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HomeMy WebLinkAboutC-2987(A) - Upper Newport Bay Sediment Control/Enhancement - Unit III, Consultant Agreement0 a. CONSULTANT AGREEMENT THIS AGREEMENT, entered into this day of 1996, by and between CITY OF NEWPORT BEACH , a Municipal Corporation (hereinafter referred to as "City "), and John M. Tettemer & Associates Ltd., whose address is 3151 Airway Avenue, Suite Q -1, Costa Mesa, CA 92626 (hereinafter referred to as "Consultant "), 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 the City. B. City desires to engage Consultant to provide consultant services which are intended to ensure a smooth transition and continuity of project management services on various City cooperative projects and programs. upon the terms and conditions contained in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM 0 The Term of this Agreement shall commence on the 15th day of April, 1996, shall terminate on the 15th day of August, 1996, unless terminated earlier as set forth herein or extended by written consent of both parties. 2. SERVICES TO BE PERFORMED Consultant shall perform the tasks set forth in Exhibit "A ", Letter of Proposal dated April 10, 1996, attached hereto and incorporated herein by this reference. 3. COMPENSATION TO CONSULTANT Consultant shall be compensated for services performed pursuant to this Agreement in the amount and manner set forth in Exhibit "A ", attached hereto and incorporated herein by this reference. The maximum fee shall not exceed $25,000.00. In the event that the City desires services beyond the scope or extent of services provided for in Exhibit "A ", the maximum fee may be increased 10% ($2,500.00) with the written approval of the Public Works Director. 4. STANDARD OF CARE All of the work shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. The Consultant shall be responsible to City 2 3/96 • • for any errors or omissions in the execution of this Agreement. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of the City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. No civil service status or other right of employment with City will be acquired by virtue of Consultant's services. None of the benefits provided by City to its employees, including, but not limited to, unemployment insurance, worker's compensation plans, vacation and sick leave, are available from City to Consultant, its employees or agent. Deductions shall not be made for any state or federal taxes, FICA payments, PERS payments or other purposes normally associated with an employer - employee relationship from any fees due Consultant. Payments of the above items, if required, are the responsibility of Consultant. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the project. 3 3/96 0 0 7. PROJECT MANAGER The Consultant has designated John Wolter to be its Project Manager. This Project Manager shall be available to the City, as needed, from one to three days per week. 8. TIME OF PERFORMANCE The services to be performed by Consultant under and pursuant to this Agreement shall be provided within term of agreement as set forth in Section 1. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal requirements and be subject to approval of the Project Administrator and City Council. 11. PROGRESS Consultant is responsible to keep the Project Administrator and duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 4 3/96 0 0 12. HOLD HARMLESS Consultant agrees to indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, attorneys fees and court costs arising from any and all negligent actions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. Consultant shall indemnify and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, accruing or resulting to any and all persons, firms or corporations furnishing or supplying work, services, materials, equipment or supplies arising from or in any manner connected to the Consultant's negligent performance of services or work conducted or performed pursuant to this Agreement. 13. INSURANCE Without limiting Consultant's indemnification of City, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Such policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with the City prior to exercising any right or s 3196 0 0 performing any work pursuant to this Agreement. All insurance policies with the exception of professional errors and omissions shall add as additional insured the City, its elected officials, officers and employees for all liability arising from Consultant's services as described herein. Prior to the commencement of any services hereunder, Consultant shall provide to City certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements, and copies of policies, if requested by City, of the following insurance, with Best's Class B or better carriers: A. Worker's compensation insurance covering all employees and principals of the Consultant, per the laws of the State of California; B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be twice the occurrence limit; C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. 6 3196 0 D. Professional errors and omissions insurance which covers the services to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000). Said policy or policies shall be endorsed to state that coverage shall not be canceled except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give to City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any interest in this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be 7 3/96 i 11 null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of an attempted assignment, hypothecation or transfer. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. 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. 15. REPORTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. No report, information or other data given to or prepared or assembled by Consultant pursuant to this Agreement shall be made available to any individual or organization by Consultant without prior approval by City. Consultant shall, at such time and in such forms as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information which results from the services in this Agreement is to be kept confidential unless the release of information is authorized by the City. a 3196 0 0 17. CITY'S RESPONSIBILITIES City shall furnish to Consultant base, maps, existing studies, ordinances, data and other existing information as shall be requested by Consultant and materials in City's possession necessary for Consultant to complete the work contemplated by this Agreement. City further agrees to provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. The Public Works Director or his designees shall be considered the Project Administrator and shall have the authority to act for the City under this Agreement. The Project Administrator or his authorized representative shall represent the City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. EXTRA WORK Consultant shall receive compensation for extra work authorized by City in accordance with the schedule of billing rates set forth in Exhibit "A." All extra work must be authorized in writing by the Project Administrator and Consultant shall not be entitled to extra compensation without authorization. 20. RECORDS Consultant shall keep records and invoices in connection with its work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be 9 3196 0 10 clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. 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 under this Agreement. 21. REIMBURSEMENT FOR EXPENSES Consultant shall not be reimbursed for any expenses unless authorized in writing by City. 22. MONTHLY INVOICES Consultant shall submit invoices to the City on a monthly basis in accordance with Consultant's schedule of fees contained in Exhibit "A" hereof. Each invoice will be itemized. Each invoice shall show the number of hours worked per person /consultant and the nature of the work performed. 23. PAYMENT OF COMPENSATION City shall make payments to Consultant within thirty (30) days of receiving a monthly invoice unless City disputes the amount Consultant claims is owned under this Agreement. 24. WITHHOLDINGS City may withhold payment 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 10 3/96 0 0 its work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. The determination of the City Manager with respect to such matter shall be final. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 25. ERRORS AND OMISSIONS In the event that the Project Administrator determines that the Consultant's negligence, errors or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors or omissions in the plans or contract specifications, Consultant shall reimburse City for the additional expenses incurred by the City including engineering, construction and /or restoration expense. Nothing herein is intended to limit City's rights under any other Sections of this Agreement. 26. NONDISCRIMINATION BY CONSULTANT Consultant represents and agrees that Consultant, its affiliates, subsidiaries or holding companies do not and will not discriminate against any subcontractor, consultant, employee or applicable for employment because of race, religion, color, sex, handicap or national origin. Such nondiscrimination shall include, but not be limited to, the following: employment, upgrading, demotion, transfers, recruitment, recruitment advertising, layoff, 3/96 0 0 termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. 27. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with this project. 28. CONFLICTS OF INTEREST A. The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. B. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by the City. The Consultant shall indemnify and hold harmless the City for any claims for damages resulting from the Consultant's violation of this Section. 29. SUBCONTRACTING A. Consultant shall not subcontract any portion of the work required by this Agreement, except as expressly stated herein, without prior approval of City. B. Subcontracts, if any, shall contain a provision making them subject to all provisions stipulated in this Agreement. 12 3/96 0 30. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92659 -1768 Attention: Bill Patapoff, City Engineer All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: John M. Tettemer and Associates, Ltd. 3151 Airway Avenue, Suite Q -1 Costa Mesa, CA 92626 Attention: John Wolter 31. TERMINATION In the event Consultant hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, Consultant shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and Consultant fails to give adequate assurance of due performance within two (2) days 13 3196 after receipt by Consultant from City of written notice of default, specifying the nature of such default and the steps necessary to cure such default, City may terminate the Agreement forthwith by giving to the Consultant written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement without cause by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, each party shall pay to the other party that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 32. COST OF LITIGATION If any legal action is necessary to enforce any provision hereof or for damages by reason for an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses in such amount as the court may adjudge to be reasonable attorneys' fees. 33. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 34. WAIVER 14 3/96 0 A waiver by City 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. 35. 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 hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. ATTEST: C RK j APPROVED AS TO FORM: CITY ATTORNEY CITY OF NEWPORT BEACH A Municipal Corporatiir / i By_/ / PUBLIC WORKS DIRECTOR CONSULTANT By: .,.... - V--r JOHN . TETTEM R & ASS CIATES LTD. is 3/96 ® J0MMTETTEI'FR &A550CVTEn, LTD April 10, 1996 Mr. Don Webb Public Works Director City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92659 -1768 Dear Don: We are pleased to submit this letter of proposal for consultant services to the City, which is intended to ensure a smooth transition and continuity of project management services on various City cooperative projects. Specifically, Mr. John Wolter will be available to work in your office, as needed, for one to three days a week over the next three months. Fees for project management services will be in accordance with the enclosed fee schedule which reflects hourly rates and reimbursable charges. Actual services rendered and tasks performed will be closely coordinated with Public Works Department staff: Total fee anticipated on a "time and materials" basis for an average of 16 hours per week over the next three months will not exceed $25,000. The cooperative projects and on -going programs for which project management services are anticipated to be provided are: 1. Federal Orange County Coast of California Study 2. Federal Beach Erosion Project Surfside/Sunset Beach to Newport Beach - Stage 10. 