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HomeMy WebLinkAboutC-7127-3 - PSA for Engineering and Construction Management Services for the Newport Bay Trash Wheel ProjectAMENDMENT NO. FOUR TO PROFESSIONAL SERVICES AGREEMENT U WITH BURNS & MCDONNELL ENGINEERING COMPANY, INC. FOR ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEWPORT BAY TRASH WHEEL PROJECT THIS AMENDMENT NO. FOUR TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Four") is made and entered into as of this 5th day of December 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation ("Consultant"), whose address is 140 S. State College Boulevard, Suite 100 & 200, Brea, CA 92821, and is made with reference to the following: RECITALS A. On March 24, 2020, City and Consultant entered into a Professional Services Agreement ("Agreement") for Engineering and Construction Management Services for the Newport Bay Trash Wheel Project ("Project"). B. On January 11, 2022, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not previously included in the Agreement, and to increase the total compensation. C. On February 28, 2023, City and Consultant entered into Amendment No. Two to the Agreement ("Amendment No. Two") to reflect additional services not included in the Agreement, as amended, to extend the term of the Agreement to December 31, 2024, and to increase the total compensation. D. On July 11, 2023, City and Consultant entered into Amendment No. Three to the Agreement ("Amendment No. Three") to reflect additional services not included in the Agreement, as amended, to extend the term of the Agreement to December 31, 2025, to increase the total compensation, and to update the Independent Contractor section. E. The parties desire to enter into this Amendment No. Four to reflect additional Services not included in the Agreement, as amended, and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement, Exhibit A to Amendment No. One, Exhibit A to Amendment Two, Exhibit A to Amendment Three, and Exhibit A to Amendment No. Four shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT 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. Exhibit B to the Agreement, Exhibit B to Amendment No. One, Exhibit B to Amendment Two, Exhibit B to Amendment Three, and Exhibit B to Amendment No. Four shall collectively be known as "Exhibit B." 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 Nine Hundred Sixty Three Thousand Six Hundred Twenty One Dollars and 00/100 ($963,621.00), 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. Four, including all reimbursable items and subconsultant fees, in an amount not to exceed Seventy Five Thousand Four Hundred Eleven Dollars and 00/100 ($75,411.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Burns & McDonnell Engineering Company, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Four to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORI�EY'S OFFICE Date: 12-1� ?r3 In ATTEST: Date: 0 CITY OF NEWPORT BEACH, a California municipal corporation Date: !Zi,%�23 By: Grp e K. Leung City Manager CONSULTANT: Burns & McDonnell Engineering Company, Inc., a Missouri Corporation Date: Signed in Counterpart By: Stephan L. Nalefski Senior Vice President SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Burns & McDonnell Engineering Company, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. Four to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 12-1 By: C I ltyjAttorrye'y ATTEST: Date: M Leilani 1. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Grace K. Leung City Manager CONSULTANT: Burns & McDonnell Engineering Company, Inc., a Missouri Corporation Date: Zv:z 45 If 0 By. Stephan L. Nalefski Senior Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates . . . . . .............. . Burns & McDonnell Engineering Company, Inc. Page 3 EXHIBIT SCOPE OF SERVICES Burns & McDonnell Engineering Company, Inc. Page A-1 EXHIBIT A SCOPE OF SERVICES Task 1: RFI & Submittals, Design Changes and Supplemental Construction Biological Monitoring Irvine Company Request for Change in Vegetation Cover: The Irvine Company requested just prior to mobilization adding container plants to the north side of the project where only hydroseeding was planned. As requested by City, Burns & McDonnel will design an automatic temporary irrigation system to provide temporary irrigation for the establishment of these container plants. A revised revegetation plan is also required for submittal to the resource agencies that will require certification of the establishment of vegetation in the mitigation areas. Tidal Influence will conduct inspection of the delivery, installation and establishment of the additional container plants requested by The Irvine Company. Tidal Influence will also attend an additional two construction meetings during construction coordination. b. Change in Field Conditions at Biofiltration Unit: During initial grading, soft and highly erodible conditions were discovered in the area of the biofiltration unit and outfall. These conditions require relocating the unit and outfall. Burns & McDonnell will revise the design sheets to relocate the biofiltration unit and outfall within a modified truck turnaround area. c. Design of Rail Stop Mechanism : As requested by City Staff, Burns & McDonnell and Anchor QEA will provide structural design services to design a stop mechanism at the end of the rail system. d. Additional RFIs & Submittals for SCADA System: Burns & McDonnell has completed the reviews and submitted responses to 16 RFIs and 22 Submittals. An additional budget is requested to cover the review, coordination and submittal of the anticipated multiple submittals for the SCADA remote sensing and control system and the integration of this system into the City's existing systems and operations. The SCADA system was provided as a performance specification to provide flexibility for this integration but requires submittal of system design details. e. Tidal Influence will conduct additional biological monitoring as a result of the presence of California Gnatcatcher per the permit conditions. Tidal Influence will focus this monitoring to more disruptive activities that include clearing and grubbing, grading and pile driving. This totals five full days or 10 half days of additional monitoring. Additional communication with the resource agencies per the permit condition requirements due to the presence of this listed species. f. Tidal Influence is requested to provide communications with the California Department of Fish & Wildlife and California Coastal Commission staff regarding providing information and documentation of compliance with approved project permits. The permit condition support includes developing a permit conditions matrix and tracking compliance. Task Cost: $65,460 (includes Tidal Influence $12,820 & Anchor $23,948) Task 2: Welding Inspection & Testing As requested, Group Delta will provide welding and related steel inspection and testing. • Task Cost: $9,951 (includes $8,967 Group Delta) The total cost of the amendment is $75,411. EXHIBIT B SCHEDULE OF BILLING RATES Burns & McDonnell Engineering Company, Inc. Page B-1 EXHIBIT B BILLING RATES AMENDMENT NO. FOUR BURNSN MSDONNELL_ CERTIFICATE OF ASSISTANT SECRETARY OF BURNS & McDONNELL ENGINEERING COMPANY, INC. 1, Clu•istine M. Dority, Assistant Secretary and keeper of the records and corporate seal of Burns & McDonnell Engineering Company, Inc. ("the Company"), a corporation organized kind existing under the laws of the State of Missouri, certify as to the following: The Board of Directors has declared signature authority to certain individuals of the Company, including officers, office managers and associate level project managers. Stephan L. Nalefski is a Senior Vice President, having been first elected as an officer of the Company on January 7, 2016, and remains in good standing. Therefore, pursuant to the authority granted by the Board of Directors and as reflected in the records of the Company, Mr. Nalefski is authorized to sign proposals, contracts, and related documents in connection with providing architectural, engineering, consulting management, construction and related services by the Company. IN WITNESS WHEREOF, the undersigned has executed this Certificate on behalf of Burns & McDonnell Engineering Company, Inc. on the 2151 day of February 2022. BURNS & MCDONNELL ENGINEERING COMPANY, INC. ``��11111111i11Jf//�/�� � � • EN...... '" '' Christine M. Dority v G� qT,c, Assistant Secretary SEAL pora(e Seal] unt BURNS S MSDONNELL.; Robert Stein, Ph.D., P.E. Public Works Department City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 October 31, 2023 Re: Addendum No. 4 Request to Contract for Trash Interceptor— Additional Construction Engineer of Record Support and Construction Biological Monitoring Services (Contract No. C-7127-5) Dear Robert: The Burns & McDonnell (B&M) consultant team is working closely with your staff and the construction contractor, and it appears the project is on track to complete in a timely manner. There are a number of new design and construction related tasks and B&M requests a modification of our scope of work as follows. Task 1: RFI & Submittals, Design Changes and Supplemental Construction Biological Monitoring a. Irvine Company Request for Change in Vegetation Cover: The Irvine Company requested just prior to mobilization adding container plants to the north side of the project where only hydroseeding was planned. As requested by City, Burns & McDonnel will design an automatic temporary irrigation system to provide temporary irrigation for the establishment of these container plants. A revised revegetation plan is also required for submittal to the resource agencies that will require certification of the establishment of vegetation in the mitigation areas. Tidal Influence will conduct inspection of the delivery, installation and establishment of the additional container plants requested by The Irvine Company. Tidal Influence will also attend an additional two construction meetings during construction coordination. b. Change in Field Conditions at Biofiltration Unit: During initial grading, soft and highly erodible conditions were discovered in the area of the biofiltration unit and outfall. These conditions require