Loading...
HomeMy WebLinkAboutC-3421 - Caulerpa taxifolia (killer algae) Newport Bay Survey and Education Project Scope of Work• 0 CL 3+�_) PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this lo !-_ day of June 2001, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and ORANGE COUNTY COASTKEEPER (hereinafter referred to as "CoastKeeper"), 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 CoastKeeper to provide project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of CoastKeeper is, for purpose of this Project, Garry Brown. D. City has reviewed the previous experience and evaluated the expertise of CoastKeeper and desires to contract with CoastKeeper 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 %nth day of June, 2001, and shall terminate on the Oth day of September, 2001, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED CoastKeeper 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 CoastKeeper for the services in accordance with the provisions of this Section. No rate changes shall be made during the term of this Agreement without prior written approval of City. CoastKeeper's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of eighty -one • 0 hundred dollars ($8,100.00). The City Manager shall have the authority to authorized work beyond this amount, not to exceed an additional 10% or $810.00. 3.1 CoastKeeper 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 CoastKeeper shall submit a single invoice to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 CoastKeeper shall not receive any compensation for extra work without prior written authorization of City. 3.4 City shall reimburse CoastKeeper 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 CoastKeeper: A. The actual costs of subconsultants for performance of any of the services which CoastKeeper 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. Actual costs and/or other costs and/or payments specifically authorized in advance in writing and incurred by CoastKeeper 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 CoastKeeper or under CoastKeeper's supervision. CoastKeeper 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. CoastKeeper represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. CoastKeeper 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 CoastKeeper shall not be responsible for delay, nor shall CoastKeeper 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 CoastKeepe's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond CoastKeeper's control or without CoastKeeper's fault. 5. INDEPENDENT PARTIES City retains CoastKeeper on an independent contractor basis and CoastKeeper is not an employee of City. The manner and means of conducting the work are under the control of CoastKeeper, 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 CoastKeeper or any of CoastKeeper's employees or agents, to be the agents or employees of City. CoastKeeper shall have the responsibility for and control over the details in means of performing the work provided that CoastKeeper is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct CoastKeeper as to the details of the performance of the services or to exercise a measure of control over CoastKeeper shall mean that CoastKeeper shall follow the desires of City only with respect to the results of the services. 6. COOPERATION CoastKeeper 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 CoastKeeper on the Project. 7. PROJECT MANAGER CoastKeeper 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. CoastKeeper has designated RAY &Msiup to be its Project Manager. CoastKeeper 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. CoastKeeper, 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. CoastKeeper warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 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 CoastKeeper in accordance with Exhibit A. The failure by CoastKeeper to strictly adhere to the schedule, may result in termination of this Agreement by City. Notwithstanding the foregoing, CoastKeeper shall not be responsible for delays which are due to causes beyond CoastKeeper'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 CoastKeeper 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, CoastKeeper 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 CoastKeeper 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 CoastKeeper 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 CoastKeeper 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 CoastKeeper 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, 18 0 0 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. 