3. Federal Upper Newport Bay Feasibility Study 4. Newport Harbor Entrance Jetty Repair 5: Los Angeles 111 Ocean Disposal Site - Permanent Designation 6. American Trader Oil Spill Settlement 7. Irvine Avenue/University Drive Street and Class 1 Bicycle Trail Improvements It is understood that the kind of involvement in projects will vary and may be ENG111EFRIIIG MANAGEMENT PLAHN1110 3151 Airway Avenue, Suite Q -1 Costa Mesa, California 92626 714434-9080 FAX 714 434 -6120 0 Mr. Don Webb April 10, 1996 Page 2 changed from time to time. The list of projects set forth is not intended to be restrictive or all- inclusive. The object of this contract is to provide project management services to the CSty staff and to facilitate a smooth transition of management services on City projects in a manner that allows flexibility and adjustment to meet requirements as they arise. I understand that the proposal will become an attachment to or will be incorporated into a standard City of Newport Beach consultant contract. Please let me know when the contract is ready for signature. Thank you for the opportunity to submit the proposal. I look forward to working with you and the new Public Works Department staff. Sincerely, John M. Tettemer JMT /fhs Attachments J00M. TETTEMER & ASSOCIAms D. FEE SCHEDULE Hourly Rates President $ 133.00 Senior Vice President, Engineering $ 97.00 Vice President, Environmental Engineering $ 95.00 Senior Engineer $ 91.00 Manager, Environmental Services $ 88.00 Senior Environmental Manager $ 81.00 Engineer III Engineer II . $ 69.00 Environmental Manager $ 67.00 Engineer I $ 57.00 Environmental Planner $ 57.00 Draftsman $ 47.00 Environmental Technician $ 47.00 Executive Secretarial Assistant $ 47.00 Tech/Qerical $ 43.00 Direct Expenses Expenses such as special project supplies and materials; food, lodging and transportation for time away from Orange County area; long distance telephone, outside reproduction; courier /express mail; and, other costs directly applicable to the project will be charged at cost. Auto mileage will be charged at $0.32 per mile. Computer processing time will be charged at $19.00 per hour. Normal xeroxing will be charged at $0.06 per page. 2510 Xerox will be charged at $0.50 per square foot for bond, $0.75 per square foot for vellum, and $1.50 per square foot for mylar. CARD plotting will be charged at $2.00 per square foot for bond, $2.25 per square foot for vellum, and $4.50 per square foot for mylar. FAX transmittals will be charged at $1.00 per page. John M. Tettemer & Associates, Ltd. TRANSITION PROJECT MANAGEMENT SERVICES AND TASKS FOR CITY OF NEWPORT BEACH COOPERATIVE PROJECTS AND PROGRAMS April, 1996 FEDERAL ORANGE COUNTY COAST CALIFORNIA STUDY ■ Represent the City of Newport Beach (City) interest in reaching a consensus on consultant/scientific information in order to finalize this five -year cooperation study ■ Review /comment on Craig Everts Ph.D. report summarizing the last nine -year study of the Balboa Peninsula beaches ■ Review U. S. Army Corps of Engineers (Corps) and various consultant reports ■ Participate in several workshops with Orange County (County), the City of Laguna Beach, the City of Huntington Beach, the Corps, the City, and Professor Robert Wiegal, Ph.D. (a leading coastal scientist from U. C. Berkeley) ■ Participate in public workshops when the report is finalized ■ Present final study to the City Council ■ Prepare final accounting for the City's share of cost II. FEDERAL BEACH EROSION PROJECT SURFSIDE /SUNSET BEACH TO NEWPORT BEACH - STAGE 10 ■ Review Corps' plans and specifications for West Newport Sand Haul ■ Coordinate project with the City, County, and local residents ■ Report status to City Council ■ Report status to West Newport Improvement Association ■ Prepare City Council report for right of entry permit to allow Corps and their Contractor to work on the City's beach ■ Coordinate City inspection of construction with Marine Safety, General Service, and Public Works personnel III. FEDERAL UPPER NEWPORT BAY FEASIBILITY STUDY ■ Review final Scope of Work ■ Prepare City Council report for approval of funding agreement with the County ■ Meet with Corps and County representatives to initiate study ■ Participate in project oversight meetings during study ■ Prepare request for continued Federal funding for project which is based on 50 percent Federal /50 percent local cost sharing ■ Report status to City Council ■ Coordinate collection of information for study involving Upper Newport Bay Unit III information to be included in study IV. NEWPORT 14ARBOR ENTRANCE JETTY REPAIR ■ Continue effort to have the U. S. Congress include the construction of concrete improvements to the East Jetty ■ Review /comment on Corps' plans and specifications ■ Coordinate project with Corps, County, City, and local residents ■ Report project status and schedule to the City Council (rock repair to west jetty tentatively scheduled for this summer) V. LOS ANGELES III OCEAN DISPOSAL SITE - PERMANENT DESIGNATION ■ Continue to initiate and monitor efforts to have Congress include funding for environmental studies needed to permanently designate the Los Angeles III Ocean Disposal Site ■ Continue to coordinate efforts with consultants, County, Corps, and U. S. Environmental Protection Agency to implement studies VI. AMERICAN TRADER OIL SPILL SETTLEMENT ■ Assist City attorney in negotiation of settlement ■ Present City projects to settlement committee ■ Attend settlement committee meetings ■ Assist City attorney as requested VII. IRVINE AVENUE/UNIVERSITY DRIVE, STREET AND CLASS I BICYCLE TRAIL IMPROVEMENTS ■ Meet with the City, County, and Contractor weekly or as needed ■ Assist City project engineer with review sidewalk design along west side of Irvine Avenue ■ Assist City project engineer with preparation of legal descriptions and grant deeds for Irvine Avenue and University Drive right -of -way swap with the County ■ Assist City project engineer process grant deeds transferring City property to the County ■ Assist project engineer and field engineer as requested VIII. MISCELLANEOUS ■ Assist Public Works director with various projects, i.e. Irvine Ranch Water District, San Joaquin Marsh development, Buck Gully as requested • Fig, u NCIL September 11, 1995 CITY COUNCIL AGENDA ITEM NO. 4 T0: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PUBLIC WORKS DEPARTMENT % SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT - STATUS REPORT RECOMMENDATION. Receive and file report. BACKGROUND On March 27, 1995, and June 26, 1995, the City Council authorized • consultant agreements to undertake bioassay sampling and testing, California Environmental Quality Act (CEQA) documentation, topographic surveying, project management and resource agency permitting for the Upper Newport Bay Unit III project. Prior to these contracts being initiated, state and federal resource agencies had approved a minimum of 50 acres of mitigation credit for the Unit III project, with a potential for additional mitigation credits pending receipt of supporting technical information by the State Resources Agency. Although funding agreements had not been secured, these agreements were initiated because of potentially long lead times associated with these activities, and because it appeared that funding would be secured within several months. In addition, in an effort to limit further damage to the Upper Bay and to minimize sediment removal costs, it was deemed desirable to have permits and approvals in place such that construction could be initiated as soon as possible after funding was secured. PROJECT FINANCING At the present time, the project is competing with the Bolsa Chica wetlands restoration project for port mitigation funding. With support from Supervisor • Marian Bergeson's office, efforts are currently underway by senior State Resources Agency officials to secure necessary funding for construction of the project and a future maintenance annuity. State Resources Agency officials are considering several factors in their efforts to develop funding for the project. These factors include the final amount of mitigation credits for the project, the price for those credits, and the amount of credits needed by the ports in light of the Bolsa Chica project. The State Resources Agency is also coordinating its activities with federal agencies involved in the Bolsa Chica project q SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT - STATUS REPORT September 11, 1995 Page 2 in an effort to develop a funding program that satisfies the needs of both projects. Staff is hopeful that the funding issue can be resolved within 90 days. STATUS OF CONSULTING WORK Significant progress has been made on bioassay, environmental, surveying and permitting work needed to support the Unit III project. The bioassay consultant has completed all sediment sampling, and both chemical and bioaccumulation testing of the samples. Preliminary results of the analysis indicate that sediment dredged from the site will be suitable for ocean disposal. A final report is anticipated in mid - September. Updated ground and aerial site surveys were completed in late July, and topographic mapping for the Unit III area and access channel were completed in mid - August. This updated mapping provides the basis for future final design engineering and sediment removal calculations. Progress has also been made on preparation of CEQA documentation and resource agency permits. The project description and initial study are being completed and on -site surveys for the analysis of visual construction related impacts have been performed. Resource agencies have been contacted, permitting requirements verified, and draft permits are under preparation. It is anticipated that CEQA documentation and resource agency permitting will be completed in early 1996. SCHEDULE FOR CONSTRUCTION Environmental clearances and resource agency permitting are continuing to move forward and are anticipated in early 1996. Assuming that funding for the project is resolved within the next 90 days, mitigation credit and financing agreements with the ports and the resource agencies will then need to be prepared and signed. In addition, final engineering plans, specifications and estimates will also need to be completed. It is anticipated that these activities could be completed, the project advertised, and a construction contracted awarded in Spring 1996. Respectfully Submitted, r Don Webb Public Works Director ohn Wolter Cooperative Projects Engineer • r: E • BY THE CITY C,0U8EA 1 CI� EACH I i ( mnl 3 M9 • January 23, 1995 CITY COUNCIL AGENDA ITEM NO. 14 TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PUBLIC WORKS DEPARTMENT SUBJECT: UPPER NEWPORT BAY SEDIMENT CONTROL AND ENHANCEMENT PROJECT PROGRESS TO DATE Over the past year, the City has been actively involved in representing the Executive Committee for the Upper Newport Bay Sedimentation Control Plan in the development of an urgently needed sediment removal project for the Upper Bay. The project, known as Unit III, is designed to restore sediment storage capacity while creating habitat conditions necessary to enhance fishery values. By enhancing the habitat in the project area, habitat mitigation credits can be created which may be sold to the Port of Long Beach to mitigate impacts for new Port facilities. Proceeds • from the sale of habitat credits can be used to finance all project costs, including those advanced by the City, and can provide an annuity for funding future maintenance cleanouts. The supporting technical justification for the project and its habitat mitigation value has been reviewed extensively by the State and responsible resource agencies and has received broad support. Preparations are underway to initiate final discussions and agreements among the resource agencies about the number of acres of mitigation credits that will be allowed, and between State representatives and the Port of Long Beach on the value of the credits they wish to purchase. A mitigation credit and project funding agreement between the State, responsible resource agencies, the Port of Long Beach and the City will be forthcoming within approximately 90 days. The agreement will include provisions to secure the reimbursement of project development funds advanced by the City. A summary of the previous Upper Newport Bay sediment control projects and the currently proposed Unit III project is provided in the attached • report entitled: "Upper Newport Bay Sediment Control and Enhancement Project," dated December 1994. STEPS PRIOR TO IMPLEMENTATION OF THE PROIECT There are a number of key activities that need to take place over the next six months to move the project to construction. These steps include: r Complete sediment bioassay testing and obtain approval from EPA. This is required to allow ocean disposal of the sediment. Prepare project environmental documents for certification by the City. Prepare and obtain approval of permits through the resource agencies. • Complete an updated survey and prepare final engineering plans, specifications and cost estimates. The financing for completing these tasks and the timing of those tasks which need to be initiated early in the process are discussed below. FINANCING On behalf of the Executive Committee members, the City has advanced all funding