HomeMy WebLinkAboutC-2987(C) - Upper Newport Bay Sediment Control/Enhancement - Unit III, Bioassay Services•
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BY THE CITY COUNCIL
CITY OF NEWPORT BEACH
June 10, 1996
JUN 1p;
CITY COUNCIL AGENDA
n _ 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 - AMENDMENT NO. 1 TO CONSULTANT
SERVICES AGREEMENT FOR BIOASSAY WORK
RECOMMENDATION:
Approve Amendment No. 1 to Consultant Services Agreement with Toxscan, Inc.,
dated April 12, 1996, to perform additional bioassay testing for a fee not to exceed
$22,995 and authorize the Mayor and City Clerk to execute Amendment No. 1 to the
Agreement.
BACKGROUND:
On April 10, 1995, the City Council approved a Consultant Services Agreement with
Toxscan, Inc., of Watsonville, California, to perform sediment sampling and testing of
Upper Bay sediment. The bioassay testing is required by the U. S. Environmental
Protection Agency (EPA) to prove that the LA III ocean disposal site will not be harmed
by the material dredged from the Upper Newport Bay.
Toxscan completed sediment sampling, including both chemical and bioaccumulation
testing of samples. Initial test results indicated that most of the sediment to be dredged
from the Unit III Basin and access channel is suitable for ocean disposal. A problem
occurred with the initial test on the bottom seven feet of sediment in one area of the
Unit III Basin. Unlike other portions of the bioassay test area, these sediments have not
been previously dredged. After review, it was determined that the initial testing
procedure used on these sediments did not account for variations in salinity and
ammonia found in the samples.
Re -test provided satisfactory results for one test procedure, however; a second
procedure on amphipods remains a problem. The test results were reviewed with Mike
Cheney, dredging consultant retained by the City, who has experience with similar
bioassay testing problems with the new EPA procedures adopted in 1992. After
discussing these problems with the EPA staff, it was agreed that an additional re -test
using a species of amphipod which has provided satisfactory results on several projects
in Northern California would be appropriate. Those projects involved very fine bay
muds similar to the sediment in the Upper Bay. It is anticipated that this additional
testing, with approval for ocean disposal by EPA, will be completed in July, 499`t. 19�fiP_
A
SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT - .
AMENDMENT NO. 1 TO CONSULTANT SERVICES AGREEMENT FOR BIOASSAY WORK
June 10, 1996
Page 2
Amphipods are tiny (2 to 5 millimeters in length) marine crustaceans (sand flies and
related forms) which live in approximately the top six inches of marine sediment. They
burrow, build tunnels and filter plant material for food.
The Consultant Agreement provided the original testing for a fee of $211,889, The first
re -test was accomplished for $20,000 under terms of the Agreement which provided for
a 10 percent increase in the fee for extra work. Toxscan has submitted a proposal to
perform the latest recommended testing for a fee not to exceed $22,955. Addendum
No. 1 provides for the terms of the existing Agreement to remain in force with the
following changes:
1. Term of Agreement extended to December 31, 1996;
2. Additional services per Toxscan letter dated May 28, 1996; and
3. Additional fee ($22,955) per Toxscan letter dated May 28, 1996.
Ocean disposal is the only practicalleconomical disposal option for disposing of the .
Upper Bay sediment. With the successful test results obtained using the different
amphipod species on the northern California projects, it is recommended that the City
Council approve Amendment No. 1 to the Agreement providing for the additional
bioassay testing.
Funds for this work are available in the current budget for the Unit III project Account
No. 7011- C5100004.
Status of Project Funding -
Recent reports from Supervisor Marian Bergeson's office have been very encouraging
regarding the outlook for mitigation funding. In a January status report from the U. S.
Department of the Interior, Deputy Secretary, George Frampton reported that State and
Federal officials concurred that it is important to make mitigation funding available for
the Upper Newport Bay project and that plans are underway for State of California
Secretary of Resources, Doug Wheeler's office, to become the clearing house for
mitigation projects in California.
On May 30, 1996, Mr. Craig Denisoff, Wetlands Program Coordinator from Doug
Wheelers office, met with Holly Veale of Marian Bergeson's office, City staff, County
staff, and John M. Tettemer & Associates, Ltd. staff to discuss Upper Bay project
status, scheduling and a window of opportunity for State funding.
SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND ENHANCEMENT PROJECT -
June 10, 1996 AMENDMENT NO. 1 TO CONSULTANT SERVICES AGREEMENT FOR BIOASSAY WORK
Page 3
Mr. Denisoff stressed the importance of a construction ready project and stated that it
appeared to him that an opportunity for providing the needed funding may be available
by this fall or the end of the year. While there are many wetlands projects competing
for funds, he restated that the Upper Newport Bay project is a very high priority for the
State Resources Agency and U. S. Department of Interior.
Local funds from the City, the County, and The Irvine Company have been expended
for preliminary engineering, surveys, fish studies, bioassay testing, permit preparation,
environmental documentation, and project management to initiate the project and
pursue project construction funding. It appears that an additional $140,000 is needed
to complete plan preparation, contract documents, permitting, and funding agreement
negotiations to have a project ready for construction by the end of the year or early in
1997. it should be noted that the Upper Newport Bay Executive Committee has
determined that this planning and project development funding is to be considered part
of project costs to be reimbursed when project funding is attained.
Respectfully submitted,
(0 Oat
PUBLIC WORKS DEPARTMENT
Don Webb, Director
John
LJ
Consultant
AMENDMENT NO. 1
CONSULTANT AGREEMENT
UPPER NEWPORT BAY
SEDIMENT BIOASSAY SERVICES
THIS AMENDMENT, entered into this :. ' t day of L- .* E
1996, by and between the CITY OF NEWPORT BEACH, a municipal corporation,
(hereinafter referred to as "CITY ") and ToxScan, Inc., whose address is 42 Hangar
Way, Watsonville, California 95076 (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 entered into a Professional Services Agreement
to provide bioassay testing in the Upper Newport Bay, signed on April 12, 1995. CITY
and CONSULTANT desire to amend the Agreement to ensure that the Agreement is
extended to include the period from April 12, 1995 to December 31, 1996.
