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HomeMy WebLinkAboutC-3730 - PSA for Oloid Circulation Unit Demonstration Evaluationi CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 25 June 27, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: City Manager's Office Dave Kiff, Assistant City Manager 9491644 -3002 or dkiff @city.newport - beach.ca.us SUBJECT: Newport Island Channels Oloid Project —CEQA Determination RECOMMENDATION: Abandon the project indefinitely. DISCUSSION: As you will recall, at the May 23, 2006, meeting, your Council discussed a recommendation from City staff regarding certification of a Categorical Exemption under CEQA for a project that would install up to 15 devices (called Oloids or "oh -lo- weeds ") in the Newport Island channels that would improve water circulation. The item was continued until June 27, 2006, to allow for additional interaction with area residents to attempt to address various concerns about the Project. That evening and in the days that followed, we discussed residents' concerns about noise and the long -term viability of these devices. We still believe that both noise and durability of the Oloids can be successfully addressed, but not without a full -scale installation of all 15 devices in the channels. However, this full -scale installation isn't possible without neighborhood support, which today we do not have. We also examined the possibility of installing a smaller number (four) of these devices near the Newport Boulevard bridge as a pilot project. But since our engineering evaluation shows that only 15 or more will actually improve water quality, installing just four merely for noise evaluation purposes doesn't make much sense. And since the State of California proposed funding these devices with Clean Beaches Initiative money, the State was also unwilling to do a partial installation given the engineering studies that suggest that all 15 are needed. Submitted by: • t Dave M, Assistant CiyManager l38 J�uo-2oo�� ;, ITY OF NEWPORT BEACH MAY 23 CITY COUNCIL STAFF REPORT l_iJ0& V JUG Zy— Agenda Item No. 16 May 23, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @city.newport - beach.ca.us John Kappeler, Acting Division Manager, Code & WO Enforcement 949/644 -3215 orjkappeler @ city.newport- beach.ca.us SUBJECT: Mitigated Negative Declaration relating to a Water Quality Improvement Project ( "Oloid Project ") around Newport Island ISSUE: Should the City Council approve the draft Mitigated Negative Declaration (MND) for a grant from the State Water Resources Control Board (SWRCB) for future Council approval? RECOMMENDATION: Approve the Mitigated Negative Declaration (MND) for the Oloid Project. DISCUSSION: Background: This agenda item seeks Council's approval of a Mitigated Negative Declaration (MND) prepared under the California Environmental Quality Act (CEQA) to be submitted to the SWRCB. CEQA approval is a requirement of the SWRCB's grant approval process. The Newport Island Channels (NIC) are at the west end of Lower Newport Bay. The area around The Arches and 33rd Street are the two remaining areas in the Bay that have long term advisories "posted" at the beaches warning that bacterial counts in the waters typically exceed State standards under Assembly Bill 411. The Channels have a limited hydraulic connection with the Bay – as such, the connection hinders tidal flushing. City staff believes this poor circulation plays a major role in the poor water quality in this area. CO Documents for Oloid Project May 23, 2006 Page 2 Beginning in 2002, City staff was directed to seek solutions to improve water quality around Newport Island. The following pilot tests and studies have been conducted: • InStreem Units — pilot testing of mechanical flow enhancers (InStreem) to improve water circulation and mixing with the bay. During the 10 day test local residents and stakeholders had the opportunity; to, observe the InStreem unit and provide comments to the City. In general, folks believed the unit was effective in enhancing water circulation, but expressed concerns relative to noise and potential impacts to boat traffic. • Submerged Pumps — a study was conducted to evaluate the use of submerged pumps to enhance water circulation. The study concluded that submerged pumps can increase water circulation; however, they are very expensive to purchase and maintain. • Oloids (o -lo -weed — pilot testing of yet another mechanical flow enhancer. The Oloid is a product designed to increase water circulation and bacterial exposure to UV light. Similar to the InStreem Unit, an Oloid was installed to evaluate its ability to improve water circulation and mixing with the bay. However, unlike the InStreem, the Oloid is much smaller and quieter, alleviating some (but not all) residents concerns relative to noise. CEAocuments for Oloid Project May 23, 2006 Page 3 What an Oloid Looks Like Last year, your City Council adopted Resolution 2005 -59 authorizing staff to pursue a grant from the State Water Resources Control Board (SWRCB) under the Proposition 40 Phase II (Watershed, Clean Beaches and Water Quality Act). Based on the Oloid pilot tests and Resolution 2005 -59, City staff applied for and were notified of the conditional award of a $625,000 grant from the SWRCB to purchase and install fifteen Oloids at strategic locations (as suggested by numerical modeling with final locations determined in consultation with NIC property owners) around Newport Island to circulate and improve water quality in this area. o ono ri ® CC Documents for Oloid Project May 23, 2006 Page 4 Proposed Locations for the Oloids a) Alternative 3 (15 Oloid Units) An appropriate CEQA document (a MND) has been prepared for Council review and approval in order to proceed with negotiations for a SWRCB grant agreement and project implementation. The grant agreement and project will be subject to future Council approval. Project Concerns. The Oloid Project is a challenging project. It involves the long -term use of up to 15 devices that will be subject to weather and salt -water over several years. The devices are guaranteed for 10 years, but there is no guarantee that the business that offers them will be in place to remove or repair them at 5 years or 10 years. And while noise monitoring of the devices has shown minimal noise impacts, City staff heard from about six individuals in the area who do not believe that the Oloids are acceptable in their neighborhood (during the pilot test period, more than 300 flyers were distributed to Newport Island -area neighbors inviting them to see the Oloid and to contact us with comments). Other residents have been asked to offer their comments as well. Coastal /Bay Water Quality Committee member Jim Miller has offered that "l 00s of residents" oppose the Oloids and have signed petitions to that effect — we have asked for the petitions, but have not seen them as of the date of this report. CEQA ocuments for Oioid Project May 23, 2006 Page 5 In addition, findings in the MND (pages 17 and 31 -32) list noise impacts from this proposed project as "less than significant', without mitigation. Finally, in many grants provided by the State through Proposition 40, grant recipients must pledge to maintain the project(s) constructed with grant funds for 23 years. Clearly, it is unreasonable today to envision these products lasting for 23 years. As such, the City will seek — through the grant agreement negotiations — to have this Oloid project serve as a pilot project for bacterial water quality improvement up and down the state's coastline. If viewed as a research project, the State may be able to suspend the 23 year requirement and align the timing with the products' warrantee period (10 years). The grant agreement will come back to the City Council at a future date, allowing residents, the Council, and staff more time to investigate the value of the Oloid Project. Findings of the MND. The MND found less than significant impacts in the following areas: Air Quality, Biological Resources, Hazards and Hazardous Materials and Noise. One impact was found to require mitigation. Construction equipment and traffic could impact emergency access during the construction period. The mitigation measure of a traffic control plan would prevent a significant impact. Committee Action: The Coastal /Bay Water Quality Committee has reviewed this effort, but has not taken a formal position on the Oloids. Environmental Review: A CEQA Initial Study and Mitigated Negative Declaration was prepared and posted with the State Clearing House and the County of Orange on December 14, 2005. The public review period ended on January 13, 2006 with no comments received. Public Notice: This agenda item may be noticed according to the Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Funding Availability: Proposition 40 Grant funds are available for this purpose. Submitted by: Dave kilff Assistant City Manager Attachments: A — Draft CEQA Documentation Mof John Kappeler Acting Division Manager, Code & WQ Enforcement NOTICE OF INTENT TO ADOPT A NEGATIVE DECLARATION RECEIVEL To: From: .IAN l S 2006 Office of Planning and Research City of Newport Beach 1400 Tenth Street, Room 121 3300 Newport Blvd. Public Works Department Sacramento, CA 95814 Newport Beach, CA 9MV- MNewport Beach CcuntyClerk; County of Orange, :. (Orange County) EPublic Services Division P.O. Box 238 Date received for filing at OPR/County, Clerk: Santa Ana, CA 92702 Public review period: December 14, 2005 through January 13, 2006 Name of Project: Newport Island Channel Circulation Improvement Project Project Location: The Rialto Channel, Lower Newport Bay Newport Beach (see attached Initial Study) Project Description: Please see attached Initial Study Public Meetings: - No public meetings have been scheduled at this time. Hazardous Waste List: The site is not on a list of hazardous waste sites as defined in Government Code Section 65962.5(f) D vailability: Copies of the Initial Study and supporting materials are available for public review at the following locations: 4 Newport Beach City Hall Newport Beach Public Library Q�cC P�coeaEt` eePublic Works Department 1000 Avocado Ave P9 3300 Newport Blvd. Newport Beach, CA '04') Newport Beach, CA copy of the Initial Study containing the analysis supporting the adoption of a Negative Declaration is attached. Additional plans, studies and /or exhibits relating to the proposed project may be available for public review. If you wish to appeal the appropriateness or adequacy of this document, your comments should be submitted in writing prior to the close of the public review period. Your comments should specifically identify what environmental impacts you believe would result from the project, why they are significant, and what changes or mitigation measures you believe should be adopted to eliminate or reduce these impacts. Written comments should be submitted to: Questions on the Initial Study should be directed to: City of Newport Beach John Douglas, AICP Public Works Department 714 -628 -0464 Attn: Bob Stein, P.E. 3300 Newport Blvd. Newport Beach, Beach, CA 92658 -8915 l�Tlfif Date 0 Bob Stein, P.E. Princlpal Engineer Form A Notice of Completion & Environmental Document Transmittal Mail to: State Clearinghouse, PO Box 3044, Sacramento, CA 95812 -3044 916/445 -0613 SCH # . , - -- r 1 i a ,_r . _ I I Project Title: Lead Agency: _ Mailing Address: City. f-la Phone: -t tit — (a X77 8640- Zip: 170.25�L County Ot n!G :� Project Location: County: n e- City/Nearest Community: rz P(Pt Y I� ,?4Ch / Co Streets: Vh'- 4 j S Zip Cod: _qA475-0 Total Acres: l- 3A A Assessor's Parcel No. NA Section: Twp. Range: Base: Within 2 Miles: State Hwy H: ( Waterways: Airports: Railways: — Schools: Document Type: T CEQA: ❑ NOP ❑ Supplenamt/Subsequent EIR NEPA: ❑ NOI Other. ❑ Joint Document ❑ Early Cons (Prior SCH No.) ❑ EA ❑ Final Document JgNeg Dec ❑ Other ❑ Draft EIS Q Other ❑ Draft EIR Acres ❑ FONSI ❑ Mining: mnera! --'--------------------------------------- Local Action Type: Sq fr. Acres Employees ❑ General Plan Update ❑ Specific Plan ❑ Rezone ❑ Annexation ❑ General Plan Amendment [] Master Plan ❑ Prezone ❑ Redevelopment ❑ General Plan Element ❑ Planned Unit Development ❑ Use Permit Coastal Permit ❑ Community