for planning and project development, preliminary engineering, biological opinion and bioassay program development work necessary to develop the Unit III project to this point. Prior to receiving reimbursement and additional funding through the expected sale of mitigation credits to the Port of Long Beach, additional financing from the organizations represented on the Executive Committee will be required to move forward with the project. A summary of the funding advanced by the City to date and a preliminary estimate of additional expenses that are • anticipated to be incurred prior to receipt of mitigation funds is as follows: Funding Advanced by the City Fiscal Year 1993 -1994 5100,000 Fiscal Year 1994 -1995 $100,000 Total Funding Advanced = $200,000 Expenses to Date Preliminary engineering, agency $166,000 approvals, project management and bioassay program development Fisheries report $6,000 Preliminary surveying $12,000 Subtotal = $188,000 Estimated Costs for Additional Tasks Bioassay testing and approval $135,000 Resource agency permits and fees $23,000 Surveying $25,000 Engineering plans and specifications 5250,000 • Environmental documentation $15,000 Subtotal = $448,000 Total Expenses to Date and Estimated Costs for Additional Tasks = $636,000 Required Additional Advanced Funding = $436,000 ' Although the City has taken responsibility for advancing funds to date, staff believes the magnitude of these additional costs warrant financial participation by other members of the Executive Committee. Staff will be pursuing this with the Committee at their next meeting, which is tentatively scheduled for late February. • TIMING Because of long lead times and potential scheduling impacts, it is desirable that certain activities be initiated in February and March. These include preparation of environmental documentation, completion of an updated engineering survey for the site, and bioassay testing. Because of the timing of these activities, the City will need to work with The Irvine Company to advance additional funds until commitments for funding can be secured from the Executive Committee membership. A preliminary cost estimate for these activities is $173,000. Staff has obtained proposals and is preparing agreements for this work to be presented to the Council for consideration in February. ON -GOING ACTIVITIES Negotiations with the resource agencies on the acreage of mitigation credits to be allowed, and with the Port of Long Beach on the value of those credits. • Initiate negotiations on the terms of the mitigation credit and project funding agreement with the State, resource agencies, the Port of Long Beach and the City. This will include provisions for reimbursement of City expenditures and assignment of the City as trustee for the annuity. Meet with Executive Committee membership to obtain additional advanced funding needed to continue progress on the project. Prepare bioassay consultant agreements, and develop scopes of work for environmental documentation, resource agency permit preparation and surveying. Prepare report for February council meeting recommending authorization for specific activities. • w� John Wolter Cooperative Projects Engineer JW:so Attachment _ -. --- -� .xnnn�rerrenea�A55ociAieS_To BY THE CITY COUNCIL CITY OF NEWPORT BEACH ENOINEERIf 0 MArlAOEMEfIT PLAfIHINO 5151 Airway Avenue, Suite Q -1 Costa Mesa. California 92626 714 454 -9080 FA?') 714 434 -6120 SECTION I INTRODUCTION 1 1 1 John M. Tettemer & Associates, Ltd. UPPER NEWPORT BAY SEDIMENT CONTROL AND ENHANCEMENT PROJECT Introduction This document has been prepared to provide information on the Upper Newport Bay and the sediment control and enhancement project that is required to protect the Bay. A private /public sector consortium has developed a watershed -wide sediment control plan to protect the Bay. A critical element of that Plan is an enhanced habitat and sediment control project in the Bay that is the subject of this document. The Upper Bay, which was once a threatened resource, has been restored and is under continued management. The Executive Committee for the Upper Newport Bay Sedimentation Control Plan is currently seeking funding to ensure the preservation of this critical natural resource. Upper Newport Bay Executive Committee Members California Department of Fish and Game County of Orange City of Tustin City of Irvine City of Newport Beach The Irvine Company SECTION II ' UPPER NEWPORT BAY SEDIMENT CONTROL AND ENHANCEMENT PROJECT ' FACT SHEET [J 11 11 John M. Tettemer & Associates, Ltd. UPPER NEWPORT BAY SEDIMENT CONTROL AND ENHANCEMENT PROJECT Fact Sheet PARTICIPANTS State of California, Department of Fish and Game State of California, Coastal Conservancy State of California, Water Quality Control Board Port of Long Beach, California Orange County, California City of Irvine, California City of Tustin, California City of Newport Beach, California The Irvine Company ' BAY RESTORATION EXCAVATION Early Action Project (January, 1983) Unit I Project (November, 1985) Unit II Project (April 1988) Proposed Unit III 71 LI COSTS Bay and San Diego Creek Basins Early Action Project Unit I Project Unit II Project Basin 3, San Diego Creek Section 208 Study Total Upstream Watershed Best Management Practices on Agricultural and Developing Properties Flood Control /Sediment Basins Channel Stabilization Total GRAND TOTAL PROPOSED UNIT III PROJECT Construction Annuity Financed by State and local govemment and 71c Irvine Company Financed primarily by land tln,hpu rnt role rest, 832,417 cubic yards 944,826 cubic yards 1,192,000 cubic yards 650,000 cubic yards $ 3,719,000 $ 4,134,000 $ 5,643,000 $ 800,000 500,000 $14,796,000 s $2,170,000 $9,100,000 $101,000.000 $112,270,000 $127,066,000 $ 4,100,000 $ 6.700.000 $10,800,000 SECTION III UPPER NEWPORT BAY: AN ENVIRONMENTAL SUCCESS STORY 11 UPPER NEWPORT BAY: AN ENVIRONMENTAL SUCCESS STORY ' by John M. Tettcmer, President John M. Tettemer & Associates, Ltd. Environmental Engineers, Costa Mesa ' The restoration of Upper Newport Bay is a success story both uplifting and newsworthy. It happened because business, local government, and resource agency leaders wanted it ' enough to make it happen. In these crazy days of conflicting objectives and stagnating ' plans, the Upper Bay is a smiling example of a project that succeeded: a gem on the Pacific coast, restored to provide aesthetic and recreational benefits for the community and enhanced environmental benefits for wildlife. The long -range program includes not ' only dredging the Bay, but a multitude of projects and practices in the tributary watershed. The private /public sector consortium which developed and oversees the ' restoration plan works together through an Executive Committee which oversees ongoing ' maintenance, management, and funding. The next step is to undertake a major new ' deep water habitat /sediment control project in the Bay. ' BACKGROUND Upper Newport Bay is a State Ecological Reserve consisting of 752 acres of marine and ' shoreline wildlife habitat managed by the California Department of Fish and Game ' (CDFG). The 118 - square -mile San Diego Creek watershed, outlined in white on Figure 1, is made up of natural foothills, agricultural land, and the urbanized communities of ' Itvine, Tustin, Newport Beach, and Lake Forest. Storm runoff from the entire area discharges into the Bay. Erosion in the watershed and deposition of sediment in the Upper Bay concerned the community, particularly after storms in 1969, 1978, and 1980. During these storms the area below Jamboree, Road was inundated. Sediment was _I_ transported with the runoff and covered the area. Gradually portions of the area were converted to a mudflat. The old salt works was turned into uplands. This alarming trend threatened to change the characteristics of the Upper Bay. Some sediment was being moved down the Bay to Dover Shores. A solution was needed, and needed quickly. A SEDIMENT CONTROL PLAN In 1981, the cities of Irvine and Newport Beach developed a plan to address erosion and siltation under Section 208 of the Federal Water Pollution Control Act. The 208 Plan, as it is called, consists of Agricultural Best Management Practices (BMPs) to reduce erosion from agricultural lands, Construction Site BMPs, In- Channel Basins in the lower end of San Diego Creek to capture coarser sediments before they enter the Upper Bay, In -Bay Basins in the Upper Bay to capture fine particles, Channel Stabilization to reduce the erosion of earthen channels, Foothill Basins to capture sediments produced by natural erosion in the foothills, and Monitoring. These elements are shown on Figure 1. The program is designed to evolve over the years from a "downstream control' to an "upstream control" system. The downstream control consists of the sediment basins in the Upper Bay and in San Diego Creek. These facilities provide direct protection of the Bay at a relatively economical cost. The upstream system consists of the foothill basins and the channel stabilization. These are installed as part of the land development process and under city and County flood control programs. While early efforts and funding were focused on the downstream In -Bay and In- Channel Basins to obtain their immediate benefit, the heart of the program is the upstream work. In the long run, upstream work will comprise the majority of engineering effort and ' financial requirement. To date, over $100,000,000 of a projected $150,000,000 has been spent on upstream work. About $14.7 million of a projected $19 million has been spent ' on downstream work. ' INTEGRATION OF PLANS: MAKING A "LAYER CAKE" During the early years of implementation of the 208 Program, The Irvine Company, in tcooperation with Irvine, Tustin, and the County of Orange, was developing a flood ' control master plan for the San Diego Creek drainage area. This flood control master plan incorporated retarding basins which capture silt from the natural foothills and stabilized channels which reduce erosion. Both contribute to protection of the Upper ' Bay. Caltrans also was developing plans for the widening of Interstate 5, and was confronted with managing numerous drainage crossings of the freeway route through the master plan area, many of them on The Irvine Company land. ' The Irvine Company recognized that the 208 Plan, the flood control master plan, and the ' Freeway widening presented an opportunity for an integrated solution that would address ' flood control, sediment management, and protection of the Bay. This interest was the major private sector impetus for what was to follow. The public sector push came from a ' group of agencies which included: CDFG, Orange County, and the cities of Newport Beach, Irvine, Tustin, and Caltrans. Each actively participated in the Flood Control Master Plan, the 208 Program, or the Freeway widening. 1 The result was an integrated "layer- cake" planning program where the three plans were ' developed and implemented in concert, driven by the need for early remedial action to ' improve conditions in the Bay. The freeway widening schedule was also important ' because it presented the opportunity for a joint venture if timing and funding could be tcoordinated. The outcome was a family of carefully fitted master plans which all ' contribute toward protection of the Bay. ' CHALLENGES TRANSFORMED INTO OPPORTUNITIES One of the challenges was to help each entity to recognize its interest in the overall plan ' and remain committed on a voluntary basis. Traditionally, each entity has its own ' functions, goals, and schedules. In this case, it turned out that looking beyond its individual function paid dividends. For example, by accepting elements of the flood ' control master plan, Caltrans was able to save money on freeway drainage. In return, ' Caltrans contributed toward the funding of foothill retarding basins. Completion of these channels and retarding basins helped protect the Bay by preventing erosion and capturing sediment. As another example, CDFG by itself could not have implemented erosion controls on agricultural land and construction sites throughout the watershed to protect its Reserve. The participants in the integrated plan could and did. It would have been ' difficult for each city and the County to effectively discharge its Section 208 ' responsibilities on an individual basis. With the integrated plan, each agency's efforts were focused in an effective manner. ' EXECUTIVE COMMITTEE From the outset, the program has been approached as a cooperative local self- ' determination venture among the CDFG, the county, the cities of Irvine, Tustin, and ' Newport Beach, and The Irvine Company. It is the conviction of these members of the Upper Bay Executive Committee that local interests, common sense, and economy are ' best served by locally developed and operated programs. 