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HomeMy WebLinkAboutC-3371(A) - PSA - Viral Testing in Storm Drains and Tributaries to Newport BayPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 13 «' day of December, 2000, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and the Southern California Coastal Water Research Project or SCCWRP (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 City. B. City desires to engage Consultant to provide project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, Dr. Rachel Noble. D. City has reviewed the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the 15t day of September, 2000, and shall terminate on the 31st day of December, 2000, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the Scope of Services, attached as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Fifty 1 0 0 thousand dollars ($50,000). The City Manager shall have the authority to authorized work beyond this amount, not to exceed an additional $5,000. 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including testing supplies. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the 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. 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. 2 0 0 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 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. 7. PROJECT MANAGER Consultant shall assign the Project to a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Project term. Consultant has designated Dr. Rachel Noble to be its Project Manager. Consultant shall not bill any personnel to the Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 0 0 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, e-mail, hand delivery or mail. 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 law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her 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. 12. HOLD HARMLESS Consultant shall 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, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal 19 9 0 injury, property damages, or any other claims arising from any and all acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, 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. Certification of all required 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. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's 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. 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 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 5 0 0 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, 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 for the services to be performed under 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 null and void. 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 orjoint- venture. 15. OWNERSHIP OF DOCUMENTS 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. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. M 0 0 16. CONFIDENTIALITY Because the City deems the Scope of Services outlined in Attachment A to be of benefit to a wide variety of constituencies, the City and its Consultant apply no specific confidentiality limitations on any information which results from the services in this Agreement. Both parties reserve the right to retain any information as confidential if agreed to by both parties. 17. ADMINISTRATION This Agreement will be administered by the City Manager's Department. Dave Kiff, Deputy City Manager, shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Deputy City Manager or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. 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 work 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. 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. 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 7 21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 22. 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 City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 23. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 24. 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 third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach City Manager's Office 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 949/644- 3002(phone) 949/644 -3020 (fax) All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: El Attention: Dr. Rachel Noble Southern California Coastal Water Research Project 7171 Fenwick Lane Westminster, California 92683 -5218 714/372- 9203(phone) 714/894 -9699 (fax) 25. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 26. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 9 9 0 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robert Burnham City Attorney for the City of Newport Beach AT A LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: r9sm/�Z- 1040� Homer L. Bluda City Manager for the City of Newport Beach CONSULTANT By:_ ✓i :� G Steph6n B. Weisberg, Ph.D. Executive Director SCCWRP 10 0 EXHIBIT A Phase Two Sampling Plan for Viral Detection of Tributaries and Storm Drains Discharging into Newport Bay The presence of enteroviruses will be determined by the method of reverse transcriptase- polymerase chain reaction (RT -PCR) at the laboratory of Dr. Jed Fuhrman at USC. This method will provide a presence /absence result, and can be used to provide semi - quantative results if used with a series of sample dilutions. Quantitative RT -PCR will also be conducted on the same samples when new instrumentation at USC has been properly calibrated (approximately 3 months time). Samples of known human waste and animal waste will be tested in the laboratory as positive and negative controls for use with quantitative RT PCR. Sampling Sites. Samples will be collected directly from each tributary and storm drain at the safest accessible location upstream of the point of discharge to the Bay or at the mouth of the discharge. Of the nine sites originally sampled in Phase I, six sites have been chosen as either priority sites for continued sampling or as problem areas by the Newport Bay Watershed Committee based on Phase UI bacterial indicator, coliphage, and enterovirus data. Sampling and Concentration Procedures. Sampling for Phase II will begin September 13th, 2000. Sites previously demonstrating negative results for enterovirus detection (Back Bay Drain, 43rd St., San Diego Creek at Michelson, and San Diego Creek at Campus) will be sampled a total of 8 more times, providing a total number of samples between Phase I and Phase 11 that will provide statistically rigorous results (i.e. if all samples are negative, the sample size will be large enough to ensure that statistical confidence in the result). Samples will be collected from the Santa Ana Delhi sites at both Mesa and University a total of 4 more times. These areas were identified as problem areas in Phase I, and further sampling will reveal if these problems are persistent. Samples will be collected as many times over the following weeks as logistically possible with the aim of completing the sampling before a measurable and heavy rain (0.5'). If a small rainfall event occurs that is only a one or a few tens of an inch, the sampling will be suspended for a few days. Samples will be collected at the same time of day at each respective site to ensure collection of samples through tidal changes. However, the day of the week that samples are taken will be changed in order to capture samples that are not "day" dependent. For detection of enteroviruses by RT -PCR, large volumes of seawater (20 -40L) will be retrieved from each of six sample sites using an acid - rinsed (5% HCI acid), and triple sample- rinsed bucket. The samples will be put on ice, and transported immediately to the laboratory at USC. Samples will be dispensed into a 40 -liter stainless steel pressure vessel and pressure filtered (at < 18 kPa) through a glass fiber filter (Whatman, nominal pore size 1.2 um). The filter will be frozen immediately at —80 C. When possible, the filtrate will be retained in a carboy, and while on ice will be concentrated to a final volume of 40 -150 ml with the use of a spiral cartridge filtration system (Amicon, Inc., 30 kDa molecular weight cutoff, SY130). The filtrate will be further concentrated with the use of Centriprep -30 concentration to a final volume of approximately 1 ml. Some filtrates are full of suspended materials, etc. that can damage the spiral cartridge. In these cases, the recovery of viruses on the glass fiber filter is extremely, and the concentration of the filtrate becomes unnecessary. 