Plan ❑ Site Plan ❑ Land Division (Subdivision, etc.) ❑ Other Development Type: ❑ Residential: Unitsi Acres ❑ Water Facilities: Type MGD ❑ Office: Sq ft._ Acres Employees ❑ Transportation: Tvpe ❑ Commercial: Sgff. Acres Employees ❑ Mining: mnera! ❑ industrial: Sq fr. Acres Employees ❑ Power: Tvpe Warts_ ❑ Educational ^ ❑ Waste Treatment: Tvpe ❑ Recreational ❑ Hazardous Waygte: Tvpe Other: )GlW $,J-- Funding (approx.): Federal S State S Total S Project Issues Discussed in Document- Agricultural Land p Air Quality ❑ Archeological/Historical 'Lgcoastal Zone Dramage/Absorption Q Economic/Jobs ❑ Fiscal ❑ Flood Plain/Flooding ❑ Forest Land/Fire Hazard ❑ Geologic/Seismic ❑ Minerals 100ise Population/Housing Balance ❑ Public Services/Facilities ❑ Recreation/Parks ❑ Schools/Universities ❑ Septic Systems. ❑ Sewer Capacity ❑ Soil Erosion/Compaction/Grading ❑ Solid Waste ❑ Toxic/Hazardous ❑ Traffic/Cirmlation ❑ Vegetation Water Quality . ❑ Water Supply/Groundwater ❑ Wetland/Riparim ❑ Wildlife ❑ Growth Inducing ❑ Landuse ❑ Cumulative Effects ❑ Other ----------------------------------------- Present Land UseaoningMeneral P an D igna n: - - -- ------------------------------- Project Description: 4" �\ y ��S�GII��(e�. Dt DIOt� tJGiPti1 CtwGVtRttb+. �P�ItGCS (. &Vfd/ 1 J6 t w.frovEv.:R-1c ,aaaary 2004 0 23 Reviewing Agencies Checklist _Resources Agency _Boating & Waterways 5 Coastal Commission - trod QeAd' _Coastal Conservancy Colorado River Board _Conservation :5_3 Fish & Game _Forestry & Fire Protection _Office of Historic Preservation _Parks & Recreation _Reclamation Board —S.F. Bay Conservation & Development Commission _Water Resources (DWR) Business, Transportation & Housing _Aeronautics _California Highway Patrol _CALTRANS District # _Department of Transportation Planning (headquarters) _Housing & Community Development _Food & Agriculture Health & Welfare _Health Services State & Consumer Services _General Services _OLA (Schools) Public Review Period (to be filled in by lead agency) Starting Date Yee, 1A-! 1VVS Signature Lead Agency (Complete if applicable): Consulting Firm: COt^ ax U S qq Address: (_!>(16c.1- I� O Ste' t t t..ac City/St ate /Zip: _->a— w /A 4 (,A Contact: W, Dd-t, (e5 Phone:(-7(4) 6 a'QJ 464 Applicant: Sal we_ 45 LPR� EnC./ Address: City/State/Zip: Phone. [_) Form A, continued KEY S = Document sent by lead agency X = Document sent by SCH ✓ = Suggested distribution Environmental Protection Agency _Air Resources Board _Califomia.Waste Management Board SWRCB: Clean Water Grants _SWRCB: Delta Unit _SWRCB: Water Quality SWRCB: Water Rights ,At S � Regional WQCB # ( 5a'- J6 Youth & Adult Corrections _Corrections Independent Commissions & Offices _Energy Commission _Native American Heritage Commission _Public Utilities Commission _Santa Monica Mountains Conservancy _State Lands Commission _Tahoe Regional Planning Agency 5 Other ACP,-Y L`r s OT C,!! rtv%e&j -S Ending Date Z -a— ( �' � Date l (11 3 (DS' For SCH Use Only: Date Received at SCH _ Date Review Starts Date to Agencies Date to SCH Clearance Date Notes I INITIAL STUDY AND MITIGATED NEGATIVE DECLARATION NEWPORT ISLAND CHANNEL CIRCULATION IMPROVEMENT PROJECT State Clearingbouse #2005 Lead Age.rpcy:•-' City of Newport Beach Ole Public Works Department 3300 Newport Boulevard - P.O. Box 1768 Newport Beach, CA. 92658 -8915 Contact: Bob Stein, P.E. 949- 644 -3322 Prepared by: CONEXUS Contact: John Douglas, AICP 714 - 628 -0464 December 13, 2005 :0 Newport Island Channel Circulation Improvement Project This page intentionally left blank CONEXUS Newport Island Channel Circulation Improvement Project CONEXUS TABLE OF CONTENTS SECTION Page A. PROJECT DESCRIPTION 1 B. ENVIRONMENTAL FACTORS POTENTIALLY 7 AFFECTED AND DETERMINATION C. EVALUATION OF ENVIRONMENTAL IMPACTS 9 D. REFERENCES 39 E. LIST OF PREPARERS 39 City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page..i 2 Newport Island Channel Circulation Improvement Project. CONEXUS This page intentionally left blank City of Newport Beach Initial Study/Mitigated Negative Declaration December 13, 2005 Page ii W F Newport Island Channel Circulation Improvement Project CONEXUS FIGURES page 1 Oloid Device 2 2 Location Map 5 3 Photo - Oloid Devices on Floating Platforms 21 City of ewport Beach Initial Study /Mitigated Negative Declaration December 13; 2005 Page irr Newport Island Channel Circulation Improvement Project CONEWS This page intentionally left blank Ci of Newport Beach initial-Study/Mitigated Negative Declaration December 13, 2005 Page iv Newport Island Channel Circulation Improvement Project CONEWS ENVIRONMENTAL CHECKLIST A.. 1.. PROJECT TITLE ;,:.,,. NEWPORT ISLAND CHANNEL CIRCULATION IMPROVEMENT PROJECT 2. LEAD AGENCY NAME AND ADDRESS: City of Newport Beach Public Works Department 3300 Newport Boulevard - P.O. Box 1768 Newport Beach, CA. 92658 -8915 3. CONTACT PERSON AND PHONE NUMBER: Bob Stein, P.E., Principal Civil Engineer Public Works Department City of Newport Beach 949- 6443322 4. PROJECT LOCATION: The Rialto Channel in Lower Newport Bay City of Newport Beach, CA. (See Figure 2, Location Map) S. PROJECT SPONSOR: The project is sponsored by the City of Newport Beach, Public Works Department (see address above) 6. GENERAL PLAN DESIGNATION: City of Newport Beach General Plan -Land Use Element: Open Space (water) Local Coastal Plan: Open Space (water) 7. ZONING: Open Space (water) City of Newport Beach Initial Study/Mitigated Negative Declare on December 13, 2005 Page I , K. Newport Island Channel Circulation Improvement Project CONEXUS 8. PROJECT DESCRIPTION: In its ongoing efforts to improve water quality in the portion of Newport Bay surrounding Newport Island and adjacent to Balboa Coves, the City of Newport Beach proposes to install an OLOID system of circulation devices. The OLOID system produces unidirectional, horizontal water flow. The design of the OLOID (see Figure 1) is unique and when rotating, has the effect t t of two "fish tails" working in conjunction with one another. The design was originally conceived to be used as a boat propeller .however, its effectiveness in water circulation and aeration proved to be a more significant application. The OLOID was first used in the horticultural and agricultural applications to keep otherwise stagnant water circulating in irrigation run -off basins. The flowing water eliminates algal growth and increases oxygenation. Several areas in the Newport Island Channels are regularly posted with warnings for high concentrations of fecal indicator bacteria. Stagnant water conditions aggravate this problem by creating low oxygen conditions in the.sediments that can be fertile grounds for bacterial growth. The Oloid devices can help reduce fecal indicator bacteria levels by eliminating the stagnant condition within the channels by inducing horizontal circulation and vertical mixing. Since the system is powered by. a 'h- horsepower motor, it generates very little .noise. Also, because the motor is so small, there is minimal power consumption, less than 800 watts. A standard 1 l OV outlet is sufficient to operate the system. The units would be mounted under floating platforms that have a surface dimension of 5 feet by 4.9 feet, with the propeller blade extending about one foot into the water. The platforms are proposed to be tethered to existing docks, bulkheads or pilings and would not interfere with navigation through the channels. The units would be prepared for saltwater installation, including the motor, sealed gearbox, paddle mechanism and control panels. Safety cages would surround each device to protect marine life and the public from all moving parts. The project includes the following components: Install approximately 15 Oloid units in accordance with the "Oloid Circulation Unit Alternative Evaluation" dated March 2005, prepared by Everest International Consultants Inc. Install interpretive signage. City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 2 Newport Island Channel Circulation Improvement Project CONEXUS Conduct pre- and post - construction photo monitoring according to SWRCB standards. • Implement a program of guided field trips (for educational purposes) to the project area. • Develop a web page for the project that will include general project information; flow and water quality monitoring data and photo monitoring. • Conduct two workshops to educate stakeholders on the project. • Install control panels, electrical conduit /conductors and telemetry systems utilizing Programmable Logic Controllers (PLC) for communication between the control panels and central office. • Conduct pre- and post- construction photo monitoring according to SWRCB standards. 9. SURROUNDING LAND USES AND SETTING: The surrounding area includes residential single - family homes and the Lower Newport Bay. The channel is lined with residential piers and docks and moored with small vessels. 10. OTHER PUBLIC AGENCIES WHOSE APPROVAL IS REQUIRED (e.g., permits, financing approval, or participation agreement): The actions and approvals required to implement the project, which are part of this analysis, include the following: • Section 401 Water Quality Certification from the California Regional Water Quality Control Board, Santa Ana Region • Coastal Development Permit from the California Coastal Commission • Section 10 Letter of Permission from the U.S. Army Corps. of Engineers Other agencies having review or permit authority over the project may be identified during the environmental review process. City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 3 66 �... ...... ..... ........ - - Newport Island Channel Circulation Improvement Project CONEXUS • Conduct pre- and post - construction photo monitoring according to SWRCB standards. • Implement a program of guided field trips (for educational purposes) to the project area. • Develop a web page for the project that will include general project information; flow and . water quality monitoring data and photo monitoring. • Conduct two workshops to educate stakeholders on the project. • Install control panels. electrical conduit /conductors and telemetry systems utilizing Programmable Logic Controllers (PLC) for communication between the control panels and central office. • Conduct pre- and post - construction photo monitoring .according to SWRCB standards. 9. SURROUNDING LAND USES AND SETTING: The surrounding area includes residential single - family homes and the Lower Newport Bay. The channel is lined with residential piers and docks and moored with small vessels. 10. OTHER PUBLIC AGENCIES WHOSE APPROVAL IS REQUIRED (e.g., permits, financing approval, or participation agreement): The actions and approvals required to implement the project, which are part of this analysis, include the following: • Section 401 WaterQuality Certification from the California Regional Water Quality Control Board, Santa Ana Region • Coastal Development Permit from the California Coastal Commission • Section 10 Letter of Permission from the U.S. Army Corps, of Engineers Other agencies having review or permit authority over the project may be identified during the environmental review process. City of ewport Beac . Initial Study /Mitigated Negative Declaration December 13, 2005 Page 3 t� Newport Island Channel Circulation Improvement Project CONEXUS This page intentionally left blank City of Newport Beach Initial Study/Mitigoted Negative Declaration December 13, 2005 Page d J� s U m V:.'. i n r � m z w F r � 0 SWA h X W Q U f CL a C 0 a u 0 N d W m a s U m V:.'. i n r � m z w F r � 0 SWA 1 ��1E� f.SI vi N CD O d a U a w LO m$ t N O Q p N Z O N N U� �z Newport Island Channel Circulation Improvement Project CONEXOS This page intentionally left blank City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 6 3 Newport Island Channel Circulation Improvement Project CONEXUS B. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact," as indicated by the checklist on the following nggPS_ DETERMINATION: (To be completed by the Lead Agency) On the basis of this initial evaluation: ❑ 1 find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. X I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. ❑ I find than the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. ❑ I find that the proposed project MAY have a "potentially significant impact' or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An> ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ❑ I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable. standards, and (b) have been avoided or mitigated pursuant to that earlier Ell? or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further, is required. I i os Signature Date City of Newport Beach Initial Study MI tga ed Negative Declaration December l3, 200.5 Page 7 2" Aesthetics A riculfurai Resources Air Qualitv 8io&) ical Resources I CU[hjrnlR Sons Hazards & Hazardous materials I Hydrology Water Quality Land Use Planrdn Mineral Resources Noise Population Housin Public Services Recreation Trans nation Traffic Utilities Service Syste ms Mandot Flndin s of S' niticance DETERMINATION: (To be completed by the Lead Agency) On the basis of this initial evaluation: ❑ 1 find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. X I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because revisions in the project have been made by or agreed to by the project proponent. A MITIGATED NEGATIVE DECLARATION will be prepared. ❑ I find than the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. ❑ I find that the proposed project MAY have a "potentially significant impact' or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets. An> ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ❑ I find that although the proposed project could have a significant effect on the environment, because all potentially significant effects (a) have been analyzed adequately in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable. standards, and (b) have been avoided or mitigated pursuant to that earlier Ell? or NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project, nothing further, is required. I i os Signature Date City of Newport Beach Initial Study MI tga ed Negative Declaration December l3, 200.5 Page 7 2" Newport Island Channel Circulation Improvement Project' CONEWS This page intentionally left blank City of Newport Beach Initial y /Mitiga ed.Negative Declaration December 13, 2005 Page 8 Z'l Newport Island Channel Circulation Improvement Project I CONEXUS C. EVALUATION OF ENVIRONMENTAL IMPACTS A brief explanation is required for all answers except "No Impact" answers that are adequately supported by the information sources a lead agency cites in the parentheses following each question. A "No Impact" answer is adequately supported if the referenced information sources show that the impact simply does not.apply to projects like fhe- oraeinvalved,(eg.,,the projectfolls outside a fault rupture zone). A "No Impact" answer should be explained where it is based on project- specific factors, as well as general standards (e.g., the project would . not expose sensitive receptors to pollutants, based on a project- specific screening analysis). All answers must take account of the whole action involved, including off -site as well as on -site, cumulative as well as project - level, indirect as well as direct, and construction as well as operational impacts. Once the lead agency has determined that a particular physical impact may occur, then the checklist answers must indicate whether the impact is potentially significant, less than significant with mitigation, or less than significant. "Potentially Significant Impact" is appropriate if there is substantial evidence that an effect may be significant. If there are one or more "Potentially Significant Impact" entries when the determination is made, an EIR is required. "Negative Declaration: Less Than Significant With Mitigation Incorporated" apples where the incorporation of mitigation measures has reduced an effect from "Potentially Significant Impact" to a "Less Than Significant Impact ". The lead agency must describe the mitigation measures, and briefly explain how they reduce the effect to a less than significant level (mitigation measures from earlier analyses may be cross - referenced as discussed below). Earlier analyses may be used where, pursuant to the tiering, program EIR, or other CEQA process, an effect has been adequately analyzed in an earlier EIR or negative declaration. Section 15053(c)(3)(D). In this case, a brief discussion should identify the following: a) Earlier Analysis Used. Identify and state where they are available for review. b) Impacts Adequately Addressed. Identify which effects from the above checklist were within the scope of and adequately analyzed in an earlier document pursuant to applicable legal standards, and state whether such effects were addressed by mitigation measures based on the earlier analysis. C) Mitigation Measures. For effects that are "Less than Significant with Mitigation Measures Incorporated ", describe the mitigation measures which were incorporated or refined from the earlier document and the extent to which they address site - specific conditions for the project. City of Newport Beach Initial Study/Mitigated Negative Study/Mitigate Declaration December 13,2005 Page 9 0 Newport Island Channel Circulation Improvement Project CONEXUS Lead agencies are encouraged to incorporate into the checklist references to information sources for potential impacts (e.g., general plans, zoning ordinances). Reference to a previously prepared or outside document should, where appropriate, include a reference to the page or pages where the statement is substantiated. A source list should be attached, and other sources used or individuals contacted should . be cited in the discussion. This is only a suggested form, and lead agencies are free to use different formats; however, lead agencies should normally address the questions from this checklist that are relevant to a project's environmental effects in whatever format is selected. The explanation of each issue should identify: a) The significance criteria or threshold, if any used to evaluate each question; and b) The mitigation measure identified, if any, to reduce the impact to less than significant. City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 10 Newport Island Channel Circulation improvement Project CONEXUS City of Newport Beach Initial Study/Mifigoted Negative Declorafi&T December 13, 2005 Page 11 -)J/ Less Than Potentially Signilificant less Than No Issues $Wnftant With Stgrdikont Impact Impact Mitigation Impact Inc orated • a) Have substantial adverse,effect on a scenic vista? x b) Substantially damage scenic resources, including, but not limited to, x trees, rock outcroppings, and historic,, buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and x its surroundin gs? d) Create a new source of substantial light or glare, which would adversely affect day or nighttime views in the area? x a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland x Mapping and Monitoring Program of the California Resources Agency, to non- agricultural use? b) Conflict With existing zoning for agricultural use, or a Williamson Act contract? C) Involve other changes In the existing environment which, due to their or nature, could result in ,location conversion of Farmland, to non- x agricultural use? 04 a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or x 1 projected air quality violation? City of Newport Beach Initial Study/Mifigoted Negative Declorafi&T December 13, 2005 Page 11 -)J/ Newport Island Channel Circulation Improvement Project CONEXUS City of Newport Beach Initial Study/Mitigated Negative Declaration December 13, 2005 Page 12 721 Less coon Potentially Sign icant less Than No Issues Significant With significant impact Impact Mltigalion Impact - Incorporated c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non - attainment under an applicable X federal or state ambient air quality standard (including releasing emissions, which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to X substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of X people? a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special X status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or X regional plans, policies, regulations, or by the Califomia Department of Fish and Game or U.S. Fish and Wildlife Service? C) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, X marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological Interru tion, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with X established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? City of Newport Beach Initial Study/Mitigated Negative Declaration December 13, 2005 Page 12 721 -- '-------'-�--'--'--------���NN�--�--- Newport Island Channel Circulation Improvement Project CONEWS City of Newport Beach ------7--Te-TN-egaVve Declaration December 13; 2005 Page 13 � Lou Than Potentially Significant Len Than No Issues Significant With signuicant Impact Impact Mitigation Impact Incorporated e) Conflict with any local policies or ordinances protecting biological resources, such as 0 tree preservation X f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional or state habitat conservation 40 a) Cause a substantial adverse change in the significance of a historical resource as defined in § 15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to X c) Directly or indirectly destroy a unique paleontological resource or site or X -unique geologic feature? d) Disturb any human remains, including those interred outside of formal a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death i) Rupture of a known earthquake fault, as delineated on the'most recent Alquist-Pdolo Earthquake Fault Zoning map, issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Pubricafion 42. ii) Strong seismic ground shaking? X iii) Seismic-related ground failure, -including liquefaction? X I iv) Landslides? X b) Result in substantial soil erosion or the loss of topsoil? X City of Newport Beach ------7--Te-TN-egaVve Declaration December 13; 2005 Page 13 � Newport Island Channel Circulation Improvement Project CONEXUS City of Newport Beach Initial Study /Mitigated Negative Declarafion December 13, 2005 Page 14 '31 Less Than Potentially Significant Less Than No - Issue's Significant With Significant Impact Invact Mitigation Impact incorporated C) Be located on a geologic unit or soil that Is unstable, or that would become unstable as a result of the project, and potentially result in on- or off- X site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18 -1 -B of the Uniform X Building Code (1994), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal X systems where sewers are not available for the disposal of wastewater? a) Create a significant hazard to the public or the environment through the X routine transport, use or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonable foreseeable upset and X accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within X one-quarter mile of an existing or Proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government X code Section 65962.5 and, cis a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles or a public airport or public use X airport, would the project result in a safety hazard for people residing or working in the project area? City of Newport Beach Initial Study /Mitigated Negative Declarafion December 13, 2005 Page 14 '31 _.... .Newport Island Channel Circulation Improvement Project CONEXUS City of Newport Beach Initial Study/Mifigated Negative Declaration . December 13; 2005 Page 15 3° Less Than Potentially significant Less Than No Issues Signiticant With significant Impact Impact Mfligation Impact Incorporated t) For a project within the vicinity of a private airstrip, would the project result in X a safety hazard for people residing or Working in the project 'area ?' g) Impair implementation of or physically interfere with an adopted X emergency response plan or emergency evacuation Ian? ' h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized X areas or where residences are intermixed with wildlands? sub�..