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, CoastKeeper 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 CoastKeeper 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 CoastKeeper, 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 CoastKeeper 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. CoastKeeper shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. CoastKeeper shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, s 0 0 which in its own judgment may be necessary for its proper protection and prosecution of the work. CoastKeeper 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. CoastKeeper 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 CoastKeeper herein, a waiver of any right of subrogation which any such insurer of said CoastKeeper may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS CoastKeeper 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 CoastKeeper pursuant to or in connection with this Agreement shall be the property of CoastKeeper and City. Documents, including drawings and specifications, prepared by CoastKeeper 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 CoastKeeper will be at City's sole risk and without liability to CoastKeeper. Further, any and all liability arising out of changes made to CoastKeeper's deliverables under this Agreement by City or persons other than CoastKeeper is waived against CoastKeeper and City assumes full responsibility for such changes unless City has given CoastKeeper prior notice and has received from CoastKeeper written consent for such changes. CoastKeeper shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. C 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 CoastKeeper 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, Assistant City Manager, shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Assistant 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 CoastKeeper shall keep records and invoices in connection with the work to be performed under this Agreement. CoastKeeper shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. CoastKeeper shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. 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. CoastKeeper shall not discontinue work as a result of such withholding. CoastKeeper shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. CoastKeeper 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 CoastKeeper which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by CoastKeeper, the additional expense shall be borne by CoastKeeper. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 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. CoastKeeper 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, CoastKeeper 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. CoastKeeper shall indemnify and hold harmless City for any and all claims for damages resulting from CoastKeeper'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 CoastKeeper 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) dkiff @city.newport- beach.ca.us (e -mail) All notices, demands, requests or approvals from City to CoastKeeper shall be addressed to CoastKeeper at: • • Attention: Mr. Garry Brown Orange County CoastKeeper 441 Old Newport Blvd. Newport Beach, CA 92663 (949) 723-5424 (phone) coastkeeperl @earthlink.net (e -mail) 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 CoastKeeper as provided herein. Upon termination of this Agreement, City shall pay to CoastKeeper that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 26. COMPLIANCES CoastKeeper 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 CoastKeeper. 0 0 29. OPINION OF COST Any opinion of the cost prepared by CoastKeeper represents his best judgment as a design professional and is supplied for the general guidance of City. Since CoastKeeper has no control over the cost of labor and material, or over competitive bidding or market conditions, CoastKeeper does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. PATENT INDEMNITY CoastKeeper 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: /obert By Burnham City Attorney for the City of Newport Beach ATTEST: ; LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: ve Omer L. BluGKau City Manager for the City of Newport Beach COASTKEEPER By. ! Garry Bro n Orange County CoastKeeper 0 EXHIBIT A Scope of Services 1 — SURVEY OF NEWPORT BAY CoastKeeper will use its best judgment to identify areas of Newport Bay which may be susceptible to intrusion by Caulerpa taxifolia. CoastKeeper will use volunteer but qualified divers to conduct a survey and mapping project that the City will be able to import onto the City's GIS database or similar. This survey and mapping effort, when completed, shall be provided to the City of Newport Beach and to the Regional Water Quality Control Board in a manner suitable to both the City and the Board. This survey shall be conducted during the months of June and July 2001. The survey and map shall be provided to the City within 45 days of the completion of the diving activity associated with the survey. 2 — EDUCATION CoastKeeper will identify key stakeholder groups that need education as to Caulerpa's dangers, including, but not limited to, how to appropriately dispose of salt- water aquarium plants and what to do when Caulerpa is identified. These groups shall include, but not be limited to, aquarium owners, aquarium maintenance companies, aquarium stores, boating retailers, marinas, boat maintenance and hardware suppliers, fuel docks, and more. CoastKeeper will use its best judgment to develop and implement an education program for these stakeholders. This education program may include, but not be limited to, existing educational materials provided by the Regional Board. This education program shall be completed during the months of June, July, and August 2001. On completion of the education program, CoastKeeper shall provide a report to the City detailing the method(s) of education used, the stakeholder groups that CoastKeeper addressed, and CoastKeeper's evaluation of the effectiveness of its efforts. 