1 4 ' The concept of an Executive Committee comprised of policy makers from each ' cooperating organization emerged to provide a forum to discuss planning, design, implementation, financing, and, above all, the numerous agreements required to put the program elements in place. The Executive Committee has been very successful. Over ' the years its members have included Orange County business and government leaders. Currently, the Executive Committee includes: Fred Worthley, California Department of Fish and Game; Supervisor Thomas F. Riley, Orange County; Mayor Jim Potts, City of ' Tustin; Councilman Barry Hammond, City of Irvine; Councilwoman Jean Watt, City of ' Newport Beach; and Monica Florian, The Irvine Company. ' EXECUTIVE COMMITTEE GETS PROGRESS REPORT In 1992, the Executive Committee commissioned a review of the program to evaluate its overall performance, identify needed improvements, and assist in planning future action. The report concluded that good progress has been made on all program elements. Opportunities exist for fine tuning some of the facilities to improve efficiency. Most ' importantly, the performance of the In -Bay Basins has been so good it is proposed to move ahead with a major project to enhance them, as described below. WHAT IS NEXT? Executive Committee members have asked the City of Newport Beach to develop plans and financing for a new Upper Bay enhancement project to be known as the Upper ' Newport Bay Sediment Control and Enhancement Project. The existing sediment basin ' in the Bay just below Jamboree Road (see Figure 2) will be cleaned out and deepened. The configuration, shown on Figure 3, will include a new 61 -acre deep water marine -5- habitat zone. The resulting improved sediment storage capacity will reduce future cleanout frequency and lower the long -term cost of maintenance. The work will be done with large barges that will haul the sediment to an approved ocean disposal site. Approximately 650,000 cubic yards of material will be moved at a cost of $4.1 million. The firm of John M. Tettemer & Associates, Ltd. of Costa Mesa has been selected by the City to provide project management engineering and environmental services. Approvals must be obtained from the U. S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, the Regional Water Quality Control Board, the Coastal Commission, and all the local participants. Work is scheduled to commence in late 1995 if funding, permits, and approvals can be obtained. THE LONG -TERM FUTURE Completion of the upstream channel stabilization and sediment control basins in the foothills will reduce the amount of sediment generated in the watershed. Even so, some natural open space areas will continue to generate sediment, and developed areas generate small amounts of sediment during stormy periods. Therefore, there will continue to be a need for some periodic maintenance of the In- Channel Basins and the In -Bay Basins; however, as time goes by, the frequency will diminish. CONCLUSION Orange County can take pride in the exceptional achievement represented by the Upper Newport Bay -San Diego Creek Sedimentation Control Program, as an example of effective leadership provided by a partnership of business and government at the local and State levels. The Upper Bay, once a threatened resource, has been restored and is W ' under continued management. A key factor in the success of the program is the ' integration of a group of related plans for the drainage area. Even though these plans were directly focused on freeway drainage and flood control requirements miles away ' from the Bay, through the integrated approach they all work together and all work to ' protect the Bay. Likewise, agricultural and construction site BMPs throughout provide ' important contributions. ' Many challenges lie ahead, not the least of which is finding ongoing funding. The track record spanning more than a decade suggests that the current and future members of the tExecutive Committee and their cooperating entities will maintain the necessary level of ' interest and determination. The result has been and will continue to be an extraordinary program that surpasses the expectations of most observers. Congratulations! [1 7 ra 1 r � i k y Npri, ► ��l� � 1 �, r 4, � - I Cn� i I • � c 1 t ► >Q ► 1 / t a 1 i ` 4 1 h {1. I;k° _ Ll OEM ?, ::p uNld7f C .�. aA I q. N j t I i _. - K 77 LL CL OM LLI Z yarti F . . a.. �. LJJ CL z L LI W Q 7 LL �g ff6_ N � 8 5 E W Q 7 LL r F f, s '�t w •S "•IF i avoe 33tlpgyybf rJy�` z W m W R m 0 LL t W� L 1 W Z W J W U =0z Z W �zQ W � W �Z J � O U F- Z W W i avoe 33tlpgyybf rJy�` z W m W R m 0 LL SECTION IV UNIT III UPPER NEWPORT BAY SEDIMENT CONTROL AND ENHANCEMENT PROJECT 1 'L, I �I [1 ' John M. Tettemcr & Associates, Ltd. UNIT III UPPER NEWPORT BAY SEDIMENT CONTROL AND ENHANCEMENT PROJECT ' The Upper Newport Bay Ecological Reserve is a 741 -acre State reserve owned and ' managed by the California Department of Fish and Game. Between the major storm of ' 1968 which destroyed the old salt works and the late 1970's, the amount of sediment deposited in the Reserve from San Diego Creek had increased greatly. This is due ' largely to the greater efficiency of improved channels which transport the sediment load from the Upper Watershed area into the Bay instead of depositing it in upstream ponding areas that existed prior to channel improvements. This increased sedimentation ' decreased the area subject to tidal exchange and was starting to convert some of the Bay ' to mudflats and uplands. Something had to be done. ' The Unit I project was conceived to remove accumulated sediments and create an initial sediment control basin, and at the same time restore some of the Upper Bay marine ' habitat. The Unit I basin excavation created a basin area of 85 acres with a bottom depth varying from elevations minus three feet to minus seven feet Mean Sea Level ' (MSL). The project was completed in 1985 and provided sediment storage capacity of approximately 420,000 cubic yards below elevation zero feet MSL. The Unit II dredging project was undertaken to restore more of the Upper Bay and ' provide additional sediment accumulation capacity to protect the Upper Bay. The Unit II basin excavation created a 37 -acre basin below the old salt works dike with a depth to minus 14 feet MSL. The Unit II project was completed in 1988 and provided sediment ' storage capacity of approximately 535,000 cubic yards below elevation zero feet MSL. ' -I- The sediment basins have worked well. They now need routine maintenance. Maintenance dredging is needed to restore the Unit I sediment control basin. The Unit III project is the answer. It will cause the removal of approximately 650,000 cubic yards of trapped sediment and deepen the basin and channel to accommodate the dredging equipment required for ocean disposal. The estimated removal quantity is based on excavation to elevation minus 14 feet MSL, the same depth as the Unit II project. The increased depth will provide greater storage capacity and new deep water habitat within the Unit III sediment control project. The estimated cost to remove the 650,000 cubic yards of trapped sediment, including all project development, engineering, and administration costs, is approximately $4.1 million. In addition to the initial sediment removal costs, it is planned to establish an annuity to finance future sediment removal projects for maintenance purposes, including biological monitoring, engineering, environmental approvals, and management. The estimated present worth of future maintenance projects is $6.7 million. Discussions have been held with the California Department of Fish and Game and the National Marine Fisheries to determine if the deep water habitat created by the excavation will qualify for mitigation credits. It appears that the Resource Agencies are now supportive of such a proposal. If an acceptable final determination is made, the Port of Long Beach, which is in need of such credits, would consider financial participation in the sediment control project. 9_ I Ll CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92659 -1768 (714) 644 -3005 TO: PURCHASING /FINANCE DEPARTMENT FROM: CITY CLERK DATE: July 25, 1995 SUBJECT: Contract No. C- 2987(A) CWj16 , lL� 7'' Description of Contract Amendment No. 2 to Unit ITT - Upper Newport Bay Sediment Control Effective date of Contract July 25 1995 Authorized by Minute Action, approved on June 26, 1995 Contract with John M. Tettemer & Associates Address 3151 Airway Avenue Suite Q -1 Costa Mesa CA 92626 Amount of Contract (See Agreement) Wanda E. Raggio City Clerk WER:pm Attachment 3300 Newport Boulevard, Newport Beach June 26, 1995 11 IN 2 6 1995 I I CITY COUNCIL AGENDA ITEM NO. -8 TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PUBLIC WORKS DEPARTMENT SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEED WITH SURVEYING, ENVIRONMENTAL DOCUMENTATION, RESOURCE AGENCY PERMITTING AND ADDITIONAL PROJECT MANAGEMENT WORK RECOMMENDATIONS: 1. Approve Consultant Services Agreement with Rattray & Associates Inc. to provide aerial, topographic, and ground surveying services for a fee not to exceed $32,000 and authorize the Mayor and City Clerk to execute the Agreement. 2%�7(�� 2, Approve Consultant Services Agreement with Helix Environmental Planning, Inc. for preparation and processing of California Environmental Quality Act (CEQA) documentation for a fee not to exceed $39,667 and authorize the Mayor and City Clerk to execute the Agreement. C_2 %1(A) 3. Approve Amendment to Consultant Services Agreement with John M. Tettemer & Associates, Ltd. (JMTA) to process and obtain necessary resource agency permits and provide additional project management services necessary to pursue mitigation funding and implement project for a fee not to exceed $70,820 and authorize Mayor and City Clerk to execute the amended Agreement. BACKGROUND As reported in our April 10, 1995 report to the City Council, the City has been involved over the last year in representing the Executive Committee for the Upper Newport Bay Sedimentation Control Plan in the development of a sediment removal project for the Upper Bay. The project, known as Unit III, will restore needed sediment capacity and create habitat conditions necessary to enhance fishery values. As a result of our negotiations with State and Federal resource agencies, agreement has been reached that habitat mitigation credits will be created by the project. These credits can be sold to agencies, such as the ports of Long Beach, Los Angeles or San Diego, that SUBJECT: UPPER NIWPORT BAY UNIT III SED14KIT CONTROL AND ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEEb,WITH SURVEYING, ENVIRONMENTAL DOCUMENTATION, RESOURCE AGENCY PERMITTING AND ADDITIONAL PROJECT MANAGEMENT WORK June 26, 1995 Page 2 need mitigation for the construction of new facilities. Sale of the mitigation credits will provide funding for project development costs advanced by the City, project construction costs, and an annuity for future sediment removal. Negotiations on the final amount of mitigation credits to be allowed for construction of the Unit III project are on -going between the City and the resource agencies, with direct assistance from the State Resources Agency. Since our last report to the Council, a letter was received regarding project mitigation credits from Douglas Wheeler, Secretary of the State Resources Agency. The letter confirms the approval by the resource agencies for a minimum of 50 acres of mitigation credit for the Unit III project, and indicates that the project may be eligible for additional mitigation credits, pending the receipt and approval of additional technical information by the State Resources Agency. The letter further indicates State Resources Agency's commitment to take the lead on coordinating with other State and Federal resource agencies for the approval of additional mitigation credits. It also offers the Resources Agency's assistance in facilitating negotiations between the City, resource agencies and the Ports on the sale of mitigation credits. This letter is a key milestone for the project because it firmly acknowledges that a minimum of 50 acres of credits have been approved. When sold, the 50 acres of credits will generate enough funding to pay for all of the City's current and proposed project development costs, all design and construction costs, and a substantial portion of the proposed maintenance annuity. To secure additional mitigation credits and fully fund the maintenance annuity, staff and the City's consultant project manager, JMTA, have developed and submitted the additional technical justification requested by the Resources Agency. In accordance with the Resources Agency's letter, it is anticipated that a meeting will be scheduled immediately with State and Federal resource agency upper level management to review the information provided and resolve the City's request for additional mitigation credits. We are hopeful that a funding agreement with one of the ports to purchase mitigation credits will be signed within 90 to 120 days. The project is ready to move forward and we are now in the position where it is necessary to hire consultants to complete the site surveying, CEQA documentation, resource agency permitting, and to fund additional project management services. This work includes items that typically have a long processing time, are necessary to support further work and must be initiated at this time in order to maintain an early 1996 construction schedule. The following report reviews the work, proposed financing, and makes recommendations for your consideration. 