11 0 0 Table 1: Sampling Sites San Diego Creek @ Campus 8 Santa Ana Delhi @ University 4 Santa Ana Delhi @ Mesa 4 Back Bay Drain 8 43rd St. 8 San Diego Creek @ Michelson 8 Reverse Transcriptase Polymerase Chain Reaction (RT -PCR) Detection of enteroviruses by RT -PCR will use modified pan - enterovirus "universal" primers originally designed by DeLeon et al., (1990), which were designated as EV -L and EV -R. The upstream primer sequence is 5'- CCTCCGGCCCCTGAATG -3', and the downstream primer sequence is 5'- ACCGGATGGCCAATCCAA -3'. This primer set can amplify at least 25 enteroviral types, and the relatively short length of the PCR amplicon ensures efficient amplification. Perkin Elmer's RNA PCR Core kits will be used for the RT -PCR. Before the RT- PCR step, the RNA on one - quarter of the Glass fiber filter will be extracted using a Qiagen Rneasy viral RNA extraction kit. Afterwards, a 2 ul subsample of the extract will be added to 14 ul of RT Reaction mixture. Each sample will be heated at 99 ° C for 5 min and cooled at 4 ° C before the addition of 1 ul of RT (50 U /ul) and 1 ul of Rnase inhibitor (20 U /ul). The RT step will be carried out by the following steps: 25 ° C for 10 mins, 42 ° C for 30 mins, 99 ° C for 5 mins, and 4 ° C for 10 mins. The finished RT mixture will be a total volume of 20 ul, and will be mixed with the PCR reaction mixture (80 ul) as suggested by the manufacturer, for a total PCR reaction volume of 100 ul. The target templates are amplified DNA fragments of 196 by after 40 cycles. Visualization of amplified DNA was by staining a 1.5 % agarose gel with ethidium bromide and illumination with UV light. 100 by lane markers will be used for size comparison. Sensitivity assays will be performed by spiking ocean samples with known amounts of poliovirus and subsequent amplification with pan - enterovirus primers. This allowed us to determine the sensitivity of each assay, which our preliminary results suggested varied depending on the presence of potentially interfering substances in seawater. Negative and positive controls will be performed for each RT -PCR run. For the negative controls, 2 ul of deionized, RNase free H2O will be added to the PCR reactions rather than RNA extract. The positive controls will be RNA extracts or concentrated seawater samples spiked with 2 ul of Poliovirus Type 1 LsC at 105 to 10-2 PFU/100 ul of high titer stock. Positive controls from the Perkin Elmer GeneAmp RNA PCR Core kit were run with each set of reactions to ensure the activity of all components in the PCR Kit Data Analyses and Deliverables R. Noble will perform data analyses based on the results of the enterovirus, bacteriophage and standard bacterial testing performed at USC, UCI and OCHCA laboratories, respectively. Upon completion of the data analyses, a brief report will be written to outline the findings, present the results, and to provide suggestions for future actions. This report will be presented to the Newport Bay Study committee. 12 0 • EXHIBIT B Budget/Subconsultants Budget The following table summarizes the costs for the analyses of the enterovirus samples. Enterovirus sample analysis = $ 1,000 per sample Sample Analysis Cost/sample X number of samples $1000 X 40 = $ 40,000 Data Analysis and Report writing 10,000 Total $ 50,000 Subconsultants Consultant will be retaining Ms. Alison Davis at their expense to assist Dr. Rachel Noble on this project. As noted in Professional Services Agreement, services billed shall not exceed $50,000. All services shall be provided in accordance with Sampling Plan in Exhibit A. 13 • • ITEM 12 TO: Members of the Newport Beach City Council FROM: Dave Kiff, Deputy City Manager SUBJECT: Contract Approval - Viral Testing in Storm Drains and Tributaries to' Newport Bay (Phase II) RECOMMENDED Authorize the City Manager to execute a contract with the Southern California ACTION: Coastal Water Research Project (SCCWRP) for human enteric virus testing (Phase I1) in storm drains and tributaries to Newport Bay, BACKGROUND: At least nine locations in Newport Bay routinely show bacteria levels higher than allowed by State law (AB 411, Wayne, 1997) for water contact recreational activities like swimming and wading. These areas include: 43,d Street Beach (Channel Place Park) Arches Marina (PCH and Newport Boulevard) Bayshore Beach Santa Ana/ Delhi Channel San Diego Creek at Jamboree Big Canyon Wash Back Bay Drain/ East Side of Newport Dunes The Orange County Health Care Agency's Environmental Health Division (HCA) tests these nine areas and about 25 more at least one time a week. If the areas exceed AB 411 standards for total coliform, fecal coliform, or enterococcus, the County directs that the waters be posted as potentially unsafe for water contact recreation. A posting is separate from a closure. Per AB 411, the latter occurs when HCA suspects or knows of a sewage spill or leak. The sign on the left is a closure sign - the sign on the right is a posting. Beach Closure Beach Posting KEEP OUT SEWAGE CONTAMINATED WATER MI W Y.IIN Y.1. CwY.IMfS WARNING! �w4KF \u[f[ WY °0 um n.:o:.�oo°ewc iAVISO! nw+oe�� wuiilw�lomii° os�nemxe.�rz +�slulow G V tR ��1M,oFEq�1'�ul n 0 w O CL- TO: L 0 9 The three bacteria listed above are known as indicator bacteria, meaning that they may indicate the presence of a human pathogen like a virus. The key word is may - for we do not know with certainty whether or not a virus is always attached to or near the indicator bacteria. Nor do we know the source of the indicator bacteria - the bacteria may be present due to bird droppings (a single bird dropping can have 2.4 million fecal coliforms), pet waste, garden fertilizer, or other decomposing organic matter. Sourcing the bacteria is an expensive challenge. Some scientists - like Dr. Mansour Samadpour with the University of Washington - have proposed getting a genetic fingerprint of the bacteria and attempting to match it with bacteria from animals, humans or birds. Others question this method, arguing that the data resulting from Dr. Samadpour's methods has no statistical significance. The "holy grail" of water quality testing may be tests which identify the presence or absence of human enteric viruses in a water sample. But such testing involves both young science and high prices. With this in mind, the City sought and received a grant from the California State Water Resources Control Board in the FY 1999 -2000 State Budget for $175,000 to conduct a source identification study in the Newport area. Working with a Study Advisory Team that includes staff from the California Regional Water Quality Control Board (Santa Ana Region), local health officials at OC HCA, and local water quality expert Dr. Jack Skinner, we developed a three - phased Scope of Work for our Study. The Phases are as follows • Phase I - Preliminary Virus, Coliphage, and Bacteria Testis of f Newport Bay Storm Drains and Tributaries. This phase tested nine sites for viruses, f- specific coliphage, and the three indicator bacteria once a week for three weeks, including: 43rd Street Beach (Channel Place Park) Arches Marina Bayshore Beach Santa Ana Delhi Channel (near Mesa and near University) San Diego Creek (near Campus and near Michelson) Big Canyon Wash Back Bay Drain/ East Side of Newport Dunes The results from Phase 1 of the Study showed no detectable levels of human enteric viruses in any area EXCEPT the Santa Ana Delhi Channel. Five of six tested samples from the Santa Ana Delhi Channel tested positive for the presence of human enteric viruses. • Phase II -- Re- Verification of Positive and Negative Results from Areas Identified within Phase I. This Phase re- examined and re- tested (with greater frequency) sites at: 43rd Street Beach (Channel Place Park) Santa Ana Delhi Channel (several locations) San Diego Creek (near Campus and near Michelson) Newport Dunes North 0 0 This Phase may also include a study to attempt to determine the extent, if