, specifying the nature of such default and the
steps necessary to cure such default, and thereafter diligently take steps to cure •
the default, the non - defaulting party may terminate the Agreement forthwith by
giving to the defaulting party written notice thereof.
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.
27. 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.
28. 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. 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.
30. 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.
31. 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
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reason of the authorship of the Agreement or any other rule of construction
which might otherwise apply.
32. 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.
33. 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.
34. 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.
35. 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.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TOFORM:
City Attorney
for the City of Newport Beach
ATTEST:
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LaVonne Harkless,
City Clerk
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CITY OF NEWPORT BEACH,
A Municipal Corporation
A
Mayor
for the City of Newport Beach
CONSULTANT:
M
Title:
Print
(Corporate Officer)
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(Financial Officer)
Print Name:
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
F: lusersicaflsharediContractTemplatesPublishedonintranet \FORMPSA.doc
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h, man • 3780 FGlroy Airport Way
h A Suite.fi00
Long Beach, California 90806
MOITATF& MCHOL
. (562) 426 -9551
Exhibit A Fax (562) 424 -7489
January 30, 2007
City of Newport Beach
829 Harbor Island Drive
Newport Beach, CA 92660
Attn: Mr. Tom Rossmiller, Manager, Harbor Resources Division
Subj: Balboa Island Beach Sand Study, Proposal for Consulting Services
Dear Mr. Rossmiller:
Moffatt &.Nichol is pleased to present this proposal for consulting services to assess sand
management and beach improvement options for Balboa Island. The City presently pushes sand
up high on the dry beach along the south - facing shore (South Bayfront) and it remains for
• between 60 and 90 days before sloughing off to lower portions of the beach profile and becomes
unavailable for recreational use. The City needs to quantify existing conditions of sediment
transport and effects on the beach from natural changes and from man- induced influences for
management. Man- induced changes include private maintenance dredging and beach
nourishment, and City maintenance actions.
The study will primarily focus along the South Bayfront from Garnet Avenue to Jade Avenue.
Other Island shorelines will also be assessed as part of this study including the North Bayfront
from Garnet Avenue to Grand Canal, and the entire East Bayftont. An image is attached
showing project reaches. The focus of the study will be the on -going problem area along the
South Bayfront, with a lower level of effort being expended on analyzing conditions at the North
and East Bayfronts due to the reduced degree of beach maintenance required at those locations.
The proposed scope of work, fee, and schedule are provided below for your consideration.
Proposed Scope of Services
The tasks proposed for this study are presented below.
1. Gather and Review Existing Site Data —Review existing data provided by the City
including:
a. historic and recent aerial photos;
b. historic and recent beach profiles, particularly any showing degradation of the
• City- constructed profile over time after a maintenance event;
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City of Newport Beach
Mr. Tom Rossmiller
January 30, 2007 •
Page 2
c. historic and recent sediment testing;
d. general conditions of existing groins or continued existence of those noted in the
1982 report; and
e. the historic report (2002) entitled " Economic Analysis of the Recreational
Benefits of a Nourishment Project on Balboa Island, Newport Beach" by Phillip
G. King Ph.D.
2. Perform Site Visit and Interviews — Perform a site visit and interview knowledgeable City
staff and Balboa Island Improvement Association representatives.
3. Record Beach Profiles - Record new beach profiles at historic locations on the South
Bayfront (at up to, but not more than, 12 locations).
4. Sample and Test Sand for Grain Size - Sample sand at one location (to be determined
with City Staff) at each profile and test for grain size.
5. Install Current Meter - Install one wavelcurrent meter (an InterOcean S4DW) at an
appropriate location and leave it in for at least two weeks to measure longshore currents.
6. Evaluate Existing Wind Data - Evaluate wind speed and direction data available from
Orange Count Sheriff's Harbor Patrol to relate to any longshore currents.
7. Identify Eelgrass Constraints on Nourishment - Identify issues related to eelgrass habitat
and beach nourishment that may affect planning at Balboa Island.
8. Assess the Need for Nourishment to Protect Infrastructure - Identify if beach nourishment •
is necessary to protect public infrastructure on the Island (the public walkway and
shallow depth bulkhead at 0 to 4 feet MLLW).
9. Assess Potential Contributions to Erosion by Storm Drainage - Identify any localized
erosion problems caused by storm drain outlets and.suggest possible modifications to the
grade, depth, position, or configuration of the outlets to reduce impacts.
10. Update the Status of Dredging and Nourishment Regulations - Update the status of
dredging and nourishment permits and regulations as they pertain to Balboa Island.
IL Prepare Concepts for Management - Prepare three concept alternatives to retain sand
with existing or new structures, or to perform new nourishment, or modify maintenance
activities, and provide probable costs. Concepts may include:
a. Modification of the existing groin field to retain sand (optimized groins);
b. Lengthening existing piers and relocating docks farther into the bay, while
widening the beach through nourishment, sand retention or both;
c. Nourishment -only with very coarse sand hauled in from off -site;
d. A perched beach; and
e. Possibly a different option or options based on City input and results of data
review.