C. CITY and CONSULTANT further wish to amend the scope of services and
increase the amount of consulting fees to be paid by $22,955, per CONSULTANT's
Letter of Proposal dated May 28, 1996 (hereinafter referred to as Exhibit "B ") which is
attached hereto and incorporated herein by this reference.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties that the April 12, 1995, agreement shall be amended to read as follows:
SECTION 1. TERM
The term of this AGREEMENT shall commence on the 12th day of April 1995
and shall terminate on the 31st day of December 1996, unless terminated earlier as set
forth herein.
SECTION 2. SERVICES TO BE PERFORMED By CONSULTANT
CONSULTANT services shall include professional and technical services
necessary to:
A. Provide sampling and analysis plan development;
B. Provide bioassay testing, analysis, and documentation; and,
C, Obtain U. S. Environmental Protection Agency {EPA} approvals.
CONSULTANT shall provide services as noted above and as attached hereto set
forth in proposal provided in Exhibit "A" and Letter Proposal for additional service dated
May 28, 1996 and provided in Exhibit "B ".
SECTION 3. COMPENSATION TO CONSULTANT
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 and Exhibit "B" Letter of Proposal for additional testing dated May 28,
1996, which are attached hereto and incorporated herein by this reference. The
maximum fee shall not exceed $234,854. In the event of unforeseen changes r
required additions to work which are not outlined by this Agreement, the Public Wor
Director may authorize additional compensation of up to $20,000. All services shall
performed on a time - and - materials basis as shown in Exhibit "A" and Exhibit "B ".
All others conditions of the AGREEMENT remain unchanged.
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IN WITNESS WHEREOF, the parties have caused this AMENDMENT to the
Agreement to be executed on the day and year first above written.
CITY OF NEWPORT BEACH,
a municipal corporation
BY:
Mayor
APPROVED AS TO FORM:
City Attorney
CONSULTANT
BY: 4
ToxScan, Inc.
ATTEST:
City Clerk t• ���....�X ^__
f:\ groups \pubworks \agmt \toxscanl.doc
tAAWToXScan, Inc. 42 Hangar Way • Watsonville, CA 95076 -2404 • (408) 724 -4522 •FAX (408) 724 -3188
November 29, 1995
City of Newport Beach
3300 Newport Blvd.
Newport Beach, CA 92659
ATiN: John Wolter
Dear John:
This letter is to present our cost estimate for the re- sampling and re- testing proposed for the Unit I
Sediment Basin dredge project. The estimate includes the scope of services described in our letter of
11 October to Jon Amdur, plus one additional set of bioassays testing both amphipods and worms with
Unit I Top and Bottom composite sediments (as you requested). Note that we have adjusted our first cost
estimate in our effort to comply with your request to meet your budget constraints. Prices are as follows:
Sediment sampling - Includes three vibraccre samples $13,200
in the Unit I Basin to -14 feet MLLW, plus collection of
LA3 reference sediment
Bioassay Testing - Incudes two solid phase bioassays $ 6,800
(Nephtys and Rhepoxynius) on two composite
samples from Unit I (Top and Bottom and Bottom
only) plus the LA3 reference sample. All controls and
reference toxicants are included.
Total $20,000
Please let me know as soon as you have City approval for this additional testing. We will plan to initiate
the program on the first favorable tides following your notice.
Sincerely,
Raymond . Markel,
Director, Bioassay Division
RPMldjc
l
/11/95
12:20 TOOSOIL CONTROL LAB •. P.02
an. Inc. 42 Hangar Way • Watsonville, CA 95076 -2404 6 (408) 724.4822 • FAX
October 11, 1995
USEPA Region IX
76 Hawthome Street
San Francisco, CA 94105
ATTN: Jon Amdur
Dear Jon:
724.3188
In November of 1994 ToxScan submitted a Sampling and Analysis Plan (SAP) for evaluation of dredged
materials proposed for ocean disposal. The source of these sediments was the Unit I Sediment Basin
and Access Channel, Upper Newport Bay, California. After agency approval of the SAP, the sediments
have been sampled and tested. This letter contains a very brief review of the test results, and proposed
additional testing to clarify some problems we observed with the solid phase Nephtys test.
Six vibracore samples were collected from the Upper (Unit 1) Sediment Basin. These six cores (14 feet
In length) were vertically divided into top (upper T) and bottom (lower T) segments. All top segments
were combined into a Unit I Top composite for testing; likewise the bottom segments were combined into
a Unit t Bottom composite for testing. Six additional sediment samples were collected within the Access
Channel and combined into a third (Access Channel) composite sample for testing. The evaluation, then,
encompassed three composite samples.
Bulk sediment chemical analyses were performed, and revealed generally low levels of metal and organic
contaminants (see the. enclosed Table 7 from our draft report). Bioassay results are summarized in Table
2. The suspended particulate phase bioassay "hits" on bivalve larvae and sanddabs can, we feel, be
attributed to elevated ammonia concentrations in the elutrlates (Interstitial ammonia ranged from 18,5
ppm (Access Channel) to 29.9 (Unit I Bottom) In these samples). In any case, the LPC was not
exceeded for the suspended particulate phase tests.
There was an exceedance of the LPC In the solid phase Nephtys test with Unit I Bottom sediments.
Table A -6 presents the results of that bioassay, We feel that the exceedance of the LPC observed In this
sample could have been ardfactual In nature, and contributed to by the following combination of
circumstances: The sediment contained about 57% clay, and was very cohesive and sticky. The
Interstitial salinity was low (14 %) and the interstitial ammonia was relatively high (about 30 ppm). The
consistency of the sediment would have slowed equilibration of the interstitial water with the overlying
seawater flowing through the tanks, and the unfavorable combination of low salinity and high ammonia
could have remained In the Interstitial environment long enough to produce the observed results In those
Individuals who did not exhibit appropriate avoidance behavior. Unfortunately, visibility within our test
10i11i95 12:21 TOPSOIL CONTROL LOB •• P.03
USEPA Region IX
Jon Amdur
October 11, 1995
Page 2
tanks was somewhat obscured, and even if emergence behavior existed within these tanks, it could have
been missed.