any, of vessel waste discharges into the Harbor and of the contribution, if any, of fecal coliform and viruses by swimmers (known to health experts as "shedding ") in popular swimming locations in the Bay. The vessel waste and swimmer contribution sections of Phase II will likely occur in Summer 2001. • Phase III — Rapid Testing of Hot - Spots. As initially proposed, Phase III would look at instances where the OC HCA has identified a spike in bacteria numbers and will immediately attempt to test the same waters for the presence or absence of viruses. The Study Advisory Team may modify Phase III's tasks as the results from Phase II become known. Two contracts will initially draw from the $175,000 State Grant. Since the Grant is administered through the Regional Board with the City serving as the local project manager, the City administers both contracts. We identified the Grant monies in the Fiscal Year 2000 -01 Capital Improvement Program (Item #250- 7251, Page 133). Our contractor for the viral testing services within Phases I and II of the Study (approximately $30,000 in Phase I and $50,000 in Phase II) is the Southern California Coastal Water Research Project ( SCCWRP), with Dr. Rachel Noble of SCCWRP acting as the lead scientist. The Study Team recommended and selected SCCWRP because it is a local public agency and because it is one of only a handful of entities nationwide who are capable of performing testing for human enteric viruses in ambient waters. Our contractors for the coliphage portion of the Study (approximately $12,000 for both Phases I and II) are the Regents of the University of California. Dr. Sunny Jiang of UCI is the lead for the coliphage portion of the Study. In September 2000, your City Council approved the contracts associated with Phase I. This Agenda Item authorizes the City Manager to approve the Phase II contract in the amount of $50,000 with SCCWRP. As noted, the revenues associated with the contract are budgeted via the State Grant in the CIP. ATTACHMENTS: Attachment A - Contract with SCCWRP 0 9 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 13th day of December, 2000, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and the Southern California Coastal Water Research Project or SCCWRP (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 City. B. City desires to engage Consultant to provide project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, Dr. Rachel Noble. D. City has reviewed the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the Vt day of September, 2000, and shall terminate on the 31St day of December, 2000, unless terminated earlier as set forth herein.. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the Scope of Services, attached as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Fifty 01 thousand dollars ($50,000). The City Manager shall have the authority to authorized work beyond this amount, not to exceed an additional $5,000. 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including testing supplies. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the 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. 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. 2 9 0 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 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. 7. PROJECT MANAGER Consultant shall assign the Project to a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Project term. Consultant has designated Dr. Rachel Noble to be its Project Manager. Consultant shall not bill any personnel to the Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, e-mail, hand delivery or mail. 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 law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her 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. 12. HOLD HARMLESS Consultant shall 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, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal 4 0 0 injury, property damages, or any other claims arising from any and all acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, 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. Certification of all required 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. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's 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. 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 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 A 0 9 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, 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 for the services to be performed under 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 null and void. 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 orjoint- venture. 15. OWNERSHIP OF DOCUMENTS 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. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY Because the City deems the Scope of Services outlined in Attachment A to be of benefit to a wide variety of constituencies, the City and its Consultant apply no specific confidentiality limitations on any information which results from the services in this Agreement. Both parties reserve the right to retain any information as confidential if agreed to by both parties. 17. ADMINISTRATION This Agreement will be administered by the City Manager's Department. Dave Kiff, Deputy City Manager, shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Deputy City Manager or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. 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 work 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. 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. 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 7 0 0 21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 22. 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 City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 23. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 24. 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 third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach City Manager's Office 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 949/644 -3002 (phone) 949/644 -3020 (fax) All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: IJ 0 0 Attention: Dr. Rachel Noble Southern California Coastal Water Research Project 7171 Fenwick Lane Westminster, California 92683 -5218 714/372 -9203 (phone) 714/894 -9699 (fax) 25. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 26. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. eJ 0 0 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation By: Robert Burnham City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless City Clerk IN Homer L. Bludau City Manager for the City of Newport Beach CONSULTANT A Stephen B. Weisberg Executive Director SCCWRP Ph.D. 10 0 0 EXHIBIT A Phase Two Sampling Plan for Viral Detection of Tributaries and Storm Drains Discharging into Newport Bay The presence of enteroviruses will be determined by the method of reverse transcriptase- polymerase chain reaction (RT -PCR) at the laboratory of Dr. Jed Fuhrman at USC. This method will provide a presence /absence result, and can be used to provide semi - quantative results if used with a series of sample dilutions. Quantitative RT -PCR will also be conducted on the same samples when new instrumentation at USC has been properly calibrated (approximately 3 months time). Samples of known human waste and animal waste will be tested in the laboratory as positive and negative controls for use with quantitative RT PCR. Sampling Sites. Samples will be collected directly from each tributary and storm drain at the safest accessible location upstream of the point of discharge to the Bay or at the mouth of the discharge. Of the nine sites originally sampled in Phase I, six sites have been chosen as either priority sites for continued sampling or as problem areas by the Newport Bay Watershed Committee based on Phase UI bacterial indicator, coliphage, and enterovirus data. Sampling and Concentration Procedures. Sampling for Phase II will begin September 13th, 2000. Sites previously demonstrating negative results for enterovirus detection (Back Bay Drain, 43rd St., San Diego Creek at Michelson, and San Diego Creek at Campus) will