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HomeMy WebLinkAboutC-3381 - PSA - Sampling and Analysis of Newport Harbor Sediments01/05/2001 13:41 FAX 7609311580 4EC ANALYTICAL zool AiNAUTICAI: SYSTEMS, INC.. " 24341nLpikDrive, Carlsbad, CA 920A) (7 60) 931- 8081. /(7W, 931 -1530 FAX ! : January 5, 2001 Mr..Tony Melum . Division of Harbor Resources PO BOX 1768. . Newport Beach, .CA. 92656 Fax: (049) Subject: City of Newport Beach — Additional Project Scope /Schedule - Dear Tony: As described in my letter.to you of December 4, 2000, MEC had the following revisions to our Scope of Work for the sediment investigation at Newport Beach: 1, EPA requested 3 "additional cores,. 2. EPA requested bulk chemistry on individual cores, when bioassay results warranted, in addition to composite samples. Tests on individual cores will allow EPA to exclude any areas that are not suitable for ocean disposal or beach replenishment from the final permit, while still issuing a permit for other dredge. areas. Our progress to date is as follows: 1. Field sampling is"complete. 2. Bioassay testing has been.completed. 3. Bulk sediment chemistry on composites has been completed.. Chemical extractions on`the 23 individual cores were completed and. chemical extracts were held pending results of bieassaytests.and chemistry composites. 4.. " A review of the results from bioassay testing and bulk sediment testing required the chemistry of IS individual cores. These -results are pended and anticipated in 2 weeks. 5. Bioaccumulation testing will commence'the week of January 9. 21001. Bioaccumulation testing was delayed.due, to the lack of organism availability.. Organisms are wild caught andthe health and availability is dependant upon weather patterns,:season, and tides. Due to'the winter weather in late November and early December.healthy organisms could not be.obtained. This means tissue chemistry results will be available the week of March, 12, 2001 93 Main S! , Sai:e 428, Tiberon.,CA 94930 152 $coact Vivw Lo,,4 Sequin., RSA 99142 (4!5) 435-194.71 (415) 43'5.479 FAX : (360) 5521758 / (360) 532 -:679 FAX ...... ... C. - 5 3 ? 1 ITEM 8 TO: Members of the Newport Beach City Council FROM: Tony Melum, Division of Harbor Resources v SUBJECT: Amendment to Professional Services Agreement with MEC Analytical Systems, Inc. APPROVED RECOMMENDATION: Approve an amendment to Professional Services Agreement with MEC Analytical Systems, Inc. for $23,241.00. BACKGROUND: Since 1979, the City has had a Maintenance Dredging Permit ( "General Permit ") with both the California Coastal Commission (CCC) and the Army Corps of Engineers (COE). The General Permit allows commercial and residential harbor permittees to do small dredging projects (500 to 1,000 cubic yards) without the need for individual permits from the CCC or the COE, which in the past were time consuming and costly. The General Permits were historically granted for ten -year periods. The most recent permit was approved in August of 2000 for five years. When the COE granted the 2000 General Permit, it excluded four areas of the harbor from the permit (see Exhibit A) based on input from the US Environmental Protection Agency (EPA). The EPA has input on the issuance of COE permits since the Federal Clean Water Act authorizes the EPA to establish regulations and criteria for dredging sediment disposal. EPA indicated that after additional testing, depending on the results, those areas excluded might be brought back into the general permit. To resolve this issue the City prepared a Sample and Analysis Plan and went out to a Request for Proposals (RFP) to find a consultant who could perform the necessary testing. MEC Analytical Systems, Inc. was chosen for this project at a cost of $99,710.00 and work began in November of 2000. MEC's original scope of work included additional testing at the four excluded sites. Sediments would be collected from five locations at each of the sites and homogenized separately to generate a composite sample for analysis. A single Newport Beach City Council 0 0 composite would be prepared for each of the four sites and chemistry results from the samples will be used to determine the need for bio- assay/ bio - accumulation testing. Generally, the bio -assay process incorporates replicated testing of three bottom living and burrowing species in direct contact with the proposed dredged sediments. The settling of ocean disposed dredged sediments is simulated by placing the dredged sediments over sediments collected from the proposed ocean disposal site, in our case a site known as "LA -3" located four miles off the entrance to Newport Harbor. Controls include evaluation of pristine sediments and sediments already at the ocean disposal site. Included in this study is an assessment of bio- accumulation potential usually using a species of clam. Heavy metal and pesticide concentrations in the organism's tissues from each of the test conditions are compared to evaluate potential uptake of these toxic materials by the organisms living in the ocean disposal site sediments. Once statistical analysis is performed on these tests, a report is prepared and it is submitted to the EPA and COE for their review relative to the excluded area. During MEC's execution of the project, US EPA revised the scope of the work as follows: 1. EPA requested three additional cores. 2. EPA requested bulk chemistry on individual cores when bio -assay results warrant it, in addition to composite samples. These tests on individual cores will allow EPA to exclude any areas that are not suitable for ocean disposal or beach replenishment from the final permit, while still issuing a permit for other areas. Our consultant estimates that the additional work could cost $23, 241.00, although the final cost may be less. The consultant advises that the testing results will be available in report form on March 12, 2001. We can then return to the Coastal Commission and to the Corps of Engineers to bring the now- excluded areas back into the Dredging Permit. Newport Beach City Council Exhibit A h mcal and Chemical Sediment Tas'ing - Newport Harbor, 1999 , ,e Station Md { _,! = ation Cypress - over' ►' Station M1 .do ,; ., Via Ithica Island • :rStation M2 Island: - - Lido Island Yacht 306 South Bay Front Club r ' ` Station M3 -•• i •, 10th Street Aa Ion M12° ` 3ay Island `• �'• ", Station Md { _,! = ation Cypress - over' Balboa Station Al S. Island: - 306 South Bay Front -, ••��" Station M6 Z - -� Onyx Station `M ` Station M8 =tl is and o F Street Station M7 �•+ - Orange County ;. ` '" • -, Coo• - Sa Beach ! �.- -,..•i o` n M11 Isle M10 y Qa a :000 4000 FEET � - -- 0 Soo Iwo lAEi m T wow RGFsq E7c4us�"o.t rea5 w..0 :!ooiisa - :;viranruntal Sciences, 3000 Redhill Avenue, Costa M11esa, CA 92626 Newport Beach City Council • PROFESSIONAL SERVICES AGREEMENT WITH MEC ANALYTICAL THIS AGREEMENT, entered into this �W\ day of C c Zei r v , 2000, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City "), and MEC Analytical, whose address is 2433 Impala Drive, Carlsbad, California, 92008, (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 conduct a sediment investigation and characterization of certain Newport Harbor sediments upon the terms and conditions contained in this Agreement. C. The principal member of Consultant firm for purpose of Project is Dr. David Moore. D. City has solicited and received a proposal from Consultant, 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 15th day of November, 2000, and shall terminate on the 1st day of February, 2001, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the "Sampling and Analysis Plan for Newport Harbor sediment characterization," attached hereto 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 set forth in Exhibit "B" attached hereto 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 Ninety-nine thousand, seven hundred and twenty-one dollars, ($99,721.00). 