In addition, survival of amphlpods (R. abronius) in Unit I Bottom sediment was relatively low (53 %),
though not significantly different from survival In Reference sediment collected near the LA3 disposal site
(66%), Grain size may have been a significant factor In these low survival levels, since control survival
was 94 %,
Bloaccumulation assessments with both clams and worms were performed with these sediments, and
indlcatlons are that there were no serious bioaccumulation problems with any of the composite samples.
In order to clarify the contributlon of salinity and ammonla to the Nephtya results, we propose to perform
additional sampling and testing as follows:
We will collect core samples to -14 feet MI-LW at three locations within the Unit I Sediment Basin
(see Figure 1), We will also collect Reference sediment from the LA3 reference site at
33031.70'N, 117061,30'W.
We will segregate the bottom 7 feet of each of the core samples to create three distinct Unit I
Bottom samples.
We will repeat the solid phase bioassays with Nephtys and Rhepoxynius for each of the three
sediment samples. Prior to test Initiation we will assure that interstitlai salinity Is 2:25 %o and
Interstitial ammonia Is s10 ppm, levels which will not be stressful to the test organisms.
The results of this proposed additional evaluation will supplement the Information available to the
permitting agencies for the purpose of evaluation of the suitability of Unit I Bottom sediments for ocean
disposal.
We would like to accomplish this supplemental evaluation as soon as possible; I will contact you by
telephone next week to seek your comments. Please feel free to call me with any questions you may
have,
Sincerely,
Raymond P. Markel, Ph.D.
Director, Bloassay Division
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0 April 10, 1995
CITY COUNCIL AGENDA
ITEM NO. 3
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
BIOASSAY WORK
RECOMMENDATIONS:
e - -?,/j ' 7 (c)
1. Approve Consultant Services Agreement, with Toxscan Inc., to
perform the Unit III Upper Newport Bay Bioassay work for a fee not
to exceed $212,000 and authorize the Mayor and City Clerk to
execute the agreement.
2. Approve the Cooperative Funding Agreement with the Dover
Shores Community Association for its share of the subject
Bioassay work in the amount of $30,000 and authorize the Mayor
and City Clerk to execute the agreement.
3. Approve a budget amendment in the amount of $305,000 for the
Unit III Sediment Control and Enhancement Project which provides
for the contributions from the Irvine Company, Orange County and
the Dover Shores Community Association.
BACKGROUND:
As described in the January 23, 1995 City Council Report, the City has
represented 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 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. A copy of the January 23, 1995, City Council
Report (Attachment A) is attached for your information.
Negotiations on the exact 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. In addition, the City
has received letters from the ports of Long Beach and San Diego indicating their
IPSUBJECT: UPPER NWPORT BAY
ENHANCEMENT PROJECT
BIOASSAY WORK
April 10, 1995
Page 2
UNIT III SEDIMENT CONTROL AND
- AUTHORIZATION TO PROCEED WITH
interest in purchasing mitigation credits. It is anticipated that a mitigation credit and
project funding agreement between the City, State, responsible resource agencies and
one of the ports will be drafted and ready for your review within 90 days. To avoid the
financial and environmental impacts of additional sediment deposition during the next
storm season, it is desirable to begin the implementation of the Unit III project
construction in the Fall of 1995.
To continue to move forward with the project, we are in a position where it
is necessary to hire a consultant to complete the requisite bioassay work. The following
report reviews the necessary work and agreements, consultant selection process and
financing, and makes recommendations for your consideration.
REQUIRED BIOASSAY WORK AND FINANCING AGREEMENTS:
As described in our last report, there are several items with long lead
times that must be initiated in Spring 1995 to meet a Fall 1995 construction schedule.
Of these items, the most critical, from a scheduling standpoint, is the sediment
bioassay. A sediment bioassay is a sampling and testing procedure required by the U.
S. Environmental Protection Agency (EPA) for the ocean disposal of sediments. The
bioassay process has three components: development and approval of the Sampling
and Analysis Plan, collection and analysis of the samples and document preparation,
and approval of the final documentation by EPA.
In developing the proposed sediment bioassay, it was brought to staffs
attention that two other sites in the Upper Newport Bay were being considered for
dredging in the same approximate time frame as the Unit III project. These include the
privately owned dock area in the Dover Shores community, and the Newport Dunes
Recreation area, which is under the County of Orange's jurisdiction. From preliminary
cost estimates obtained for completing the bioassay work, staff determined that there
could be a significant cost savings to each party by combining the work needed for Unit
III with that needed for Dover Shores and the Dunes. As a result, staff contacted
representatives of the Dover Shores Community Association and the County with this
information, and both parties indicated their desire to participate in a jointly funded
bioassay program. The bioassay sampling locations are shown on Exhibit "A."
An agreement was entered into between the City and the County of
Orange in September 1994 which provided for $75,000 in project funding.
Approximately $38,000 of this funding is associated with dredging for the Newport
Dunes, and approximately $37,000 is earmarked for dredging in Unit III. Despite
current financial problems at the County, funding for this project has been approved
and payment to the City is currently being processed. An agreement with the Dover
Shores Community Association, which provides $30,000 for its portion of the bioassay
work, has been negotiated and is being recommended for your approval.
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SUBJECT: UPPER NEWPORT BAY UNIT III SEDIMENT CONTROL AND
ENHANCEMENT PROJECT - AUTHORIZATION TO PROCEED WITH
BIOASSAY WORK
April 10, 1995
Page 3
• Since the City has advanced all funding on behalf of the Executive
Committee for development of the project to date, additional sources of advanced
funding within the Executive Committee membership were pursued by staff. In
February, staff met with The Irvine Company and requested their participation. After
consideration, The Irvine Company has agreed to advance a total of $200,000 of
funding for the bioassay and other surveying and environmental work required to keep
the project on schedule. The Irvine Company's funding is provided on the basis that it
is subject to reimbursement along with the City's advanced funding from the sale of
project - generated habitat mitigation credits. A copy of the letter from the City to The
Irvine Company (Attachment B) requesting their participation is attached for your
information.