11 C -3421 • ITEM 11 o��W�oRT -0) AO,. NEWPORT May 22, 2001 Regular Meeting alu : o- s 9Ci FO PN TO: Members of the Newport Beach City Council FROM: Dave Kiff, Assistant City Manager SUBJECT: City's Support for Orange County CoastKeeper's Caulerpa taxifolia Newport Bay Survey and Education Project (Budget Amendment and Agreement Authorization) RECOMMENDED (1) Approve Budget Amendment (BA- _) authorizing the expenditure of $8,100 ACTIONS: to support Orange County CoastKeeper s Caulerpa taxifolia Newport Bay Survey and Education Project; and (2) Authorize the City Manager to execute an Agreement with CoastKeeper to complete the Scope of Work associated with the Caulerpa Survey and Education Project. BACKGROUND: Marine experts believe that Newport Harbor's balanced and diverse ecosystem is threatened by a highly invasive exotic algae known as "Killer Algae" or, more precisely, Caulerpa taxifolia. Caluerpa is typically found in salt -water aquariums, where it can be appropriately controlled. But in recent months - possibly due to careless disposal of a salt -water aquarium - it has appeared and taken hold in Agua Hedionda Lagoon in San Diego County and in Huntington Harbor here in Ell _ Orange County. According to the California Regional Water Quality Control Board, Santa Ana APPROVED Region, Caulerpa can form a "dense, smothering blanket of growth on any surface (rock, sand, or mud) ... and is capable of extremely rapid growth ... (covering) more than 75 square feet within one year. Once established, Caulerpa can kills native waterplants like Eelgrass and Kelp. The disappearance of these native plant species can severely diminish the biological diversity of our waters, starting a chain reaction that can impact commerce, fishing, and the recreational use of the harbor. ® • Caulerpa has not been found in Newport Bay as of the date of this report, but Regional Board staff believe that Newport Bay is a likely place to find Caulerpa given a demographic base that potentially has many salt -water aquariums in residences and businesses around the Bay. Orange County CoastKeeper, a local non -profit coastal protection group based in Newport Beach, has worked with the Regional Board to develop a program whereby CoastKeeper would, under Board supervision: • Caulerpa Survey. Survey selected areas on the floor of Newport Bay to attempt to find Caluerpa. The survey would use volunteer divers with advanced certificates using CoastKeeper vessels and overseen by CoastKeeper staff. • Education. Conduct a public education campaign aimed at Newport Beach residents and recreational users of the Bay. CoastKeeper would use existing and new educational materials to contact the media, dive shops, aquarium dealers, and More to inform them about Caulerpa. CoastKeeper has proposed the following budget for the Survey and Education Project: At its meeting on May 3, 2001, the Harbor Quality Citizens Advisory Committee (I -IQAC) voted unanimously to recommend to the City Council that it support Orange County CoastKeeper's Caulerpa Project. A proposed Professional Services Agreement between the City and OC CoastKeeper based on the above Scope of Work and Budget is attached. y Caulerpa taxifolia Survey aind Educitton Program Budget . - 11 Task Expense Staffing Dive Master $ 2,000 Skipper (2) $ 1,920 Scheduler $ 800 Boat Fuel $ 600 Maintenance $ 500 Rope /Buoys $ 280 Oxygen $ 800 Public Education -- Posters /Mailing $ 1,200 Total $ 8,100 At its meeting on May 3, 2001, the Harbor Quality Citizens Advisory Committee (I -IQAC) voted unanimously to recommend to the City Council that it support Orange County CoastKeeper's Caulerpa Project. A proposed Professional Services Agreement between the City and OC CoastKeeper based on the above Scope of Work and Budget is attached. y E E THIS AGENDA This Agenda Item asks the City Council to approve a Budget Amendment using ITEM: current year (FY 2000 -01) funds to support Orange County CoastKeeper's Caulerpa taxifolia survey in Newport Bay. The Agenda Item further proposes that the Survey and Education Project be completed by CoasdKeeper under the terms of the attached Professional Services Agreement. ATTACHMENTS: Attachment A - Budget Amendment 2001 -_ in the amount of $6,100.00 Attachment B - Copy of Regional Board's Flier on Cauuerpa taxifolia Attachment C - Proposed Professional Services Agreement between the City of Newport Beach and Orange County CoastKeeper for Caulerpa taxifolia Survey and Education Project W I Your help is critical to the success • of California's effort to eradicate and prevent further infestation by this destructive marine seaweed. If you find any of this seaweed anywhem (in the water, along the shoreline, or on your watercraft or fishing gear), please contact one of the agencies listed below and provide the following information: r- • Where you found it (including significant landmarks and water depth) • Your name, telephone number, and Email address National Marine Fisheries Service (562)980 -4043 • bob.hoffman @noaa.gov California Dept. of Fish and Game (858)467 -4218 • wpaznokas @dfg.ca.gov