12. Prepare Reports - Prepare a draft report for review, and a final report based on staff
comments.
13. Attend and Present at Meetings - Attend two meetings to report progress and present
results. 0
Eq • • City of Newport Beach
Mr. Tom Rossmiller
January 30, 2007
• Page 3
•
•
Proposed Fee
The scope of work can be completed for an estimated fee of $49,995. The table on the following
page shows the fee by task.
Proposed Schedule
The project can be completed within five months from Notice -to- Proceed.
Thank you for the opportunity to assist the City on this important project and please contact me
with any questions or comments regarding this proposal.
Sincerely,
MOFFATT & NICHOL
Michael J. McCarthy, P.E.
Vice - President
RrA
hAhq
PROPOSED FEE
0
City of Newport Beach
Mr. Tom Rossmiller
January 30, 2007
Page 4
Task Number
Description
Estimated Fee
1
Gather and Review Existing Site Data
$1,936
2
Perform Site Visit and Interviews
$1,406
3
Record Beach Profiles
$2,772
4
Sample and Test Sand for Grain Size
$1,350
5
Install Current Meter
$1,334
6
Evaluate Existing Wind Data
$968
7
Identify Eel ass Constraints on Nourishment
$1,308
8
Assess the Need for Nourishment to Protect
Infiwtiucture
$2,900
9
Assess Potential Contributions to Erosion by
Storm Drainage
$2,928
10
Update the Status of Dredging and
Nourishment Regulations
$1,452
11
Prepare Concepts for Management
$11,796
12
Prepare Reports
$15,942
13
Attend and Present at Meetings
$1,648
Not Applicable
Reimbursable Expenses (Instrument lease,
sieve tests, mileage, reproduction, telephone,
mailing, etc.
$21255
Grand Total
1 $49,995
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Exhibit B
F,
RATE SCHEDULE FOR PROFESSIONAL SERVICES
Effective July 2, 2006 Until Revised
REIMBURSABLE EXPENSES (Unless, Otherwise Provided in, Written Agreement)
Subcontracts or Outside Services
CLASSIFICATION
HOURLY RATES
PROFESSIONALS
Supervisory Engineer/Scientist
$
195.00
$4.00/SF
Senior Engineer/Scientist
$1.00/SF
179.00
$0.50/SF
i, Engineff/Scientist H1
cost +15%
'168.00
$0.10 /sheet
EnginpWscicntisr If.
$
150.00
Prevailing IRS
Engineer/Scientist 1
$
129.00
cost
Staff Engmeer/Scientist
cost
103.100
TECHNICIANS
Senior Technician
t46.00
Designer
$
135.00
CARD H
S
112.00
CADD I
$
87.00
CLERICAL
Word processing
$
83.00
General Clerical
$
71.00
SPECIAL
Principal Engineer/Scientist
S
220,00
Court Appearances
$
300.00
REIMBURSABLE EXPENSES (Unless, Otherwise Provided in, Written Agreement)
Subcontracts or Outside Services
cost +15%
Reproductions -In House
mylar Plots (B/W)
$2.00/SF
Color Plots
$4.00/SF
Vellum Plots (BAV)
$1.00/SF
Bond Plots (BM
$0.50/SF
Drawing Reproduction
cost +15%
Document Reproduction
$0.10 /sheet
- Outside Reproduction
Cost +15%
Travel Company Auto
Prevailing IRS
Rental Vehicle
cost
Airfare
cost
Meals and Lodging
cost
0
Cit of Newport Beach • NO. BA- 07BA -078
` CGET AMENDMENT
2006 -07 AMOUNT: $ao,000.00
IF CT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates Increase in Budgetary Fund Balance
Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance
Transfer Budget Appropriations No effect on Budgetary Fund Balance
SOURCE:
from existing budget appropriations
from additional estimated revenues
Ix from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
To increase expenditure appropriations to enter into a professional services agreement with Moffatt and Nichol Engineers
to investigate the feasibility of various measures to control bay -front beach erosion on Balboa Island.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
010 3605
REVENUE ESTIMATES (3601)
• Fund /Division Account
9230 6000
EXPENDITURE APPROPRIATIONS (3603)
Description
General Fund - Fund Balance
Description
ND Tide & Submerged Land - Transfers In
Signed:
iigned:
Approval: Administrative Services Director
Administrative Approval: City Manager
34
City Council Approval: City Clerk
Amount
Debit Credit
$40000.00 "
$40,000.00
$40.000.00
Date
Date
Date
Description
Division
Number
9010
ND General Fund
Account
Number
9900
Transfers Out
Division
Number
7231
Tidelands - Capital
Account
Number
C2360893
Bay -Front Beach Erosion Control
Division
Number
Account
Number
Division
Number
Account
Number
Division
Number
Account
Number
Signed:
iigned:
Approval: Administrative Services Director
Administrative Approval: City Manager
34
City Council Approval: City Clerk
Amount
Debit Credit
$40000.00 "
$40,000.00
$40.000.00
Date
Date
Date