BIOASSAY CONSULTANT SELECTION:
To begin the selection process for a consultant to complete the bioassay
work, three environmental firms with expertise in the field of marine bioassays were
• asked to submit comprehensive statements of qualifications. These firms included
Toxscan Inc., from Santa Cruz, MEC Analytical Systems, Inc., from Carlsbad, and MBC
Applied Environmental Sciences, from Costa Mesa. The statements of qualifications
included a description of technical expertise, personnel, experience, and billing rates.
Each firm's qualifications were reviewed by City staff and interviews were arranged.
The interviews covered a wide range of topics including staff assignments, quality
assurance, laboratory certifications, experience in bays and estuaries, and others.
The interview panel included City Public Works staff and representatives
from Orange County, the California Department of Fish and Game, and John M.
Tettemer & Associates, Ltd. (JMTA), the City's project manager. The panel interviewed
each of the three environmental consulting firms and scored their responses. Following
the interview, references provided by each firm were thoroughly checked.
Based upon their statement of qualifications, the interview results and the
references provided, Toxscan, Inc. was the recommended selection of the panel.
Toxscan, Inc. was scored the highest by each of the interviewers and demonstrated an
comprehensive understanding of all aspects of the project. Toxscan, Inc. has
• successfully completed similar work for both the Port of Los Angeles and the Port of
Long Beach.
Upon completion of the selection process, Toxscan, Inc. was asked to develop and
obtain EPA concurrence on the Sampling and Analysis Plan. The process of
establishing the Sampling and Analysis Plan is an important step because it defines the
scope of the more costly testing and analysis portion of the bioassay program.
SUBJECT: UPPER NEWPORT BAY
ENHANCEMENT PROJECT
BIOASSAY WORK
April 10, 1995
Page 4
0
UNIT III SEDIMENT
- AUTHORIZATION TO
CONTROL AND
PROCEED WITH
Currently, Toxscan, Inc. has obtained conceptual approval from EPA on the Sampling
and Analysis Plan and has prepared a proposal to complete the balance of the
bioassay work. The recommended consultant agreement with Toxscan, Inc., generally
provides for the following tasks:
Develop and obtain EPA approval of the Sampling and Analysis Plans;
Complete bioassay field samples and laboratory analytical work;
Prepare documentation of bioassay process and analytical results; and
Obtain EPA approvals.
The agreement provides for completion of the bioassay work and payment
on a monthly basis with compensation based upon standard hourly rates for a total fee
not to exceed $212,000. We expect the bioassay work and EPA approvals to be
completed within six months,
SUMMARY OF FUNDING SOURCES AND EXPENSES:
A summary of the funding sources, including advanced funding from The
Irvine Company and contributions from the Dover Shores Community Association and
the County for their portions of the bioassay work and other expenses is as follows:
Funding Sources
Dover Shores Community Association Funding for Bioassay $ 30,000
County of Orange Funding for Bioassay $ 75,000
Advanced funding from The Irvine Company $200,000
Total Funding Sources $305,000
Proposed Expenses
Toxscan, Inc. Bioassay Costs
Sampling and Analysis Plans (SAP's) $ 8,500
Bioassay Analytical Work, Documentation and Approvals $203.500
Subtotal Bioassay Costs $212,000
Upcoming Project Development Activities
Project Management/Design $ 25,000
Surveying $ 25,000
Resource Agency Permitting $ 23,000
Environmental Documentation $ 20,000
Subtotal Upcoming Tasks $-9a.00-0
Total Expenses $305,000
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SUBJECT: UPPER NEWPORT BAY
ENHANCEMENT PROJECT
BIOASSAY WORK
April 10, 1995
Page 5
UNIT III SEDIMENT CONTROL AND
- AUTHORIZATION TO PROCEED WITH
• A budget amendment which provides for the additional funding in the current City
budget has been prepared for City Council consideration.
NEXT STEPS:
1. Initiate bioassay work under the Toxscan, Inc. agreement.
2. Continue to work with the resource agencies through the State
Resources Department on obtaining final agreement on the amount
of mitigation credits to be allowed for construction of the Unit III
project.
3. Initiate negotiations on the terms of the mitigation credit and project
funding agreement with the State, resource agencies, one or more
of the port agencies interested in buying mitigation credits, and the
City.
• 4. Develop scopes of work and Consultant Services agreements for
environmental documentation, resource agency permit preparation,
surveying and additional project management activities.
5. Prepare a report for the City Council meeting in May
recommending authorization of additional consultant activities.
D
Public Works Director
JW:kc
Attachments
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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 PROTECT`
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. -44 r I
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 $100,000
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
$250,000
•
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
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CITY OF NEWPORT BEACH
March 23, 1995
P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915
Mr. Gary Hunt
Senior Vice President
The Irvine Company
550 Newport Center Drive
Newport Beach; CA 92660
Subject Upper Newport Bay Unit III Sediment Control and
Enhancement Project - Request for Irvine Company
Financial Participation in Project Develop men
Dear Mr. Hunt:
Over the last year, the City of Newport Beach has been actively involved 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 need mitigation for the construction of new facilities. Sale of
the mitigation credits are expected to provide funding for advanced project
development and construction costs, and an annuity for future sediment removal.
•
The City is currently in the process of finalizing negotiations with the resource •
agencies, and letters have been received from the ports of Long Beach and San
Diego indicating their interest in purchasing mitigation credits. We are
anticipating that a mitigation credit and funding agreement between the City, the
resource agencies and one of the ports could be signed within 90 days. This is a
significant milestone for all environmental and economic interests in the Upper
Newport Bay.
3300 Newport Boulevard, Newport Beach
Page 2
• The Unit III project needs to be constructed immediately in order to prevent
future sediment from being carried deep into the Upper Bay where it will be far
more expensive to remove. Our goal, therefore, is to begin construction of the
Unit III project in the Fall of 1995. At the present time, it appears that the sale of
the mitigation credits will provide the funding to make this goal a reality. To
accomplish this schedule, however, additional technical and environmental work
must be completed, permits processed and approvals obtained from the
resource agencies and the U. S. Environmental Protection Agency. Specific
critical path activities that need to get underway immediately include an updated
project survey, a bioassay for ocean disposal of the sediment, resource agency
permit preparation and California Environmental Quality Act documentation.