Santa Ana Regional Water Quality Control Board (909) 732 -4306 Caulerpa a,rb8.swrcb.ca.gov Thank you for your assistance! Ph t.timpls C Alexandre Mnnn., University at Nice- Soplva Antipohe and the San Diego Aagianal Water Quality Control Board Sa'RCIIYt Tweed neatens cif ernia A. Risk: Why the concern? Although the marine (saltwater) seaweed Caulerpa twdfolia, also known as "killer algae', poses no threat to human health, it will have devastating ecological and inomic consequences for California if it is allowed to become permanently established. This non - native seaweed threatens California's coastal marine life, including kelp forests and their related fish, marine mammals, and sea birds. Caulerpa taxifolia has the ability to form a dense smothering blanket of growth on any surface (rock, sand, or mud). It is capable of extremely rapid growth —up to one inch per day. Any small fragment of this seaweed has the ,__cential to start a new colony, which can expand to cover more than 75 square feet within one year. It can grow in shallow coastal lagoons as well as in deeper ocean waters, and has reportedly survived for up to ten days out of water. Because of these characteristics, an infestation of Caulerpa taxifolia can quickly become uncontrollable. All Coastal Marine Life! What does it look like? Caulerpa taxifoia has a brilliant (almost fluorescent) green color and grows in the form of flat, leafy (fern -like) fronds that extend upward from each main stem (see photograph below). Each stem can grow to nine feet in length and have up to 200 fronds. This algae can be found as individual plants or in dense blankets that may cover many acres. Do not be deceived by its attractive appearance! For more information, visit: http://swrxLmfs.noaa.gov/hcd/Cauler,pa. htm Where has it invaded? Caulerpa ta)dfoBa has invaded the Mediterranean Sea, with devastating results. Many marine scientists have concluded that it is too late to save the Mediterranean coastline from this destructive seaweed. Genetic work suggests that all Caulerpa taxifolia plants in the Mediterranean are clones of a single plant released from an aquarium in 1984. This seaweed has recently been discovered near Sydney, Australia, and now in California. How does it spread? Despite restrictions on its possession, transport, and /or sale, Caulerpa taxifolia continues to be part of the aquarium trade. The recent infestation in San Diego County is believed to have resulted from a release from a home saltwater aquarium. Dispersal of Caulerpa taxifolia throughout the Mediterranean is believed to be primarily attributable to fishing gear, boat anchors and anchor lines. 0 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of June 2001, by and between CITY OF NEWPORT. BEACH, a Municipal Corporation (hereinafter referred to as "City"), and ORANGE COUNTY COASTKEEPER (hereinafter referred to as "CoastKeeper'), 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 CoastKeeper to provide project management and staff services upon the terms and conditions contained in this Agreement. C. The principal member of CoastKeeper is, for purpose of this Project, Garry Brown. D. City has reviewed the previous experience and evaluated the expertise of CoastKeeper and desires to contract with CoastKeeper 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 _th day of June, 2001, and shall terminate on the _th day of September, 2001, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED CoastKeeper 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 CoastKeeper for the services in accordance with the provisions of this Section. No rate changes shall be made during the term of this Agreement without prior written approval of City. CoastKeeper's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of eighty -one q • • hundred dollars ($8,100.00). The City Manager shall have the authority to authorized work beyond this amount, not to exceed an additional 10% or $810.00. 3.1 CoastKeeper 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 CoastKeeper shall submit a single invoice to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 CoastKeeper shall not receive any compensation for extra work without prior written authorization of City. 3.4 City shall reimburse CoastKeeper 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 CoastKeeper: A. The actual costs of subconsultants for performance of any of the services which CoastKeeper 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. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by CoastKeeper 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 CoastKeeper or under CoastKeeper s supervision. CoastKeeper 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. CoastKeeper represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. CoastKeeper further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 2 g 4.2 CoastKeeper shall not be responsible for delay, nor shall CoastKeeper 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 CoastKeepe's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond CoastKeeper's control or without CoastKeeper's fault. 