//{{ !lS y' , n.,y y' Y`'�,{y�- agpj�(•,,y�yyµy� AAAAAA %x`�1��f F 1` YP,°. �ii$� 4 3 "S a) Violate any water quality standards or waste discharge X requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge, such that there would be a net deficit in aquifer volume or a lowering of the local groundwater X table level (e.g., the production rate of pre - existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the X course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off -site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially X increase the rate or amount of surface runoff in a manner, which would result in flooding on- or off -site? City of Newport Beach Initial Study/Mifigated Negative Declaration . December 13; 2005 Page 15 3° Newport Island Channel Circulation Improvement Project CONEXUS City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 16 21 Less Than Potentially SignificoW Less Than No Issues Significant With Sigin ica! Impact Impact Mitigation Impact Incorporated e) Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage X systems or provide substantial additional sources of Polluted runoff? f) Otherwise substantially degrade X water quality? g) Place housing within a 100 -year flood hazard area as mapped on a federal Flood hazard Boundary of Flood X Insurance Rate Map or other flood hazard delineation map? h) Place within 100 -year flood hazard area structures, which would impede or X redirect flood flows? i) Expose people or structures to a significant risk of loss, injury or death X involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or X mudflow? a) Physically divide an established X community? b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general X plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation plan or natural X community conservation plan? 04 c �p t"y �. 0.1�Y,v :gr uwa ,r, `fix .ka'� • a) Result in the loss of availability of a known mineral resource that would be a X value to the region and the residents of the state? City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 16 21 ---------'--'-------- ' Newport Island Channel Circulation Improvement Proffict I CONEXUS City of Newport Beach Initial Study/Mifigated Negative Declaration December w2005 Page 17 � � Lou Than Potentially Significant Less Than No Issues Signitcant With ftniticant Impact Impact Mitigation IMPMt Incorporated b) Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general p1din,'spectfic'pton brother land' use plan? a) Exposure Of persons to or generation at noise levels in excess of standards established in the local general X plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive groundborne X vibration or qroundborne noise levels? C) A substantial permanent increase in ambient noise levels in the project X vicinity above levels existing without the d) A substantial temporary or periodic increase in ambient noise levels -X in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan or, where such a plan has not been adopted, vVithiin two miles of a public airport or public use X airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a. private airstrip, would the project expose people residing or working in the project area to excessive noise levels? a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and X businesses) or indirectly (for example, through extension of roads or other b) Displace substantial numbers of existing housing, necessitating the X construction of replacement housing City of Newport Beach Initial Study/Mifigated Negative Declaration December w2005 Page 17 � � Newport Island Channel Circulation Improvement Project CONEXUS City of Newport Beach Initial Study/Mtigated Negative Declaration December 13, 2005 Page 18 ME Less Than Potentially Significant Lou Than No Issues Significant With significant Impact Impact Mwigation Impact Inc Wed C) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? p M Wt. OIL, I P it 00 a) Fire protection? b) Police protection? Schools? _c) d) Parks? e) Other public facilities? a) Would the project increase the use of existing neighborhood and regional Parks or other recreational facilities, such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities, which might have an adverse physical effect on the environment? City of Newport Beach Initial Study/Mtigated Negative Declaration December 13, 2005 Page 18 ME Newport Island Channel Circulation Improvement Project CONEXUS City of Newport Beach Initial Studylt4figated Negative Declaration December 13, 2005 Page 19 34 Less Than Potenttally significant Less Than No Issues signilcaM Wffh signfiieard Impact Impact Mitigation Impact Inca orated � ..- ��iY�����4� �101� +r i lam¢ •. ^S`k Ja}� K..Se"`. 4{�•�. �`�).. •v.�} �i as�wy' a) Cause an increase in traffic, which is substantial in.relation.to the .existing . :.........:.:.. traffic load and capacity of the street system (i.e., result in a substantial increase X in either the number of vehicle trips, the volume to capacity, ratio on,roads, or con estion at intersections ) ? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion X management agency for designated roads or hi hwa s? c) Result in a change in air traffic patterns, including either an increase in X traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g., sharp curves or X dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency X access? f) Result in inadequate parking X capacity? g) Conflict with adopted policies, plans, or programs supporting alternative X transportation (e.g., bus turnouts, bicycle racks)? a) Exceed wastewater treatment requirements of the applicable Regional X Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, X the construction of which could cause significant environmental effects? C) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the X construction of which could cause significant environmental effects? City of Newport Beach Initial Studylt4figated Negative Declaration December 13, 2005 Page 19 34 Newport Island Channel Circulation Improvement Project CONEXUS City of Newport Beach initial Study/Mitigated Negative Declaration December 13, 2005 Page 20 -2-� Less Than Potentially Significant Less Than No Issues Sigrn"Iicani With Significant Impact Impact Mitigation Impact Incorporated d) Have sufficient water supplies available to serve the project from X existing entitlements and resources or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider, which serves or may serve the project that it has X adequate capacity to serve the project's projected demand in addition to the provider's exisfinq commitments? f) Be served by a landfill with sufficient permitted capacity to X accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to X solid waste? ..................C�11r�.�,. a) Does the project have the potential to degrade the quality of the environment, substantialy reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self- sustaining levels, threaten to eliminate X a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods. of California history or prehistory? b) Does the project have impacts that are individually limited, but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are X considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.) C) Does the project have environmental effects, which will cause substantial adverse effects on human X beings, either directly or indirectly? City of Newport Beach initial Study/Mitigated Negative Declaration December 13, 2005 Page 20 -2-� Newport Island Channel Circulation Improvement Project CONEXUS ENVIRONMENTAL ANALYSIS This section provides the explanations and supporting analysis for the impact categories and questions contained in the previous checklist, and identifies mitigation measures where applicable. L, AESTHETICS- Would the project: a) Have a substantial adverse effect on a scenic vista? No impact. Policies contained in the City's General Plan and the Coastal Act address impacts on public views. Public views are those from public streets and property, as opposed to private views from homes and other private property. There are no Coastal Act or City policies addressing private views. The Oloid devices are relatively small (approximately 5 feet by 4.9 feet) and would be visually compatible with existing docks and other marine infrastructure, and would not interfere with any designated scenic vista, consequently no adverse effects would be anticipated (see Figure 3). No mitigation measures are necessary. Figure 3. Photo - Oloid Devices on Floating Platforms b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? City of Newport Beach Initial Study /Mitigated Negotive.Decloration December 13, 2005 Page-21 M Newport Island Channel Circulation Improvement Project CONEXUS No impact. There are no rock outcroppings or historic buildings in the affected area. The project would not affect any public views as noted in Response I,a above, and will not be visible from Coast Highway. No mitigation measures are necessary. c) Substantially degrade the existing visual character or quality of the site and its surroundings? No Impact. See discussion under Responses I.a and Lb, above. No mitigation measures are necessary. d) Create a new source of substantial light or glare, which would adversely affect day or nighttime views In the area? No Impact. The proposed Oloids would not be lighted and would not create a new source of light or glare. No nighttime construction would be allowed. No impacts from light and glare are anticipated. No mitigation measures are necessary. AGRICULTURE RESOURCES Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non - agricultural use? No Impact. No agricultural activities occur in the project vicinity. No mitigation measures are necessary. b) Conflict with existing zoning for agricultural use, or a Williamson Act contract? No Impact. The affected sites are not zoned for agriculture and there are no Williamson Act contracts in the vicinity. No mitigation measures are necessary. c) Involve other changes In the existing environment which, due to their location or nature, could result in conversion of farmland, to non - agricultural use? No Impact. The project would not involve any changes that could resuit.in the conversion of farmland. No mitigation measures are necessary. Ill. AIR QUALITY Where available, the significance criteria established by the applicable air quality management district or air pollution control district may be relied upon to'make the following determinations. Would the project: City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 22 157 Newport Island Channel Circulation Improvement Project CONEXUS a) Conflict with or obstruct implementation of the applicable air quality plan? No Impact. The Oloid devices are electrically powered and generate no emissions, therefore no conflict with the AQMP would occur. No mitigation measures are required. b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? Less Than Significant Impact: The only emissions associated with project would result from short-term vehicle exhaust during delivery and installation of approximately 15 Oloid units, which would be minimal. No long -term emissions are anticipated due to the electric motors used. No mitigation measures are required. C) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non - attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? Less Than Significant Impact. See Section Ill.a, above. d) Expose sensitive receptors to substantial pollutant concentrations? Less Than Significant Impact. See Section Iil.o, above. e) Create objectionable odors affecting a substantial number of people? Less Than Significant Impact. Diesel- powered vehicles used for Oloid delivery could cause odors and emissions that may be offensive to sensitive receptors, but the number and duration of this impact would be minimal, therefore substantial numbers of people would not be affected. No mitigation measures are necessary. IV. BIOLOGICAL RESOURCES Would the project. a) Have a substantial adverse effect, either directly or through habitat modifications, on any species Identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? No Impact. Eelgrass habitat is found in some sections of Newport Bay, but surveys have confirmed that no eelgrass occurs within the Newport Channel area where the Oloid City of Newport Beach Initial Study/Mifigated Negative Declaration December 13, 2005 Page 23 316 Newport Island Channel Circulation Improvement Project CONEXUS Resources Management, 2005; NOAA, 2004 - available on the City website at www .city.newport- beach.ca.us /HBR). b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community Identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? No Impact. See Section IV.a. above. No mitigation is necessary. c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? No Impact. See Section IV.o. above. No mitigation is necessary. d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? Less Than Significant Impact. See Section IV.a. above. The Oloid devices would extend approximately one foot into the water and would have minimal effect on fish movements. No mitigation is necessary. e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? No Impact. There are no applicable local biological ordinances or policies. No mitigation measures are necessary. f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural .Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? No Impact. The site is not incorporated in a Natural Community Conservation Planning /Habitat Conservation Plan (NCCP /HCP). No mitigation measures are necessary. V. CULTURAL RESOURCES Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined In §15064.5? December 13, 2005 Page 24 4,5 - -- _ __...----- .- .- ..- . -..__- - Newport lsland Channel Circulation improvement project CONEXUS No Impact. There are no historically sensitive resources that would be affected by the project. No mitigation measures are necessary. . b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5? No Impact:, Since. no subsurfac&werk.would occur; no archaeological resources would be affected by the proposed project. No mitigation measures are necessary. C) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? No Impact. See Section V.b, above. No mitigation measures are necessary. d) Disturb any human remains, including those interred outside of formal cemeteries? No Impact. See Section V.b, above. No mitigation measures are necessary. VI. GEOLOGY AND SOILS Would the project: a) Expose people or structures to potential substantial adverse effects, Including the risk of loss, injury, or death involving: t) Rupture of a known earthquake fault, as delineated on the most recent Alquist -Priolo Earthquake Fault Zoning map, issued by the State Geologist for the area or based on other substantial evidence of a known fault. Refer to Division of Mines and Geology Special Publication 42. No Impact. Since the proposed Oloid units would be placed on floating platforms tethered to existing structures and do not involve habitable structures, no people would be exposed to seismic or geologic hazards as a result. No mitigation measures are necessary. i� Strong seismic ground shaking? No Impact. See item Vl.a.i, above. iii Seismic- related ground failure, including liquefaction? No Impact. See item Vl.a.i, above. Iv) Landslides? City of Newport Beach Initial Study Mitigated Negative Declaration December 13, 2005 Page 25 LO Newport island Channei Circulation improvement Project CONEXUS No Impact. See item Vi.a.i, above. b) Result in substantial soil wosion or the loss of topsoil? No Impact. See item Vl.a.i, above. c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off -site landslide, lateral spreading, subsidence, liquefaction or collapse? No Impact. See item VI.a.i, above. d) Be located on expansive sob, as defined in Table 18.1 -B of the Uniform Building Code (1994), creating substantial risks to life or property? No Impact. See item Vl.a.i, above. e) Have soils incapable of adequately supporting the use of septic tanks or alternative waste water disposal systems where sewers are not available for the disposal of waste water? No Impact. The project would not involve the use of septic tanks. No mitigation measures are necessary. VII. HAZARDS AND HAZARDOUS MATERIALS Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials? No Impact. No routine use, transport or disposal of hazardous materials is proposed in connection with the construction or operation of the project. No mitigation measures are necessary. b) Create a significant hazard to the public or the environment through reasonable foreseeable upset and accident conditions Involving the release of hazardous materials into the environment? Less Than Significant Impact. During installation, gasoline- and diesel- powered equipment would be used. In the event of an accident, gasoline or diesel fuel could be spilled. Standard construction contract provisions would require that the contractor follow site maintenance and spilt cleanup procedures as described in the Standard City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 26 4t Newport Island Channel Circulation Improvement Project CONEXUS Specifications for Public Works Construction (the "Greenbook "). No additional mitigation measures are necessary. c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school? . No. Impact., She.project,is.not. located .within.] /4. mile. of,a.schooL No mitigation measures are necessary. d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code -Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? No Impact. Neither the project site nor any adjacent property is included on the Cortese list of hazardous materials sites. No mitigation measures are necessary. e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles or a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? No Impact. The project site is not located within 2 miles of an airport. The nearest airport (John Wayne) is approximately 5 miles north of the site. No mitigation measures are necessary. f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? No Impac#. There are no private airstrips within the project vicinity. No mitigation measures are necessary. g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? Less Than Significant Impact With Mitigation. During construction, equipment and construction traffic could hinder emergency access. The following mitigation measure would ensure that impacts to emergency access are reduced to a level that is less than significant. MM Vll- I Traffic Control Plan. Prior to award of a construction contract, a traffic control plan meeting the approval of the City Traffic Engineer shall be prepared. The plan shall specify what measures shall be taken to minimize travel disruptions and safety hazards, including safety of boaters, swimmers, pedesMans and bicyclists, minimize inconveniences to residents and businesses, minimize the loss of parking, and ensure adequate City of Newport Beach Initial Study/Mitigated Negative Declaration December 13, 2005 Page 27 M, Newport Island Channel Circulation Improvement Project CONEWS emergency access at all times. The traffic control plan shall be incorporated into the contract specifications and shall be enforced by the construction inspector. h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildiands are adjacent to urbanized areas or where residences are intermixed with wildlands? No Impact. The project site is not located in an area subject to wildland fire hazards. No mitigation measures are necessary. Vill. HYDROLOGY AND WATER QUALITY Would the project: a) Violate any water quality standards or waste discharge requirements? No Impact. The purpose of the project is to improve water quality in the channel by increasing circulation. This would result in a beneficial impact. No mitigation measures are considered necessary. b) Substantially deplete groundwater supplies or Interfere substantially with groundwater recharge, such that there would be a net deficit In aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre - existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? No Impact. The project would have no effect on groundwater supplies or recharge. No mitigation measures are necessary. c) Substantially alter the existing drainage pattern of the site or area, including through the iteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off -site? No Impact. The project would have no effect on drainage patterns. No mitigation measures are necessary. d) Substantially alter the existing drainage pattern of the site or area,' Including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner, which would result in flooding on- or off - site? No Impact. See Section Vlll.c, above. City of Newport Beach Initial Study Mi igated Negative Declaration December 13, 2005 Page 28 43 - -- - _ . ............. __. _...__....__:._ .._.__.. _..._... Newport Island Channel Circulation Improvement Project CONEXUS . e) Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? No Impact. See Sections Vlll.a and VIIIA, above. No mitigation measures are necessary. f) Otherwise substantially degrade water quality? No Impact. See Sections Vlil.a and Vlll.d, above. There are no other known impacts to water quality. No mitigation measures are necessary. g) Place housing within a 100 -year flood hazard area as mapped on a federal Flood Hazard Boundary of Flood Insurance Rate Map or other flood hazard delineation map? No Impact. No new housing is proposed as part of the project. No mitigation measures are necessary. h) Place within a 100 -year flood hazard area structures, which would impede or redirect flood flows? No Impact. The proposed Oloid devices would be attached to floating platforms and would have no effect on stormwater flows. No mitigation measures are necessary. i) Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? No Impact. The proposed project is not near a levee or dam and would not expose additional people or structures to flood hazards. No mitigation measures are necessary. j) Inundation by seiche, tsunami, or mudflow? No Impact. In the event of seiche or tsunami the Oloid devices could be damaged, but would pose no hazard to people or structures. No mitigation measures are necessary. IX. LAND USE AND PLANNING Would the project: a) Physically divide an established community? - City of Newport Beach Initial udy /Mitigated Negative Declaration December 13, 2005 Page 29 m Newport Island Channel Circulation Improvement Project CONEXUS No Impact. The project would have no effect on the established community. No mitigation measures are necessary. b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (Including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? No Impact. The proposed project would have no effect on the existing General Plan land use designation, zoning, and Local Coastal Program Land Use Plan. Section 30600(a) of the Coastal Act requires that, in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, any person, as defined in Section 21066, wishing to perform or undertake any development in the coastal zone shall obtain a coastal development permit (CDP). The proposed project is located within the City of Newport Beach, which presently has a certified Land Use Plan, but does not have a certified Local Coastal Program (LCP). In the absence of a certified LCP, the Coastal Commission will process the coastal development permit application for the project. The Commission's standard of review for the CDP is compliance with Chapter 3 policies of the Coastal Act. The City has determined that the proposed project is consistent will applicable sections of the Local Coastal Plan. No mitigation measures are necessary. c) Conflict with any applicable habitat conservation plan or natural community conservation plan? No Impact. The site is not located within an NCCP area. No mitigation measures are necessary. X. MINERAL RESOURCES Would the project: a) Result in the loss of availability of a known mineral resource that would be a value to the region and the residents of the state? No Impact. There are no mineral resources that would be affected by the project. No mitigation measures are necessary. b) Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 30 Uri Newport island Channel Circulation Improvement Project _ CONEXUS No Impact. There are no locally important mineral resource recovery areas that would be affected by the project. No mitigation measures are necessary. XI. NOISE Would the,project.resuit.1n ,:..:_, a) Exposure . of persons to or generation of noise levels in excess of standards established In the local general plan or noise ordinance, or applicable standards of other agencies? Less Than Significant Impact. Potential sources of noise include injstallation activities and operation of the Oloid units. A. short-term and minor noise increase could occur during delivery, unloading and installation of the units, but this is not considered significant. In addition, the City's Noise Ordinance prohibits construction during evening and nighttime hours and on Sundays and holidays. Standard Conditions Sc XI- I Pursuant to the City of Newport Beach Noise Ordinance Section 10.28.040, construction adjacent to existing residential development shall be limited to the hours of 7.00 a.m. to 6:30 p.m. Monday through Friday and 8.00 a.m. through 6:00 p.m. on Saturday. Construction shall not be allowed outside of these hours Monday through Saturday and at any time on Sundays and federal holidays. Permanent noise levels would not be significant since the Oloid units are powered by/2- horsepower electric motors. b) Exposure of persons to or generation of excessive groundborne vibration or groundbome noise levels? No Impact. No increase in groundborne vibration and noise would be expected to occur during installation due to the nature of the project. The Oloid units would be assembled off -site, delivered to the sites by truck and lifted into place by small cranes. Limitations on allowable hours of construction found in Standard Condition X!