To date, the City has committed significant staff time and has advanced
$200,000 in funding for all project development activities. The majority of the
City's advanced funding has been expended. To meet the Fall 1995
construction schedule and avoid increased project costs, additional funding
• sources for the surveying, sediment tioassay, permitting and environmental
clearance are needed at this time. Through a cost sharing arrangement on
sediment bioassay, the County of Orange has agreed to provide $75,000 in
funding and the Dover Shores Community Association another $30,000. A
portion of the Orange County funding and the Dover Shores Community
Association funds are for work which is closely related to the project work and
has been added to the Project Bioassay to reduce individual project costs. An
additional $200,000 of funding is still needed for the balance of the bioassay
work and the other critical path activities discussed above.
To assist in maintaining the fall sediment removal schedule, we request that The
Irvine Company provide the additional $200,000 of advanced project
development funding with the following understanding:
The advanced project development costs, including contributions from
The Irvine Company, will be considered project costs and as such, are
reimbursable through the sale of mitigation credits;
• We do not believe that additional funding from The Irvine Company will be
required for construction of the project; and
We currently expect that maintenance costs for future sediment removals
will be fully funded through an annuity generated by the sale of mitigation
credits.
• 0
Page 3
We believe the proposed Unit III project is an excellent example of a successful •
partnership between environmental and economic interests, and the progress
made to date is something that all members of the Executive Committee and the
community can be proud of. The Irvine Company's continued support is
extremely important and your timely response will be greatly appreciated.
Sincerely,
4""'
Kevin Murph , City Manager
City of Newport Beach
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TO:
FROM:
DATE:
SUBJECT
CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
P.O. BOX 1768, NEWPORT BEACH, CA 92659 -1768
(714) 644 -3005
PURCHASING /FINANCE DEPARTMENT
CITY CLERK
April 12, 1995
Contract No. C- 2987(C
Description of Contract Consultant Agreement for Upper
Newport Bay Unit III - Sediment Bioassay Services
Effective date of Contract April 12, 1995
Authorized by Minute Action, approved on April 10, 1995
Contract with
ToxScan. Inc
Address 42 Hangar Way
Watsonville, CA 95076
Amount of Contract (See Agreement)
Wanda E. Raggio
City Clerk
WER:pm
Attachment
3300 Newport Boulevard, Newport Beach
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CONSULTANT AGREEMENT
UPPER NEWPORT BAY
SEDIMENT BIOASSAY SERVICES
THIS AGREEMENT, entered into this //,�-day of,/ ti
1995, by and between the CITY OF NEWPORT BEACH, a municipal corporation,
(hereinafter referred to as "CITY ") and ToxScan, Inc., whose address is 42 Hangar
Way, Watsonville, CA 95076 (hereinafter referred to as "CONSULTANT') is made with
reference to the following:
RECITALS:
r
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 desire to enter into an agreement for
professional services to provide sediment bioassays in the Upper Newport Bay;
specifically, for the Unit III Sediment Control and Enhancement Project, the Newport
Dunes County Recreation Area, and Dover Shores.
NOW, THEREFORE, it is mutually agreed by and between the
undersigned parties as follows:
SECTION 1. TERM
The term of this agreement shall commence on the 15th day of April,
1995 and shall terminate on the 31st day of October, 1995, unless terminated earlier
as set forth herein.
necessary to:
SECTION 2. SERVICES TO BE PERFORMED BY CONSULTANT
CONSULTANT Services shall include professional and technical services
A. Provide Sampling and Analysis Plan development.
B. Provide bioassay testing, analysis, and documentation.
C. Obtain U. S. Environmental Protection Agency (hereinafter referred to
as "USEPA ") approvals.
1
CONSULTANT shall provide services as noted above and as attached
hereto set forth in the proposal provided in Exhibit "A."
SECTION 3. COMPENSATION TO CONSULTANT
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 $211,889. In the event of unforeseen
changes or required additions to work which are not outlined by this Agreement, the
Public Works Director may authorize additional compensation of up to $20,000. Such
works shall be performed on a time - and - materials basis at the rates shown in
Exhibit "A."
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 that they are limited by statute, rule or regulation and the express terms of this
Agreement.
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.
2
SECTION 7. 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 CITY. Such policies shall be signed by a person,
authorized by that insurer to bind coverage on its behalf and must be filed with CITY
prior to exercising any right or performing any work pursuant to this Agreement. All
insurance policies, except professional liability 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. Workers' compensation insurance covering all employees and
principals of 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;
D. Professional liability insurance, which covers the services to be
performed in connection with this Agreement in the minimum amount of $1 million
($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
3
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 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 co- tenant, if CONSULTANT is a
partnership, joint venture, syndicate, or co- tenancy, 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.
2
SECTICOO. 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 to support USEPA approval of sediment removal
for the Upper Newport Bay Unit III Sediment Control and Enhancement Project, the
Newport Dunes County Recreation Area, and Dover Shores. 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 CONSULTANT.
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 form as CITY may require,
furnish reports concerning the status of services required under this Agreement.
SECTION 11. RECORDS
CONSULTANT shall maintain completed and accurate records with
respect to costs, expenses, receipts and other such information required by CITY that
relate to the performance of services 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.
5
0 0
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 serviced 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:
Phillip D. Carpenter, President
ToxScan, Inc.
42 Hangar Way
Watsonville, CA 95076
(408) 724 -4522
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 prepaid, 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
2
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 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.
7
• •
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM:
City Attorney
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ATTEST:"
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City Clerk
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CITY OF NEWPORT BEACH,
a municipal corporation
BY:
Mayor
CONSULTANT
EXHIBIT "A"
UPPER NEWPORT BAY DEEP WATER HABITAT
AND SEDIMENT CONTROL PROJECT
Chemical and Biological Assessment of Accumulated Sediments
Scope of Work
I. Description of Work
Dredging is required in several areas of Upper Newport Bay both to remove accumulated sediments and
to deepen the Unit I Sediment Basin for creation of a deepwater habitat. All dredged sediments are
proposed for ocean disposal at the LA3 dumpsite, and the testing program will follow the guidelines
presented in the EPA/COE "Green Book" (Evaluation of Dredged Material Proposed for Ocean Disposal.