5. INDEPENDENT PARTIES City retains CoastKeeper on an independent contractor basis and CoastKeeper is not an employee of City. The manner and means of conducting the work are under the control of CoastKeeper, 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 CoastKeeper or any of CoastKeeper's employees or agents, to be the agents or employees of City. CoastKeeper shall have the responsibility for and control over the details in means of performing the work provided that CoastKeeper is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct CoastKeeper as to the details of the performance of the services or to exercise a measure of control over CoastKeeper shall mean that CoastKeeper shall follow the desires of City only with respect to the results of the services. 6. COOPERATION CoastKeeper 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 CoastKeeper on the Project. 7. PROJECT MANAGER CoastKeeper 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. CoastKeeper has designated to be its Project Manager. CoastKeeper 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. CoastKeeper, 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. CoastKeeper warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 a 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 CoastKeeper in accordance with Exhibit A. The failure by CoastKeeper to strictly adhere to the schedule, may result in termination of this Agreement by City. Notwithstanding the foregoing, CoastKeeper shall not be responsible for delays which are due to causes beyond CoastKeeper's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each parry hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 CoastKeeper 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, CoastKeeper 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 CoastKeeper 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 CoastKeeper 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 CoastKeeper 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 CoastKeeper 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, 0 10 0 0 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. 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, CoastKeeper 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 CoastKeeper'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 CoastKeeper, 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 CoastKeeper 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. CoastKeeper shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. CoastKeeper shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, 5 which in its own judgment may be necessary for its proper protection and prosecution of the work. CoastKeeper 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. CoastKeeper 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 CoastKeeper herein, a waiver of any right of subrogation which any such insurer of said CoastKeeper may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS CoastKeeper 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 CoastKeeper pursuant to or in connection with this Agreement shall be the property of CoastKeeper and City. Documents, including drawings and specifications, prepared by CoastKeeper 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 CoastKeeper will be at City's sole risk and without liability to CoastKeeper. Further, any and all liability arising out of changes made to CoastKeeper's deliverables under this Agreement by City or persons other than CoastKeeper is waived against CoastKeeper and City assumes full responsibility for such changes unless City has given CoastKeeper prior notice and has received from CoastKeeper written consent for such changes. CoastKeeper shall, at such time and in such form as City may require, furnish reports concerning the status of services required under this Agreement. N t'� U 16. CONFIDENTIALITY 9 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 CoastKeeper apl iy 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, Assistant City Manager, shall be considered the Project Administrator and shall have the authority act for City under this Agreement. The Assistant 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 CoastKeeper shall keep records and invoices in connection with the work to be performed under this Agreement. CoastKeeper shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. CoastKeeper shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. 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. CoastKeeper shall not discontinue work as a result of such withholding. CoastKeeper shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. CoastKeeper 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 CoastKeeper which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by CoastKeeper, the additional expense shall be borne by CoastKeeper. Nothing in this paragraph is intended to limit. City's rights under any other sections of this Agreement. 