be sampled a total of 8 more times, providing a total number of samples between Phase I and Phase II that will provide statistically rigorous results (i.e. if all samples are negative, the sample size will be large enough to ensure that statistical confidence in the result). Samples will be collected from the Santa Ana Delhi sites at both Mesa and University a total of 4 more times. These areas were identified as problem areas in Phase I, and further sampling will reveal if these problems are persistent. Samples will be collected as many times over the following weeks as logistically possible with the aim of completing the sampling before a measurable and heavy rain (0.5 "). If a small rainfall event occurs that is only a one or a few tens of an inch, the sampling will be suspended for a few days. Samples will be collected at the same time of day at each respective site to ensure collection of samples through tidal changes. However, the day of the week that samples are taken will be changed in order to capture samples that are not "day" dependent. For detection of enteroviruses by RT -PCR, large volumes of seawater (20 -40L) will be retrieved from each of six sample sites using an acid - rinsed (5% HCI acid), and triple sample- rinsed bucket. The samples will be put on ice, and transported immediately to the laboratory at USC. Samples will be dispensed into a 40 -liter stainless steel pressure vessel and pressure filtered (at < 18 kPa) through a glass fiber filter (Whatman, nominal pore size 1.2 um). The filter will be frozen immediately at —80 C. When possible, the filtrate will be retained in a carboy, and while on ice will be concentrated to a final volume of 40 -150 ml with the use of a spiral cartridge filtration system (Amicon, Inc., 30 kDa molecular weight cutoff, SY130). The filtrate will be further concentrated with the use of Centriprep -30 concentration to a final volume of approximately 1 ml. Some filtrates are full of suspended materials, etc. that can damage the spiral cartridge. In these cases, the recovery of viruses on the glass fiber filter is extremely, and the concentration of the filtrate becomes unnecessary. 11 • • Table 1: Sampling Sites San Diego Creek @ Campus 8 Santa Ana Delhi @ University 4 Santa Ana Delhi @ Mesa 4 Back Bay Drain 8 43rd St. 8 San Diego Creek a Michelson 8 Reverse Transcriptase Polymerase Chain Reaction (RT -PCR) Detection of enteroviruses by RT -PCR will use modified pan - enterovirus "universal" primers originally designed by DeLeon et al., (1990), which were designated as EV -L and EV -R. The upstream primer sequence is 5'- CCTCCGGCCCCTGAATG -3', and the downstream primer sequence is 5'- ACCGGATGGCCAATCCAA -3'. This primer set can amplify at least 25 enteroviral types, and the relatively short length of the PCR amplicon ensures efficient amplification. Perkin Elmer's RNA PCR Core kits will be used for the RT -PCR. Before the RT- PCR step, the RNA on one - quarter of the Glass fiber filter will be extracted using a Qiagen Rneasy viral RNA extraction kit. Afterwards, a 2 ul subsample of the extract will be added to 14 ul of RT Reaction mixture. Each sample will be heated at 99 ° C for 5 min and cooled at 4 ° C before the addition of 1 ul of RT (50 U /ul) and 1 ul of Rnase inhibitor (20 U /ul). The RT step will be carried out by the following steps: 25 ° C for 10 mins, 42 ° C for 30 mins, 99 ° C for 5 mins, and 4 ° C for 10 mins. The finished RT mixture will be a total volume of 20 ul, and will be mixed with the PCR reaction mixture (80 ul) as suggested by the manufacturer, for a total PCR reaction volume of 100 ul. The target templates are amplified DNA fragments of 196 by after 40 cycles. Visualization of amplified DNA was by staining a 1.5 % agarose gel with ethidium bromide and illumination with UV light. 100 by lane markers will be used for size comparison. Sensitivity assays will be performed by spiking ocean samples with known amounts of poliovirus and subsequent amplification with pan - enterovirus primers. This allowed us to determine the sensitivity of each assay, which our preliminary results suggested varied depending on the presence of potentially interfering substances in seawater. Negative and positive controls will be performed for each RT -PCR run. For the negative controls, 2 ul of deionized, RNase free H2O will be added to the PCR reactions rather than RNA extract. The positive controls will be RNA extracts or concentrated seawater samples spiked with 2 ul of Poliovirus Type 1 LsC at 105 to 10-2 PFU /100 ul of high titer stock. Positive controls from the Perkin Elmer GeneAmp RNA PCR Core kit were run with each set of reactions to ensure the activity of all components in the PCR Kit Data Analyses and Deliverables R. Noble will perform data analyses based on the results of the enterovirus, bacteriophage and standard bacterial testing performed at USC, UCI and OCHCA laboratories, respectively. Upon completion of the data analyses, a brief report will be written to outline the findings, present the results, and to provide suggestions for future actions. This report will be presented to the Newport Bay Study committee. 12 • • EXHIBIT B Budget/Subconsultants Budget The following table summarizes the costs for the analyses of the enterovirus samples. Enterovirus sample analysis = $ 1,000 per sample Sample Analysis Cost/sample X number of samples $1000 X 40 = $ 40,000 Data Analysis and Report writing 10.000 Total $ 50,000 Subconsultants Consultant will be retaining Ms. Alison Davis at their expense to assist Dr. Rachel Noble on this project. As noted in Professional Services Agreement, services billed shall not exceed $50,000. All services shall be provided in accordance with Sampling Plan in Exhibit A. isq PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this � . day of November, 2000, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and The Regents of the University of California, on behalf of its Irvine campus (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 City. B. City desires to engage Consultant to provide staff services for BacterialNiral Source Tracking of Tributaries and Storm Drains Discharging into Newport Bay ( "Research Project ") . C. The principal investigator of Consultant is, for purpose of this Research Project, Dr. Sunny Jiang ( "Principal Investigator "). D. City has reviewed the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the 15t day of July 2000, and shall terminate on the 30th day of June 2001, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the Scope of Services, attached as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the Research Project budget, attached as Exhibit "B" and incorporated herein by reference. No budget changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all 0 0 work performed in accordance with this Agreement shall not exceed the total contract price of Twelve Thousand Four Hundred and Eleven dollars ($12,411). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including testing supplies. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the university's 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. 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. `A ,i 0 0 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with Dave Kiff, Deputy City Manager, the City's designated Research Project administrator ( "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 Research Project. 7. PROJECT MANAGER Consultant shall assign responsibility for the Research Project to a Principal Investigator, who shall coordinate all phases of Consultant's efforts on the Research Project. The Principal Investigator shall be available to City at all reasonable times during the Research Project term. Consultant has designated Dr. Sunny Jiang to be its Principal Investigator. Consultant shall not bill any personnel to the Research Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific salary rate. Consultant shall not remove or reassign the Principal Investigator designated in this Section or assign any new or replacement Principal Investigator to the Research Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to replacement of the Principal Investigator. Consultant warrants that it will continuously furnish the necessary personnel to complete the Research Project on a timely basis as contemplated by this Agreement. 