relocating the unit and outfall. Burns & McDonnell will revise the design sheets to relocate the biofiltration unit and outfall within a modified truck turnaround area. c. Design of Rail Stop Mechanism: As requested by City Staff, Burns & McDonnell and Anchor QEA will provide structural design services to design a stop mechanism at the end of the rail system. d. Additional RFIs & Submittals for SCADA System: Burns & McDonnell has completed the reviews and submitted responses to 16 RFIs and 22 Submittals. An additional budget is requested to cover the review, coordination and submittal of the anticipated multiple submittals for the SCADA remote sensing and control system and the integration of this system into the City's existing systems and 4225 Executive Square \ La Jolla, CA 92037 0 858-260-5985 \ F 714-256-1764 \ burnsmcd.com BURNS XMSDONNELL. Amendment No. 3 December 7, 2023 Page 2 operations. The SCADA system was provided as a performance specification to provide flexibility for this integration but requires submittal of system design details. e. Tidal Influence will conduct additional biological monitoring as a result of the presence of California Gnatcatcher per the permit conditions. Tidal Influence will focus this monitoring to more disruptive activities that include clearing and grubbing, grading and pile driving. This totals five full days or 10 half days of additional monitoring. Additional communication with the resource agencies per the permit condition requirements due to the presence of this listed species. f. Tidal Influence is requested to provide communications with the California Department of Fish & Wildlife and California Coastal Commission staff regarding providing information and documentation of compliance with approved project permits. The permit condition support includes developing a permit conditions matrix and tracking compliance. • Task Cost: $65,460 (includes Tidal Influence $12,820 & Anchor $23,948) Task 2: Welding Inspection & Testing As requested, Group Delta will provide welding and related steel inspection and testing. • Task Cost: $9,951(includes $8,967 Group Delta) The total cost of the amendment is $75,411. Sincerely, David H. Pohl, P.E., Ph.D. Burns & McDonnell Engineering Company, Inc. 4225 Executive Square \ La Jolla, CA 92037 0 858-260-5985 \ F 714-256-1764 \ burnsmcd.com r N AMENDMENT NO. THREE TO [' PROFESSIONAL SERVICES AGREEMENT ' WITH BURNS & MCDONNELL ENGINEERING COMPANY, INC. FOR v ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEWPORT BAY TRASH WHEEL PROJECT THIS AMENDMENT NO. THREE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Three") is made and entered into as of this 11th day of July, 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation ("Consultant"), whose address on file with the Secretary of State is 9400 Ward Parkway, Kansas City, Missouri 64114, with a local address of 140 S. State College Boulevard, Suite 100, Brea, CA 92821, and is made with reference to the following: RECITALS A. On March 24, 2020, City and Consultant entered into a Professional Services Agreement ("Agreement") to engage Consultant to provide professional engineering, design and construction management services for the City's proposed trash wheel project ("Project"). B. On January 11, 2022, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not previously included in the Agreement, and to increase the total compensation. C. On February 28, 2023, City and Consultant entered into Amendment No. Two to the Agreement ("Amendment No. Two) to reflect additional services not included in the Agreement, as amended, to extend the term of the Agreement to December 31, 2024, and to increase the total compensation. D. The parties desire to enter into this Amendment No. Three to reflect additional Services not included in the Agreement, as amended, to extend the term of the Agreement to December 31, 2025, increase the total compensation, and to update the Independent Contractor section. 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 December 31, 2025, 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, Exhibit A to Amendment No. One and Exhibit A to this Amendment No. Two 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. Exhibit B to the Agreement, Exhibit B to Amendment No. One and Exhibit B to this Amendment No. Two shall collectively be known as "Exhibit B." 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 Eight Hundred Eighty Eight Thousand Two Hundred Ten Dollars and 00/100 ($888,210.00), 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. Three, including all reimbursable items and subconsultant fees, in an amount not to exceed Two Hundred Fifty Six Thousand Five Hundred One Dollars and 00/100 ($256,501.00). 4. INDEPENDENT CONTRACTOR Section 10.2 of the Agreement is added to the Agreement as follows: "10.2 Consultant agrees and acknowledges that no individual performing Services or Work pursuant to this Agreement shall: work full-time for more than six (6) months; work regular part-time service of at least an average of twenty (20) hours per week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS member." 5. 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] Burns & McDonnell Engineering Company, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Three to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 6.2.E . 23 CITY OF NEWPORT BEACH, a California municipal cor tion Date: By: By: VAC' n C. c.I�1aly.h omtto nerp XWOr ATTEST: Date: , 4AX(4al8l) ' . Ila :. CONSULTANT: BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation Date: Signed in Counterpart Bv: Stephan L. Nalefski Senior Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Burns & McDonnell Engineering Company, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. Three to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 6' ZJ, • 2-,; By: ar n C. rp �ja3 a� C" Atto ne ATTEST: Date: Leilani I. Brown City Clerk Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: Noah : • Mayor CONSULTANT: BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation Date: V3 By:7�;�5W2/ Stephan L. Nalefski Senior Vice President [END OF SIGNATURES] Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Burns & McDonnell Engineering Company, Inc. Page 3 EXHIBIT SCOPE OF SERVICES Burns & McDonnell Engineering Company, Inc. Page A-1 EXHIBIT A SCOPE OF SERVICES Task 1: Pre -Bid Support and Request for Information (RFI) Review and Management Consultant will support the City during the pre -bid and bidding process in responding to bidder's technical questions and review and input on the bid proposal. Consultant will review and provide comments on the request for information (RFI) from the selected contractor prior to mobilization and during the construction. Consultant will review the RFIs for compliance and conformance with the Design Drawing, Special Provisions, Performance Specifications, and Agency Permits and Approvals. Consultant will support the City in managing the RFIs and status through an RFI log consistent with the Special Provisions. Anchor QEA (Subconsuitant) will provide support in reviewing submittals pertaining to structural elements that include the piles. Tidal Influence (Subconsuitant) will provide review of submittals pertaining to the revegetation plan and conformance with the approved project permits. This task also includes overall project management. This task also includes addressing requested information and responses to the Corps of Engineers to obtain the 404 Permit for the project. Task 2: Field Engineering Support The Consultant's Project Manager will attend up to 2 on -site coordination meetings with the City and contractor during mobilization and construction of the trash interceptor project. This task includes preparing meeting notes and management of the tasks and our subconsultants under this scope of work. Consultant will support the City as Engineer of Record assisting City in interpreting the construction documents, reviewing changed field conditions (3 visits by PM, 2 visits by Sr. Civil, and 3 visits by Electrical Engineer), and revising drawings or specifications as needed. Support also includes working with the City during construction to work through system operations as systems are installed and brought on-line. TI (Subconsultant) will also attend meetings and provide worker awareness training in accordance with the approved permits. Task 3: Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Consultant will conduct a CERCLA Phase I study (or Phase I Environmental Site Assessment (ESA)) of the environmental risk at the site to document past uses and potential for environmental risk or contamination impacts to site soil and groundwater based on available information and data. No field investigation is proposed for this Phase I study. Consultant will conduct a Phase I ESA consistent with ASTM Standard E1527-21 for performing an environmental site assessment for commercial real estate and with the All Appropriate Inquiries Final Rule (40 CFR 312). The Scope of Work and assumptions for the Phase I study are provided in the Details section below. It is understood that Phase I ESAs are conducted to permit the user to satisfy one of the requirements to qualify for the innocent landowner, contiguous property owner, or bona fide prospective purchase limitations on CERCLA liability and is not intended to include a more comprehensive evaluation of business environment risk associated with a parcel of commercial real estate. Task 4: Pre -Construction Biological Surveys and Construction Biological Monitoring Tidal Influence (TI), subcontractor to Consultant, will perform pre -construction biological surveys per the project's resource agency permits. Task 4.1 Eelgrass and Caulerpa Surveys - Perform 1-day pre -construction eelgrass and Caulerpa surveys between Marsh and October with 3 divers. TI will prepare the survey reports to be submitted to the applicable resource agencies. This task does not include post -construction surveys. Task 4.2 Nesting Bird Season Bird Surveys - If work commences prior to end of bird nesting season, Labor Day, TI will survey for evidence of endangered fledgling bird species. TI will conduct these surveys starting in August requiring 2 pre -con nesting