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 reproductions, -1- 0 0 computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty 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. 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 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. 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 in the results of the services. -2- 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with Consultant on Project. 7. PROJECT MANAGER Consultant shall assign Project to a Project Manager, who shall coordinate all phases of Project. This Project Manager shall be available to City at all reasonable times during term of Project. Consultant has designated David Moore to be its Project Manager. Consultant warrants it will continuously furnish the necessary personnel to complete Project on a timely basis as contemplated by this Agreement. 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 the time schedule attached in Exhibit "C." The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City and 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 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 calendar days after the start of the condition, which purportedly causes a delay, but 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 telephone, fax, hand delivery or mail. 9. 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 Council. 10. 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. 11. 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 injury, -3- 0 0 property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, excepting only the active 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. 12. 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 and errors and omissions, 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. Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A- VII or better rating: 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. D. Professional errors and omissions insurance which covers the services to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000.00). 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, that Elm 0 0 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. 13. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of 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 co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent or more of the voting power, or twenty-five percent or more of the assets of the corporation, partnership or joint-venture. 14. 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 as 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 forms as City may require, furnish reports concerning the status of services required under this Agreement. 15. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 16. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. City will provide access to and upon request of Consultant, provide one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. -5- 0 0 17. ADMINISTRATION This Agreement will be administered by the Harbor Resources Division, Tony Melum, shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 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 during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three 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 for a period of thirty days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent 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 design, construction and /or a restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 21. CONFLICTS OF INTEREST A. 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. 19 i • 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 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3044 Fax (949) 673 -3068 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Y -14[ ✓id Nom, Az ro :�. .V 1M 24. 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 by defaulting party from the other party 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. 24.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven days' prior written notice to Consultant as -7- a 0 provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 25. COMPLIANCE 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 hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Mauson Assistant City Attorney ATTEST: By:.:. LaVonne Harkless City Clerk J CITY OF NEWPORT BEACH A Municipal Corporation CONSULTANT f:\users\pbw\srooks\harbor resources\agmements \fy 00- 01\psa mecanalybcal.doc In 0 ITEM 14 (� ' TO: Members of the Newport Beach City Council FROM: Tony Melum, Division of Harbor Resources SUBJECT: Maintenance Dredging Permit -- Sampling and Analysis of Harbor Sediments RECOMMENDATION: Authorize the Mayor to approve a Professional Services Agreement with MEC Analytical Systems, Inc., Carlsbad, California to complete a Sampling and Analysis of Newport Harbor Sediments in the amount of $99,710.00. DISCUSSION: In May 2000, the California Coastal Commission approved a 5 -year Regional General Permit (RGP) and Coastal Development Permit (CDP) which allows the City, under specified conditions, to authorize "maintenance dredging" within Newport Bay. When the Commission approved the RGP and CDP, it excluded several areas from the permits: • the south side of Lido Isle, • the west side of Lido Channel; • the Rhine Channel; • the south side of Balboa Island; • all around Linda Isle; and • all areas north of the PCH Bridge (Upper Newport Bay). The California Coastal Commission and US EPA have alleged that the silt within the areas identified above may be contaminated with materials toxic to humans and micro- organisms. As such, the Commission has asked that we do additional "Tier IIP' testing - testing that includes bio- assays and bio - accumulation studies if we want to ultimately "clear" these areas for dredging. These tests may include: • Bio- assays - where the material under analysis is placed in the same environment as sensitive live microorganisms. The lifespan of the microorganisms is monitored Newport Beach City Council n t� 7 CD r_ • Profe3§ional Services Agreement Page 2 during exposure to the material. The longer the life of the organisms, the cleaner the material. • Bio- accumulation studies - where organisms (like mussels and clams) known to bio- accumulate toxics are placed in an environment with the material under analysis. After a given time, the mussels and clams are removed and analyzed to see how much toxic material they have accumulated during their stay with the material under analysis. We believe that completion of these tests in each of the six areas - with satisfactory results - will lead the Coastal Commission "clear" the areas for dredging and to place the areas back within the RGP. As such, we will submit the results of