3 9 0 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City,. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Research Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, e-mail, hand delivery or mail. 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 Research 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 law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her 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. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, 11 0 damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, but only in proportion to and to the extent such loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages are caused by or result from the negligent or intentional acts or omissions of Consultant, its officers, agents, or employees. City shall indemnify, defend, save and hold harmless Consultant, its trustees, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all acts or omissions of City, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, but only in proportion to and to the extent such loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages are caused by or result from the negligent or intentional acts or omissions of City, its officers, agents, or employees. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement self- insurance or policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required 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. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's 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 5 s • 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 Research 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. 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 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, 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 for the services to be performed under 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 null and void. 15. OWNERSHIP OF DOCUMENTS 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 and delivered to City shall be the exclusive property of City. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and n City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY Because the City deems the Scope of Services outlined in Attachment A to be of benefit to a wide variety of constituencies, the City and its Consultant apply no specific confidentiality limitations on any information which results from the services in this Agreement. Both parties reserve the right to retain any information as confidential if agreed to by both parties. 17. ADMINISTRATION This Agreement will be administered by the City Manager's Department. Dave Kiff, Deputy City Manager, shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Deputy City Manager or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. 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 work 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. 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. VA 20. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Research Project. 21. 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 City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 22. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 23. 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 third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach City Manager's Office 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 949/644 -3002 (phone) 949/644 -3020 (fax) 0 0 0 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Doug Bickham Contracts Officer Sponsored Projects Administration University of California, Irvine 160 Administration Building Irvine, CA 92697- 1875 (949) 824- 2644 (phone) (949) 824- 2094 (fax) a, 94:7Jd1►►AI Is] ►1 In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. City or Consultant shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to the other party as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 25. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 26. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 27. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this PE 9 i 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. APPROVED AS TO FORM: By: Robert Burnham City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corp /oration By: Cis ZA�— Homer L. Bluck City Manager for the City of Newport Beach CONSULTANT Y The Regents of the University of California 10 EXHIBIT A 9 Sampling Plan for Bacterial/Viral Source Tracking of Tributaries and Storm Drains Discharging into Newport Bay Principal Investigator: Sunny Jiang, Ph.D 1367 SE II University of California - Irvine Irvine, Ca 92697 Tel: (949) 824 -5527 sjiang @uci.edu Proposal Submited to: Dave Kiff The City of Newport Beach 3300 Newport Boulevard Newport Beach, Ca 92663 (949) 644 -3002 d kiffC@ city. newport- beach.ca.us Project Description Due to the increasing nationwide attention to control nonpoint source pollution, Total Maximum Daily Loads (TMDLs) are being developed and implemented in most surface water bodies of the U.S. Fecal coliform and nutrient TMDLs have been developed for Newport Bay, which is a water body of primary concern in southern California and specifically in State Water Regional Control Board's (SWRCB's) Region 8. Both TMDLs will be implemented as phased TMDLs. These phased TMDLs are designed to achieve compliance with water quality objectives in stages since the sources of pathogens and nutrients have not been fully identified. The stepwise compliance of water quality objectives with phased TMDLs allows for concurrent study of the pollutant including source identification, and implementation of source control measures such as best management practices (BMPs). With respect to the fecal coliform TMDL, the Newport Bay Watershed Committee has identified a need 1) to determine the sources of the pathogens entering the bay, and 2) to determine the potential risk of these pathogens to human health. To address item #1, Regional Board staff have researched the current methods of bacterial and viral source tracking and contacted many of the research scientists in this field of study. A list of current bacterial and viral source tracking research methods and researchers follows. 11 0 Ribotyping (E. Coli) — Reverse transcriptase PCR ( Enteroviruses) — PCR (Adenoviruses) -- Toxin biomarkers -- Antibiotic resistance -- Male specific bacteriophage -- Comparative study -- Fate & transport study -- M. Samadpour, U. Washington R. Noble, USC S. Jiang, UCI B. Olsen, UCI J. Harwood, U.S. Fla M. Sobsey, UNC B. Yanko, LACSD R. DeLeon, MWD W. Chen, UCR M. Ibekwe, USSL After careful consideration of the available techniques and available monies, the Regional Board is proposing the following sampling plan for Newport Bay. Sampling Plan Summary The study for the Newport Bay pollution source identification is divided into two phases. The phase I sampling plan will collect data for 1) viral indicator testing (performed by Dr. Rachel Nobel at USC), 2) standard bacterial indicator testing (Standard Methods), and 3) bacteriophage testing (by Dr. Sunny Jiang at UCI) from 9 priority tributaries and storm drains around Newport Bay. Water samples will be collected once per week from each site for 3 weeks, split into 3 portions, and analyzed for enteroviruses, standard bacterial indicators (total /fecal coliform, E. coli, enterococci), and male - specific bacteriophage. Enterovirus Testing. The presence of enteroviruses will be determined (and later quantified) by the method of reverse transcriptase-polymerase chain reaction (RT- PCR) by Rachel Noble, PhD, at USC genetic laboratories. This method gives a presence /absence result but can be semi - quantitative if used with a series of sample dilutions. Quantitative RT -PCR will also be conducted on the same samples when new instrumentation at USC has been properly calibrated (approximately 2 months time). Samples of known human waste and animal waste will be tested in the laboratory as positive and negative controls. Standard Bacterial Indicator Testing. Total and fecal coliform, E. coli, and enterococci will be determined by OCHCA by current standard analytical