surveys & 1 monthly survey in late August. Additional services will be required if nesting is observed to delineate the area and develop an avoidance plan. Task 4.3 Preconstruction Special Status Species Surveys — TI will conduct pre -construction rare plant and animal surveys per the CEQA document mitigation measures (MND BIO-1, BIO-5, and B1006) and provide a report on the results of the surveys. Task 4.4 Construction Biological Monitoring - During the initial clearing & grubbing and site grading activities that are estimated to occur over a six -to -eight -week period, TI will provide biological monitoring in accordance with the CEQA and Coastal Development Permit and CDFW Streambed Alteration Agreement. TI will provide guidance on avoidance of biological resources and minimization measures. For the purpose of this cost estimate it is assumed daily Biological Monitor site visits during 13 weeks/65 days of construction. Task 4.5 Habitat Mitigation and Monitoring Plan (HMMP) Compliance Oversight — TI will provide oversight for 10 hours per week for 4 weeks of habitat restoration project implementation. If the revegetation and establishment period is greater than 4 weeks, an addendum will be required. This effort does not include permit reporting or performance standard monitoring. Task 5: Geotechnical Observation and Testing Services Group Delta (Subconsultant) will provide geotechnical observation and testing services to evaluate conformance with plans, specifications, geotechnical report, and applicable codes. Group Delta will provide Pile Driving Review and Inspections, Geotechnical Observation and Testing, Concrete Observation and Testing and Project Documentation and Management in accordance with the attached detailed scope of work. Optional Task 6: NEPA Documentation Consultant will provide NEPA documentation support as needed pending use of federal funding for the Trash Interceptor project. The scope and cost of these services will be determined when these funds are requested, and a lead agency identified. The scope will be based on discussions with the lead agency on the requirement for federal funding. Once the scope is defined, a cost estimate will be provided. TASK 3 DETAILS Assumptions 1. The Property is approximately 2 acres in size with the construction limits within a less than an acre area. 2. The project is located on a parcel owned by the Irvine Company. The Orange County Flood District has a maintenance easement on the parcel. 3. There are no structures on the Property. The property contains a flood channel and berm with an access road. 4. The Phase I site visit and local records searches can be completed within a single day. 5. The City will return the attached User Questions and Information Request upon notice - to -proceed. 6. City will provide landowner and occupant contact information upon notice -to -proceed such that Consultant can conduct the appropriate interviews. 7. City will provide written and legal authorization for Consultant to perform services on the Property, including right of access to the Property. No additional costs will be incurred by Consultant in order to comply with any requirements of the right of access agreement. Note that an in -person Site visit by Consultant's personnel is required in order to fully meet the requirements of ASTM E1527, and AAI. If, for any reason, such a Site visit cannot be conducted, then the Phase I ESA report will be conditioned accordingly, including noting the exception as a deviation from the ASTM E1527 standard, and full liability protection may not be obtained by City. 8. City will obtain the review of title and land judicial records for environmental liens and activity and use limitations (AULs). Note that full liability protection cannot be obtained under the ASTM 1527 Standard and All Appropriate Inquiries Regulation (40 CFR 312) without a review of title and land judicial records for environmental liens or AULs. If the results are provided to Consultant, they will be included in the Phase I ESA report. If the City would prefer that Consultant obtain this information for inclusion in the report, an additional fee will be applied. An estimated cost can be provided upon request to your proposal manager. 9. City will provide a copy of the Title Policy for the real estate transaction, if available. 10. City will provide the chain -of -title for the Property (from 1940 to present), if available, to allow for review and inclusion in the Phase I report. 11. The final report will be provided to City in electronic format only (as .pdf). 12. The Phase I ESA will not include any inquiry with respect to controlled substances, environmental compliance, radon, methane, asbestos, lead paint, mold, wetlands, emerging contaminants, or vapor intrusion. 13. No party other than City is permitted by Consultant to rely on the Phase I ESA report without prior authorization by Consultant. 14. City shall place at Consultant's disposal all information pertinent to the Scope of Services on this Project, including previous reports and any other data relative thereto. Information provided by City or others regarding current or previous site conditions, materials, contamination, or other relevant data will be accepted as accurate without independent verification. Scope of Work: ASTM 1527-21/AAI Compliant Phase I Environmental Site Assessment The project scope consists of assisting City with an ASTM E1527-21/AAI compliant Phase I Environmental Site Assessment. Refer to proposal for a list of significant project -specific assumptions. 1. Regulatory & Historical Background Review a) Consultant will purchase and review a government database area map search and list report (Report) for the Subject Property. The Report will be purchased from one commercial provider of that service. The Report purchased will use the address of the Subject Property and/or or the boundary of the Subject Property as its search basis and will contain the following information, at a minimum: Approximate Minimum Search Database Name Distance (Miles) Lists of Federal NPL(a) (Superfund) sites 1.0 Lists of Federal Delisted NPL sites 0.5 Lists of Federal sites subject to CERCLA(b) removals and 0.5 CERCLA orders Lists of Federal CERCLA sites with NFRAP(°) 0.5 Lists of Federal RCRA(d) facilities undergoing Corrective 1.0 Action Lists of Federal RCRA TSD(e) Facilities 0.5 Subject Property and Lists of Federal RCRA generators adjoining Federal institutional control/engineering control registries Subject Property only Federal ERNS(f) list Subject Property only Lists of state and tribal "Superfund" equivalent sites 1.0 Lists of state and tribal hazardous waste facilities 0.5 Lists of state and tribal landfills and solid waste disposal 0.5 facilities Lists of state and tribal leaking storage tanks 0.5 Subject Property and Lists of state and tribal registered storage tanks adjoining State and tribal institutional control/engineering control Subject Property only registries Lists of state and tribal VCP(g) sites 0.5 Lists of state and tribal Brownfield sites 0.5 (a) NPL = National Priorities List (b) CERCLA = Comprehensive Environmental Response, Compensation, and Liability Act (c) NFRAP = No Further Remedial Action Planned; (d) RCRA = Resource Conservation and Recovery Act (e) TSD = Treatment, Storage, and Disposal (f) ERNS = Emergency Response; Notification System (g) VCP = Voluntary Cleanup Program (h) EP = Environmental Professional b) Consultant will review historical aerial photographs with an attempt to obtain at least one photograph per decade. The following sources may be used: L Either the local County or Township Assessor's office, ii. The local office of the United States Natural Resource Conservation Service, iii. The City Planning and Zoning Department, iv. Commercial Provider. Aerial photographs will be reviewed in an effort to identify the past uses of the Subject Property. If possible, Consultant will purchase copies of the photographs reviewed, however, Consultant will not purchase copies of more than one photograph per decade. c) Consultant will review the USGS 7.5 Minute Topographic Map for the Subject Property to evaluate the regional topography and drainage features on or within'/2 mile of the Subject Property. d) Consultant will purchase and review historic fire insurance maps (Fire Insurance Maps), if they are available. Fire Insurance Maps will be purchased from one commercial provider of that service. The Fire Insurance Maps purchased will use the street address of the Subject Property as the search criteria. Consultant will review the Fire Insurance Maps, if available, to identify known past uses of the Subject Property. e) Consultant will interview the person(s) identified by Client as possessing knowledge of the current and former uses of the Subject Property. Consultant will also interview credible people identified by the current Subject Property owner, if any, that may possess knowledge of the current and former uses of the Subject Property. Attempts will be made to contact and interview both current and past Subject Property owners and/or operators. f) Consultant will attempt to review file information concerning the Subject Property at the local fire, building and planning departments and the township or county Assessor's Office, or will interview representatives of these offices by telephone concerning records they have. g) Consultant will review reasonably ascertainable published geologic and/ or soil maps or literature for the Subject Property in an effort to identify general types of soil and rock underlying the Subject Property vicinity. Consultant will not conduct intrusive data gathering or sampling of soil, rock, or water at the Subject Property, to obtain this information. h) Consultant will submit Freedom of Information Act Requests (FOIA)/Open Records Requests to the applicable local, state, and/or federal environmental agencies with authority over land and water issues requesting file information about the Subject Property and adjacent sites, as deemed necessary by the Environmental Professional. The quoted fee in this scope of work does not include more than $25.00 in search and copying charges for records obtained as a result of these FOIA requests. i) Consultant will perform vapor encroachment screening in accordance with ASTM E2600. 