0 0 SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEED WITH SURVEYING, ENVIRONMENTAL DOCUMENTATION, RESOURCE AGENCY PERMITTING AND ADDITIONAL PROJECT MANAGEMENT WORK June 26, 1995 Page 3 CURRENTLY PROPOSED WORK Updated site surveying is required to provide information on the specific location and the precise amount of sediment to be removed. The timing of the survey is critical because it provides baseline information for assessing specific environmental impacts from the project. In addition, an updated survey is required to support the preparation of final plans and specifications for the project. To meet the currently proposed schedule, plans and specifications will need to be started within 60 to 90 days. The preparation of final plans and specifications will be brought to the Council in a future action. A second important item of currently proposed work for the project is the CEQA documentation. Although previous environmental clearances have been obtained for sediment removal work in the Upper Bay, supplementary CEQA documentation will need to be prepared for this specific project. However, since the project is providing enhancement and restoration of the Upper Bay, significant environmental issues are not anticipated. In addition, since impacts for the previous projects have been thoroughly documented, the proposed CEQA document will be structured to build on previous experience and information to the extent feasible. A third item that is necessary to maintaining progress on the project is initiation of the resource agency permitting process. Specifically, either permits, agreements or consultations will be required through the U. S. Army Corps of Engineers, U. S. Fish and Wildlife Service, California Department of Fish and Game, California Coastal Commission and State Lands Commission. Our previous experience with the permitting process on earlier Upper Bay projects is that it can be laborious, and can take many months to complete. Based upon this, it is necessary to initiate the permitting work with the agencies noted as soon as it is practical. Finally, an amendment to the Consultant Services Agreement with JMTA is needed to provide continued technical and management support services for the project. This continued support is necessary to ensure that the mitigation credit and financing agreements, engineering, environmental clearances, permits and other approvals are completed in a coordinated, timely and effective manner. SUBJECT- UPPER NOPORT BAY UNIT III SEDINAT CONTROL AND ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEED WITH SURVEYING, ENVIRONMENTAL DOCUMENTATION, RESOURCE AGENCY PERMITTING AND ADDITIONAL PROJECT MANAGEMENT WORK June 26, 1995 Page 4 CONSULTANT SELECTION Rattray & Associates Inc. of Santa Ana provided surveying services for the previous Unit I and Unit II sediment basin construction projects and has recently provided surveying for monitoring the deposition of sediment trapped in the basins. Rattray & Associates Inc. has established survey control in the Upper Bay and provides surveying services at standard hourly rates comparable to other surveying companies in Orange County. Because of their familiarity with the project and experience in the Upper Bay, staff requested the proposal for surveying services from Rattray & Associates Inc. JMTA is currently under agreement with the City to provide project management services for the project. JMTA is well qualified and experienced in obtaining resource agency permits for wetland projects. Considering the consultant's experience with the project, staff has requested a proposal from JMTA to process and obtain resource agency permits and to continue to provide project management services. To prepare the proposed CEQA documentation for the project, a new consultant needs to be selected. To begin the selection process, several environmental firms with expertise in preparing CEQA documentation for similar projects were asked to submit comprehensive statements of qualifications. The statements of qualifications included a description of the firm's technical expertise, personnel, experience, and billing rates. A selection committee comprised of a representative from the project management consultant, JMTA, and City staff from the Public Works Department and Planning Department was formed. Each firm's qualifications were reviewed by the selection committee and interviews with the two most qualified firms were arranged. The two firms selected for an interview included Science Applications International Corporation, of Santa Barbara, and Helix Environmental Planning, Inc., of La Mesa. Based upon their statement of qualifications, the interview results and the references provided, Helix Environmental Planning, Inc. was selected by the committee. Helix demonstrated a comprehensive understanding of all aspects of the project and recommended a thoughtful strategy for obtaining CEQA clearance. SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEED WITH SURVEYING, ENVIRONMENTAL DOCUMENTATION, RESOURCE AGENCY PERMITTING AND ADDITIONAL PROJECT MANAGEMENT WORK June 26, 1995 Page 5 PROPOSED COSTS AND SCOPE OF WORK Each of the recommended consultants were asked to submit a proposal for the required work. A summary of the individual work tasks proposed by each of the consultants and their associated costs are as follows: Surveying (Rattray & Associates, Inc.) 1" = 1 00' Orthophotos and Aerial Topography (1' contour) for Upper Newport Bay Basin, Access Channel and Lido Channel SUBTOTAL= $32,000 CEQA Environmental Document (Helix Environmental Planning, Inc.) • Project Initiation $ 7,240 and Reconnaissance • Technical Report Preparation $ 19,302 • Draft Initial Study $ 7,675 • Final Initial Study $ 2,790 Response to Comments and Mitigation 2,660 Monitoring Plan SUBTOTAL= $ 39,667 Resource Agency Permitting (John M. Tettemer & Associates, Ltd.) • Section 10, 103 and 404 Permits with $ 9,020 U. S. Army Corps of Engineers Section 7 Consultation with U. S. Fish $ 5,687 and Wildlife Service • Section 401 Water Quality Certification $ 3,765 or Waiver of Certification from the Regional Water Quality Control Board • Section 1600 Streambed Alteration $ 5,668 Agreement with California Department of Fish and Game (CDFG) • Section 2081 Memorandum of Understanding with CDFG $ 2,600 • Dredging Lease with State Lands Commission $ 4,565 (if required) SUBJECT: UPPER NOPORT BAY UNIT III SEDIAT CONTROL AND ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEED WITH SURVEYING, ENVIRONMENTAL DOCUMENTATION, RESOURCE AGENCY PERMITTING AND ADDITIONAL PROJECT MANAGEMENT WORK June 26, 1995 Page 6 Coastal Development Permit with the $ 6,715 California Coastal Commission Reimbursables $-2-80Q SUBTOTAL= $ 40,820 Project Management (John M. Tettemer & Associates, Ltd.) Assumes Six Months of Additional $ 30,000 Project Management Services Including: Mitigation Credit and Funding Agreement Preparation and Negotiation with Resource Agencies and Ports, Reporting and Coordination with Executive Committee, and General Project Management and Coordination TOTAL = $142,487 SUMMARY OF FUNDING In April, the City Council approved a budget amendment in the amount of $305,000 for the Unit III project which provided for contributions from The Irvine Company, Orange County, and the Dover Shores Community Association. The City has provided funds in the current budget and proposes to provide an additional $100,000 in the 1995/96 budget for management of the project. The Upper Newport Bay Executive Committee has approved the expenditure of project management costs as part of the total project cost which will be reimbursed when mitigation funds are obtained for the Project Cost and Maintenance Annuity Fund. Funds available in the current budget and proposed 1995/96 budget are as follows: 1994/95 General Fund Account #7011 P301004A Contribution Fund Account #7251 P301004A 1995/96 General Fund Account #7011 P301004A SUBTOTAL $ 12,602.47 I 93.00-000 $105,602.47 $100 000 00 TOTAL $205,602.47 SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEED WITH SURVEYING, ENVIRONMENTAL DOCUMENTATION, RESOURCE AGENCY PERMITTING AND ADDITIONAL PROJECT MANAGEMENT WORK June 26, 1995 Page 7 RECOMMENDED NEXT STEPS 1. Initiate surveying, CEQA documentation, resource agency permitting and project management work as specified under the attached agreements. 2. Continue to work with the resource agencies through the State Resources Agency on obtaining final agreement on securing additional mitigation credits over and above the 50 acres already approved for the Unit III project. 3. With assistance from the State Resources Agency, initiate negotiations on the terms of the mitigation credit and project funding agreement between the resource agencies, one or more of the ports interested in buying mitigation credits, and the City. Funding agreement will be developed for future Council consideration. 4. Develop a scope of work and Consultant Services agreement for the preparation of plans specifications and estimates for future Council consideration. Qonebb Public Works Director JW:so 0 r AMENDMENT NO. 2 CONSULTANT AGREEMENT UNIT III - UPPER NEWPORT BAY DEEP WATER HABITAT AND SEDIMENT CONTROL PROJECT PROJECT MANAGEMENT AND RESOURCE AGENCY PERMITTING SERVICES THIS AMENDMENT, entered into this �Lkday of 1995, by and between the CITY OF NEWPORT BEACH, a municipal corpor on, (hereinafter referred to as "CITY') and John M. Tettemer & Associates, Ltd. whose address is 3151 Airway Avenue, Suite Q -1, Costa Mesa, California 92626 (hereinafter referred to as "CONSULTANT ") 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 the City. B. CITY and CONSULTANT have entered a Professional Civil Engineering Services Agreement, signed on February 16, 1994. The CONSULTANT AGREEMENT, UNIT III, UPPER NEWPORT BAY DEEP WATER HABITAT AND SEDIMENT CONTROL PROJECT, PROJECT MANAGEMENT AND DESIGN SERVICES, (hereinafter referred to as "AGREEMENT'), terms were to expire on July 31, 1994. CITY and CONSULTANT amended the AGREEMENT to extend the service period from July 1, 1994 to June 30, 1995 (hereinafter referred to as "AMENDMENT NO. 1 "). CITY and CONSULTANT now desire to additionally amend the AGREEMENT to include additional project management and resource agency permitting services for the Unit III, Upper Newport Bay Deep Water Habitat and Sediment Control Project, and to extend the period of the AGREEMENT from July 1, 1995 to January 31, 1996. C. CITY and CONSULTANT further wish to increase the amount of consulting fees to be paid from $166,000, as set forth in the AGREEMENT and AMENDMENT NO. 1 to $236,820, an increase of $70,820. The purpose of the fee increase is to provide compensation for additional services, and to extend the period of the AGREEMENT from July 1, 1995 to January 31, 1996. 1 0 NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. The term of the AGREEMENT be extended by this AMENDMENT to provide project management and resource agency permitting services in the 1995 -1996 fiscal year and shall terminate on January 31, 1996, unless terminated earlier, as set forth in the AGREEMENT. 2. The project management and resource agency permitting services provided under this AMENDMENT shall be as set forth in the Letter Proposal dated June 16, 1995, attached hereto and identified as Exhibit "A ". 