techniques (Standard Methods). Male- specific Bacteriophage Testing. Male- specific bacteriophage testing will be conducted by Sunny Jiang, PhD, at UC Irvine laboratories. Objective and Justification The objectives of the overall sampling plan are 1) to determine the presence and amount of human fecal contamination contributed by tributaries and storm drains to Newport Bay, and 2) to identify those tributaries and storm drains of highest concern. Phase I sampling will be used as a screening test to identify the tributaries /drains of highest concern. This will be accomplished by the analyses of split water samples for enteroviruses, standard bacterial indicators (total /fecal coliform, E. coli, enterococci), 12 and bacteriophage. When the tributaries /drains of highest concern have been identified based on Phase I screening, additional sampling will be performed to more rigorously characterize those tributaries /drains. Sampling Strategy Sampling Sites. Samples will be collected directly from each tributary and storm drain at the safest accessible location upstream of the point of discharge to the Bay or at the mouth of the discharge. Nine sites have been chosen as priority sites by the Newport Bay Watershed Committee based on historical bacterial indicator data, the extent of beach use, and the size and location of the discharge (Table 1). These sites were chosen from sites routinely monitored by OCHCA (Figure 1). In addition, San Diego Creek and Santa Ana Delhi will be sampled at 2 locations each. Sampling Scheme. Samples will be collected once per week on the same day of the week at each site for 3 consecutive weeks. Samples will be collected at the same time of day at each respective site to ensure collection of samples through tidal changes. Grab samples of approximately 20L will be collected by OCHCA staff, R. Noble and S. Jiang, and will be split for analysis of 1) enteroviruses, 2) standard bacterial indicators, and 3) bacteriophage respectively. Samples will be collected in sterile sample bottles in accordance with sampling methods specified in Standard Methods, and samples will then be placed in plastic bags on ice. Samples for enteroviruses will be brought directly to USC for immediate filtration and concentration. Samples for standard bacterial indicators and bacteriophage will be brought to OCHCA and UCI, respectively, as soon as possible after sample collection. 13 Be An:- Mena - Caatavaya Nain Upper [stand The N —aa Middle islmd tIt star Beach Baer' Sha .a Channel lambaree is 54— 5 nevI \ - rnt ! aaan 11 Bean Launch Canyon Wash Hann& V �SheBmaker bland top (Planned) Ar s Drain & e A y Dr. Pipe 3r Pca BrlaQ= • . hine h � in enoa shore ac u s M,E,W,N Ud. 38th 3 St. vend S . Yoe lub Ne'ryart c.>n =& 19th [ each x Ave. � 1.^Beac Balboa Penrod a th t. Be Balboa bland ark Ave. arnet Ave. rand Canal Nevporl Pier Bay bland 0 D hia Corinthian +armr Saphire ve.Abalo e�.ve. D.I. ^a a Harbor Patrol Beach q� Alvarado ' 1- It Ba Isle Corona Del Mar Drain l� Balbaa p`er N St. Bea' Rocky Pt. Beach Pacific Ocean Figure 1: OCHCA Newport Bay Sampling Stations and Genetic Source Sampling Locations II-Ed! U 0 Table 1: Sample Locations for Tributary and Storm Drain Sampling at Phase I Sampling Site San Diego Creek @ Campus and Michaelson 2 Santa Ana Delhi @ Mesa and University 2 Big Canyon Wash Back Bay Dr. Back Bay Dr. Drain 43rd St. PCH Storm Drain Arches Drain J Materials and methods for Detection of F- specific coliphage in Newport Bay, California Bacterial host and growing conditions: E. coli HS (pFamp) R was grown in TSB broth (Dific, Inc.) containing 15 mg /L each of ampicillin and streptomycin at 37 °C over night. The next morning, 5 ml of the overnight culture was transferred to 500 ml of fresh TSB broth containing the antibiotics and incubated for 3-4 hours before used for enrichment or direct detection of F- specific coliphage by top agar overlay. Multi -tube enrichment: Three 1- litter water samples from each site were enriched with 60 ml sterile 11x TSB medium, 10 ml late log phase E. coli host and a final concentration of 15 mg /L of ampicillin and streptomycin. Five 100 -ml water samples from each site were amended with 10 ml sterile 11 x TSB medium, 1 ml E. coli host and antibiotics. Five 10 -ml sample enrichments were amended with 1 ml sterile 11 x TSB medium, 0.5 ml E. coli host and antibiotics. Negative controls contained five tubes of 100 -ml sterile DI water amended with nutrient medium, E. coli host and antibiotic as in regular sample assay. The enrichment cultures were incubated at 37 °C for 24 hours before tested for the presence of F- specific coliphage by spot test. For spot test, 1 ml of log phase E. coli host was mixed with top agar and overlayed over the bottom TSB agar plate containing antibiotics to form an even bacterial lawn. Two - microliter of each enrichment culture was spotted onto the freshly prepared bacterial lawn. A replicate set of plates was used for each sample. The plates were incubated at 37 °C for 8 to16 hours. The clearing spots were scored and the MPN calculated using Thomas' formula (Clesceri et al. 1998). Direct top agar overlay: Water sample from each site was also used directly to detect F- specific coliphage by top agar overlay. One ml of water sample was mixed with one ml of E. coli host, 3 ml of soft agar and poured over the bottom TSB agar plate containing 15mg /L of ampcilin and streptomycin. A replicate assay was performed for each sample. The plates were incubated at 37 °C for 12 to 18 hours before plaque examined and enumerated. 15 Ll Data Analyses The initial 3 week data set is intended to be used as a screening tool to determine the presence of enteroviruses and bacteriophage at each site, and to compare these results with the 3- sample mean for each standard bacterial indicator from each site. R. Noble will perform these analyses based on the results of the enterovirus, bacteriophage and standard bacterial testing performed at USC, UCI and OCHCA laboratories, respectively. With respect to enterovirus testing, a negative test result (absence) does not ensure that no viruses are present at the sampling site but only that no viruses were found in the specific grab sample tested on one particular date. Phase II Sampling Plan After a careful analysis of phase I study data, two locations were identified as priority study sites to understand the source of pollution to the bay. Extended testing is proposed below to further characterize the pollutants and to confirm or reject the results from phase I study. San Diego Creek — bacterial indicators (total & fecal coliform, E. coli, enterococci), human enterovirus, F- specific phage data will be collected at two sites, first site at the cross street of Campus Drive and the 2nd site at the Michaelson Drive. Samples will be taken 2 times per week for a consecutive 4- week period. A total of 8 samples will be analyzed at each site. Newport Bay - bacterial indicators (total & fecal coliform, E. coli, enterococci), human enterovirus, F- specific phage data will be collected at 2 sites, at Newport Bay north Dunes and at 43rd street, respectively. Samples will be taken 2 times per week for a 4 -week period as for the San Deigo Creek sample. Sampling Procedure, Strategy and Analysis The sampling procedure, strategy and analysis will be identical to those described for phase I study. For F- specific coliphage study, a modified protocol will be used in phase II to better capture the abundance and distribution of this organism in the watershed. Five -tube enrichments of 100ml and 10ml- sample will be used for each site. In addition, a replicate of two- milliliter water samples from each site will be tested by direct top agar over lay method as described for phase I study. 