2. Site Reconnaissance a) Consultant will perform a site visit to visually and physically observe the Subject Property. Consultant will perform this site visit in an effort to obtain information that may indicate the likelihood of identifying Recognized Environmental Conditions on the Subject Property. "Physically observe" as used herein means we will also make note of odors that may suggest environmental impact to the Subject Property. b) Consultant will visually observe the Subject Property in an effort to identify transformers, capacitors, and other equipment that may contain polychlorinated biphenyls (PCBs). Consultant will look to see if transformers or capacitors are leaking and attempt to identify visible markings that may confirm their PCB content. c) Consultant will visually observe the Subject Property to identify aboveground storage tanks and visible signs of underground storage tanks (e.g., fill pipes, manways, vent lines, and dispensing pumps). d) Consultant will photograph each accessible property line and each accessible side of Subject Property improvements to document the condition of the Subject Property at the time of the site reconnaissance. Finally, Consultant will photograph each area that, at the time of the site reconnaissance, Consultant plans to identify as a Recognized Environmental Condition at the Subject Property. e) Consultant will review waste manifests, safety data sheets, raw materials inventory lists, and tenant lists for a 50-year period, if these records exist and are made available to Consultant by the Client or current owner or current tenants, in an effort to identify issues of environmental relevance to the Subject Property for that time period. Reviews of these documents requiring more than 1 hour are beyond the scope of services of this scope of work and will be billed on a time and expense basis. 3. Visual Observation of Adjoining and Surrounding Lands Adjoining properties and the surrounding area will be observed by Consultant during observation of the periphery of the Subject Property, from public thoroughfares adjacent to or traveled on the way to the Subject Property, and from buildings and structures otherwise accessed during the site visit. The purpose of observing adjoining properties and the surrounding area is to identify features, activities, uses, and conditions that may indicate Recognized Environmental Conditions at the Subject Property. 4. Sampling Consultant will not take any samples for soil, groundwater, lead paint, asbestos, mold or vapor intrusion analysis. EXHIBIT B SCHEDULE OF BILLING RATES Burns & McDonnell Engineering Company, Inc. Page B-1 EXHIBIT B BILLING RATES AMENDMENT NO. THREE Task 1 TotalTask $65,776.00 Task 2 $49,670.00 Task 3 $8,878.00 Task 4 $42,890.00 Task 5 TOTAL $89,287.00 00 N AMENDMENT NO. TWO TO r PROFESSIONAL SERVICES AGREEMENT 1 WITH BURNS & MCDONNELL ENGINEERING COMPANY, INC. FOR V ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEWPORT BAY TRASH WHEEL PROJECT THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Two") is made and entered into as of this 28th day of February, 2023 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation ("Consultant"), whose address on file with the Secretary of State is 9400 Ward Parkway, Kansas City, Missouri 64114, with a local address of 140 S. State College Boulevard, Suite 100, Brea, California 92821, and is made with reference to the following: RECITALS A. On March 24, 2020, City and Consultant entered into a Professional Services Agreement ("Agreement") for professional engineering, design and construction management for the City's proposed trash wheel project ("Project"). B. On January 11, 2022, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not included in the Agreement, and to increase the total compensation. C. The parties desire to enter into this Amendment No. Two to reflect additional Services not included in the Agreement, as amended, to extend the term of the Agreement to December 31, 2024, 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 December 31, 2024, 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, Exhibit A to Amendment No. One, and Exhibit A to this Amendment No. Two 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. Exhibit B to the Agreement, Exhibit B to Amendment No. One, and Exhibit B to this Amendment No. Two shall collectively be known as "Exhibit B." 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 Six Hundred Thirty One Thousand Seven Hundred Nine Dollars and 00/100 ($631,709.00), 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. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed Eighty One Thousand Nineteen Dollars and 00/100 ($81,019.00). 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] Burns & McDonnell Engineering Company, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Dater By: a on C. Harp aW\a� v- / City Attorney 1 l ATTEST: Date: By: jjLWik-*L)1 Leilani I. Brown City ClePO T 3@`. . ._ X 'LIFO¢� CITY OF NEWPORT BEACH, a California munic al corporation Date: Ala h ayor CONSULTANT: Burns & McDonnell Engineering Company, Inc., a Missouri Corporation Date: Signed in Counterpart By: Stephan L. Nalefski Senior Vice President [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Burns & McDonnell Engineering Company, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: a on C. Harp Jlb1a3 �� Ci Attorney CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Noah Blom Mayor ATTEST: CONSULTANT: Burns & McDonnell Date: Engineering Company, Inc., a Missouri Corporation Date: By: By:se: E V P—. � Leilani I. Brown Stephan L. Nalefski City Clerk Senior Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Burns & McDonnell Engineering Company, Inca Page 3 EXHIBIT A SCOPE OF SERVICES The construction documents were completed in July 2022. Since then, the City has obtained additional geotechnical data from its consultant. This new data may impact the design of several project elements. These tasks include: 1. Light Pole and Winch Foundation Design: Review and incorporate the new geotechnical information provided by Group Delta into the design of the light pole foundation and winch pedestal. The structural design of the light pole foundation and winch pedestal will be conducted by Anchor QEA. Anchor QEA will prepare the engineering design for the light pole footings and winch foundation. This includes performing structural engineering calculations for the light pole footings and winch foundation, sketching details based on the calculations, and preparing computer -aided design (CAD) drawings based on the sketches based on geotechnical recommendations. This task includes work elements such as steel reinforcing and concrete typically covered by the Greenbook standard specifications. However, Anchor QEA will review the Greenbook standard specifications to determine whether any special conditions are required and note the material requirements in the structural general notes of the plans. Consultant will conduct design coordination meetings and incorporate new design details provided by Anchor QEA into the existing design plan package and Special Provisions. 2. Finalize Pile Design Calculations: Based on new geotechnical information provided by Group Delta under contract to the City, the pile structural calculations will be finalized. Anchor QEA will finalize the design calculations and details for the piles of the pier, trash wheel pontoon, and trash boom shoreline anchors. This task also incorporates additional coordination effort by Consultant and Anchor QEA to marry the structural and site civil packages together. The City has also received new comments from County of Orange and Irvine Company that require additional analysis and potentially design changes. These tasks include: 3. 3D Renderings and Irrigation Plans in Response to Irvine Company Comments: As part of the process for gaining project approval from The Irvine Company, prepare 3D renderings of the project that were provided to the Irvine Company in respond to concerns about the visual impact from the apartment on the south side of the San Diego Creek. To address The Irvine Company's concerns about visual impacts of the proposed project, supplemental effort also included preparing temporary irrigation plans that were also expanded to include the south bank. Consultant prepared temporary irrigation plans and specifications that were submitted on July 1, 2022. The south bank plantings were added based on comments from the Irvine Company and to address comments from the California Coastal Commission. Also, because of the unique aspect of many of the design tasks, the construction contractor may have alternative viable methods for implementing construction that could be cost effective. These design tasks include the pier catwalk, rail cart and braking system, gangway ramp, trash interceptor system, and landside solar power system. As such, the construction document includes performance specification requirements where the construction contractor must prepare and submit to the City detailed designs that meet applicable national, state and local codes, standards, and performance specifications and design manual requirements. In order to help guide the contractor's design submittals and facilitate early approval, it is recommended that additional design details be added to the construction drawings. These tasks include: 4. Catwalk Design, Catwalk Abutment, Pile Height Adjustments and Design Coordination: The performance specification for the catwalk have been prepared. The contractor that is awarded the construction contract will prepare a detailed design with calculation for the catwalk per the requirements of the performance specification. Under this Task B, more design details will be prepared to guide the construction contractor in its design submittal. This task includes coordination Burns & McDonnell Engineering Company, Inc. Page A-1 between Consultant and Anchor QEA will prepare the engineering design for the catwalk spanning from the parking lot to the pier end to provide maintenance workers with access to the trash containers. This effort includes performing structural engineering calculations for the