-1 would reduce this impact to a level that is less than significant. c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? No Impact. See Section Xl.a, above. The project would not result in long -term noise impacts. No mitigation is necessary. City of Newport Beach Initial Study /Mi igoted Negative Declaration December 13, 2005 Page 31 W. Newport Island Channel Circulation Improvement Project CONEXUS d) A substantial temporary or periodic increase in ambient noise levels In the project vicinity above levels existing without the project? Less Than Significant Impact. See Section XI.a, above. e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? No Impact. The affected sites are not located within an airport land use plan, and are not within the flight path of an airport. No mitigation measures are necessary. f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? No Impact. There are no private airstrips within the vicinity of the affected sites. No mitigation measures are necessary. XII. POPULATION AND HOUSING Would the project: . a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? No Impact. The proposed water circulation improvements would induce no increase in population. No mitigation measures are necessary. b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? No Impact. There is no existing housing that would be displaced by the proposed improvements. No mitigation measures are necessary. c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? No Impact. No people or existing housing would be displaced by the proposed improvements. No mitigation measures are necessary. City of Newport Beach Initial Study/Mitigated Negative Declaration December 13, 2005 Page 32 y-) Newport Island Chanel Circulation Improvement Project CONEXUS XIII. PUBLIC SERVICES Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response.tiraes or other• performance., objectives for any, of these public. services: a) Fire protection? No Impact The proposed project would not alter demand for fire protection and paramedic service. No mitigation measures. are necessary. b) Police protection? No Impact. The proposed project would not alter demand for police protection. No mitigation measures are necessary. C) Schools? No Impact. The proposed project would have no effect on student generation or school operations. No mitigation measures are necessary. d) Parks? No Impact. The proposed project would have no effect on the demand or usage of parks or recreation facilities. No mitigation measures are necessary. e) Other public faclfffes? No Impact. The proposed project would have no effect on any other public facilities. No mitigation measures are necessary. XIV. RECREATION a) Would the project Increase the use of existing neighborhood and regional parks or other recreational facilities, such that substantial physical deterioration of the facility would occur or be accelerated? No Impact. The project is intended to improve water quality in the bay, which could encourage more people to use the bay for swimming or boating, but this impact would not be considered significant or adverse. No mitigation measures are necessary. City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 33 �(g Newport Island Channel Circulation Improvement Project CONEMS b) Does the project include recreational facilities or require the construction. or expansion of recreational facilities, which might have an adverse physical effect on the environment? . No Impact. See Section XIV.a above. No mitigation measures are necessary. XV. TRANSPORTATION/TRAFFIC Would the project: a) Cause an increase in traffic, which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at Intersections)? Less Than Significant Impact. Long -term traffic would not be affected by the proposed project. No mitigation is required for long -term traffic impacts. A minor short - term impact would occur due to construction traffic, but this increase would be insignificant. No mitigation measures are necessary. M Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? No Impact. Please see Section Ma. The project would not generate a permanent increase in traffic and would not exceed any level of service standard. No mitigation is necessary. c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? No Impact. The project would have .no effect on air traffic patterns. No mitigation measures are necessary. d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? Less Than Significant Impact The Oloid units would be placed in the bay adjacent to docks or bulkheads, and due to their small size (approximately 5 feet square) they would not significantly interfere with navigation. No mitigation is necessary. e) Result in inadequate emergency access? Less Than Significant Impact With Mitigation. See Sections Vll.g and XV.d, above. . City of Newport Beach Initial Study /Mitigated Negative Declaration December 13, 2005 Page 34 141 Newport Island Channel Circulation Improvement Project CONEXUS f) Result in inadequate parking capacity? Less than Significant Impact. Workers would create a temporary demand for additional parking during installation of the Oloid devices. This would be expected to be one or two vehicles, however, and no significant parking impacts are anticipated. No mitigation megsures are necessary. g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? No Impact. The proposed project would not affect any adopted transportation poticies or plans. No mitigation measures are necessary. XVI. UTILITIES AND SERVICE SYSTEMS Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? No Impact. The project would not generate wastewater flows or unusual treatment requirements. No mitigation measures are necessary. b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? No Impact. See Section XVI.a. No mitigation measures are necessary. c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of 'which could cause significant environmental effects? No Impact. The proposed project would have no effect on stormwater or drainage facilities. d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? No Impact. The project would not result in an increase in demand for water. No mitigation measures are necessary. City of Newport Beach Initial Study/Mitigated Negative Decicratlon December 13,2005: Page 35 is - - - -- ._._....-_..:... ... ............ .-- Newport Island Channel Circulation Improvement Project CONEXUS e) Result in a determination by the wastewater treatment provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? No Impact. See Section XVLa, above. No mitigation measures are necessary. f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? No Impact. The project would generate no solid waste. No mitigation measures are necessary. g) Comply with federal, state, and local statutes and regulations related to solid waste? No Impact. See Section XVI.a, above. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the pofentai to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? Less Than Significant With Mitigation Incorporated. The purpose of the project is to improve circulation and water quality in Newport Bay. The Oloid devices are small and would be enclosed in cages to protect marine life and swimmers from injury. Surveys have confirmed that no sensitive marine habitat such as eelgrass is present in the vicinity of the project. Potential impacts due to spills, construction noise and traffic would be minimized by the standard conditions and mitigation measures that have been incorporated, and would reduce these potential impacts to a level that is less than significant. b) Does the project have impacts that are individually limited, but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of post projects, the effects of other current projects, and the effects of probable future projects.) Less Than Significant With Mitigation Incorporated. There are no other similar projects contemplated in Newport Harbor that could result in cumulative impacts at this time. The project would contribute to short-term impacts in the areas of air quality, noise and traffic during the installation process.but its contribution to these cumulative impacts would be reduced by standard conditions and mitigation measures. The City of Newport Beach Initial Study/Mitigated Ne gative Dec oration December 13, 2005 Page 36 0`1 Newport Island Channel Circulation Improvement Project CONEWS incremental impacts of the project would be so small that they would be less than significant. c) Does the project have environmental effects, which will cause substantial adverse effects on human beings, either directly or indirectly? Less - Than Significant •: With Mitigation ., Incorporated. Potential impacts to swimmers, boaters; pedestrians, cyclists and motorists would be minimized through project design features (such as protective cages on the propeller units), standard conditions, and mitigation measures. Any remaining impacts would be less than significant. December 13, 2005 S2 Newport Island Channel Circulation Improvement Project CONEXUS This page intentionally left blank City of Newport Beach Initial S�tudy /Miffigated Negative Declaration December 13, 2005 Page 38 . k�) Newport Island Channel Circulation Improvement Project CONEXUS D. REFERENCES Building News Publications, Standard Specifications for Public Works Construction, 1997 (the "Greenbook ") California Coastal Act, (Public Resources Code Division 20 Section 30000 et sea.) California Code of Regulations Title 14 Natural Resources City of Newport Beach, Newport Beach General Plan. City of Newport Beach, Newport Beach Municipal Code. Coastal Resources Management, Distribution and Abundance of Eel-grass (Zostera marina) in Newport Bay, January 10; 2005 Everest International Consultants, Inc., Oloid Circulation Unit Alternative Evaluation. March, 2005 NOAA, Fisheries Single -Beam Sonar Surveys, Newport Bay, Fall 2004 E. LIST OF PREPARERS Lead Aaencv: City of Newport Beach Environmental Consultants: CONIXUS Everest International Consultants, Inc. CRM Bob Stein, P.E. Tom Rossmiller John Douglas, AICP Ying -Keung P000 Rick ware Principal Engineer Water Quality Division Principal Project Manager Sr. Marine Biologist City. of Newoort Beach study/m, , I-NagaffyeJDedaraffon December 112005 Page 39 r.� "RECEIV AFTER AGENDA • •PRINTED;" D6: President Ernerieus: WEST NEWPORT BEACH ASSOCIATION Alan Silcock P.O. BOX 1471 Palboa Coves 9496722 -6421 NEWPORT BEACH, CALIFORNIA 92663 www.westnewport.org President: : .Paul Watkins West Oceanfront 7141356 -WO Viee President: May 16, 2006 . Elliot eunord .. .. Vest Ckieanjronr , °9491515 -4911 Secretaryl item bersh ip. Chris Garber Mr. John Kappeler Lido Peninsula Resort 9491723-.31 8 Water Quality and Watershed Specialist City of Newport Beach Historian: Mike'Johnson 3300 Newport Blvd. Numbered .ST rem . Newport Beach, CA 92663 9491641 -3125 Treasurer: Re: Oloid Testing Ann Krueger NewportSkores year John: 9491641 -2646 ' Directors: Thanks for giving. West Newport Beach Association an opportunity to weigh in on Ken Bryant the recent Oloid testing. 'Numbered Streets 949104-6266 The Association believes that from observations, the test.unit appeared to be quiet Mary Bryant and water appeared to be circulating well. We should note that one of our Board Absentee:Owners Contact members feels that the unit does not result in effective circulation. Nevertheless, the 9491644-6266 Association would ask the Council to continue with the testing and related analysis in a Ge m Dormy positive vein and draw;its own substantiated conclusions as to the effectiveness of the Numbered Streers units. The Association full sup its the City's ::efforts to remedy this long-standing Y Ppo Y g' g 94916,75-49,73 problem. ..'.dkann Larson ... 'Numbered S'lreets Sincerely,:, . ...9491650 -3533 Ever fre Phirl ps West Newport Beach Association Newport Shores 9491650 -7528 % Robert Rush By�d�- �-"' —�. Rrvertrveptune. . .. K. Watkins, President ::.9491645 -2977 R ul Am Milk, ' Vewliort Wand .9491650-3425 . Sharon Sitcock cc: RT BA Board of Director . 6alhoa Coven . 949172276421, Barbaro. Thibautr . Newport Shores ' 9491642 -5843 PROFESSIONAL SERVICES AGREEMENT WITH EVEREST INTERNATIONAL CONSULTANTS, INC. FOR OLOID CIRCULATION UNIT DEMONSTRATION EVALUATION THIS AGREEMENT is made and entered into as of thisAA day of S C m ef� , 2004, by and between the CITY OF NEWPORT BEACH, a Municiplal Corporation ( "City"), and EVEREST INTERNATIONAL CONSULTANTS, INC. (EIC) a corporation whose address is 444 West Ocean Boulevard, Suite 1104, Long Beach, California, 90802 ( "Consultant"), and 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 is planning to determine locations for installing water circulation devices in the Newport Island Channels to improve water quality in the area. C. City desires to engage Consultant to use computer modeling to determine the optimum number and locations of circulating devises around Newport Island ("Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Dr. Ying- Keung Poon. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 above written date, and shall terminate on the 31st day of.December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate 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 Agreement term. Consultant has designated Ying -Keung Poon to be its Project Manager. Consultant shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Stein, P.E. shall be 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. 3 • 7. CITY'S RESPONSIBILITIES • In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 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 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. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents Eli and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and/or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant, shall follow the desires of City with respect to the results of the services. 11. 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 the Consultant on the Project. 5 E 12. CITY POLICY 0 Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. 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 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain 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). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 7 r iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. 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. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint-venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 0 0 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other. than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all 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. 22. 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 and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not .be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 10 • • 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. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the. right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any 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. 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 immediate 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant 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: Attn: Robert Stein Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3322 Fax: 949 -644 -3308 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Dr. Ying -Keung Poon 444 West Ocean Boulevard Suite 1104 Long Beach, CA 90802 Phone: 562 - 435 -9305 Fax: 562 -435 -9310 11 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. 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. 12 0 0 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor for the City of Newport Beac EVEREST INTERNATIONAL CONSULTANTS: By: C/� -✓ C/��� Ying -Keung Poon, Vice Presider t� Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F :IUSERSIPBW\SharedWgreementslFY 04- 051Everest -Oloid Circulation - Newport Island.doc 13 0 • Exhibit A EVEREST August 26, 2004 Mr. Robert Stein City of Newport Beach Public Works Department P.O. Box 1768 Newport Beach, CA 92658 Subject: Proposal for Oloid Circulation Unit Alternative Evaluation Dear Bob: Thank you for contacting Everest International Consultants, Inc. (Everest) to assist the City of Newport Beach (City) to evaluate the effectiveness of a new circulation device, the Oloid Model 400, in improving water circulation and water quality at Newport Island Channels. The City has recently completed a demonstration of the Oloid device at Rivo Alto (east) Channel for a two -week period ended at August. During the demonstration, Everest conducted a half -day field program to estimate the flow field generated by the device. It was observed at the site that the Oloid generates a rather unidirectional flow extending approximately 30 feet in front of the device, and penetrates about 4 to 5 feet beneath the water surface. Based on the data collected at the site, we estimated that the Oloid generates a flow rate of about 1.2 to 1.5 MGD, which is comparable to the quoted flow rate of 1.5 MGD for a quarter -size InStreem unit. Since an earlier study has shown that the use of five reduced size InStreem units at Newport Island Channels could result in better water circulation in the area, it seems promising that if sufficient numbers of Oloid device can be deployed throughout Newport Island Channels, it would help to improve water circulation for the area. The City has requested Everest to submit this proposal to develop, evaluate and optimize alternative configurations for the deploying of Oloid devices at Newport Island Channels to achieve meaningful circulation and water quality for the area. EVEREST INTERNATIONAL CONSULTANTS, INC. 444 West Ocean Boulevard, Suite 1104, Long Beach, CA 90802 TEL (562) 435 -9305 • FAX (562) 435.9310 • • Mr. Robert Stein August 26, 2004 Page 2 of 3 EVEREST SCOPE OF SERVICES Task 1 — Alternative Evaluation The hydrodynamic model, RMA2, developed by the U.S. Army Carps of Engineers will be used to determine the changes in local circulations during operation of the Oloid units. The numerical model grid used in the prior study will be refined to account for the much smaller size of the Oloid device compared to the InStreem unit. Water quality modeling using RMA4 will be used to evaluate changes in mixing within Newport Island Channels resulting from improved water circulation based on the hydrodynamic modeling. Alternatives, varying in the quantity and location of the Oloid units that could improve water circulations at Newport Island Channels will be developed. A preliminary set of alternatives will be developed based on the number of Oloid units installed uniformly throughout Newport Island Channels. It is anticipated that this initial screening will include the use of 6 to 12 units; all simulated with the estimated average flow rate of 1.35 MGD. The preliminary alternatives will be used to select the number of Oloid units. Additional alternatives will be developed to optimize the spatial distribution of the units. Each alternative will be evaluated on the ability to provide a "meaningful' improvement in water circulation and mixing at Newport Island Channels compared to the baseline condition. Task 2 — Evaluate Final Configuration Based on the recommended Oloid layout (numbers and locations) determined under Task 2, the City will work with local residents to select the final locations to install the Oloid devices. A final confirmation model simulation will be performed to evaluate the potential improvement In water circulation and water quality at Newport Island Channels for the selected final deployment layout. Task 3 - Report Upon completion of Task 1, a draft report will be prepared summarizing the methodology, alternatives, results, and alternative evaluations of the potential use of the Oloid circulation units to enhance water quality at Newport Island Channels. The draft report will include a recommendation on the optimal Oloid layout based on which the City can select the final installation locations. In addition, a final report including the final model results, as well as incorporating the City's comments on the draft report will be prepared and submitted. FEE AND SCHEDULE We propose to provide the services described above on a time and materials basis according to the billing rate schedule shown in Attachment A, with a final fee not -to- 0 1J Mr. Robert Stein August 26, 2004 Page 3 of 3 EVEREST exceed $18,500 without prior written authorization from the City. The cost breakdown per task is shown in Attachment B. The alternative evaluation and draft report will be completed within five (5) weeks of receiving the notice to proceed. The final report will be completed within three (3) weeks after the selection of the Oloid installation locations.. Please contact me by email at ving .coon @everestconsultants.com or by telephone at (562) 435 -9308 if you have any questions regarding this proposal. Thanks for inviting us to work on this interesting project. Sincerely, EVEREST INTERNATIONAL CONSULTANTS, INC. f:ZL / Ying =Keung Poon, D.Sc., P.E. Vice President/Principal Engineer Attachments: Billing Rate Schedule Cost Estimate Spreadsheet i • Exhibit B Attachment A - Everest International Consultants, Inc. Rate Schedule Everest International Consultants, Inc. will provide professional services at the following rates between January 1, 2004 and December 31, 2004. Staff Category Hourly Rate Principal Engineer $145 Senior Engineer /Scientist II $130 Senior EngineedScientist 1 $115 Engineer/Scientist $100 Assistant Engineer $90 Staff Engineer $75 Technician /CAD Operator $65 Clerical $45 Other Direct Costs Unit Rate Plotting $0.25 /ea. Bond $1.00 /s.f. Vellums $1.50 /s.f. Mylars $2.50 1s.f. CoovinoBindin 8.5 x 11 b&w copy $0.08 1ea. 11 x 17 b &w copy $0.25 /ea. 8.5 x 11 color copy $1.25 /ea. 11 x 17 color copy $2.50 1ea. . Binding (Reports) $1.50 /ea. Transportation Personal Car (Mileage) $0.36 1mile Other Proiect Related Expenses Other expenses are invoiced at cost without mark up. Subconsultant Services Subconsultants are invoiced at cost plus an agreed mark up. a ui ( }k E] 0 � a � / ( ! / \ �a2t � � /!;■ \ . \ }00 / \ u06If ( ! / \ \ }00 / \ u06If (�8�100 -200/ ;a CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. September 14, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Robert Stein, P.E. 949 - 644 -3311 rstein@city.newport-beach.ca.us SUBJECT: NEWPORT ISLAND CIRCULATION UNIT EVALUATION - APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH EVEREST INTERNATIONAL CONSULTANTS, INC. RECOMMENDATION: Approve a Professional Services Agreement with Everest International Consultants, Inc. (EIC), of Long Beach, California, for analyzing circulation requirements for the Newport Island Channels at a contract price of $18,500.00 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: EIC has submitted a proposal to evaluate the number of Oloid (Oh -lo -weed) circulation units needed to generate a current sufficiently powerful enough to eliminate the stagnant areas in the Newport Island Channels. The study would be conducted using Oloid flow rate as measured by EIC in a pilot study conducted last month in the Rivo Alto Channel. This flow rate was determined to be between 1.2 and 1.5 million gallons per day. This flow rate is comparable to the InStreem circulation unit tested last year; however, the Oloid is significantly more compact and quiet. Preliminary reports from the community during the four -week pilot project are favorable. Additionally, the County of Orange and the State Water Resources Control Board have expressed interest in the performance of the unit. The State Water Resources Control Board has indicated Proposition 40 funds could be made available for purchase and installation of these circulation devices. The preliminary estimate is that eight to twelve units will be required at a cost of approximately $25,000.00 per unit installed. EIC has successfully completed similar studies for the City in Newport Bay including studies at Newport Dunes and the Newport Island Channels. Their previous work in this area of the Bay facilitates the performance of this study in a cost - effective and timely manner. SUBJECT: Newport Islan ulation — Approval of Professional Services Agree with Everest Engineering September 14, 2004 Page 2 The scope of EIC's professional services will include: 1. Determining the number of circulating devices with locations to establish adequate circulation and mixing in the Newport Island Channels. 