EPA - 503/8- 911001. February 1991).
There are four areas where dredging is needed, which are identified as follows; Unit I Basin and Access
Channel, Unit II Basin (Feasibility study), Dover Shores and Newport Dunes Marina. The requirements
for sampling and testing in each of these areas have been negotiated with regulatory agencies, and
Sampling and Analysis Plans have been prepared and approved.
II. Description of Tasks and Fee Estimates
(A) For the Unit I Sediment Basin and Access Channel, we will collect sediment core samples using
a vibracore sampler to project depth plus two feet for overdredge allowance.
We will collect six core samples within the Access Channel, which will be composited together
to form one sample for chemical/biological testing.
We will collect an additional six cores within the Unit I Sediment Basin. These cores will be
approximately 14 feet in length. We will vertically divide each core at the 7 foot depth interval,
creating top and bottom segments for all 6 cores. We will chemically analyze each of those core
segments (12 analyses total). We will combine all 6 top segments into a top composite; we will
likewise combine all 6 bottom segments into a bottom composite. These composites will be
chemically and biologically analyzed.
Thus, this task will involve collection of 18 core samples, chemical analysis of 12 individual core
segments and complete Green Book analysis of 3 sediment composites.
Fee estimate = $ 94,674
(B) For the Unit II Sediment Basin Feasibility study, we will collect five vibracore samples with the
Unit 11 Basin which will be composited together to form one sample for chemical and limited
0
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biological testing. The scope of biological testing will include one suspended particulate phase
bioassay using bivalve larvae, one solid phase bioassay using amphipods and a
bioaccumulation assessment using only one species (Macoma).
Fee estimate = $ 23,376
(C) For Dover Shores, we will collect nine vibracore samples which will be combined to form two
composite samples for complete Green Book testing.
Fee estimate = $ 47,862
(D) For Newport Dunes Marina, we will collect 6 vibracore samples. We will chemically analyze each
of those 6 core samples. We will combine all 6 cores into a single composite sample for
complete Green Book testing.
Fee estimate = $ 37,577
(E) Preparation of Sampling and Analysis Plans and negotiation of final scope of work for all four
projects.
Fee estimate = $ 8,400
Total fee = $211,889
The following table presents an allocation of sub -task costs on the four component projects. Note that
the cost of additional sampling ($5,438) and testing ($12,530) for the second composite sample required
by the EPA at Dover Shores has been allocated to the Unit I Basin/Channel project.
Unit I'
Unit 112
Basin /Channel
Feasibility
Dover Shores'
Newport Dunes°
Total
Mob /Demob $ 3,008
$ 1,504
$ 1,504
$ 1,504
$ 7,520
Sampling $22,583
$ 5,715
$ 5,715
$ 6,858
$ 40,871
Testing $63,200
$ 6,012
$12,530
$19,070
$100,812
"First Sample" Testing $16,727
$ 8,364
$ 8,364
$ 8,364
$ 41,819
Mgmt/Reporting $ 7,124
$ 1,781
$ 1,781
$ 1,781
$ 12,467
Total $112,642
$23,376
$29,894
$3T,5T7
$203,489
' Includes 4 composites for full Green Book testing plus 12 additional sediment chemistry analyses.
2 Includes 1 composite for reduced -scale Green Book testing.
' Includes 1 composite for full Green Book testing.
4 Includes 1 composite for full Green Book testing plus 6 additional sediment chemistry analyses.
0
ToxScAN INC.
KINNETIC LABORATORIES, INC.
RATE SCHEDULE
Labor Rate/HQyr
Scientist V
$135.00
Scientist IV
$107.00
Computer Analyst IV
$96.00
Sclentlst III
$74.00
Scientist II
$54.00
Scientist 1
$41.00
Edltor/ Word Processor
$44,00
Travel
Van Rental
$75.00 /day
Mileage
Light Duty Vehicle $ 0.28 /mile
Mileage
314 T or Larger $ 0.45/mlle
Per Dlem
$75,00 1day
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TO:
FROM:
DATE:
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CITY OF NEWPORT BEACH
OFFICE OF THE CITY CLERK
P.O. BOX 1768, NEWPORT BEACH, CA 92659 -1768
(714) 644 -3005
PURCHASING /FINANCE DEPARTMENT
CITY CLERK
April 12, 1995
SUBJECT: Contract No
C- 2987(D)
C-
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Description of Contract Cooperative Funding Agreement for
Bioassay Dredging in Upper Newport Bay Unit III
Effective date of Contract April 12, 1995
Authorized by Minute Action, approved on April 10, 1995
Contract with Dover Shores Community Association
Address c/o Villageway Mgmt. Inc.