16 0 EXHIBIT B RESEARCH PROJECT BUDGET Budget Period: 7/01/00 — 6/30/01 TOTAL A. PERSONNEL SERVICES - SALARIES AND WAGES Name: Position Title: Salmi /hrly rate % or hrs S. Jiang Prin Investigator $5489 (summer) 0.4210 $2,311 W. Fu Lab Research Asst $11.40/hr 330 hrs $3,762 Total Salaries And Wages $6,073 Staff Fringe Benefits: Academic Personnel (Jiang) 9.2% $213 Lab Asst (Fu) 5.2% $196 Total Fringe Benefits 409 TOTAL PERSONNEL COST: $6,482 B. OPERATING EXPENSES Supplies: sample bottles, plastic petridishes, pippets, flasks, and microbiological media Supply costs per sample @ $30 ea Phase I supplies @ $30 x 27 samples $810 Phase II supplies @ $30 x 32 samples $960 $1,770 Total Direct Costs $8,252 C. UNIVERSITY ADMINISTRATIVE OVERHEAD @ 50.4% $4,159 D. TOTAL COSTS 112 411 Breakdown of Costs per Phase: Phase I Phase II Cost per sample: $210.36 Personnel $3062 $3420 Supplies $ 810 $ 960 Overhead 1951 2208 Totals $5823 $6588 (59 samples )$12,411 17 F- SPECIFIC COLIPHAGE ANALYSIS AT UC IRVINE P.I. - S. JIANG CITY OF NEWPORT BEACH, CA BUDGET JUSTIFICATION PERSONNEL Principal Investigator: Sunny Jiang, Ph.D. will be in charge of the study design, data analysis for F- specific coliphage results. She will also train the research assistant for conducting the research, assist with sample collection, and sample analysis. Dr, Jiang will take compensation in the form of summer salary calculated at approximately 42% of one summer salary month for Phase I and Phase 11 of the study. Laboratory Research Assistant: Ms. Waxia Fu will be in charge of conducting the experiments and collection of the samples for F- specific coliphage analysis using the multi -tube enrichment method. She will conduct experiment for plaque assay and spot test to confirm the presence of coliphage. She will devote 5.5 hours per sample at the rate of $11.40 /hour. Fringe Benefits: Benefits for academic and staff personnel have been calculated at the University - established benefit rate of 9.2% for summer for academic personnel and 5.2% for casual staff. OPERATING EXPENSES Materials and supplies for this project are estimated to cost $30 per sample. These supplies include sample bottles, plastic petridishes, pippets, flasks, and microbiological media. Estimation is based on historical costs and listed catalog pricing. ADMINISTRATIVE OVERHEAD University Overhead (Facilities and Administrative costs) were estimated in accordance with UCI's current indirect cost rate agreement. UCI's indirect cost rate agreement was approved by DHHS, the Federal Cognizant Audit Agency for UCI on 4/10/97 and remains valid through June 30, 2001. W] PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this —04 day of August, 2000, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and the Southern California Coastal Water Research Project or SCCWRP (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 City. B. City desires to engage Consultant to provide project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant is, for purpose of this Project, Dr. Rachel Noble. D. City has reviewed the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms of conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the Sth day of July, 2000, and shall terminate on the'Mth day of October, 2000, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the Scope of Services, attached as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates, attached as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of thirty 0 0 thousand dollars ($30,000). The City Manager shall have the authority to authorized work beyond this amount, not to exceed an additional $3,000. 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including testing supplies. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. 3.4 City shall reimburse Consultant only for those costs or expenses which'' have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with the 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. 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. F • • 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents, to be them agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. 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. 7. PROJECT MANAGER Consultant shall assign the Project to a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Project term. Consultant has designated Dr. Rachel Noble to be its Project Manager. Consultant shall not bill any personnel to the Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 0 0 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with Exhibit A. The failure by Consultant to strictly adhere to the schedule, may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and' may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, e-mail, hand delivery or mail. 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 law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her 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. 12. HOLD HARMLESS Consultant shall 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, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal 2. 0 0 injury, property damages, or any other claims arising from any and all acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of City, or its employees, or other contractors, excepting only the sole negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, 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. Certification of all required 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. Except workers compensation, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating Guide: unless otherwise approved by the City Risk Manager. A. Worker's 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. 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 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 5 0 E 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, 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 for the services to be performed under 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 null and void. 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. OWNERSHIP OF DOCUMENTS 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. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. E 16. CONFIDENTIALITY Because the City deems the Scope of Services outlined in Attachment A to be of benefit to a wide variety of constituencies, the City and its Consultant apply no specific confidentiality limitations on any information which results from the services in this Agreement. Both parties reserve the right to retain any information as confidential if agreed to by both parties. 17. ADMINISTRATION This Agreement will be administered by the City Manager's Department. Dave Kiff, Deputy City Manager, shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Deputy City Manager or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. ' 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. 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 work 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. 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. 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 7 • 21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. 22. 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 City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 23. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City. 24. 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 third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach City Manager's Office 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 949/644 -3002 (phone) 949/644 -3020 (fax) All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: r1 0 0 Attention: Dr. Rachel Noble Southern California Coastal Water Research Project 7171 Fenwick Lane Westminster, California 92683 -5218 714/372- 9203(phone) 714/894 -9699 (fax) 25. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two( (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 26. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 0 • 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation By: Robert Burnham;' City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless City Clerk By: zl�� Homer L. Bluda City Manager for the City of Newport Beach CONSULTANT By: Steph n B. Weisberg, Ph.D. Executive Director SCCWRP 10 EXHIBIT A Sampling Plan for Viral Detection of Tributaries and Storm Drains Discharging into Newport Bay The presence of enteroviruses will be determined by the method of reverse transcriptase- polymerase chain reaction (RT -PCR) at the laboratory of Dr. Jed Fuhrman at USC. This method will provide a presence /absence result, and can be used to provide semi - quantative results if used with a series of sample dilutions. Quantitative RT -PCR will also be conducted on the same samples when new instrumentation at USC has been properly calibrated (approximately 3 months time). Samples of known human waste and animal waste will be tested in the laboratory as positive and negative controls for use with quantitative RT PCR. Sampling Sites. Samples will be collected directly from each tributary and storm drain at the ' safest accessible location upstream of the point of discharge to the Bay or at the mouth of the discharge. Nine sites have been chosen as priority sites by the Newport Bay Watershed Committee based on historical bacterial indicator data, the extent of beach use, and the size and location of the discharge (Table 1). Sampling and Concentration Procedures. Sampling will begin July 19, 2000 and proceed for 3 consecutive weeks. Samples will be collected once per week on the same day of the week at each site for 3 consecutive weeks. The sampling will commence on August 2nd, 2000. The enterovirus analyses will be completed by August 101", 2000. Samples will be collected at the same time of day at each respective site to ensure collection of samples through tidal changes. For detection of enteroviruses by RT -PCR, large volumes of seawater (20 -40L) will be retrieved from each of three sample sites using an acid - rinsed (5% HCI acid), and triple sample- rinsed bucket. The samples will be put on ice, and transported immediately to the laboratory at USC. Samples will be dispensed into a 40 -liter stainless steel pressure vessel and pressure filtered (at < 18 kPa) through a glass fiber filter (Whatman, nominal pore size 1.2 um). The filter will be frozen immediately at —80 C. The filtrate will be retained in a carboy, and while on ice will be concentrated to a final volume of 40 -150 ml with the use of a spiral cartridge filtration system (Amicon, Inc., 30 kDa molecular weight cutoff, SY130). The filtrate will be further concentrated with the use of Centriprep -30 concentration to a final volume of approximately 1 ml. Previous use of the spiral cartridge concentration method for the concentration of viruses has demonstrated a recovery in excess of 80 %, determined on the basis of the concentration of countable virus particles in the sample (Suttle et al., 1991). Table 1: Sampling Sites San Diego Creek @ Campus and Michelson 2 Santa Ana Delhi @ Mesa and University 2 Big Canyon Wash @ Back Bay Dr. 2 Back Bay Dr. Drain 43rd St. PCH Storm Drain Arches Drain EXHIBIT B Billing Rates of Consultants /Subconsultants Dr. Rachel Noble Ms. Alison Davis $ /hour $ /hour As noted in Professional Services Agreement, services billed shall not exceed $30,000. All services shall be provided in accordance with Sampling Plan in Exhibit A. VP (3e) ITEM to 1v: iviemoers oT cne iNew purr Dea-1 t any �vur iui FROM: Dave Kiff, Deputy City Manager APPROVED SUBJECT: Contract Approvals - Viral and Coliphage Testing in Storm Drains and Tributaries to Newport Bay RECOMMENDED Authorize the Mayor to execute two contracts with the Southern California ACTION: Coastal Water Research Project (SCCWRP) and with the Regents of the University of California for viral and f- specific coliphage testing in storm drains and tributaries to Newport Bay. BACKGROUND: At least nine locations in Newport Bay routinely show bacteria levels higher than allowed by State law (AB 411, Wayne, 1997) for water contact recreational activities like swimming and wading. These areas include: 431d Street Beach (Channel Place Park) Arches Marina (PCH and Newport Boulevard) Bayshore Beach Santa Ana/ Delhi Channel San Diego Creek at Jamboree Big Canyon Wash Back Bay Drain/ East Side of Newport Dunes The Orange County Health Care Agency's Environmental Health Division (HCA) tests these nine areas and about 25 more at least one time a week. If the areas exceed AB 411 standards for total coliform, fecal coliform, or enterococcus, the County directs that the waters be posted as potentially unsafe for water contact recreation. A posting is separate from a closure. Per AB 411, the latter occurs when HCA suspects or knows of a sewage spill or leak. The sign on the left is a closure sign - the sign on the right is a posting. Beach Qosiae Beach Posting KEEP OUT (i) SEWAGE CONTAMINATED WATER WARNING! Y1�xUY5[�WaEiI W, MtR YxtuEtRixtp,mtttIXS 6 1AVISO! wt�i �`0w ee�.ao.oia x0 6 0 ,.t The three bacteria listed above are known as indicator bacteria, meaning that they may indicate the presence of a human pathogen like a virus. The key word is may - for we do not know with certainty whether or not a virus is always attached to or near the indicator bacteria. Nor do we know the source of the indicator bacteria - the bacteria may be present due to bird droppings (a single bird dropping can have 2.4 million fecal coliforms), pet waste, garden fertilizer, or other decomposing organic matter. Sourcing the bacteria is an expensive challenge. Some scientists - like Dr. Mansour Samadpour with the University of Washington - have proposed getting a genetic fingerprint of the bacteria and attempting to match it with bacteria from animals, humans or birds. Others question this method, arguing that the data resulting from Dr. Samadpour's methods has no statistical significance. The "holy grail' of water quality testing may be tests which identify the presence or absence of human viruses in a water sample. But such testing involves both young science and high prices. With this in mind, the City sought and received a grant from the California State Water Resources Control Board in the FY 1999 -2000 State Budget for $175,000 to conduct a source identification study in the Newport area. Working with the California Regional Water Quality Control Board (Santa Ana Region), local health officials at OC HCA, and local experts like Dr. Jack Skinner, we developed a three - phased Scope of Work for our Study. The Phases are as follows • Phase I - Preliminary Virus, Coliphage and Bacteria Testing of Newport Bay Storm Drains and Tributaries. This phase tested nine sites for viruses, f- specific coliphage, and the three indicator bacteria once a week for three weeks, including: 43rd Street Beach (Channel Place Park) Arches Marina Bayshore Beach Santa Ana Delhi Channel (near Mesa and near University) — San Diego Creek (near Campus and near Michelson) Big Canyon Wash Back Bay Drain/ East Side of Newport Dunes • Phase II -- Expanded Testing of Key Areas Identified within Phase I Plus Vessel Waste and Swimmer Contribution Studies. This Phase will re- examine and re -test (with greater frequency) sites at: 43rd Street Beach (Channel Place Park) Santa Ana Delhi Channel (several locations) San Diego Creek (near Campus and near Michelson) Newport Dunes North This Phase may also include a study to attempt to determine the extent, if any, of vessel waste discharges into the Harbor and of the contribution, if any, of fecal coliform and viruses by swimmers (known to health experts as "shedding ") in popular swimming locations in the Bay. • Phase III -- Rapid Testing of Hot - Spots. Phase III will look at instances where the OC HCA has identified a spike in bacteria numbers and will immediately attempt to test the same waters for the presence or absence of viruses. Two contracts will initially draw from the $175,000 State Grant. Since the Grant is administered through the Regional Board with the City serving as the local project manager, the contracts are both with the City. We identified the Grant monies in the FY 2000 -01 CIP (Item #250 -7251, Page 133). Our contractor for the viral portion of the Study (approximately $30,000 in Phase I) is the Southern California Coastal Water Research Project ( SCCWRP), with Dr. Rachel Noble of SCCWRP /USC acting as the lead scientist. Our contractors for the coliphage portion of the Study (approximately $10,000 for Phases I and II) are the Regents of the University of California. Dr. Sunny Jiang of UCI is the lead for the coliphage portion of the Study. This item authorizes the Mayor to approve both contracts on the City's behalf per the CIP project's guidelines and per the Professional Services Agreement submitted to and approved by Drs. Noble and Jiang. ATTACHMENTS: Attachment A - Contract with SCCWRP Attachment B - Contract with Regents of the University of California