stringers supporting the catwalk between the already designed cantilever beam supports, as well as additional structural steel as may be determined by Anchor QEA. The grating, posts, railings, and chains will also be specified. Because the site is not accessible by the public, the catwalk railings will be designed using California Division of Occupational Safety and Health requirements rather than California Building Code standards. Based on a 20-year project lifespan, Anchor QEA will recommend a cost-effective grating material (i.e., galvanized steel, painted steel, mill finish aluminum, or fiberglass -reinforced plastic), which will determine stringer spacing. The interface of the catwalk with the parking lot will also be shown in the CAD details and/or drawing to be prepared as part of this task. Consultant will conduct design coordination meetings and incorporate new design details provided by Anchor QEA into the existing design plan package and Special Provisions. This includes revisions to the performance requirements on Sheet 9 of the design plans. The catwalk is proposed to be fully designed in this package. However, the gangway remains a typical performance specification item designed by a gangway fabricator. The pier side support for the gangway has been designed as shown in the current plan set. We understand that the floating pontoon support for this gangway will be designed by the construction contractor pending the floating trash interceptor selected for implementation according to the performance requirements. Final Review and City Coordination of the Design and Performance Specifications for the Site Security & Monitoring and Telemetry Systems: The final design for the site security, monitoring and telemetry system was provided in the final design package as both details in the design plans and performance requirements and special provisions. At the time of the final design, due to the use of available budget for the items listed above, final review and coordination with the City's operations was not conducted. This task would be to conduct a coordination meeting with the City to review the final design and provide any final clarifications to the design documents. This work will be conducted by Consultant. Burns & McDonnell Engineering Company, Inc. Page A-2 Burns & McDonnell Engineering Company, Inc. Page A-3 EXHIBIT B SCHEDULE OF BILLING RATES TotalTask Light Pole and Winch $22,923.00 Foundation Design Finalize Pile Design $g 048.00 Calculations 3D Renderings and Irrigation Plans in $7 740.00 Response to Irvine Company Comments Catwalk Design, Catwalk Abutment, Pile Height $32,230.00 Adjustments and Design Coordination Final Review and City Coordination of the Design and Performance $9,078.00 Specifications for the Site Security & Monitoring and Telemetry Systems TOTALii Burns & McDonnell Engineering Company, Inc. Page B-1 r CJ AMENDMENT NO. ONE TO FPROFESSIONAL SERVICES AGREEMENT WITH BURNS & MCDONNELL ENGINEERING COMPANY, INC. FOR v ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEWPORT BAY TRASH WHEEL PROJECT THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 11th day of January, 2022 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation ("Consultant"), whose address is 140 S. State College Boulevard, Suite 100, Brea, California 92821, and is made with reference to the following: RECITALS A. On March 24, 2020, City and Consultant entered into a Professional Services Agreement ("Agreement") for professional engineering, design and construction management for the City's proposed trash wheel project ("Project"). B. The parties desire to enter into this Amendment No. One to reflect additional Services not included in the Agreement, and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A 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. 2. 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 this Exhibit B to Amendment No. One shall collectively be known as "Exhibit B." 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 Five Hundred Fifty Thousand Six Hundred Ninety Dollars and 00/100 ($550,690.00), 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 Eighty Five Thousand Seven Hundred Sixty Five Dollars and 00/100 ($85,765.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Burns & McDonnell Engineering Company, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: JZ/)N/1a By: ron . Harp Idtu) IZtt� L� ty Attorney ATTEST: Date: L5 3 2M By: BrownLeilani 1. City Clerk CITY OF NEWPORT BEACH, a California municipal icipal corporation Date: Iv Im Kevin Muldoon Mayor CONSULTANT: Burns & McDonnell Engineering Company, Inc., a Missouri Corporation Date: By: Signed in Counterpart Renita M. Mollman Vice President Date: By: Stephen Kane Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Burns & McDonnell Engineering Company, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 12TH/za By: ron . Harp lGl�u1 121iv Z-1 ty Attorney CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Kevin Muldoon Mayor ATTEST: CONSULTANT: Burns & McDonnell Date: Engineering Company, Inc., a Missouri Corporation Date: % ISI-202,2— By: By: Leilani I. Brown L Na City Clerk nt .5eh;V . V�� c.�7j �Qs;cl -� Date: By: Stephen Kane Vice President [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Burns & McDonnell Engineering Company, Inc. Page 3 BURNS SMGDONNELL_ CERTIFICATE OF ASSISTANT SECRETARY OF BURNS & McDONNELL ENGINEERING COMPANY, INC. 1, Christine M. Dority, Assistant Secretary and keeper of the records and corporate seal of Burns & McDoImell Engineering Company, Inc. ("the Company"), a corporation organized and existing under the laws of the State of Missouri, certify as to the l:ollowina: The Board of Directors has declared signature authority to certain individuals of the Company, including officers, office managers aril associate level project managers. Stephan L. Nalefski is a Senior Vice President, having been first elected as an officer of the Company on Jantlary 7. 2016, and remains in good standing. Therefore,pursuant to the authority granted by the Board of Directors and as reflectcd in the records of the Company, Mr. Nalefski is authorized to sign proposals, contracts, and related dOCLImellts in connection with providing architectural, erlglncering, C0I1sUltnlg maIlagerneiit, COnStrnC41011 and related services by the CompaI1V. IN WITNESS WHEREOF, the undersigned has executed this Certificate on behalf of Burns & McDonnell Engineering Company, Inc. on the'-?]" day of February 2022. BURNS & McDONNELL ENGINEERING CONII)ANY, INC. Christine %/I. Dority Assistant Secretary EXHIBIT SCOPE OF SERVICES Burns & McDonnell Engineering Company, Inc. Page A-1 EXHIBIT A SCOPE OF SERVICES ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR NEWPORT BAY TRASH WHEEL PROJECT AMENDMENT NO. 1 SUMMARY The following is a summary of the additional scope items under the permitting and design of the Newport Bay Trash Interceptor and the purpose/reason for the supplemental effort. The scope of each of these items is then presented with the estimated costs. Detailed cost estimates presenting labor hours and costs are attached. Task 10 — Additional Design Detail Sheets and Expanded Operations & Maintenance (O&M) Plan to Address Comments from Orange County for Encroachment Permit: Additional Design Sheets - Additional effort is required to address the comments received from The County of Orange based on comments on the 75% Design to obtain the permit for construction and operation of the trash interceptor. Additional design effort is needed to address comments regarding site security, remote and site operational controls, boom system, and construction phasing. These details will require up to four additional design sheets and additional supplements to the specifications. The original scope was based on a greater use of performance specifications with less detail on these items. Task 11— Permit Fees and Additional Reports and Surveys for Project Permits: Permit Fees: Permit fees were not included in the original scope because the exact totals were not known at that time. These permit fees have been paid to submit the regulatory and resource agency permits for the project. Additional Reports: Based on comments received from resource agencies during the pre - application permit consultation, additional reports are needed that were not in the original scope. These include a Habitat Mitigation and Monitoring Plan (HMMP) to respond to comments from the California Department of Fish and Wildlife (CDFW) and US Army Corps of Engineers (USACE). An Alternative Analysis is also required per comments from the CDFW and Santa Ana Regional Water Quality Control Board (SARWQCB). Additional Surveys: In response to comments from CDFW, additional biological surveys are required. This includes first developing a summary of previous surveys, and then conducting a habitat assessment and report for the Stream Alteration Agreement. Additional consultation with CDFW is needed to present these previous and additional surveys. Task 14 - Additional Details to O&M Plan: Additional effort is required on the O&M Plan to address comments from Orange County Flood District (OCFD) that includes additional detail and consultation on greater site security and remote and site operational controls. SCOPE OF ADDITIONAL WORK: TASK 10 Task 10 — Construction Documents and O&M Plan Details to Address Comments from County of Orange on Encroachment Permit Consultant shall prepare the following additional design drawing sheet details and expanded special provisions to address the comments received from Orange County based on the 75% Design to obtain the permit for construction and operation of the trash interceptor. Consultant shall complete these design sheets and special provisions to include as part of the 90% Design submittal for review and comment by City. City comments shall be incorporated and revised drawings and specifications as part of the 100% Design back -check. Comments from City on the 100% back -check shall be incorporated in to the final 100% Design package. Site Security Detail Sheet and Expanded Performance Special Provisions: Consultant shall prepare a design detail sheet on the project security measures that include layout and details of site security lighting, security cameras for the truck access/turnaround, rail system, trash interceptor and trash booms. Site security details shall also be provided for access gates at Jamboree Road and into the container drop off and pick up area. This includes location and type of security for access. Special Provisions shall be expanded to include performance-based requirements for site security elements that include security lighting, cameras, access gates and locks. Site Operational Controls and Alerts Detail Sheet and Expanded Performance Special Provisions: Consultant shall prepare a design detail sheet on the site operational controls that include site and remote shut off controls that include controls for the water wheel engagement to the rake and conveyor, rail winch, and water pump. This includes location and type of controls and connections to the site power source. The locations and type of system and site monitoring and alerts shall also be presented. A logic diagram of the operational controls shall be provided to indicate whether on-site or remote control is provided, alerts and power and communication connections. Special Provisions shall be expanded that include performance- based requirements for site operational controls, remote monitoring and system and security alerts. Construction Phasing and Staging Design Sheets: Consultant shall prepare a design sheet and expand the Stormwater Pollution Presentation Plan to show the construction phasing to address comments from Orange County in up to two additional design plan sheets. The sheet shall present each phase of the construction and define for each phase the associated grading and erosion and sediment control. TASK 11 Task 11- Permit Fees: Consultant shall pay for the following permit fees for the applications for the trash interceptor project. Additional permit fees not listed will be paid by others: County of Orange Encroachment fee application for the design field studies: $1,107. California Department of Fish and Wildlife (CDFW) Stream Alteration Agreement application fee: $5,875.80 Santa Ana Regional Water Quality Control Board (SARWQCB) 401 Certification Permit fee: $2,066 Task 11— Permit Reports and Consultation: Consultant shall prepare the following reports in response to comments received from resource and regulatory agencies during the preapplication consultations. Consultant shall prepare a draft of each of these reports for review and comment by the City of Newport Beach Public Works Department (City.) City comments shall be incorporated, and the revised reports submitted to the resource agencies as part of the permit applications. Consultant shall respond to comments on these reports and provide up to one set of responses and revisions to these reports. • Habitat Mitigation and Monitoring Plan (HMMP) —Consultant shall prepare the HMMP for inclusion with the CDFW Stream Alteration Agreement, US Army Corps of Engineers (USACE) Section 404 of Clean Water Act permit, and the California Coastal Commission (CCC) Coastal Development Permit (CDP). • Alternative Analysis: Consultant shall prepare the Alternative Analysis for inclusion in the permits to the SARWQCB and USACE. • Essential Fish Habitat Consultation — Consultant shall conduct consultation with the USACE on Essential Fish Habitat and provide available data and surveys to respond to comments from USACE. No in -stream surveys are included in this scope. Task 11— Biological Survey Summary and Habitat Assessment Survey: Consultant shall compile previous survey data conducted during the CEQA process and summarized the results to identify the list of potential sensitive species. This summary of previous biological survey findings is to address comments from CDFW on the Stream Alteration Agreement permit application. Consultant shall support City in providing responses to CDFW comments and in additional consultation with CDFW. These additional consultations include developing an approach to addressing comments from CDFW on additional biological surveys and post construction maintenance of mitigation areas that are on non -City owned property. Consultant shall conduct a habitat assessment survey and prepare a technical memo of the results for submittal to CDFW. The habitat assessment shall identify if habitats are present that would support the sensitive species identified in previous surveys. If habitats are identified, then per the CECW document, the mitigation is to conduct pre -construction surveys for potential sensitive species. No species-specific surveys will be conducted as part of this scope. TASK 14 Task 14— Operations and Maintenance Plan -Additional Site Security and Operational Details: Consultant shall prepare sections of the O&M Plan to address requests from OCFD for additional detail on site security and operational controls to secure the system remotely. Additional detail shall be provided on securing the floating and land-based systems during high water storm events. EXHIBIT B SCHEDULE OF BILLING RATES Burns & McDonnell Engineering Company, Inc. Page B-1 EXHIBIT B SCHEDULE OF BILLING RATES ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR NEWPORT BAY TRASH WHEEL PROJECT Amendment No. 1 Cost Summary Task — Supplementation Work Total Description Task 10 — Additional Design Plan Sheets and Expanded Special Provisions to $47,220 Address OC Comments Task 11 Permit Fee $9,049 Task 11 Additional Reports to Address $14,536 Agency Comments Task 11 Additional Surveys to Address $9,200 Agency Comments Task 14 Expanded O&M Plan to Address $5,760 OC Comments Total $85,765 NOT TO EXCEED TOTAL $550,690 PROFESSIONAL SERVICES AGREEMENT WITH BURNS & MCDONNELL ENGINEERING COMPANY, INC. FOR ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR THE NEWPORT BAY TRASH WHEEL PROJECT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 24th day of March, 2020 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and BURNS & MCDONNELL ENGINEERING COMPANY, INC., a Missouri Corporation ("Consultant"), whose address is 140 S. State College Boulevard, Suite 100, Brea, California 92821, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide professional engineering, design and construction management services for the City's proposed trash wheel project ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2023, 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 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 Four Hundred Sixty Four Thousand Nine Hundred Twenty Five Dollars and 00/100 ($464,925.00), 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. Burns & McDonnell Engineering Company, Inc. Page 2 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 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 David Pohl to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the 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 community professional standards and with the ordinary degree of skill and care that would be used by other reasonably Burns & McDonnell Engineering Company, Inc. Page 3 competent practitioners of the same discipline under similar circumstances. 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 legally recognized professional standards. 8.2 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. 8.3 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, 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"), and which 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 Burns & McDonnell Engineering Company, Inc. Page 4 limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. Burns & McDonnell Engineering Company, Inc. Page 5 16. SUBCONTRACTING The subcontractors and subconsultants 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 subcontractors or subconsultants. Nothing in this Agreement shall create any contractual relationship between City and any subcontractors or subconsultants 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 subcontractors or subconsultants other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractors and subconsultants for purposes of establishing a duty of care between the subcontractors, subconsultants, 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, subcontractors and subconsultants, 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, subcontractors and subconsultants, 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. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Burns & McDonnell Engineering Company, Inc. Page 6 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. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Burns & McDonnell Engineering Company, Inc. Page 7 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") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant shall conform to all requirements therein. 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. Burns & McDonnell Engineering Company, Inc. Page 8 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: Public Works Director 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: David Pohl Burns & McDonnell Engineering Company, Inc. 140 S. State College Boulevard, Suite 100 Brea, CA 92821 27. CLAIMS 27.1 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.). 27.2 To the extent that Consultant's claim is a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, the Parties agree to follow the dispute resolution process set forth therein. Any part of such "Claim" remaining in dispute after completion of the dispute resolution process provided for in Public Contract Code section 9204 or any successor statute thereto shall be subject to the Government Claims Act requirements requiring Consultant to file a claim in strict conformance with the Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, Burns & McDonnell Engineering Company, Inc. Page 9 Consultant shall be required to file such claim with the 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 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. PREVAILING WAGES 29.1 Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Consultant and any subcontractor or subconsultant. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Consultant is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Consultant or any subcontractor or subconsultant under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 29.2 Unless otherwise exempt by law, Consultant warrants that no contractor, subcontractor or subconsultant was listed on the bid proposal for the Services that it is not currently registered and qualified to perform public work. Consultant further warrants that it is currently registered and qualified to perform "public work" pursuant to California Burns & McDonnell Engineering Company, Inc. Page 10 Labor Code section 1725.5 or any successor statute thereto and that no contractor, subcontractor or subconsultant will engage in the performance of the Services unless currently registered and qualified to perform public work. 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 30.2 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. 30.3 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. 30.4 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. 30.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 30.6 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. 30.7 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. 30.8 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. 30.9 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. Burns & McDonnell Engineering Company, Inc. Page 11 30.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, subconsultant, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 30.11 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. 30.12 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] Burns & McDonnell Engineering Company, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: a3 � l7 • do By: � �r A r n C. Harp Ci Attorney CITY OF NEWPORT BEACH, a California municipal corporation Date: z z� BY: �LzZ�: :�. Will O'Neill Mayor ATTEST: CONSULTANT: Burns & McDonnell Date: 1/6 Engineering Company, Inc., a Missouri Corporation Date: � r By. VVI By: Signed in Counterpart 4Leiani I. Brown Renita M. Mollman City Clerk Vice President Date: in Stephen Kane Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Burns & McDonnell Engineering Company, Inc. Page 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 63- 17•oPo CITY OF NEWPORT BEACH, a California municipal corporation Date: By: t!i',-1 By: A r n C. Harp Will O'Neill CiKy Attorney Mayor ATTEST: CONSULTANT: Burns & McDonnell Date: Engineering Company, Inc., a Missouri Corporation n n Date: By: By; (;;:� Leilani I. Brown naR Stephan L. Nalefski City Clerk �AEe-pFestdent—Vice President Date: By: Stephen Kane Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Burns & McDonnell Engineering Company, Inc. Page 13 BURNS MSDONNELL_ CERTIFICATE. OF ASSISTANT SECRETARY OF Bt RNS & McDON ELI. ENWNEERING COMPANY, INC:'. L Keri I.. Cm0cv. A��Jstant Secretary and keeper of the records and corporate seal of Burns & -McDonnell t,-n-ineering Compam. Inc. ("the Compam..). a corporation or«anized and existinLl under the la«s of the State of Missouri. certifi as to the li EXHIBIT A SCOPE OF SERVICES ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR NEWPORT BAY TRASH WHEEL PROJECT The Consultant shall complete the following the tasks: 1. REVIEW TECHNICAL REPORT & SITE VISIT The Consultant shall review the Technical Report (Attachment A to the RFP) and conduct a site visit to assess the site conditions at the location proposed for the Trash Wheel. The Consultant's project manager, civil design engineer, structural engineer, and permit lead shall attend the site visit. 2. MEET WITH CLEARWATER MILLS The Consultant shall coordinate and meet with the Clearwater Mills Trash Wheel designers ("Clearwater Mills") on the same day as the scheduled site visit to review the preliminary design and collaborate on the conceptual design (Task 3) of the pilings, trash conveyance, off -haul, power, monitoring and security systems. The collaboration with Clearwater Mills shall include detailed discussions of operational experience, best practices and lessons learned from the existing installations in Baltimore. It is assumed Clearwater Mills shall attend the site visit and provide the design and operation information at that time. 3. PREPARE CONCEPT PLAN The Consultant shall prepare a concept plan of the trash wheel and railway system based on the concept prepared for the Mitigated Negative Declaration (MND) and Technical Memorandum as described in the RFP and its attachments. The concept shall focus on critical issues that include: site layout, site access, truck movement, rail and winch system, roll -off container movement, tidal impacts to the trash wheel, site grading and retaining walls, site security, meeting power requirements, irrigation water source, control and monitoring instrumentation, and screening/aesthetics. The Consultant shall develop the concept plan to include the design for a pivoting and telescoping gangway, and for a hopper to positively convey trash from the conveyor into the dumpster considering expected windy and raining conditions. Clearwater Mills shall provide the concept plan drawings for the Trash Wheel (floating portion) for inclusion in the concept design plan set which shall include a plan sheet, elevation/sections, and detail sheets equivalent to a 20% design level. Clearwater Mills shall provide input on the rail and winch system, hopper, roll -off container movement, trash wheel, site security, power requirements, control and monitoring instrumentation to the Consultant. During this phase, The Consultant shall consult with the City on related issues such as control of free liquid and waste collection logistics. Burns & McDonnell Engineering Company, Inc. Page A-1 4. ASSIST STAFF WITH STAKEHOLDER MEETINGS The Consultant shall assist the City staff at meetings with Orange County Flood Control District ("OCFCD") and the Irvine Company to discuss the concept plan. With the help of the Consultant's team member, Clearwater Mills, shall prepare meeting materials (presentation exhibits and PowerPoint Slides) that include the concept plans showing the footprint of the project, pilings within the floodway, proposed waste collection, conveyance and transport. The Consultant shall also provide presentation materials that address likely permit issues and concerns raised during the MND process. The Consultant shall provide the City with the meeting presentation materials prior to this meeting for review and input. The OCFCD (or other agencies) will not require HEC -RAS modeling, or any other detailed channel modeling. 5. ASSIST STAFF PRESENTATIONS The Consultant shall attend up to five (5) meetings. The Consultant's project manager and design engineer shall attend the meetings. Clearwater Mills shall participate in up to two (2) meetings in Newport Beach and the remaining by conference call with the City to provide updates on design progress, issues and coordination with the design team. 6. PERFORM SITE TOPOGRAPHIC SURVEYS The Consultant shall perform site topographic surveys to represent field conditions and provide horizontal and vertical controls for the project. The Consultant shall contact Orange County Watersheds to obtain the latest bathymetric information. A licensed professional land surveyor ("PLS") shall be subcontracted to survey the site, provide topographic contours and survey shots on key features, and to provide boundary survey information, benchmarks and project control points. The PLS shall tie in the provided bathymetry data into a survey base file (AutoCAD 2019) for use in the design. 7. REVIEW GEOTECHNICAL REPORT The geotechnical report will be prepared by others and is not part of this scope of work. The Consultant shall review the geotechnical report provided by the City. The geotechnical consultant will provide a report on the liquefaction loading subject and parameters for the 30% design and the final geotechnical report based on the geotechnical field investigation for the 60% design. 8. PREPARE A DETAILED DRAINAGE ANALYSIS The Consultant shall prepare a drainage analysis for the site with recommendations for preventing pollutants from entering San Diego Creek. The Consultant shall consider the water quality storm and larger design storms when evaluating how fugitive waste or other pollutants may escape the system and wash back into San Diego Creek. From this evaluation, the Consultant shall design controls in accordance with the City's drainage standards to minimize or prevent any such pollution that could result from the project. Burns & McDonnell Engineering Company, Inc. Page A-2 9. PREPARE DETAILED PILE DESIGN ANALYSES The Consultant shall prepare a pile design analyses for the Trash Wheel assembly and associated rail system. The system shall consider short duration, high intensity storms that coincide with tides at Median Higher High Water ("MHHW") and Median Lower Low Water ("MLLW"). The Consultant shall provide the structural engineering calculations for the Trash Wheel guide piles; trash container piles and frame; anchoring system for trash boom; and retaining walls to support fill and pavement for truck "turn -out." The Consultant shall design the piles in the slope that supports the stairway access system. The steel stringers, steps, landings or mid -platforms and railing shall be provided in design/build format. Clearwater Mills shall coordinate with the Consultant regarding the design requirements for the trash wheel (floating portion) and regarding the pile design for the Trash Wheel assembly. 