7 13 r� r. U 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. CoastKeeper 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, CoastKeeper 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. CoastKeeper shall indemnify and hold harmless City for any and all claims for damages resulting from CoastKeeper'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 CoastKeeper 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) dkiff @city.newport- beach.ca.us (e -mail) All notices, demands, requests or approvals from City to CoastKeeper shall be addressed to CoastKeeper at: E 2y 0 9 Attention: Mr. Garry Brown Orange County CoastKeeper 441 Old Newport Blvd. Newport Beach, CA 92663 (949)723- 5424(phone) coastkeeperl @earthlink.net (e -mail) 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 parry 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 CoastKeeper as provided herein. Upon termination of this Agreement, City shall pay to CoastKeeper that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 26. COMPLIANCES CoastKeeper 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. ���1 ♦ L` j I i Xr] ;7sti I[� �Zd•] : I I I :7_I•] 11 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 CoastKeeper. 0 0 • 29. OPINION OF COST Any opinion of the cost prepared by CoastKeeper represents his best judgment as a design professional and is supplied for the general guidance of City. Since CoastKeeper has no control over the cost of labor and material, or over competitive bidding or market conditions, CoastKeeper does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. PATENT INDEMNITY CoastKeeper 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: 0 Robert Burnham City Attorney for the City of Newport Beach ATTEST: By' r LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: Homer L. Bludau City Manager for the City of Newport Beach COASTKEEPER By: Garry Brown Orange County CoastKeeper io 2 0 0 EXHIBIT A Scope of Services 1 — SURVEY OF NEWPORT BAY CoastKeeper will use its best judgment to identify areas of Newport Bay which may be susceptible to intrusion by Caulerpa taxifolia. CoastKeeper will use volunteer but qualified divers to conduct a survey and mapping project that the City will be able to import onto the City's GIS database or similar. This survey and mapping effort, when completed, shall be provided to the City of Newport Beach and to the Regional Water Quality Control Board in a manner suitable to both the City and the Board. This survey shall be conducted during the months of June and July 2001. The survey and map shall be provided to the City within 45 days of the completion of the diving activity associated with the survey. 2 — EDUCATION CoastKeeper will identify key stakeholder groups that need education as to Caulerpa's dangers, including, but not limited to, how to appropriately dispose of salt- water aquarium plants and what to do when Caulerpa is identified. These groups shall include, but not be limited to, aquarium owners, aquarium maintenance companies, aquarium stores, boating retailers, marinas, boat maintenance and hardware suppliers, fuel docks, and more. CoastKeeper will use its best judgment to develop and implement an education program for these stakeholders. This education program may include, but not be limited to, existing educational materials provided by the Regional Board. This education program shall be completed during the months of June, July, and August 2001. On completion of the education program, CoasKeeper shall provide a report to the City detailing the method(s) of education used, the stakeholder groups that CoastKeeper addressed, and CoastKeeper's evaluation of the effectiveness of its efforts. 11 l� `ity of Newport Beach S BUDGET AMENDMENT 2000 -01 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additidnal estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 050 AMOUNT: 5a,fao.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase expenditure appropriations for Orange County CoastKeeper's Caulerpa taxifolia Newport Bay Survey and Education Project, ACCOUNTING ENTRY: BUDGETARY FUND 13ALANCE Fund Account Description 230 3605 Fund Balance REVENUE ESTIMATES (360 1) Fund/Division Account Description EXPENDITURE APPROPRIATIONS (3603) Description Division Number 2371 Tidelands Account Number 8060 Services - Professional & Technical Division Number Account Number Division Number Account Number Division Number ' Account Number Signed: Signed: Administrative Approyef: City Manager Amount Debit Credit $8,100.00 $8,100.00 Date D Da f Signed: City Council Approval: City Clerk Date cry of Newport Beach BUDGET AMENDMENT 2000 -01 NO. BA- 050 AMOUNT: 55,100,00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance �X Increase Expenditure Appropriations AND X Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: Bt T - C!, ' CITY OF NiE'avPC?T E'cA.CH from existing budget appropriations i from additional estimated revenues I 2 PX from unappropriated fund balance G jfjj EXPLANATION: a This budget amendment is requested to provide for the following: To increase expenditure appropriations for Orange County CoastKeeper's Cauierpa taxifolia Newport Bay Survey and Education Project. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 230 3605 REVENUE ESTIMATES (3601) Fund/Division Account EXPENDITURE APPROPRIATIONS (3603) Amount Debit Description Fund Balance $8,100.00 Description Signed: Signed: City Signed: / City Council Approval: City Credit $8,100.00 Date Da / Da S 0-1 c Date Description Division Number 2371 Tidelands Account Number 8080 Services - Professional & Technical Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: City Signed: / City Council Approval: City Credit $8,100.00 Date Da / Da S 0-1 c Date