the testing to the Commission as soon as the results are available. To prepare for the testing, Harbor Resources staff issued a Request for Proposals (RFP). Three firms responded to the City's request for proposals: • Ogden Environmental • MEC Analytical • MBC Applied Environmental Sciences City staff, as well as County of Orange Coastal Engineering staff, reviewed the proposals and each firms qualifications and past experience. We selected MEC Analytical to provide the necessary scope of services for a fee of $99,710.00. MEC Analytical has completed similar testing services for other local agencies in Southern California and has a good working relationship with US EPA and the U.S. Army Corps of Engineers. This work is scheduled to begin November 1, 2000 and to be complete by the end of December, 2000. Professional services required for this project include chemical and bioassay tests on four site composites and a reference composite, a draft report and a final report. Funds for this project are available in the following account: Account Name Bay Spot Dredging /Storm Diversion Account Number Amount 7231- C2371502 $99,710.00 ATTACHMENT: Professional Services Agreement with MEC Analytical Newport Beach City Council 0 E PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of 2000, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City "), and MEC Analytical, whose address is 2433 Impala Drive, Carlsbad, California, 92008, (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 conduct a sediment investigation and characterization of certain Newport Harbor sediments upon the terms and conditions contained in this Agreement. C. The principal member of Consultant firm for purpose of Project is Dr. David Moore. D. City has solicited and received a proposal from Consultant, 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 _ day of , 2000, and shall terminate on the _ day of , 200_, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the "Sampling and Analysis Plan for Newport Harbor sediment characterization," attached hereto as Exhibit "A ", and incorporated herein by reference. • Profegonal Services Agreement Page 2 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates set forth in Exhibit "B" attached hereto 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 Ninety -nine thousand, seven hundred and twenty -one dollars, ($99,721.00). 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 reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty 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. 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 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. Professtal Services Agreement Page 3 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 in 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 that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with Consultant on Project. 7. PROJECT MANAGER Consultant shall assign Project to a Project Manager, who shall coordinate all phases of Project. This Project Manager shall be available to City at all reasonable times during term of Project. Consultant has designated David Moore to be its Project Manager. Consultant warrants it will continuously furnish the necessary personnel to complete Project on a timely basis as contemplated by this Agreement. • Profe tonal Services Agreement Page 4 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 the time schedule attached in Exhibit "C." The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City and 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 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 calendar days after the start of the condition, which purportedly causes a delay, but 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 telephone, fax, hand delivery or mail. 9. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall confonn to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. 10. 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. 11. 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, • Professal Services Agreement Page 5 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 negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, excepting only the active 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. 12. 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 and errors and omissions, 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. Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A- VII or better rating: 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. • Profes3"Ional Services Agreement Page 6 C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. Professional errors and omissions insurance which covers the services to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000.00). 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, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 13. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of 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 co- tenant if Consultant is a partnership or joint-venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent or more of the voting power, or twenty -five percent or more of the assets of the corporation, partnership or joint- venture. • Professlal Services Agreement Page 7 14. 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 as 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 forms as City may require, furnish reports concerning the status of services required under this Agreement. 15. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 16. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. City will provide access to and upon request of Consultant, provide one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. 17. ADMINISTRATION This Agreement will be administered by the Harbor Resources Division, Tony Melum, shall be considered the Project Administrator and shall have the authority to act for • Professional Services Agreement Page 8 City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 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 during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three 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 for a period of thirty days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent 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 design, construction and /or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 21. CONFLICTS OF INTEREST A. 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 Profess final Services Agreement Page 9 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 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3044 Fax (949) 673 -3068 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: • ProtesSfonal Services Agreement Page 10 U Fax 24. 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 by defaulting party from the other party 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. 24.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 25. COMPLIANCE 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. Professiaffal Services Agreement Page 11 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 hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney ATTEST: M LaVonne Harkless CITY OF NEWPORT BEACH A Municipal Corporation By: John E. Noyes Mayor City of Newport Beach CONSULTANT A Dr. David Moore City Clerk MEC Analytical