P.O. Box 4708
Irvine, CA 92716
Amount of Contract (See Agreement)
Wanda E. Raggio
City Clerk
WER:pm
Attachment
3300 Newport Boulevard, Newport Beach
• C 2 Y7 P)
COOPERATIVE FUNDING AGREEMENT
For Bioassay Dredging In
Upper Newport Bay
THIS AGREEMENT, entered into this /,� t 'IL. day of
1995, by and between the CITY OF NEWPORT BEACH, a
municipal corporation, (hereinafter referred to as "CITY ") and the Dover Shores
Community Association, a subdivision of the State of California, (hereinafter referred to
as "ASSOCIATION ") is made with reference to the following:
RECITALS:
WHEREAS, the Upper Newport Bay is a State ecological preserve subject to
sedimentation due to storms occurring on the upstream tributary drainage areas; and
WHEREAS, in -bay sediment control basins, known as the Unit I and Unit II
basins, were constructed in Upper Newport Bay in 1985 and 1988, respectively, to trap
incoming sediment, thereby protecting the bay from accumulated sediments; and
WHEREAS, the accumulation of sediment in the Unit I basin has filled the basin
to its design capacity; and
WHEREAS, sediment in the Unit II basin has accumulated to approximately 30
percent of its design capacity; and
WHEREAS, the Executive Committee for the Upper Newport Bay -San Diego
Creek Watershed Stormwater Sedimentation Control Plan, wishes to remove the
accumulated sediment from the Unit I basin and access channel to restore the Unit I
basin sediment trapping capability; and
WHEREAS, the Executive Committee has requested CITY to be responsible for
the development of plans, specifications and administration of contracts for construction
and maintenance of the in -bay basins and, when possible, coordinate these efforts with
the U.S. Army Corps of Engineers' Upper Newport Bay Feasibility Study; and
WHEREAS, the removal and ocean disposal of the accumulated sediments from
the Unit I basin and access channel will require the performance of a bioassay and
chemical analysis of the sediment to determine its acceptability for ocean disposal; and
WHEREAS, ASSOCIATION plans a dredging project within its private marina in
an area adjacent to the ecological preserve; and
WHEREAS, CITY and ASSOCIATION plan to combine dredging projects under
one cooperative project to be administered by CITY; and
1 • •
WHEREAS, CITY and ASSOCIATION wish to avoid duplication and accomplish
one bioassay in the Upper Newport Bay which will satisfy the requirements for the
Executive Committee's maintenance project, the U.S. Army Corp of Engineers'
Feasibility Study, and ASSOCIATION'S marina project; and
NOW, THEREFORE, THE PARTIES MUTUALLY AGREE AS FOLLOWS:
1. PROJECT
a. PROJECT shall consist solely of the design and performance of a
bioassay and chemical analysis testing of sediment in certain sediment control basins,
more specifically known as the Unit I and Unit II basins, and access channels in the
Upper Newport Bay Ecological Preserve, the Newport Dunes, and the Dover Shores
Community Association to determine the acceptability of the sediment deposits for
ocean disposal.
b. PROJECT is located within the City of Newport Beach, California,
and is more specifically described and illustrated in the accompanying Site Plan and
Scope of Work, entitled Exhibit 'A" attached hereto and, by this reference, made a part
thereof.
2. PERFORMANCE
CITY agrees to award a contract for said PROJECT by June 1, 1995, and
to complete PROJECT within one year thereafter. The period for completion , as set
forth herein, however, shall be extended by the period that completion is delayed by
acts otherwise outside the control of CITY.
3. FUNDING
Funding, in an amount not to exceed $30,000, shall be provided by
ASSOCIATION for ASSOCIATION'S marina portion of PROJECT. ASSOCIATION
funding shall be used solely for contract costs, including, but not limited to, design,
engineering plans and specifications, contract labor, materials, machinery, and /or site
reports necessary to complete bioassay.
4. ADMINISTRATION
CITY shall have the sole responsibility for administering and obtaining all
governmental agency approvals for said PROJECT, including, but not limited to, the
selection of contractors, management of contractors' work, administration of contracts
for compliance with the requirements of all applicable local codes and other regulations.
5. NOTIFICATION OF COMPLETION
CITY agrees to provide ASSOCIATION with written notification of the date
of completion for said PROJECT. "Completion" or "completed," as used herein, shall
mean the acceptance of final completed bioassay and chemical analysis of tested
G
9
sediments by contractor required under said AGREEMENT. Notice of Completion shall
be filled with ASSOCIATION within thirty (30) days after completion of PROJECT.
6. CITY SHALL:
a. remain the "lead agency" for services required under this
AGREEMENT, within the context of the California Environmental Quality Act of 1970,
as amended.
b. provide staff assistance and all permits necessary for PROJECT, at
no cost to ASSOCIATION.
C. complete PROJECT by June 1, 1996, as evidenced by contract
Notice of Completion, executed by CITY and filed with ASSOCIATION.
d. invoice ASSOCIATION for an amount not to exceed $30,000.
e. submit a final accounting report to ASSOCIATION no later than
thirty (30) days after Notice of Completion is filed, as specified in Paragraph 5 above.
Final accounting report shall include a reconciliation of all PROJECT expenditures,
including copies of paid bills and invoices. Reimbursement of funds paid by
ASSOCIATION in excess of actual approved PROJECT expenditures shall become due
and payable.
f. permit ASSOCIATION to review records relating to PROJECT
expenditures.
7. ASSOCIATION SHALL
a. remit funds to CITY, as specified in Paragraph 3 above, within sixty
(60) days of receipt of CITY'S invoice.
b. assist CITY in coordinating the completion of bioassay by providing
CITY'S bioassay consultant access to the dredging areas for sediment sampling.
8. NOTICES
a. Notices or other communications, which may be required or
provided under the terms of this AGREEMENT, shall be given as follows:
ASSOCIATION: Mr. Seth Oberg, President
Dover Shores Community Association
c/o Villageway Mgmt. Inc.
P.O. Box 4708
Irvine, CA 92716
(714) 645 -8999
CITY: Public Works Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92658
ATTN: John Wolter
(714) 644 -3326
b. All notices shall be deemed effective when in writing and
delivered in person or deposited in the United States mail, first class, postage prepaid
3
and addressed as above. Any notices, correspondence, reports and /or statements,
authorized or required by this AGREEMENT, addressed in any other fashion shall be
deemed not given. The parties hereto may change the addresses to which notices are
to be sent by giving notice of such change to the other party.
9. TERMINATION
a. Prior to the CITY'S commitment of funds, such as award of
contracts to expend funds that would be reimbursed by ASSOCIATION pursuant
hereto, either party may terminate this AGREEMENT, with or without cause, upon
notice to the other party.
b. Notice of termination shall be in writing and shall state the
cause for termination, if cause is required, and the date upon which such termination is
effective. Notice shall be served, as provided in Paragraph 8 above.
10. FAILURE TO COMPLETE
CITY agrees that, in the event it does not complete said PROJECT, as
specified in Paragraph 2 above, AGREEMENT shall be subject to termination, as
specified in Paragraph 9 above.