3. The amount of the maximum compensation set forth in the AGREEMENT shall be an increase from $166,000 to $236,820. The maximum fee for the AGREEMENT shall not exceed $236,820. All other conditions of the AGREEMENT remain unchanged. IN WITNESS WHEREOF, the parties have caused this AMENDMENT to the AGREEMENT to be executed on the day and year first above written. APPROVED AS TO FORM: Cl Attorney ATTEST: City Clerk j r CSt !: CITY OF NEWPORT BEACH, a municipal corporation BY: -AJ tx�--J Mayor CONSULTANT J hn . Tettemer President 0 0 EXHBIT A 7 -? )OMM TETTEMER &A550CKTEjIiO I -�. June 15, 1995 Mr. John Wolter City of Newport Beach Public Works Department 3300 Newport Boulevard Newport Beach, CA 92663 Dear John: At your request, we are providing this letter proposal to assist the City of Newport Beach (City) to seek certain approvals for the proposed dredging project within the Upper Newport Bay located in Newport Beach, California. Specifically, this proposal outlines a Scope of Work to assist the City by providing resource agency permitting and project management services for the proposed Unit III project. Resource Agency Permits Based on our understanding of the project, we anticipate the following permits will be required: ■ Section 10, 103, and 404 Permits with the U. S. Army Corps of Engineers (Corps); ■ Section 7 Consultation with the U. S. Fish and Wildlife Service (USFWS); ■ Section 1600 Streambed Alteration Agreement with the California Department of Fish and Game (CDFG); ■ Section 2081 Memorandum of Understanding with the CDFG; ■ Section 401 Water Quality Certification with the Regional Water Quality Control Board (RWQCB); ■ Dredging Permit with the State Lands Commission (SLC); and ■ Coastal Development Permit (CDP) with the California Coastal Commission (Commission). ENOINEERINQ MANAQEMENT PLANNING 3151 Airway Avenue, Suite Q -1 Costa Mesa, California 92626 714 434 -9080 FAX 714 434 -6120 L Mr. John Wolter June 15, 1995 Page 2 To assist the City in seeking these permits, we propose to: E 1. Review existing documentation regarding the project; 2. Prepare a vicinity map for inclusion in the application packages; 3. Revise existing graphics depicting the boundaries of jurisdictional waters for inclusion in the application packages; 4. Prepare a Biological Assessment for the project for inclusion in the appropriate application packages; 5. Prepare a Project Description and Alternatives Analysis for inclusion in the appropriate application packages; 6. Prepare the Section 10, Section 103, Section 404, Section 7, Section 1600, Section 401, CDP, and SLC Dredging Permit application packages for your review; 7. Incorporate your comments and submit the application packages; 8. Follow up with the Corps, the USFWS, the CDFG, and the RWQCB to expedite processing; 9. Follow up with the Coastal Commission staff and the SLC staff to expedite processing; and 10. Provide client and resource agency coordination. Assumes four meetings with the client. Project Management This task assumes six months of additional project management services including: 1. Mitigation credit and funding agreement preparation; 2. Negotiation of agreements with resource agencies and ports; 3. Reporting and coordination with Upper Bay Executive Committee; and 4. General project management and coordination activities. Mr. John Wolter June 15, 1995 Page 3 E As shown on Exhibit A, the estimated costs" for the resource agency permitting is $40,820, which includes $2,800 in reimbursable expenses. Project management services are estimated to be $30,000, for a total contract amount of $70,820. This estimate does not include resource agencies' application fees, requests for which will be forwarded to the City once the application packages are prepared. We bill on a time and materials basis using the Fee Schedule provided as Exhibit B. We are prepared to begin this work upon your authorization. The schedule for processing the permits will be dependent on the completion of the environmental document. Assuming certification of the California Environmental Quality Act document by November 1995, we estimate that permits could be issued by January, 1996. Please contact me with any questions. S' cerely, o n M. Tettemer JMT /rmk Attachments EBOIXTR 049-03 i John M. Tettemer & Associates, Ltd. PROPOSED SCOPE OF SERVICES AND COSTS Exhibit A Resource A2encY Permitting ■ Section 10, 103 and 404 Permits with $ 9,020 U. S. Army Corps of Engineers ■ Section 7 Consultation with U. S. Fish $ 5,687 and Wildlife Service ■ Section 401 Water Quality Certification $ 3,765 or Waiver of Certification from the Regional Water Quality Control Board ■ Section 1600 Streambed Alteration $ 5,668 Agreement with California Department of Fish and Game (CDFG) ■ Section 2081 Memorandum of Understanding with CDFG $ 2,600 ■ Dredging Lease with State Lands Commission $ 4,565 (if required) ■ Coastal Development Permit with the $ 6,715 California Coastal Commission ■ Reimbursables including reproduction, mileage, etc. 2,800 SUBTOTAL = $ 40,820 Project Management ■ Assumes Six Months of Additional $ 30,000 Project Management Services Including: Mitigation Credit and Funding Agreement Preparation and Negotiation with Resource Agencies and Ports, Reporting and Coordination with Executive Committee, and General Project Management and Coordination TOTAL = $ 70,820 JOPM. TETTEMER & ASSOCIATES, ,*D. FEESCHEDULE Hourly Rates President Vice President, Engineering Manager, Environmental Engineering Senior Engineer Manager, Environmental Services Senior Environmental Manager Engineer III Engineer II Environmental Manager Engineer I Environmental Planner Draftsman Environmental Technician Executive Secretarial Assistant Tech/Clerical Direct Expenses $ 133.00 $ 97.00 $ 94.00 $ 91.00 $ 88.00 $ 81.00 $ 81.00 $ 69.00 $ . 67.00 $ 57.00 $ 57.00 $ 47.00 $ 47.00 $ 47.00 $ 43.00 Expenses such as special project supplies and materials; food, lodging and transportation for time away from Orange County area; long distance telephone, outside reproduction; courier /express mail; and other costs directly applicable to the project will be charged at cost. Auto mileage will be charged at $0.32 per mile. Computer processing time will be charged at $19.00 per hour. Normal xeroxing will be charged at $0.06 per page. 2510 Xerox will be charged at $0.50 per square foot for bond, $0.75 per square foot for vellum, and $1.50 per square foot for mylar. CADD plotting will be charged at $2.00 per square foot for bond, $2.25 per square foot for vellum, and $4.50 per square foot for mylar. FAX transmittals will be charged at $1.00 per page. EXHIBIT B 0 0 CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 TO: FINANCE DIRECTOR FROM: CITY CLERK DATE: December 14, 1994 SUBJECT: Contract No. C -2987 (714) 644 -3005 i Description of Contract Amendment to Project Management and Design of Unit III Upper Newport Bay Sediment Control Effective date of Contract December 13 1994 Authorized by Minute Action, approved on November 28-1994 Contract with John M. Tettemer & Associates Address 3151 Airway Avenue, Suite Q -1 Costa Mesa, CA 92626 Amount of Contract (See Agreement) ZZ" 6' , Wanda E. Raggio City Clerk WER:pm Attachment 3300 Newport Boulevard, Newport Beach • TO FROM: 0 0 November 28, 1994 CITY COUNCIL AGENDA ry OVE ITEM NO. 8 Y�i�l��i'll�r Lii MAYOR AND MEMBERS OF THE CITY COUNCIL PUBLIC WORKS DEPARTMENT <'- 2i6,_7(4) SUBJECT: UNIT III UPPER NEWPORT BAY PROJECT - PROJECT MANAGEMENT SERVICES - AMENDED ENGINEERING SERVICES AGREEMENT RECOMMENDATION: Authorize the Mayor and the City Clerk to execute an amendment to the Engineering Services Agreement for Project Management and design of the Unit III Upper Newport Bay Sediment Control and Enhancement Project with John M. Tettemer and Associates. DISCUSSION: The Upper Newport Bay Executive Committee proposes a 4 million • dollar dredging project (Unit III Project) to remove trapped sediment and deepen the existing Unit I basin and access channel from below Jamboree Road to the Unit II Basin below the old Salt Works dike. At its January 12, 1994 meeting, the Executive Committee approved the Department of Fish and Game plan to pursue mitigation funding for the project from proposed port projects in Southern California; a project schedule to pursue funding and begin preliminary engineering, environmental documentation and permit applications as soon as possible to provide for a dredging project in the 1994/95 fiscal year; and requested the City of Newport Beach to act as the lead agency for the Department of Fish and Game in negotiations for the mitigation funding and implementation of the project. The Executive Committee approved all costs for project management and design incurred by the City to be included as part of the total project cost and to be credited to the City's share in accordance with the Upper Newport Bay in Bay- Agreement. In February 1994, City Council approved an Engineering Services Agreement with John M. Tettemer and associates to provide Project Management and design as needed to pursue funding, prepare preliminary • plans, obtain permits and negotiate funding agreements. Since that time, the consultant has completed field surveys, preliminary design plans, study of Upstream Sediment Control facility effectiveness, analysis of the original sediment production model (Boyle Report), analysis of the sediment monitoring records, report on expected future sediment production and maintenance needs, preliminary bioassay sampling plans for approval by EPA and Army Corps of Engineers and a funding agreement for the bioassay with Orange County. A final contract to perform the bioassay, and funding agreements with the Dover Shore Community Association and The Irvine Company are anticipated by February 1995. / j,f� 0 SUBJECT: UNIT III UPPER NEWPORT BAY PROJECT - PROJECT MANAGEMENT SERVICES - AMENDED ENGINEERING SERVICES AGREEMENT November 28, 1994 Page 2 is In addition, progress has been made in pursuing a financing plan that would provide funding for the Unit III Project and an annuity for future management and maintenance of the Upper Bay sediment basins from the Port of Long Beach in exchange for mitigation credits required for proposed port improvements. Through our efforts and the support of Senator Bergeson, there has been a break through in the negotiations. The Department of Fish and Game and the Federal Resource Agencies have committed to complete their review of the financing plan by January 1995. If their review is favorable, funding could become available for the dredging project in the 1995/96 fiscal year. A copy of the most recent Project Status Report to the Executive Committee was circulated in the November 17 Council Newsletter. Once a funding plan for the construction and future maintenance is approved, the consultant will prepare agreements necessary to formalize the plan; complete the bioassay testing and environmental documentation; obtain permits; and begin work to prepare the final construction documents • for the Project. The Amendment to the Engineering Services Agreement provides for the following : Term: extended through July 1995 Fee: increases fee $75,000.00 for a total not to exceed $166,000.00 based on standard hourly rates. Funds for these services are available in the currently budgeted account, Upper Newport Bay Sediment Control and Restoration Account No. 7011 P 301004A. (1 wit • Don Webb Public Works Director JW:so - 1 0 . ( ' %t, i /%)% AMENDMENT NO. 1 CONSULTANT AGREEMENT UNIT 111 - UPPER NEWPORT BAY DEEP WATER HABITAT AND SEDIMENT CONTROL PROJECT PROJECT MANAGEMENT AND DESIGN SERVICES THIS AMENDMENT, entered into this �-�� day of X -4eL 1994, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY "), and John M. Tettemer & Associates, Ltd., whose address is 3151 Airway Avenue, Suite Q-1, Costa Mesa, California 92626, (hereinafter referred to as "CONSULTANT'), 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 the City. B. CITY and CONSULTANT have entered a Professional Civil Engineering Services Agreement, signed on February 16, 1994. The Agreement terms were to expire on July 31, 1994. CITY and CONSULTANT desire to amend the Agreement to assure that the Agreement for project management and engineering for the Unit III, Upper Newport Bay Deep Water Habitat and Sediment Control Project is extended to include the period from July 1, 1994 to June 30, 1995. C. CITY and CONSULTANT further wish to increase the amount of consulting fees to be paid from $91,000, as set forth in the original Agreement to cover services between July 1, 1994 and June 30, 1995, to $166,000, an increase of $75,000. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. The term of the CONSULTANT AGREEMENT, UNIT III, UPPER NEWPORT BAY DEEP WATER HABITAT AND SEDIMENT CONTROL PROJECT, PROJECT MANAGEMENT AND DESIGN SERVICES, (hereinafter referred to as "AGREEMENT'), be extended by this Amendment to provide Project Management and Engineering Services in the 1994 -1995 fiscal year and shall terminate on the 31 st day of July, 1995, unless terminated earlier, as set forth in AGREEMENT. 0 0 2. The amount of the maximum compensation set forth in AGREEMENT shall be an increase from $91,000 to $166,000. The maximum fee for AGREEMENT shall not exceed $166,000. All other conditions of AGREEMENT remain unchanged. IN WITNESS WHEREOF, the parties have caused this Amendment to AGREEMENT to be executed on the day and year first above written. L UV APPROVED AS TO FORM: Cit Attorney ATTEST: City Clerk r` •,'' � . ' =tip. CITY OF NEWPORT BEACH, a municipal corporation Mayor CONSULTANT Jo - Tettemer & Associates, Ltd. CITY OF NEWPORT BE• CH OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (714) 644 -3005 TO: FINANCE DIRECTOR Z. 2 J'- � y' FROM: CITY CLERK DATE: February 28, 1994 SUBJECT: Contract No. C- 2987(h) Description of Contract Consultant Agreement for Project Management and Design of Unit III Upper Newport Bay Sediment Control Effective date of Contract February 16, 1994 Authorized by Minute Action, approved on February 14, 1994 Contract with John M. Tettemer & Associates Address 3151 Airway Avenue, Suite Q -1 Costa Mesa, CA 92626 Amount of Contract (See Agreement) Wanda E. Raggio 0� City Clerk WER:pm Attachment 3300 Newport Boulevard, Newport Beach • 0 February 14, 1993 • CITY COUNCIL AGENDA ITEM NOS. 12,13,&14 TO: CITY COUNCIL (" .''I,(-7 FROM: Public Works Department SUBJECT: CONSULTANT SELECTION - PROJECT MANAGEMENT SERVICES RECOMMENDATIONS: Authorize the Mayor and City Clerk to execute an Engineering Services Agreement for Project Management and Design of the Unit III Upper Newport Bay Sediment Control and Enhancement Project with John M. Tettemer and Associates. 