2. Evaluating a final configuration after City staff has determined which property owners would like to take part in the program. 3. Preparing a final report. Staff intends to use the final report when applying for grant funding at the end of the year. Funding Availability: Funds for this project are available in the following account: Account Number 0110 -8080 Environmental Review: Account Description Professional Services The modeling study does not require any CEQA review. Prepared by: Robert Stein, E Project Manager Attachment: Professional Services Agreement Amount $18,500.00 Submitted b eph,e G. Badum Publk Works Director 0 0 PROFESSIONAL SERVICES AGREEMENT WITH EVEREST INTERNATIONAL CONSULTANTS, INC. FOR OLOID CIRCULATION UNIT DEMONSTRATION EVALUATION THIS AGREEMENT is made and entered into as of this day of 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and EVEREST INTERNATIONAL CONSULTANTS, INC. (EIC) a corporation whose address is 444 West Ocean Boulevard, Suite 1104, Long Beach, California, 90802 ( "Consultant"), and 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 is planning to determine locations for installing water circulation devices in the Newport Island Channels to improve water quality in the area. C. City desires to engage Consultant to use computer modeling to determine the optimum number and locations of circulating devises around Newport Island ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Dr. Ying- Keung Poon. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 above written date, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. 0 0 The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Eighteen Thousand Five Hundred and 001100 Dollars ($18,500.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. .City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in 2 0 0 advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate 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 Agreement term. Consultant has designated Ying -Keung Poon to be its Project Manager. Consultant shall not remove or reassign the Project Manager without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Stein, P.E. shall be 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. 3 0 7. CITY'S RESPONSIBILITIES 0 In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 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 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. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. 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 the Consultant on the Project. 5 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. 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 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all U. Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain 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). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 7 iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. 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. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 0 20. OPINION OF COST 9 Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all 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. 22. 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 and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or ill] 25. 26. 27 9 0 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. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any 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. 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 immediate termination of this Agreement by City. harmless City for any and all claims fo r violation of this Section. NOTICES Consultant shall indemnify and hold damages resulting from Consultant's All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant 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: Attn: Robert Stein Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3322 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Dr. Ying -Keung Poon 444 West Ocean Boulevard Suite 1104 Long Beach, CA 90802 Phone: 562 - 435 -9305 Fax: 562 -435 -9310 11 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. 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. 1 0 0 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation M Mayor for the City of Newport Beach EVEREST INTERNATIONAL CONSULTANTS: by: By: LaVonne Harkless, Ying -Keung Poon, Vice President City Clerk Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F: \USERS \PBMShared'Agreements \FY 04 -05 \Everest -0loid Circulation - Newport Island.doc 13 10 Exhibit A EVEREST August 26, 2004 Mr. Robert Stein City of Newport Beach Public Works Department P.O. Box 1768 Newport Beach, CA 92658 Subject. Proposal for Oloid Circulation Unit Alternative Evaluation Dear Bob: Thank you for contacting Everest International Consultants, Inc. (Everest) to assist the City of Newport Beach (City) to evaluate the effectiveness of a new circulation device, the Oloid Model 400, in improving water circulation and water quality at Newport Island Channels. The City has recently completed a demonstration of the Oloid device at Rivo Alto (east) Channel for a two -week period ended at August. During the demonstration, Everest conducted a half -day field program to estimate the flow field generated by the device. It was observed at the site that the Oloid generates a rather unidirectional flow extending approximately 30 feet in front of the device, and penetrates about 4 to 5 feet beneath the water surface. Based on the data collected at the site, we estimated that the Oloid generates a flow rate of about 1.2 to 1.5 MGD, which is comparable to the quoted flow rate of 1.5 MGD for a quarter -size InStreem unit. Since an earlier study has shown that the use of five reduced size InStreem units at Newport Island Channels could result in better water circulation in the area, it seems promising that if sufficient numbers of Oloid device can be deployed throughout Newport Island Channels, it would help to improve water circulation for the area. The City has requested Everest to submit this proposal to develop, evaluate and optimize alternative configurations for the deploying of Oloid devices at Newport Island Channels to achieve meaningful circulation and water quality for the area. EVEREST INTERNATIONAL CONSULTANTS, INC. 444 West Ocean Boulevard, Suite 1104, Long Beach, CA 90802 TEL (562) 435.9305 • FAX (562) 435 -9310 n u Mr. Robert Stein August 26, 2004 Page 2 of 3 EVEREST SCOPE OF SERVICES Task 1 — Alternative Evaluation The hydrodynamic model, RMA2, developed by the U.S. Army Corps of Engineers will be used to determine the changes in local circulations during operation of the Oloid units. The numerical model grid used in the prior study will be refined to account for the much smaller size of the Oloid device compared to the InStreem unit. Water quality modeling using RMA4 will be used to evaluate changes in mixing within Newport Island Channels resulting from improved water circulation based on the hydrodynamic modeling. Alternatives, varying in the quantity and location of the Oloid units that could improve water circulations at Newport Island Channels will be developed. A preliminary set of alternatives will be developed based on the number of Oloid units installed uniformly throughout Newport Island Channels. It is anticipated that this initial screening will include the use of 6 to 12 units; all simulated with the estimated average flow rate of 1.35 MGD. The preliminary alternatives will be used to select the number of Oloid units. Additional alternatives will be developed to optimize the spatial distribution of the units. Each alternative will be evaluated on the ability to provide a "meaningful" improvement in water circulation and mixing at Newport Island Channels compared to the baseline condition. Task 2 — Evaluate Final Configuration Based on the recommended Oloid layout (numbers and locations) determined under Task 2, the City will work with local residents to select the final locations to install the Oloid devices. A final confirmation model simulation will be performed to evaluate the potential improvement In water circulation and water quality at Newport Island Channels for the selected final deployment layout. Task 3 - Report Upon completion of Task 1, a draft report will be prepared summarizing the methodology, alternatives, results, and alternative evaluations of the potential use of the Oloid circulation units to enhance water quality at Newport Island Channels. The draft report will include a recommendation on the optimal Oloid layout based on which the City can select the final installation locations. In addition, a final report including the final model results, as well as incorporating the City's comments on the draft report will be prepared and submitted. FEE AND SCHEDULE We propose to provide the services described above on a time and materials basis according to the billing rate schedule shown in Attachment A, with a final fee not -to- • 9 Mr. Robert Stein August 26, 20D4 Page 3 of 3 EVEREST exceed $18,500 without prior written authorization from the City. The cost breakdown per task is shown in Attachment B. The alternative evaluation and draft report will, be completed within five (5) weeks of receiving the notice to proceed. The final report will be completed within three (3) weeks after the selection of the Oloid installation locations.. Please contact me by email at vino .000nCa)everestconsultants.com or by telephone at (562) 435 -9308 if you have any questions regarding this proposal. Thanks for inviting us to work on this interesting project. Sincerely, EVEREST INTERNATIONAL CONSULTANTS, INC. J for Ying -Keung Poon, D.Sc., P.E. Vice President/Principal Engineer Attachments: Billing Rate Schedule Cost Estimate Spreadsheet 0 Exhibit B Attachment A - Everest International Consultants, Inc. Rate Schedule Everest International Consultants, Inc. will provide professional services at the following rates between January 1, 2004 and December 31, 2004. Staff Cateaory Hourly Rate Principal Engineer $145 Senior Engineer /Scientist II $130 Senior Engineer /Scientist 1 $115 Engineer /Scientist $100 Assistant Engineer $90 Staff Engineer $75 Technician /CAD Operator $65 Clerical $45 Other Direct Costs Unit Rate Plotting $0.25 /ea. Bond $1.00 /s.f. Vellums $1.50 1s.f. Mylars $2.50 /s.f. CODvina /Bindin 8.5 x 11 b &w copy $0.08 /ea. 11 x 17 b &w copy $0.25 /ea. 8.5 x 11 color copy $1.25 /ea. 11 x 17 color copy $2.50 /ea. Binding (Reports) $1.50 /ea. Transportation Personal Car (Mileage) $0.36/mile Other Project Related Expenses Other expenses are invoiced at cost without mark up. Subconsultant Services Subconsultants are invoiced at cost plus an agreed mark up. LU LU §) 0 k% «{ z ƒ | ƒ f / 0 !k� m!! )7L �\) � 0 ..(3 z \ � \ / �\6 \ { q(: ƒ \ / \ �I? y. #0777 '. § 7■;; © � I -- ) k\U wam k -0 # §$ : k)/ }k/ !k� m!! )7L �\) � 0 \ � \ / �\6 \ d ƒ \ \ �I? y. #0777 '.