11 INDEPENDENT CONTRACTOR STATUS
This AGREEMENT is by and between ASSOCIATION and CITY and is
not intended, and shall not be construed so, as to create the relationship of agent,
servant, employee, partnership, joint venture or association, as between
ASSOCIATION and CITY.
12. INDEMNIFICATION
CITY agrees to indemnify, defend and save harmless ASSOCIATION, its
agents, officers and employees, from and against any and all liability, expense,
including defense costs and legal fees, and claims for damages of any nature
whatsoever, including, but not limited to, bodily injury, death, personal injury or property
damage, arising from or connected with, CITY'S construction, operation, or services
provided hereunder, including, without limitation, any workers' compensation suits,
liability, or expense arising from, or connected with, services performed on behalf of
CITY by any person pursuant to this AGREEMENT.
13. TERM OF AGREEMENT
The term of this agreement shall commence upon execution by
ASSOCIATION'S Board of Directors and shall, with the exception of Paragraph 12
above, terminate on June 1, 1996, or on a date subject to the performance
requirements specified in Paragraph 2 above, or in accordance with the termination
provisions of this AGREEMENT, described in Paragraph 9 above, provided, however,
4
i
that CITY'S obligations shall remain in effect and be enforceable by ASSOCIATION
unless all funds paid by ASSOCIATION hereunder to CITY have been refunded to
ASSOCIATION.
14. EFFECT OF AGREEMENT
This AGREEMENT fully expresses all understanding of the parties and is the
total AGREEMENT between the parties as to the subject matter of this AGREEMENT.
No addition to, or alteration of, the terms of this AGREEMENT, whether written or
verbal, by the parties, their officers, agents or employees, shall be valid unless in the
form of a written amendment to this AGREEMENT, and is formally approved and
executed by all parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the day and year first above written.
APPROVED AS TO FORM:
W� CL�1�
ATTORNEY
ATTEST:
CITY CLERK
r`
DOVER SHORES COMMUNITY ASSOCIATION
4
BY:,
President of the Association
CITY OF NEWPORT BEACH,
a municipal corporation
BY: '� 41 -')
MAYOR
E
EXHIBIT "A"
UPPER NEWPORT BAY DEEP WATER HABITAT
AND SEDIMENT CONTROL PROJECT
Chemical and Biological Assessment of Accumulated Sediments
Scope of Work
I. Description of Work
Dredging is required in several areas of Upper Newport Bay both to remove accumulated sediments and
to deepen the Unit I Sediment Basin for creation of a deepwater habitat. All dredged sediments are
proposed for ocean disposal at the LA3 dumpsite, and the testing program will follow the guidelines
presented in the EPAICOE "Green Book" (Evaluation of Dredged Material Proposed for Ocean Disposal.
EPA - 503/8- 91/001. February 1991).
There are four areas where dredging is needed, which are identified as follows; Unit I Basin and Access
Channel, Unit II Basin (Feasibility study), Dover Shores and Newport Dunes Marina. The requirements
for sampling and testing in each of these areas have been negotiated with regulatory agencies, and
Sampling and Analysis Plans have been prepared and approved.
II. Description of Tasks and Fee Estimates
(A) For the Unit I Sediment Basin and Access Channel, we will collect sediment core samples using
a vibracore sampler to project depth plus two feet for overdredge allowance.
We will collect six core samples within the Access Channel, which will be composited together
to form one sample for chemicaUbiological testing.
We will collect an additional six cores within the Unit I Sediment Basin. These cores will be
approximately 14 feet in length. We will vertically divide each core at the 7 foot depth interval,
creating top and bottom segments for all 6 cores. We will chemically analyze each of those core
segments (12 analyses total). We will combine all 6 top segments into a top composite; we will
likewise combine all 6 bottom segments into a bottom composite. These composites will be
chemically and biologically analyzed.
Thus, this task will involve collection of 18 core samples, chemical analysis of 12 individual core
segments and complete Green Book analysis of 3 sediment composites.
Fee estimate = $ 94,674
(B) For the Unit II Sediment Basin Feasibility study, we will collect five vibracore samples with the
Unit 11 Basin which will be composited together to form one sample for chemical and limited
biological testing. The scope of biological testing will include one suspended particulate phase
bioassay using bivalve larvae, one solid phase bioassay using amphipods and a
bioaccumulation assessment using only one species (Macoma).
Fee estimate = $ 23,376
(C) For Dover Shores, we will collect nine vibracore samples which will be combined to form two
composite samples for complete Green Book testing.
Fee estimate = $ 47,862
(D) For Newport Dunes Marina, we will collect 6 vibracore samples. We will chemically analyze each
of those 6 core samples. We will combine all 6 cores into a single composite sample for
complete Green Book testing.
Fee estimate = $ 37,577
(E) Preparation of Sampling and Analysis Plans and negotiation of final scope of work for all four
projects.
Fee estimate = $ 8,400
Total fee = $211,889
The following table presents an allocation of sub -task costs on the four component projects. Note that
the cost of additional sampling ($5,438) and testing ($12,530) for the second composite sample required
by the EPA at Dover Shores has been allocated to the Unit I Basin/Channel project.
Unit 11 Unit 112
Basin /Channel Feasibility
Mob /Demob
$ 3,008
$ 1,504
Sampling
$22,583
$ 5,715
Testing
$63,200
$ 6,012
"First Sample" Testing
$16,727
$ 8,364
MgmUReporting
$ 7,124
$ 1,781
Total
$112,642
$23,376
Dover Shores' Newport Dunes` Total
$ 1,504
$ 1,504
$ 7,520
$ 5,715
$ 6,858
$ 40,871
$12,530
$19,070
$100,812
$ 8,364
$ 8,364
$ 41,819
$ 1,781
$ 1,781
$ 12,467
$29,894
$37,577
$203,489
' Includes 4 composites for hill Green Book testNg plus 12 additional sediment chemistry analyses.
2 Includes 1 composite for reduced -scale Green Book testing.
' Includes 1 composite for full Green Book testing.
4 Includes 1 composite for full Green Book testing plus 6 additional sediment chemistry analyses.
SAMPLING LOCATIONS FOR TASK
DOVER SHORES
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