2. Authorize the Mayor and City Clerk to execute an Engineering Services Agreement for Project Management Services to implement various • 1993/94 Capital Improvement Projects with Gail P. Pickart P.E. 3. Authorize the Mayor and City Clerk to execute an Engineering Services Agreement for Project Management Services to implement various C i 1993/94 Capital Improvement Projects with Hunter Cook and Associates. DISCUSSION: The Public Works Department has requested letters of interest and qualifications from several local civil engineers to provide project management services and assistance to City staff in implementing the current Capital Improvement Program. Staff anticipated retaining Project Management Services for several large projects currently programmed. The Unit III Upper Newport Bay Sediment Control and Enhancement Project and the MacArthur Boulevard Improvements between Coast Highway and Ford Road are estimated at 4 million and 13.5 million dollars respectively, with significant outside funding. In addition, while there has been a reduction in engineering staff over the last year, there has been an increasing demand on engineering staff time to manage the new Measure "M" Funding Program and coordinate planning, review improvement plans, and manage or assist in the management of several regional transportation projects. Use of the private sector for project management services is consistent with the - significant privatization of design engineering services which has been utilized by the Public Works Department for many years. Unit III Upper Newport Bay Project The Upper Newport Bay Executive Committee proposes a 4 million dollar dredging project (Unit III Project) to remove trapped sediment and deepen the existing Unit I basin and access channel from below Jamboree Road to the Unit II Basin below the old Salt Works dike. At its January 12, 1994 meeting, the Executive Committee approved the Department of Fish and Game plan to i • SUBJECT: CONSULTANT SELECTION - PROJECT MANAGEMENT SERVICES February 14, 1994 Page 2 pursue mitigation funding for the project from proposed port projects in Southern California; a project schedule to pursue funding and begin preliminary engineering, environmental documentation and permit applications as soon as possible to provide for a dredging project in the 1994/95 fiscal year; and requested the City of Newport Beach to act as the lead agency for the Department of Fish and Game in negotiations for the mitigation funding and implementation of the project. The Executive Committee approved all costs for project management and design incurred by the City to be included as part of the total project cost and to be credited to the City's share in accordance with the Upper Newport Bay In -Bay Agreement. MacArthur Boulevard Widening, Coast Highway o Ford Road The Orange County Transportation Authority approved funding for design of this project in the current fiscal year and construction of the first phase, Coast Highway to San Joaquin Hills Road, in the 1994/95 fiscal year. Robert Bein, William Frost and Associates has been retained by the City, and design for the improvements from Coast Highway to Ford Road is underway. Project management services are needed to review and coordinate plan submittals to Caltrans, coordinate and schedule utility relocations and Edison facility undergrounding with the project, negotiate right -of -way and easement dedications, review and coordinate project with proposed public and private improvements to adjoining property, and manage and review consultant design work. Regional Transportation Planning and New Measure "M" Funding Program The San Joaquin Hills Transportation Corridor Improvements and related improvements to Bristol Street, University Drive, Jamboree Road, MacArthur Boulevard and Ford Road; utility replacements in Coast Highway; Caltrans maintenance and improvements to Coast Highway; proposed amendment to Orange County's Master Plan of Arterial Highways regarding Santa Ana River Bridge crossings; ramp construction from the 55 Freeway to the 73 Freeway; the 73 Freeway, 55 Freeway, 405 Freeway confluence improvements in conjunction with construction of the San Joaquin Hills Transportation Corridor ; Mesa Drive/Birch Street realignment project; Birch Street bridge widening over 73 Freeway; earthquake retrofit bridge program; Irvine Avenue realignment and widening project from University Drive to Bristol Street are all projects that require significant coordination with Caltrans, the Transportation Corridor Agency, the County of Orange, neighboring cities and various private interests and landowners. Last year additional funding for highway improvement projects became available through the Orange County Measure "M" program, which will provide for increased highway funding over the next 20 years. A portion of the funds, local Measure "M" funds are distributed on the basis of population and highway mileage. A larger portion of the funds, Regional Measure "M" funds are distributed to the cities on a competitive basis which considers regional benefits and project readiness. The new program calls for applications every 2 years, approves funding over a 2 year period but requires that each City's application details a comprehensive project development • 0 0 0 SUBJECT: CONSULTANT SELECTION - PROJECT MANAGEMENT SERVICES February 14, 1994 • Page 3 program over a 5 year period. In order for projects to be competitive for funding, proponents must demonstrate significant preliminary engineering, environmental documentation and the support and cooperation of adjoining Cities, and County and State agencies. Public Works Department staff considered the following criteria in evaluating consultant engineers' qualifications to provide effective Project Management Services: 1. Experience with similar projects. 2. Experience with the various Federal, State, County and local agencies involved in City projects. 3. Experience and knowledge with City projects and programs. 4. Availability and ability to commit individual attention on a part-time basis to City projects • over the remaining fiscal year with consideration for similar commitment in next fiscal year. 5. Flexibility to adjust hours on an as- needed basis. Requests for interest and qualifications to provide Project Management Services were sent to 4 local engineers. Three engineers responded and were interviewed by City staff. Mr. John M. Tettemer, John M. Tettemer and Associates; Mr. Hunter Cook, Hunter Cook and Associates; and Mr. Gail P. Pickart were interviewed; and are all well - qualified to provide Project Management Services on City projects. A113 engineers live and work in Newport Beach, which will aid their ability to work closely with City staff.. Each engineer is registered as a Civil Engineer by the State of California, and is fully qualified professionally to perform Project Management Services. John M. Tettemer has worked with parties to the Upper Newport Bay Sediment Control program since 1980. Prior to entering private practice in 1977, Mr. Tettemer was Director of the Los Angeles County Flood Control District, where he had served for 25 years. Since opening his consulting firm he has focused his efforts in wetlands restoration, wetland development and flood control projects for private and public owners in Orange County and the Southwestern states. He has worked for The Irvine Company on flood control projects, mitigation associated with • development, the San Joaquin marsh and the Upper Bay Sediment Control Program. Most recently he worked for Orange County to prepare a status report on implementation of the Upper Newport Bay /San Diego Creek Watershed Comprehensive Stormwater Sediment Control Plan. Mr. Tettemer's experience in the Upper Newport Bay and the San Joaquin marsh and his association with parties to the Upper Newport Bay Program State and Federal Resource agencies and various State and Federal permitting agencies make him uniquely qualified to manage the Unit III Upper Newport Bay Project. 0 0 SUBJECT: CONSULTANT SELECTION - PROJECT MANAGEMENT SERVICES February 14, 1994 Page 4 Hunter Cook was employed by the City of Newport Beach as the Cooperative Projects Engineer • from 1965 to 1969. Since that time he has worked as a consulting Civil Engineer for various cities and private land owners in Southern California. As the Cooperative Projects Engineer for the City and as a Contract City Engineer and Project Manager as a consultant, he has worked with Caltrans, Orange County, consulting engineers, various State and Federal agencies, local cities and private land owners. Projects include land development, street, storm drain, sewer, water and harbor improvements. Mr. Cook is currently the General Manager for Coastal Municipal Water District. Mr. Cook's experience and knowledge of the City make him well - qualified to provide project management services over a wide range of capital improvement projects. Mr. Cook is available to work on City projects up to an average of 12 hours per week. Gail Pickart was employed by the City of Newport Beach as Subdivision Engineer from 1966 to 1976. Since that time he has worked for several large land development companies, Civil Engineering firms and most recently as a self - employed Civil Engineer. As Subdivision Engineer and as a Project Manager in private practice he has worked with Caltrans, Orange County, consulting engineers, various State and Federal agencies, local cities and private land owners. Projects include large land development, streets, storm drains, water and sewer improvements in Newport Beach and Orange County. Mr. Pickart's experience and knowledge of the City make • him well - qualified to provide project management over a wide -range of capital improvement projects. Mr. Pickart is currently self - employed and is available to work on City projects up to an average of 30 hours per week. Proposals were requested and have been received from all 3 engineers to provide Project Management Services at standard hourly rates on an as needed basis. The proposal from John M. Tettemer and Associates also provides for preliminary design services as needed to obtain mitigation funding and permits. All 3 proposals are for services through July 1994. However it is anticipated that services will be needed after July 1, 1994, and language has been included in the agreements providing for extension pursuant to approval by the City Manager. Fees have been based on standard hourly rates for level of services estimated to pursue funding and permits for the Unit III project by John M. Tettemer and Associates, and the available time to work on City projects 30 hours per week for Gail Pickart and 12 hours per week for Hunter Cook. John M. Tettemer and Associates will provide Project Management and Design Services at standard hourly rates which are comparable to rates for engineering firms in Orange County, Hunter Cook and Gail Pickart will provide project management services at $105/hr. and $901hr. and plan check services at $55/hr. and $60/hr. respectively which are also comparable to rates for engineering firms in Orange County. Copies of their rate schedules are attached. Engineering Services • Agreements provide as follows: UNIT III UPPER NEWPORT BAY PROJECT CONSULTANT: John M. Tettemer and Associates TERM: February 1994 through July 1994 FEE: Not to exceed $91,000 based on standard hourly rates SUBJECT: CONSULTANT SELECTION - PROJECT MANAGEMENT SERVICES February 14, 1994 • Page 5 SERVICES: Project management and design as needed to pursue funding, prepare preliminary plans, obtain permits, and negotiate funding agreements 2. PROJECT MANAGEMENT SERVICES (CAPITAL IMPROVEMENT PROJECTS1 CONSULTANT: Hunter Cook and Associates TERM: February 1994 through July 1994 FEE: Not to exceed $25,000 based on standard hourly rates SERVICES: Project management services on as- needed basis up to an average of 12 hours per week 3. PROJECT MANAGEMENT SERVICES (CAPITAL IMPROVEMENT PROJECTS) • CONSULTANT: Gail P. Pickart TERM: February 1994 through July 1994 FEE: Not to exceed $75,000 based on standard hourly rates SERVICES: Project management services on as- needed basis up to an average of 30 hours per week Funds for these services are available in currently budgeted accounts as follows: Upper Newport Sediment Bay Sediment Control & Restoration Measure "M" Local Turnback Individual Project Accounts • C r 2p 4 Benjamin B. Nolan Public Works Director JW:so Attachment $ 91,000.00 $100,000.00 As Needed 7016 98280021 7283 98313090 JOFWI. TETTENIER & ASSOCIATESOrD. FEE SCHEDULE President $ 130.00 Vice President, Engineering $ 95.00 Senior Engineer $ 89.00 Engineer III $ 79.00 Senior Environmental Manager $ 79.00 Engineer II $ 67.00 Environmental Manager $ 65.00 Engineer 1 $ 56.00 Environmental Planner $ 56.00 Draftsman $ 46.00 Environmental Technician $ 46.00 Executive Secretarial Assistant $ 46.00 Tech /Clerical $ 42.00 Clerical $ 38.00 Direct E32gn5e Expenses such as special project supplies and materials; food, lodging and transportation for time away from Orange County area; long distance telephone, outside reproduction; courier /express mail; and other costs directly applicable to the project will be charged at cost. Auto mileage will be charged at $0.32 per mile. Computer processing time will be charged at $19.00 per hour, Normal xeroxing