10. PREPARE CONSTRUCTION DOCUMENTS Based on the approved concept design, the Consultant shall prepare construction documents (drawings, special provisions and engineer's estimate) and periodically submit documents to City staff for review and comments (50%, 75%, 95% and Final). Major project components shall include: • Site grading and creating a new, paved 14 -foot wide access road, including a concrete pad for pickup and drop-off of roll -off trash containers and proposed trail improvements. • Shore -side unloading facilities including railway and winch system, stairwell and gangway. • Clearwater Mills shall provide the design performance requirements of a Trash Wheel (floating portion of a Trash Wheel equipment) including the floating platform, water wheel, conveyor belt hopper, and floating booms. Clearwater Mills shall provide recommendations regarding roll -off container with sled, system controls, solar panels and battery banks to the Consultant for the design and construction documents. The interfaces between the Consultant and Clearwater Mills shall be between the fixed container and the trash wheel conveyor system, the piles designed by the Consultant (the piles shall have a field -constructed location tolerance that the Trash Wheel design shall need to allow for), and the landing of the gangway on the floating deck of the Trash Wheel. The Consultant shall work with the City to meet standard City contracting requirements that may include not specifying a specific brand of trash wheel and providing performance requirements that meet the objectives of a trash wheel device without requiring a specific type. • The Consultant shall assume the use of locally available water and the use of a water truck and operator to provide temporary irrigation. This approach would accommodate the small footprint of the area of revegetation (estimated to be less than half an acre) and utilize the newly installed access road and truck turnaround. The project schedule anticipates construction to be completed in November Burns & McDonnell Engineering Company, Inc. Page A-3 timeframe right before the raining season. This approach shall be presented in the permit documents. Should permit negotiation result in a requirement of a designed temporary irrigation system, upon approval of an amendment to this Agreement, the Consultant shall complete a design of a temporary irrigation system including installation of an irrigation line on site with backflow preventer, master irrigation valve, and flow sensor with telemetry cable. • The Consultant shall prepare construction documents that include a landscape plan using native plants that is prepared by a California registered landscape architect. The native plant palette shall use the biological survey data completed for the MND (Stantec, 2018) and the Consultant's expertise in re- establishing coastal sage environments. If required and approved by an amendment to this Agreement, a Habitat Mitigation and Monitoring Plan ("HMMP"), shall be provided. This plan may be a permit condition that can also be prepared prior to construction and therefore not required for the permit application. No off- site mitigation will be required and the mitigation for the temporary disturbance of the defined habitat types in the MND shall be addressed through re -vegetation with native vegetation of all distributed areas on-site (approximately less than half an acre). • The Consultant shall include design features to secure the site including fencing and security cameras. The scope includes the availability of adequate electrical service on-site for the security system, lighting, and potentially winch system (if not solar powered by Trash Wheel battery bank). In addition, the Consultant shall provide the design for the basic security system that includes two cameras basic remote integration via cellular service provider, fencing, a manually operated gate, and lighting. • The Consultant shall evaluate the removal of existing pile remnants at the project site. • The Consultant shall work with the City to provide the design interpretive signage. 11. IDENTIFY, PREPARE, AND PROCESS PERMITS The Consultant shall provide the technical reports and materials to the City's Community Development Department for preparation and submittal of the permit applications. The City will prepare the permit applications and submit the applications for review by the resource and regulatory agencies. Application filing fees and public noticing fees, such as printing, mailing, and newspaper ad costs, will be paid directly by the City. The Consultant shall provide technical support to the City as needed to respond to comments from agency staff. The Consultant shall provide the technical reports and materials to the City to prepare the applications and process the following permits: Letter US Army Corps of Engineers ("USACE") Section 404 of Clean Water Act, of Permission, and Section 106 (Cultural) Regional Water Quality Control Board (Santa Ana Region) 401 Certification Burns & McDonnell Engineering Company, Inc. Page A-4 • California Department of Fish and Wildlife (CDFW") The Consultant shall provide the technical reports and materials for the City to prepare the California Coastal Commission ("CCC") Coastal Development Permit ("CDP") package for submittal. The Consultant shall provide technical support to the City who will prepare the public notice, and draft responses to additional information requests from CCC staff, and draft sections of the CCC Staff Report. The proposed project is located within submerged tidelands granted by the California State Lands Commission ("CSLC") to the City of Newport Beach; however, the CSLC does not have leasing authority for surface structures on lands granted to the City so it is assumed that no lease with the CSLC shall be required. Preparation of plans or submittals to comply with "Prior to Issuance Conditions" from the CCC CDP is not included in this scope of work. The extent of documentation or reporting required shall depend on regulatory agency discretion. The City prepared a Mitigated Negative Declaration to comply with the California Environmental Quality Act ("CEQA") so it is assumed that no additional CEQA analysis shall be required. This scope assumes that all previous survey reports shall be provided and that no additional focused surveys shall be necessary. Additionally, implementation of any mitigation requirements are not included in this scope of work or cost estimate. Development of any building permit applications or coordination with local agencies regarding building or other ministerial permits is not included in this scope of work. A Coastal Hazards and Sea Level Rise Analysis shall not be required. Development of special and additional environmental studies, mitigation, construction water quality monitoring, or acoustical noise monitoring plans, if ultimately needed, are not included in this scope of work. 12. PREPARE AND PROCESS TEMPORARY AND PERMANENT EASEMENT DOCUMENTS The Consultant shall prepare and process temporary and permanent easement documents with the Irvine Company, owner of the property containing the creek and creek bank. This task shall be executed together with our subcontracted PLS. 13. PREPARE AND PROCESS ENCROACHMENT AND EASEMENT DOCUMENTS FOR THE COUNTY OF ORANGE The Orange County Flood Control District has an easement from The Irvine Company to convey flood flows in San Diego Creek. The Consultant shall prepare and process encroachment and easement documents with the County of Orange for access along the access road to the construction site, access onto the project site, and access to the Trash Wheel location in the creek. 14. PREPARE OPERATIONS AND MAINTENANCE PLAN The Consultant shall prepare an Operation and Maintenance manual for the City's use in operating the site. Clearwater Mills shall provide operations and maintenance recommendations specific to the Trash Wheel floating portion for incorporation into an overall site Operations and Maintenance Manual. Burns & McDonnell Engineering Company, Inc. Page A-5 EXHIBIT B SCHEDULE OF BILLING RATES ENGINEERING AND CONSTRUCTION MANAGEMENT SERVICES FOR NEWPORT BAY TRASH WHEEL PROJECT Burns & McDonnell Engineering Company, Inc. Page B-1 Total B\IcD B\IcD Project Tasks Homs Labor Expenses Total Cost DevelopmentDesign .00 $ 218,255 Task 1 Review Reports/Site Visit 24 $ 5,436 $ 1,800 $ 7,236 Task 2 Coordination Clearwater Mills '14 $ 3,048 $ - $ 3,048 Task 3 Concept Design 156 $ 30,584 $ - $ 30,584 Task 4 Stakeholder Meetings 40 $ 9,768 $ - $ 9,768 Task 5 Progress Meetings 38 $ 8,756 $ 1,800 $ 10,556 Task 6 Topo Survey Coordination 4 $ 778 $ - $ 778 Task 7 Geotechnical Invest./Rpt. Coord 4 $ 778 $ $ 778 Task 8 Drainage Analysis 48 $ 8,656 $ $ 8,656 Task 9 Pile Design Coord 8 $ 1,556 $ $ 1,556 Task 10 Construction Documents 771 $ 145,295 $ - $ 145,295 Permits 172 $ i. 30,304 Task 11 USACE 404 and Section 106 54 $ 9,468 $ - $ 9,468 401 Certification 44 $ 7,644 $ - $ 7,644 Coastal Development Permit 74 $ 13,192 $ - $ 13,192 Task 12 Irvine Company Permanent Easement 6 1,458 $ - 1,458 Task 13 OC Flood Control District Easement 4 $ 966 $ - $ 966 •: Task 14 Operation and Maintenance Manual 44 8,484 $ - 8,484 Optional 01 Upgraded Temporary Irrigation Design (Lynn Capouya) 8 $ 1,744 $ $ 1,744 Burns & McDonnell Engineering Company, Inc. Page B-1 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. 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, two million dollars ($2,000,000) 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). 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 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Burns & McDonnell Engineering Company, Inc. Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees 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, its City Council, boards and commissions, officers, agents, volunteers and employees 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 Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least Burns & McDonnell Engineering Company, Inc. Page C-2 fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. 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. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. 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. Burns & McDonnell Engineering Company, Inc. Page C-3 G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Burns & McDonnell Engineering Company, Inc. Page C-4 L I"wed Name: gumsA hlctbnnen Engineenng Company, Irrc. Ac—M Numller: NNOGW77 Add-, 140 S. State College Boulavard, Suite t00, area, CA 82.321 Slaliia n—. i. r,..w.—. euvneu . cc -rd Nuntz 1 MMI -077 RSa iyp9 F.fessional Servkee?greamant Do Nm Catl: Atltlr¢ff tn(ormalion Wiling Add— Insur¢d- 3,ms 3 ::Donnell Eryineenrg Compan , Inc. ADtlress l 140 , slate WWoe Bou:evam Address 2, Style 100 Cdy Brea Safe CA Z' t,. 32d2' Counry C 4.1 Numb.- .71271 Contrnct Start 0- 332.12020 Contrast cHecvie Date: Deudplion of 8—ces Engineerng c Cons O." blan.3em.rt hr Ne➢ la ' Y -lash iv -el P'.jr,c I Convcunr«manors Contact Na— Davin H. Pch A d- ess J—t d PhYsiul ACdr¢ff Congact End Date Contract E'cmral- Date- saraty Fomr II' BLsc