will be charged at $0.06 per page. 2510 Xerox will be charged at $0.50 per square foot for bond, $0.75 per foot for vellum, and $1.50 per square foot for mylar. FAX transmittals will be charged at $1.00 per page L J r • • • • 0 0 Gail P. Pickart, P.E. 7 San Mateo Way Corona del Mar, California 92625 (714) 760 -9608 FEE RATE SCHEDULE Effective January 1, 1994 I. Professional Services Title Rate per Ilour Project Manager 90.00 Technician/Designer/Plan Checker 60.00 Clerical/Word Processing 35.00 II. Reimbursable Expenses 1. Travel and subsistence to locations outside Orange and Los Angeles Counties will be billed at cost. 2. Reproduction, blueprinting, photocopying and photographing will be billed at cost. III. Outside Services Invoice costs of services and expenses charged by independent contract or consultants, specialists, and professional or technical firms in support of services provided by Gail P. Pickart, P.E. will be billed at 1.15 times cost. 1 HUNTER COO *& ASSOCIATES C 3NOULTINO CONOTRUCTI NOINEER5 A Q&LIWRNIA WRRCRATION • CONaTAO ION MANAOEMONT • WATSR BUpP v MANAORMENT ORECIAL ST Ws FEE SCHEDULE A. PERSONNEL SERVICES 1. Principal 2. Associate /Engineer /General Superintendent 3. Inspector 4. Technician /DraftsmanRlan Check 5. Clerical B. TRAVEL AND TRANSPORTATION EXPENSES $105 /Hr. $90 /Hr. $75 /Hr. $55 /Hr. $35 /Hr.. C� 1. Reimbursement for actual travel and subsistence expenses incurred in connection • with the project plus a service charge of 15 %D. 2. Thirty -five (35) cents per mile for job related travel by private vehicle. C. OUTSIDE SERVICES Invoice cost of services and expenses charged by outside consultants, professional or technical firms not associated with HC &A, engaged in connection with the order plus a service of 15 %. Associates will be billed at the appropriate rate in the personnel services category. D. MISCELLANEOUS SERVICES The invoice cost of materials, supplies, reproduction work, communication expenses and other specialized services procured from outside sources plus a service charge of 15%. • FS294NB ae10 F C9AOT HIONWAY, BORE 4 (714) 780 -0538 CORONA DEL MAR. CALIFORNIA 92625 CONSULTANT AGREEMENT Unit III Upper Newport Bay Deep Water Habitat and Sediment Control Project Project Management and Design Services THIS AGREEMENT, entered into this =7- day of Z :!,, f`- ,1994, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and John M. Tettemer & Associates, whose address is 3151 Airway Avenue, Suite Q -1, Costa Mesa, CA 92626 (hereinafter referred to as "CONSULTANT ") is made with reference to the following: R E C I T A L S• 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 Statues of the State of California and the Charter of the City. B. CITY and CONSULTANT desire to enter into an agreement for Professional Civil Engineering services to provide project management and engineering for the Unit III, Upper Newport Bay Deep Water Habitat and Sediment Control Project. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1. TERM A. The term of this agreement shall commence on the 1st day of February, 1994 and shall terminate on the 31st day of July, 1994, unless terminated earlier as set forth herein. B. It is anticipated that the Project Management and Engineering Services provided for in this agreement will also be desired in the 1994/95 fiscal year. Term of this agreement may be extended by mutual consent of both parties under the terms of an amended Consultant Agreement approved by the City Manager. SECTION 2. SERVICES TO BE PERFORMED BY THE CONSULTANT Consultant Services shall include professional and technical services necessary to: A. Provide Project Management B. Provide Project Engineering C. obtain environmental approvals 1 0 0 D. Perform miscellaneous coordination activities Consultant shall provide services as noted above and as attached hereto set forth in Exhibit "A ", the proposal dated February 1, 1994. SECTION 3: COMPENSATION TO CONSULTANT A. CONSULTANT shall be compensated for services performed pursuant to this Agreement by invoicing City for services rendered on a monthly basis. Fee shall be on a time and materials basis, based on standard hourly rates as set forth in Exhibit "A ", the Proposal which is attached hereto and incorporated herein by this reference. The maximum fee — °-- shall not exceed $91,000.00. In the event of unforseen changes or required additions to work which are not outlined by this agreement, the Public Works Director may authorize additional compensation up to 15% of the original contract amount. Such works shall be performed on a time and materials basis at the rates shown in Exhibit "A ". B. It is anticipated that Project Management and Design Services as provided for in this Agreement will also be desired in the 1994/95 fiscal year. Compensation may be extended for services performed during the 1994/95 fiscal year by mutual consent of both parties under the terms of an amended Consultant Agreement approved by the City Manager. SECTION 4: STANDARD OF CARE CONSULTANT agrees to perform all services hereunder in a manner commensurate with the community professional standards and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the CITY nor have any contractual relationship with CITY. SECTION 5: INDEPENDENT PARTIES CITY and CONSULTANT intend that the relation between them created by this Agreement is that of employer- independent contractor. The manner and means of conducting the work are under the control of CONSULTANT, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. P: • • SECTION 6: HOLD HARMLESS CONSULTANT shall indemnify and hold harmless CITY, its CITY Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys' fees, regardless of the merit or outcome of any such claim or suit arising from or in any manner connected to CONSULTANT'S negligent performance of services or negligent performance of work conducted or performed pursuant to this Agreement. SECTION 7. Without limiting the consultant's indemnification of City, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement, policy or policies of liability insurance of the type and amounts described below and satisfactory to the City. Such policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must filed with the City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies, except professional Errors and Omissions Insurance, shall add as insured the City, its elected officials, officers and employees for all liability arising from Consultant's services as described herein. Prior to the commencement of any services hereunder, Consultant shall provide to City, certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements, and copies of policies, if requested by City, of the following insurance, with Best's Class B or better carriers: A. Worker's compensation insurance covering all employees and principals of the Consultant, per the laws of the State of California; B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial 3 0 0 general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this project, or the general aggregate limit shall be twice the occurrence limit; C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. Professional errors and omission insurance which covers the services to be performed in connection with this agreement in the minimum amount of 1 million dollars ($1,000,000). Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give to City prompt timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgement may be necessary for its proper protection and prosecution of the work. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. SECTION 8. PROHIBITION AGAINST TRANSFER CONSULTANT shall not assign, sublease, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of CITY. Any attempt to do so without said consent 4 0 0 shall be null and void, and any assignee, sublessee, hypothecate or transferee shall acquire no right or interest by reason of such attempted assignment, hypothecation or transfer. The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of CONSULTANT, or of the interest of any general partner or joint venturer or syndicate member or cotenant if CONSULTANT is a partnership or joint venture or syndicate or cotenancy, which shall result in changing the control of CONSULTANT, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power of the corporation. SECTION 9: PERMITS AND LICENSES CONSULTANT, at its sole expense, shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses and certificates that may be required in connection with the performance of services hereunder. SECTION 10: REPORTS Each and every report, draft, work - product, map, record and other document reproduced, prepared or caused to be prepared by CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of CITY upon final payment to the CONSULTANT. CITY shall make no use of materials prepared by CONSULTANT pursuant to this Agreement, except for construction, maintenance and repair of the Project. Any use of such documents for other projects, and any use of uncompleted documents, shall be at the sole risk of the CITY and without liability or legal exposure of the CONSULTANT. No report, information or other data given to or prepared or assembled by the CONSULTANT pursuant to this Agreement shall be made available to any individual or organization by the CONSULTANT without prior approval by CITY. CONSULTANT shall, at such time and in such form as CITY may require, furnish reports concerning the status of services required under this Agreement. 5 0 0 SECTION 11: RECORDS CONSULTANT shall maintain complete and accurate records with respect to costs, expenses, receipts and other such information required by CITY that relate to the performance of services required under this Agreement. CONSULTANT shall maintain adequate records of services provided in sufficient detail to permit an evaluation of services. All such records shall be maintained in accordance with generally accepted accounting principles and shall be clearly identified and readily accessible. CONSULTANT shall provide free access to the representatives of CITY or its designees at all proper times to such books and records, and gives CITY the right to examine and audit same, and to make transcripts therefrom as necessary, and to allow inspection of all work, data, documents, proceedings and activities related to this Agreement. Such records, together with supporting documents, shall be kept separate from other documents and records and shall be maintained for a period of three (3) years after receipt of final payment. SECTION 12: NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the second business day after the deposit thereof in the United States mail, postage prepaid, registered or certified, addressed as hereinafter approved. All notices, demands, requests, or approvals from CONSULTANT to CITY shall be addressed to CITY at: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Attention: John Wolter, Project Manager (714) 644 -3311 All notices, demands, requests, or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: John M. Tettemer, President John M. Tettemer & Associates 3151 Airway Avenue, Suite Q -1 Costa Mesa, CA 92626 (714) 434 -9080 11 0 0 SECTION 13: TERMINATION Either party may terminate this Agreement at any time and for any reason by giving the other party seven (7) days' prior written notice; notice shall be deemed served upon deposit in the United States Mail, postage prepared, addressed to the other party's business office. In the event of termination due to the fault of CONSULTANT, CITY shall be obligated to compensate CONSULTANT for only those authorized services which have been completed and accepted by CITY. If this Agreement is terminated for any reason other than fault of CONSULTANT, CITY agrees to compensate CONSULTANT for the actual services performed up to the effective date of the Notice of Termination, on the basis of fee schedule contained above, subject to any maximum amount to be received for any specific service. SECTION 14: COST OF LITIGATION If any legal action is necessary to enforce any provision hereof or for damages by reason of an alleged breach of any provisions of this Agreement, the prevailing party shall be entitled to receive from the losing party all costs and expenses in such amount as the court may adjudge to be reasonable attorneys' fees. SECTION 15: COMPLIANCES CONSULTANT shall comply with all laws, state or federal, and all ordinances, rules and regulations enacted or issued by CITY. SECTION 16: WAIVER A waiver by CITY or CONSULTANT 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. SECTION 17: INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind of nature whatsoever between the parties hereto and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement 7 E or implied covenant shall be held to vary the provisions hereof. Any modification of this Agreement will be effective only by written execution signed by both CITY and CONSULTANT. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. CITY OF NEWPORT BEACH, a municipal corporation i BY f kil 1//7 s;?-7 /l yor APPROVED AS TO FORM: i 1 I / City Attorney CONSULTANT v ATTEST: CITY CLERK (311.i.". �Ct cCyaN�i E: