HomeMy WebLinkAboutC-3734 - PSA; Cooperative Project to Develop a Contaminated Sediment Remediation Plan for the Rhine Channel• s
PROFESSIONAL SERVICES AGREEMENT WITH
ORANGE COUNTY COASTKEEPER
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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
ORANGE COUNTY COASTKEEPER, a non - profit organization, whose address is 441
Old Newport Blvd, Ste. 103, Newport Beach, California, 92663 ( "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 participate in a cooperative project with the Orange County
Coastkeeper to characterize the quality of sediments in the Rhine Channel and
then develop remediation alternatives for removal or inactivation of contaminated
sediments.
C. City desires to engage Consultant to manage subconsultant services to complete
the tasks identified in the California State Water Resources Board Grant
identified as Rhine Channel Sediment Remediation Feasibility Project —Grant
Agreement No. 03- 183 -558 -0 (copy attached).
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of project management shall
be Gary Brown, Ray Hiemstra and Mina Danieli.
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 1st day of September, 2004,
and shall terminate on the 1st day of September, 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. 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
Consultant shall perform the services in accordance with the schedule included
in Exhibit A. The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
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.
In no event shall Consultant's compensation exceed Sixty -Eight Thousand
Dollars ($68,000.00) without additional authorization from City. N o billing rate
changes shall be made during the term of this Agreement without the prior
written approval of City.
4.1 Consultant shall submit semiannual invoice to City describing the work
performed the preceding six months. The first payment shall be made
within thirty (30) days of execution of this agreement in the amount of
Thirty -Four Thousand Dollars ($34,000) as local contribution to State of
California Grant Agreement No. 03- 183 - 558 -0. 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 second invoice of
$34,000 by City staff. The second and final invoice shall be submitted on
or after November 1, 2004.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
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.
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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. T his P roject M anager s hall b e a vailable t o C ity a t a II reasonable
times during the Agreement term. Consultant has designated Ray Hiemstra to
be its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project 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 Harbor Resources Department. Tom
Rossmiller 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.
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 n of t o c ause d elays i n C onsultant's
work schedule.
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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 t he f ullest a xtent p ermitted b y I aw, C onsultant s hall i ndemnify, d efend a nd
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 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
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(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
sole 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 t he 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.
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.
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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 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.
i. 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 I lability i nsurance 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
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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.
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.
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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
City and Consultant agree that subconsultants may be used to complete the work
outlined in the Scope of Services. The subconsultants authorized by City to
perform work on this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in this
Agreement shall create any contractual relationship between City and
subcontractor nor shall it create any obligation on the part of City to pay or to see
to the payment of any monies due to any such subcontractor other than as
otherwise required by law. Except as specifically authorized herein, the services to
be p rovided u nder t his A greement s hall n of b e o therwise a ssigned, transferred,
contracted or subcontracted out without the prior written approval 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 t o t his A greement a re n of i ntended 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
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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.
[Optional Paragraph] All improvement and /or construction plans shall be
prepared with indelible waterproof ink or electrostaticly plotted on standard 24-
inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall
provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files
of all final sheets within ninety (90) days after finalization of the Project. For
more detailed requirements, a copy of the City of Newport Beach Standard
Design Requirements is available from the City's Public Works Department.
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
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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 u nder t his 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
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
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
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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:
Tom Rossmiller
Harbor Resources
City of Newport Beach
829 Harbor Island Drive
Newport Beach, CA, 92660
(949) 644 -3041
Fax 644 - 723 -0589
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention: Ray Hiemstra
441 Old Newport Blvd., Ste. 103
Newport Beach, CA 92663
(949) 723 -5424
FAX (949) 675 -7091
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
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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.
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
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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 r epresents t hat i t i s a n e qual o pportunity a mployer a nd i t s hall not
discriminate against any subcontractor, employee o r applicant for a mployment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPR V AS TO FORM:
Robi lauson,
Actinn Citv Attnrnev
CITY OF NEWPORT BEACH,
A Municipal Corporation
c
By:
Tod Ridgew
Mavnr
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Budget and Reporting Provisions
Exhibit C — SWRCB General Conditions
Exhibit D — Grant Program Terms & Conditions
SWRCB Grant Agreement No. 03- 183 -558 -0
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Orange County CoastKeeper
SWRCB Grant Agreement No. 03- 183 -558-0
Page 5 of 13
1. Invoicing EXHIBIT B — BUDGET AND REPORTING PROVISIONS
1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the SWRCB's
Program Analyst on a quarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit.
Three (3) copies of the invoice shall be submitted to the Grant Manager. The addresses for submittal are:
Pam Nichols, Program Analyst Terri Reeder, Grant Manager
State Water Resources Control Board Santa Ana Regional Water Quality Control Board
Division of Financial Assistance 3737 Main Street, Suite 500
1001 1 Street, 16`" Floor Riverside, CA 92501 -3348
Sacramento, CA 95814
1.2 Payment of any invoice w- ill be made only after receipt of a complete, adequately supported, properly
documented and accurately addressed invoice or payment request. Failure to use the address exactly as
provided 'above may result in return of the invoice or payment request to the Grantee. Payment shall be
deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United
States mail. All invoices must be approved by the SWRCB's Grant Manager.
1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or
in any manner which is in violation of or in conflict with federal or state laws, rules, or regulation, or which
may require any rebates to the Federal Government, or any loss of tax- freastatus on state bonds,
pursuant to any Federal statute or regulation.
1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain
an amount equal to ten percent (10 %) of the grant amount specified in this Agreement until completion of
the Project to the reasonable sa'Ifsfaction of the SWRCS. Any retained amounts due to the Grantee will
be promptly disbursed to the Grantee, without interest, upon completion of the Project.
1.5 The invoice shall contain the following information:
1.5.1 The word "INVOICE" should appear in a prominent location at the top of page(s):
1.5.2 Printed name of the Grantee:
1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code;
1.5.4 The date of the invoice;
1.5.5 The number of the Agreement upon which the claim is based; and
1.5.6 An itemized account of the work for which the SWRCB is being billed;
1.5.6.1 The time period covered by the invoice, i.e., the term "from" and "to ";
1.5.6.2 A brief description of the work performed;
1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices
must be itemized based on the categories specified in the Budget. The amount claimed
for salaries /wages /consultant fees must also be explained; i.e., hours or days worked
times the hourly or daily rate = the total amount claimed;
1.5.6.4 The total amount due; this should be in a prominent location in the lower right -hand
portion of the last page and clearly distinguished from other figures or computations
appearing on the invoice; the total amount due shall include all costs incurred by the
Grantee under the terms of this Agreement; and
1.5.7 Original signature of Grantee (not required of established firms or entities using preprinted
letterhead invoices).
1.5.8 Final Invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN MAY 1
2006.
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2. Budget Contingency Clause
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The maximum amount to be encumbered under this Agreement for the 2003 -04 fiscal year ending June 30, 2004
shall not exceed two hundred seventy eight thousand dollars ($278,000).
If the Budget Act of the current year and /or any subsequent years covered under this Agreement does not
appropriate sufficient funds for the program, this Agreement shall be of no force and effect. This provision shall
be construed as a condition precedent to the obligation of the SWRCB to make any payments under this
Agreement. In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to furnish
any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of
this Agreement. Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for
payment over any other Grantee.
If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall
have the option to either cancel this Agreement with no liability occurring to the State, or offer an agreement
amendment to Grantee to reflect the reduced amount.
3. LINE ITEM BUDGET
Proo 13 MATCH TOTAL
Personnel Services (includes benefits)
Class Hours Wage /Hour
Project Manager 2000 $ 30.50 581,000 525,000 S106,000
Cartographer 1125 $ 40.00
Operating Expenses $38,800 $8,000 $46,800
office space, website, printing, copies,
supplies (sub -meter GPS system, software,
laptop computer, mapping software,
boat modifications for core sampling /mapping)
(no item over $5,000 each)
Professional and Consulting Services $158,200 $35,000 $193,200
Rhine Channel Core Sampling
Rhine Channel Implementation Alternatives Plan
Lab Services
TOTAL $278,000 $68,000 $346,000
4. Budget Line Item Flexibility
4.1 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager,
adjustments between existing line item(s) maybe used to defray allowable direct costs up to fifteen
percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in
excess of fifteen percent (15 %) shall require a formal agreement amendment.
4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to
the SWRCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal
year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested
changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in
bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item
requires a formal amendment and are not permissible under this provision. The SWRCB may also
propose adjustments to the budget.
Orange County CoastKeeper
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5. QAPP /CEQA/NEPA/Permit Payment. Grantee shall provide to the SWRCB's Grant Manager a certification
form (to be provided by the SWRCB) certifying that the QAPP /CEQAlNEPA/PERMIT documents have been
received by the Grant Manager. Payment for this activity shall not be made to Grantee until the certification
form is received by the SWRCB's Grant Manager.
6. Reports.
6.1 Grantee shall submit quarterly progress reports to the SWRCS's Grant Manager by the tenth (10"') of the
month following the end of the calendar quarter (March, June, September, and December). The progress
reports shall describe activities undertaken and accomplishments during the quarter, milestones
achieved, and any problems encountered in the performance of the work under this Agreement.
6.2 Every six (6) months during the work performed under the Scope of Work of this Agreement, the Grantee
shall develop and submit to their assigned SWRCB's Program Analyst expenditure/invoice projections to
enable funding to be available for payment of invoices.
6.3 Grantee shall complete a one (1) page Grant Summary Form
http:// www. swrcb .ca.gov /nps /docs /consummary.doc within three (3) months of the Agreement execution.
6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource
Projects Inventory (NRPI) project survey form htto: / /www.ice.ucdavis.edu /nroi formsldefault.aso. A hard
copy shall be submitted to the Program Analyst prior to final payment.
6.5 Grantee shall submit to the Grant Manager a Project Assessment and Evaluation Plan that addresses all
requirements of the monitoring and repering plan described in Exhibit D.
6.6 The Grantee agrees to expeditiously provide, during work on the Project and for a reasonable period of time
thereafter, such reports, data, information, and certifications as may be reasonably required by the SWRCB.
7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs
and that all costs connected with the Project will be paid by the Grantee on a timely basis.
8. Audit Disallowances. The Grantee agrees that it shall return any audit disallowances to the SWRCB,.'
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EXHIBIT C
SWRCB GENERAL CONDITIONS
1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in
writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated
in the Agreement is binding on any of the parties.
2. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the
SWRCB.
3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole or in part, without the consent of
the SWRCB.
4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated
representative shall have the right to review and to copy any records and supporting documentation
pertaining to the performance of this Agreement. Grantee agrees to maintain such records for possible audit
for a minimum of thirty -six (36) years after final payment, unless a longer period of records retention is
stipulated. Grantee agrees to allow the auditor(s) access to such records during normal business hours and to
allow interviews of any employees who might reasonably have information related to such records. Further,
Grantee agrees to include a similar right of the State to audit records and interview staff in any contract
related to performance of this Agreement.
5. BONDING: Where contractors are used, construction shall not begin until each such contractor has furnished
a performance bond in favor of the Grantee in the following amounts: faithful performance (100 %) of contract
value; labor and materials (100°/x) of contract value. This requirement shall not apply to any contract for less
than S20.000.
6. COMPLIANCE WITH LAW. REGULATIONS, ETC.: The Grantee agrees that it will, at all times, comply with
and require its contractors and subcontractors to comply with all applicable federal and state laws, rules,
guidelines, regulations, and requirements. Without limitation of the foregoing, the Grantee agrees that, to the
extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for
the term of this Agreement.
7. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to
ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or
maintenance of computer software in violation of copyright laws.
8. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the
provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds,
or if such breach shall result in an obligation on the part of the State to reimburse the federal government by
reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any
damages paid by or loss incurred by the state due to such breach.
9. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any dispute. Any
dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by
the Chief of the Division of Financial Assistance (Division), or his or her authorized representative. The
decision shall be reduced to writing and a copy thereof furnished to the Grantee and to the SWRC6's
Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar
days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written
appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCS's Executive Director
shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent.
or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by
substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an
opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute
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hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and
requirements of this Agreement. This clause does not preclude consideration of legal questions, provided
that nothing herein shall be construed to make final the decision of the SWRCB, or any official or
representative thereof, on any question of law.
10. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that, at a
minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a
level of expenditure adequate to establish that such funds have not been used in violation of state law or this
Agreement. The Grantee further agrees that it will maintain separate Project accounts in accordance with
generally accepted accounting principles.
11. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the
State of California.
12. GRANT MODIFICATIONS: The SWRCB may, at any time, without notice to any sureties, by written order
designated or indicated to be a "grant modification ", make any change in Exhibit A, for the work to be
performed under this Agreement so long as the modified work is within the general scope of work called for by
this Agreement, including but not limited to changes in the specifications or in the method, manner, or time of
performance of work. If the Grantee intends to dispute the change, the Grantee must, within ten (10) days
after receipt of a written "grant modification ", submit to the SWRCB a written statement setting forth the
disagreement with the change. -
13. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts
(including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by
the Grantee to the State, to the extent that they are properly allocable to costs for which the Grantee has
been reimbursedTiy the State under this Agreement.
14. INSPECTION: Throughout the term of this Agreement, the SWRCB shall have the right to inspect the project
area to ascertain compliance with this Agreement.
15. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance
against fire. vandalism and other loss, damage, or destruction of the facilities or structures constructed
pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to
transact business in the State of California. The insurance policy shall contain an endorsement specifying
that the policy will not be cancelled or reduced in coverage without thirty days' prior written notice to the
SWRCB.
16. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not
unlawfully discriminate against, harass, or allow harassment against any employee or applicant for
employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition,
marital status, age (over 40) or denial of family -care leave, medical -care leave, or pregnancy - disability leave.
The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and
applicants for employment are free of such discrimination and harassment.
17. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the
scope, budget, or work performed under this Agreement. The Grantee agrees that no substantial change in
the scope of the Project will be undertaken until written notice of the proposed change has been provided to
the SWRCB, and the SWRCB has given written approval for such change. The Grantee shall notify the
SWRCB at least ten (10) working days prior to any public or media event publicizing the accomplishments
and/or results of this Agreement and provide the opportunity for attendance and participation by SWRCS's
representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project.
18. PERMITS, CONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits
and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees,
and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors,
outside associates, or consultants required by the Grantee in connection with the services covered by this
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Agreement.shall be limited to such individuals or firms as were specifically identified and agreed to during
negotiations for this Agreement, or as are specifically authorized by the SWRCB's Grant Manager during the
performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or
consultants, shall be subject to the prior written approval of the SWRCB's Grant Manager. Any waiver of
rights with respect to a default or other matter arising under the Agreement at any time by either party shall
not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of
the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The
Grantee shall not contract with any party who is debarred or suspended or otherwise excluded from or
ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and
Suspension ". The Grantee shall not contract with any individual or organization on USEPA's List of Violating
Facilities. (40 CFR, Part 31.35, Gov. Code 4477) The Grantee certifies to the best of its knowledge and
belief, that it and its principals:
a. Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded by any federal department or grantee;
b. Have not within a three -year period preceding this Agreement been convicted of or had a civil judgment
rendered against them for commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public
transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or receiving stolen property;
c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal,
state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification;
and
d. Have not within a three -year period preceding this application /proposal had one or more public
transactions (federal, state or local) terminated for cause or default.
19. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures
constructed or improved as part of the project throughout the term of this Agreement, consistent with the
purposes for which this grant was made. The Grantee assumes all operations and maintenance costs of the
facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or
operation. The Grantee may be excused from operations and maintenance only upon the written approval of
the Grant Manager. For purposes of this Agreement, "operation costs" include direct costs incurred for
material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs"
include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets
and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic
structures.
20. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the
provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall
monitor all agreements subject to reimbursement from this Agreement to assure that the prevailing wage
provisions of State Labor Code Section 1771 are being met. The Grantee agrees to fulfill its responsibilities
under Section 1771.8 of the Labor Code, where applicable.
21. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services
under this Agreement where such services are called for.
22. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally
accepted accounting principles, the Grantee agrees to:
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a. Establish an official file for the Project which shall adequately document all significant actions relative to
the Project;
b. Establish separate accounts which will adequately and accurately depict all amounts received and
expended on this Project, including all grant funds received under this Agreement;
c. Establish separate accounts which will adequately depict all income received which is attributable to the
Project, especially including any income attributable to grant funds disbursed under this Agreement;
d. Establish an accounting system which will adequately depict final total costs of the Project, including both
direct and indirect costs;
e. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal
reporting requirements, including any and all reporting requirements under federal tax statutes or
regulations; and
f. If Force Account is used by the Grantee for any phase of the Project, establish an account that
documents all employee hours, and associated tasks charged to the Project per employee.
23. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer
programs, operating manuals, notes, and other written or graphic work produced in the performance of this
Agreement are subject to the rights of the State as set forth in this section. The State shall have the right to
reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes
whatsoever and to authorize others to do so. If any such work is copyrightable, the Grantee may copyright
the same, exceot that, as to any work which is copyrighted by the Grantee, the State reserves a royalty-free,
nonexclusive, and irrevocable license to reproduce, publish, and use such work, or any part thereof, and to
authorize others to do so. The Grantee shall not utilize the materials for any profit - making venture or sell or
—grant rights to a third party who intends to do so.
24. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project
applications, documents, permits, plans and specifications or other Project information by the SWRCB is for
administrative purposes only and does not relieve the Grantee of its responsibility to properly plan, desicn,
construct, operate, maintain, implement, or otherwise carry out the Project. To the extent permitted by law,
the Grantee agrees to indemnify, defend and hold harmless the SWRCB and the State against any loss or
liability arising out of any claim or action brought against the SWRC8 and /or the State from and against any
and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature
whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions,
occupancy, use, possession, conduct or management of, work done in or about, or the planning, design,
acquisition, installation or construction, of the Project or any part thereof; (2) the carrying out of any of the
transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law,
rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive
Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the
California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the
California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to
said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue
statement or alleged untrue statement of any material fact or omission or alleged omission to state a material
fact necessary to make the statements required to be stated therein, in light of the circumstances under which
they were made, not misleading with respect to any information provided by the Grantee for use in any
disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To
the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered
or made against the SWRCB and /or the State with respect to any such claim or action, and any settlement,
compromise or other voluntary resolution. The provisions of this section shall survive the term of this
Agreement.
25. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee agrees that any remedy provided in this
Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the
SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after
completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not
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Orange County CoastKeeper
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preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the
event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party
shall be entitled to such reasonable costs and /or attorney fees as may be ordered by the court entertaining
such litigation.
25. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written
notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB,
upon violation by the Grantee of any material provision after such violation has been called to the attention of
the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this
Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the
Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant
funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on
all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the
Grantee to the date of full repayment by the Grantee.
27. TIMELINESS: Time is of the essence in this Agreement.
28. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to
exceed those amounts paid to the State's represented employees under collective bargaining Agreements
currently in effect. No travel outside the State of California shall be reimbursed unless prior written
authorization is obtained from the SWRCB.
29. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held
to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have
full force and effect and shall not be affected thereby.
30. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be
filed and maintained in the Superior Court in and for the County of Sacramento, California, or in the United
States District Court in and for the Eastern District of California. The Grantee hereby waives any existing
sovereign immunity for the purposes of this Agreement.
31. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may withhold all or any portion of the grant
funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to
materially violate, any term, provision, condition, or commitment of this Agreement; or the Grantee fails to
maintain reasonable progress toward completion of the Project.
Orange County CoastKeeper
SWRCB Grant Agreement No. 03- 183 -558.0
Page 13 of 13
EXHIBIT D
Grant Program Terms & Conditions
1. The Grantee certifies that it is a municipality, a local public agency, a community college, a state college, the
University of California, or a 501(c)(3) or 501(c)(5) nonprofit organization.
2. The Grantee certifies that this project is intended to produce sustained, long -term water quality or
environmental restoration or protection benefits for a period of 20 years.
3. The Grantee certifies that this project is intended to address the causes of degradation, rather than
symptoms.
4. This project is consistent with water quality and resource protection plans prepared, implemented, or adopted
by the SWRCB, the applicable Regional Water Quality Control Board, and the California Coastal Commission.
5. Notwithstanding Exhibit A, the Grantee shall submit a monitoring and reporting plan that will do all of the
following:
a. identifies the nonpoint source or sources of pollution to be prevented or reduced by project
b. describes the baseline water quality or quality of the environment to be addressed
c. describes the manner that project will prevent or reduce pollution and demonstrate desired environmental
results.
6. Notwithstanding Exhibit A, upon completion of the project, the Grantee shall submit a report to the SWRCB
that summarizes the completed activities and indicates whether the purposes of the project have been met.
The report shall include information collected by the recipient in accordance with the project monitoring and
reporting plan, including a determination of the effectiveness of the project in preventing or reducing pollution.
7. The Grantee shall inform the SWRCB with regard to necessary public agency approvals, entitlements, and
permits that may be necessary to implement the project. The Grantee shall certify to the SWRCB, at the
appropriate time, that it has obtained those approvals, entitlements, and permits.
8. The Grantee certifies that if a recovery plan for coho, steelhead, or other threatened or endangered aquatic
species exists, this project is consistent with such a plan and, if feasible, implements actions in such a plan.
9. The Grantee hereby certifies that it has not received any funding for this project under WC § 79110 — 79117
(Proposition 13 Nonpoint Source Pollution Control).
E
•
0
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
E CrIY COUNCIL
NEWPORTBEACH
°t'r t +u4
Agenda em�—
September 28, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Harbor Resources Division / City Manager's Office
Tom Rossmiller, Manager Harbor Resources, 949 - 644 -3041
trossmiller(a)city. newport- beach.ca.us
Dave Kiff, Assistant City Manager, 949 -644 -3002
d kiff(c) city. newport- beach.ca. us
SUBJECT: Approval of a Professional Services Agreement with Orange County
CoastKeeper for a cooperative project to develop a Contaminated
Sediment Remediation Plan for the Rhine Channel
ISSUE:
Should the City authorize a Professional Services Agreement (PSA) with Orange
County Coastkeeper that provides budgeted matching funds to a State Water
Resources Control Board (SWRCB) Grant?
RECOMMENDATION:
Approve the Professional Services Agreement with Orange County Coastkeeper
providing $68,000 in matching funds for SWRCB Grant Agreement No. 03- 183 - 558 -0.
DISCUSSION:
Background:
In the late 1990s, the California Regional Water Quality Control Board, Santa Ana
Region ( "Regional Board "), declared the Rhine Channel area of the Lower Bay (see
map) to be the most polluted "toxic hot spot" of any water body within the Regional
Board's jurisdiction. This was primarily due to historic or "legacy" heavy metals (like
mercury, copper, and chromium) as well as PCBs within the sediment.
At the time, the Regional Board merely named the area as a toxic hot spot – the Board
did not propose a remediation plan nor a timeline for clean -up.
• Rhinthannet — OC CoastKeeper PSA
September 28, 2004
Page 2
Rhine Channel Area
Lower Newport Bay
The Toxic Pollutants Total Maximum Daily Load ( "Toxics TMDL ") for the San Diego
Creek/Newport Bay Watershed was promulgated by EPA in June 2002. US EPA
established numeric targets for load allocation were established for the Rhine Channel
for copper, chromium, mercury, lead, selenium, zinc, DDT, PCB's, chlordane, and
dieldrin. Currently, insufficient data exists for the Regional Board to develop an
implementation plan for the toxics TMDL as promulgated by EPA.
Historic records indicate that the sediments in the Rhine Channel have been
contaminated with metals and organic compounds since the 1930s when the Channel
was lined with shipyards, metal plating facilities and a cannery. It appears that a
significant amount of debris such as batteries, engines and large pieces of metal and
wood have been deposited in the Rhine Channel over time. In addition, runoff from the
facilities on the channel and in the surrounding small watershed has contributed to the
chemical contamination of the sediments.
•
f�
In recent months, the City and Orange County CoastKeeper have partnered on a grant •
to study the Channel and propose a remediation plan that would comply with the Toxics
2
• Rhi0hannel - OC CoastKeeper PSA
September 28, 2004
Page 3
Is TMDL. 0 ur O C CoastKeeper -City grant collaboration was successful, and the State
Water Resources Control Board awarded us a $278,000 grant earlier this year. The
proposed grant- funded Project will survey the debris field and characterize the chemical
content of the sediment in an effort to determine the quality and volume of sediment that
is contaminated. Most importantly, the project will develop and evaluate alternatives for
remediating the contaminated sediment problem.
Proiect Goals
There are two primary goals of the Project:
1. Implementation of a high quality, comprehensive monitoring approach that will
collect the additional data needed by Regional Board to assess management
practices and formulate implementation plans for technical TMDLs for
organochlorine compounds, selenium, mercury chromium, lead, copper, and zinc,
resulting in long term water quality benefits over time.
2. Creation of a high quality engineering plan that identifies and prioritizes options for
remediating the legacy sediment in Rhine Channel, and provides a workable guide
for creating measurable water quality improvements.
The Proposed Agreement
As n oted, t he S tate W ater R esources C ontrol B oard h as a pproved a g rant (SWRCB
Agreement No. 03- 183 - 558 -0) to the Orange County Coastkeeper in the amount of
$278,000 for the data collection and development of the preferred remediation plan.
The grant requires a local match of $68,000, which we have agreed to provide and have
included in the City's Capital Improvement Program (CIP) for FY 2004 -05 (#7232 -
C2372773).
The CoastKeeper organization has a long history of implementing water quality
programs in Southern California and has been involved with sediment monitoring in the
Rhine Channel since 2000. The Regional Board recommended that the City of
Newport Beach partner with OC CoastKeeper to apply for the SWRCB grant and
develop a non - governmental organization (NGO) /local government team that would
help ensure development of high quality remediation alternatives that would ultimately
be accepted by the various State and Federal resources agencies and the public in the
multi -level review process. The attached Professional Services Agreement with OC
CoastKeeper (which includes the SWRCB grant's Scope of Services) formally
establishes that partnership.
Under the PSA and the SWRCB grant's Scope of Services, OC CoastKeeper will have
the primary responsibility for:
. • Project administration
• Oversight of all sampling activities
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• Rhinthannel — OC CoastKeeper PSA
September 28, 2004
Page 4
• Oversight of the debris field mapping
• Hiring of an engineering firm to collect and evaluate core samples
• Hiring of an engineering firm to develop and evaluate remediation alternatives
• Providing a boat and certified captain for access to the test sites.
A Technical Advisory Committee (TAC) will be formed to review protocols and plan all
technical aspects of the project. The committee will consist of:
• Executive Director and Project Manager of Orange County Coastkeeper;
• Assistant City Manager and Harbor Resources Manager of the City of Newport
Beach;
• Coastal Planning Manager of the Regional Board; and
• Principal Scientist of Southern California Coastal Water Research Project.
We will also keep the Coastal /Bay Water Quality Committee up to date on the progress
of the grant's implementation.
Environmental Review: The City Council's discussion of this Agenda Item does not
require environmental review.
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: This agreement is funded in the current FY 2004/2005 CIP.
Alternatives: Do not execute the professional services agreement with Orange County
Coastkeeper and request them to find another source of local match funds.
Prepared by:
Submitted by:
WO 4ul TV.,r,, ---
Tom Rossmiller, Harbor Resources Manager Dave W, Assistant City Manager
Attachments: Professional Services Agreement
SW RCB Grant No. 03- 183 -558 -0
Exhibits A - D
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PROFESSIONAL SERVICES AGREEMENT WITH
ORANGE COUNTY COASTKEEPER
THIS AGREEMENT is made and entered into as of this M day of 2004, by
and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and
ORANGE COUNTY COASTKEEPER, a non - profit organization, whose address is 441
Old Newport Blvd, Ste. 103, Newport Beach, California, 92663 ( "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 participate in a cooperative project with the Orange County
Coastkeeper to characterize the quality of sediments in the Rhine Channel and
then develop remediation alternatives for removal or inactivation of contaminated
sediments.
C. City desires to engage Consultant to manage subconsultant services to complete
the tasks identified in the California State Water Resources Board Grant
identified as Rhine Channel Sediment Remediation Feasibility Project —Grant
Agreement No. 03- 183 -558 -0 (copy attached).
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal member[s] of Consultant for purposes of project management shall
be Gary Brown, Ray Hiemstra and Mina Danieli. '
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:
TERM
The term of this Agreement shall commence on the 1st day of September, 2004, and
shall terminate on the 1st day of September, 2005, unless terminated earlier as set
forth herein.
0 2. SERVICES TO BE PERFORMED
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3.
4.
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Consultant shall diligently perform all th
Services attached hereto as Exhibit A an
City may elect to delete certain tasks
discretion.
TIME OF PERFORMANCE
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e services described in the Scope of
d incorporated herein by reference. The
of the Scope of Services at its sole
Time is of the essence in the performance of services under this Agreement and
Consultant shall perform the services in accordance with the schedule included in
Exhibit A. The failure by Consultant to strictly adhere to the schedule may result
in termination of this Agreement by City.
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. In no
event shall Consultant's compensation exceed Sixty -Eight Thousand Dollars
($68,000.00) 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 semiannual invoice to City describing the work
performed the preceding six months. The first payment shall be made
within thirty (30) days of execution of this agreement in the amount of
Thirty -Four Thousand Dollars ($34,000) as local contribution to State of
California Grant Agreement No. 03- 183 - 558 -0. 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 second invoice of $34,000
by City staff. The second and final invoice shall be submitted on or after
November 1, 2004.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
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.
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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 Ray Hiemstra to be
its Project Manager. Consultant shall not remove or reassign the Project
Manager or any personnel listed in Exhibit A or assign any new or replacement
personnel to the Project 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 Harbor Resources Department. Tom
Rossmiller 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.
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
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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.
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 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,
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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
sole 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.
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
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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 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 Manag_gr.
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
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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.
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
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judgment may be necessary for its proper protection and prosecution of
the work. .
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.
SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the work
outlined in the Scope of Services. The subconsultants authorized by City to perform
work on this Project are identified in Exhibit A Consultant shall be fully responsible
to City for all acts and omissions of the subcontractor. Nothing in this Agreement
shall create any contractual relationship between City and subcontractor nor shall it
create any obligation on the part of City to pay or to see to the payment of any
monies due to any such subcontractor other than as otherwise required by law.
Except as specifically authorized herein, the services to be provided under this
Agreement shall not be otherwise assigned, transferred, contracted or subcontracted
out without the prior written approval of City.
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.
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(Optional Paragraph] All improvement and /or construction plans shall be
prepared with indelible waterproof ink or electrostaticly plotted on standard 24-
inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall
provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image files
of all final sheets within ninety (90) days after finalization of the Project. For more
detailed requirements, a copy of the City of Newport Beach Standard Design
Requirements is available from the City's Public Works Department.
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.
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22. RECORDS
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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 vithholding. 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
25.
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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
restoration expense shall be borne by Consultant. Nothing in this paragraph is
intended to limit City's rights under any other sections of this Agreement.
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.
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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:
Tom Rossmiller
Harbor Resources
City of Newport Beach
829 Harbor Island Drive
Newport Beach, CA, 92660
(949) 644 -3041 ,
Fax 644 - 723 -0589
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention: Ray Hiemstra
441 Old Newport Blvd., Ste. 103
Newport Beach, CA 92663
(949) 723 -5424
FAX (949) 675 -7091
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
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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.
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 0
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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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
Robin Clauson,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Tod Ridgeway
Mayor
for the City of Newport Beach
CONSULTANT:
By: /
LaVonne Harkless, 'ter, B w , ec tive Direc
City Clerk Oran e C unty Coastkeeper
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Budget and Reporting Provisions
Exhibit C — SWRCB General Conditions
Exhibit D — Grant Program Terms & Conditions
SWRCB Grant Agreement No. 03- 183 -55B -0
F:1u serslcatl sharedl db% AglTemplates \ProfServ2003revisedFinal.doc
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Orange County CoastKeeper
SWRCB Grant Agreement No. 03- 183 -558 -0
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0 EXHIBIT B — BUDGET AND REPORTING PROVISIONS
1. Invoicing
1.1 Invoices shall include the Agreement Number. The original invoice shall be submitted to the SWRCB's
Program Analyst on a quarterly basis consistent with the reporting schedule in Section 6.1 of this exhibit.
Three (3) copies of the invoice shall be submitted to the Grant Manager. The addresses for submittal are:
Pam Nichols, Program Analyst Terri Reeder, Grant Manager
State Water Resources Control Board Santa Ana Regional Water Quality Control Board
Division of Financial Assistance 3737 Main Street, Suite 500
1001 1 Street, 16th Floor Riverside, CA 92501 -3348
Sacramento, CA 95814
1.2 Payment of any invoice will be made only after receipt of a complete, adequately supported, properly
documented and accurately addressed invoice or payment request. Failure to use the address exactly as
provided above may result in return of the invoice or payment request to the Grantee. Payment shall be
deemed complete upon deposit of the payment, properly addressed, postage prepaid, in the United
States mail. All invoices must be approved by the SWRCB's Grant Manager.
1.3 Notwithstanding any other provision of this Agreement, no disbursement shall be required at any time or
in any manner which is in violation of or in conflict with federal or state laws, rules, or regulation, or which
may require any rebates to the Federal Government, or any loss of tax- freestatus on state bonds,
pursuant to any Federal statute or regulation.
1.4 Notwithstanding any other provision of this Agreement, the Grantee agrees that the SWRCB may retain
an amount equal to ten percent (10 %) of the grant amount specified in this Agreement until completion of
the Project to the reasonable s- &sfaction of the SWRCB. Any retained amounts due to the Grantee will
be promptly disbursed to the Grantee, without interest, upon completion of the Project.
1.5 The invoice shall contain the following information:
1.5.1 The word "INVOICE" should appear in a prominent location at the top of page(s);
1.5.2 Printed name of the Grantee:
1.5.3 Business address of the Grantee, including P.O. Box, City, State, and Zip Code;
1.5.4 The date of the invoice;
1.5.5 The number of the Agreement upon which the claim is based; and
1.5.6 An itemized account of the work for which the SWRCB is being billed;
1.5.6.1 The time period covered by the invoice, i.e., the term "from" and "to ";
1.5.6.2 A brief description of the work performed;
1.5.6.3 The method of computing the amount due. On cost reimbursable agreements, invoices
must be itemized based on the categories specified in the Budget. The amount claimed
for salaries /wages /consultant fees must also be explained; i.e., hours or days worked
times the hourly or daily rate = the total amount claimed;
1.5.6.4 The total amount due; this should be in a prominent location in the lower right -hand
portion of the last page and clearly distinguished from other figures or computations
appearing on the invoice; the total amount due shall include all costs incurred by the
Grantee under the terms of this Agreement; and
1.5.7 Original signature of Grantee (not required of established firms or entities using preprinted
letterhead invoices).
• 1.5.8 Final Invoice shall be clearly marked "FINAL INVOICE" and submitted NO LATER THAN MAY 1,
2006.
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2. Budget Contingency Clause
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The maximum amount to be encumbered under this Agreement for the 2003 -04 fiscal year ending June 30, 2004
shall not exceed two hundred seventy eight thousand dollars ($278,000).
If the Budget Act of the current year and /or any subsequent years covered under this Agreement does not
appropriate sufficient funds for the program, this Agreement shall be of no force and effect. This provision shall
be construed as a condition precedent to the obligation of the SW RCB to make any payments under this
Agreement. In this event, the State shall have no liability to pay any funds whatsoever to Grantee or to furnish
any other considerations under this Agreement and Grantee shall not be obligated to perform any provisions of
this Agreement. Nothing in this Agreement shall be construed to provide the Grantee with a right of priority for
payment over any other Grantee.
If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall
have the option to either cancel this Agreement with no liability occurring to the State, or offer an agreement
amendment to Grantee to reflect the reduced amount.
3. LINE ITEM BUDGET
Proo 13 MATCH TOTAL
Personnel Services (includes benefits)
Class Hours Wage/Hour
Project Manager 2000 $ 30.50 $81,000 525,000 $106,000
Cartographer 1125 $ 40.00
Operating Expenses $38,800 $8,000 546,800
office space, website, printing, copies,
supplies (sub -meter GPS system, sortware,
laptop computer, mapping software,
boat modifications for core sampling /mapping)
(no item over $5,000 each)
Professional and Consulting Services $158,200 $35,000 $193,200
Rhine Channel Core Sampling
Rhine Channel Implementation Alternatives Plan
Lab Services
TOTAL $278,000 $68,000 $346,000
4. Budget Line Item Flexibility
41 Line Item Adjustment(s). Subject to the prior review and approval of the SWRCB's Grant Manager,
adjustments between existing line item(s) may be used to defray allowable direct costs up to fifteen
percent (15 %) of the Agreement total including any amendment(s) thereto. Line item adjustments in
excess of fifteen percent (15 %) shalt require a formal agreement amendment.
4.2 Procedure to Request an Adjustment. The Grantee may submit a request for an adjustment in writing to
the SW RCB. Such adjustment may not increase or decrease the total grant amount allocated per fiscal
year. The Grantee shall submit a copy of the original Agreement Budget sheet reflecting the requested
changes. Changes shall be noted by striking the original amount(s) followed with revised change(s) in
bold and underlined. Budget adjustments deleting a budget line item or adding a new budget line item
requires a formal amendment and are not permissible under this provision. The SWRCB may also
propose adjustments to the budget.
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5. QAPP /CEQAINEPA/Permit Payment. Grantee shall provide to the SWRCB's Grant Manager a certification
form (to be provided by the SWRCB) certifying that the QAPP /CEQA/NEPA/PERMIT documents have been
received by the Grant Manager. Payment for this activity shall not be made to Grantee until the certification
form is received by the SW RCS's Grant Manager.
6. Reports.
6.1 Grantee shall submit quarterly progress reports to the SWRCB's Grant Manager by the tenth (10"') of the
month following the end of the calendar quarter (March, June, September, and December). The progress
reports shat( describe activities undertaken and accomplishments during the quarter, milestones
achieved, and any problems encountered in the performance of the work under this Agreement.
6.2 Every six (6) months during the work performed under the Scope of Work of this Agreement, the Grantee
shall develop and submit to their assigned SWRCB's Program Analyst expenditurelinvoice projections to
enable funding to be available for payment of invoices.
6.3 Grantee shall complete a one (1) page Grant Summary Form
htto: / /www.swrcb.ce.gov /nos /docs /consummary.doc within three (3) months of the Agreement execution.
6.4 At the completion of this project, the Grantee shall complete and submit electronically a Natural Resource
Projects Inventory (NRPI) project survey form htto:llwww.ice.ucdavis.edu /nrpi formsldefault.aso. A hard
copy shall be submitted to the Program Analyst prior to final payment. r-
6.5 Grantee shall submit to the Grant Manager a Project Assessment and Evaluation Plan that addresses all
requirements of the monitoring and reporting plan described in Exhibit D. _
. 6.6 The Grantee agrees to expeditiously provide, during work on the Project and for a reasonable period of time
thereafter, such reports, data, information, and certifications as maybe reasonably required by the SWRCB.
7. Payment of Project Costs. The Grantee agrees that it will provide for payment of its full share of Project costs
and that all costs connected with the Project will be paid by the Grantee on a timely basis.
8. Audit Disallowances. The Grantee agrees that it shall return any audit disallowances to the SWRCB'
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EXHIBIT C
SWRCB GENERAL CONDITIONS
1. AMENDMENT: No amendment or variation of the terms of this Agreement shall be valid unless made in
writing, signed by the parties and approved as required. No oral understanding or Agreement not incorporated
in the Agreement is binding on any of the parties.
2. APPROVAL: The Grantee will not proceed with any work on the Project until authorized in writing by the
SWRCB.
3. ASSIGNMENT: This grant is not assignable by the Grantee, either in whole Orin part, without the consent of
the SWRCB.
4. AUDIT: Grantee agrees that the awarding department, the Bureau of State Audits, or their designated
representative shall have the right to review and to copy any records and supporting documentation
pertaining to the performance of this Agreement. Grantee agrees to maintain such records for possible audit
for a minimum of thirty -six (36) years after final payment, unless a longer period of records retention is
stipulated. Grantee agrees to allow the auditor(s) access to such records during normal business hours and to
allow interviews of any employees who might reasonably have information related to such records. Further,
Grantee agrees to include a similar right of the State to audit records and interview staff in any contract
related to performance of this Agreement.
5. BONDING: Where contractors are used, construction shall not begin until each such contractor has furnished
a performance bond in favor of the Grantee in the following amounts: faithful performance (100 %) of contract
value; labor and materials (100°/x) of contract value. This requirement shall not apply to any contract for less •
than $20,000. —
6. COMPLIANCE WITH LAW, REGULATIONS, ETC.: The Grantee agrees that it will, at all times, comply with
and require its contractors and subcontractors to comply with all applicable federal and state laws, rules,
guidelines, regulations, and requirements. Without limitation of the foregoing, the Grantee agrees that, to the
extent applicable, the Grantee will comply with the provisions of the adopted environmental mitigation plan for
the term of this Agreement.
7. COMPUTER SOFTWARE: The Grantee certifies that it has appropriate systems and controls in place to
ensure that state funds will not be used in the performance of this Agreement for the acquisition, operation or
maintenance of computer software in violation of copyright laws.
8. DAMAGES FOR BREACH AFFECTING TAX EXEMPT STATUS: In the event that any breach of any of the
provisions of this Agreement by the Grantee shall result in the loss of tax exempt status for any state bonds,
or if such breach shall result in an obligation on the part of the State to reimburse the federal government by
reason of any arbitrage profits, the Grantee shall immediately reimburse the state in an amount equal to any
damages paid by or loss incurred by the state due to such breach.
9. DISPUTES: Grantee shall continue with the responsibilities under this Agreement during any dispute. Any
dispute arising under this Agreement which is not otherwise disposed of by agreement shall be decided by
the Chief of the Division of Financial Assistance (Division), or his or her authorized representative. The
decision shall be reduced to writing and a copy thereof furnished to the Grantee and to the SWRCB's
Executive Director. The decision of the Division shall be final and conclusive unless, within thirty (30) calendar
days after mailing of the Division decision to the Grantee, the Grantee mails or otherwise furnishes a written
appeal of the decision to the SWRCB's Executive Director. The decision of the SWRCB's Executive Director
shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent,
or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by
substantial evidence. In connection with any appeal under this clause, the Grantee shall be afforded an
opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute
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hereunder, the Grantee shall continue to fulfill and comply with all the terms, provisions, commitments, and
requirements of this Agreement, This clause does not preclude consideration of legal questions, provided
that nothing herein shall be construed to make final the decision of the SWRCB, or any official or
representative thereof, on any question of law.
10. FISCAL MANAGEMENT SYSTEMS AND ACCOUNTING STANDARDS: The Grantee agrees that, at a
minimum, its fiscal control and accounting procedures will be sufficient to permit tracing of grant funds to a
level of expenditure adequate to establish that such funds have not been used in violation of state law or this
Agreement. The Grantee further agrees that it will maintain separate Project accounts in accordance with
generally accepted accounting principles.
11. GOVERNING LAW: This grant is governed by and shall be interpreted in accordance with the laws of the
State of California.
12. GRANT MODIFICATIONS: The SWRCB may, at any time, without notice to any sureties, by written order
designated or indicated to be a "grant modification ", make any change in Exhibit A. for the work to be
performed under this Agreement so long as the modified work is within the general scope of work called for by
this Agreement, including but not limited to changes in the specifications or in the method, manner, or time of
performance of work. If the Grantee intends to dispute the change, the Grantee must, within ten (10) days
after receipt of a written "grant modification ", submit to the SWRCB a written statement setting forth the
disagreement with the change.
13. INCOME RESTRICTIONS: The Grantee agrees that any refunds, rebates, credits, or other amounts
(including any interest thereon) accruing to or received by the Grantee under this Agreement shall be paid by
the Grantee to the State, to the extent that they are properly allocable to costs for which the Grantee has
• been reimburseiny the State under this Agreement. "-
14. INSPECTION: Throughout the term of this Agreement, the SWRCB shall have the right to inspect the project
area to ascertain compliance with this Agreement.
15. INSURANCE: Throughout the term of this Agreement, the Grantee shall provide and maintain insurance
against fire, vandalism and other loss, damage, or destruction of the facilities or structures constructed
pursuant to this Agreement, if any. This insurance shall be issued by a company or companies admitted to
transact business in the State of California. The insurance policy shall contain an endorsement specifying
that the policy will not be cancelled or reduced in coverage without thirty days' prior written notice to the
SWRCB.
16. NONDISCRIMINATION: During the performance of this Agreement, the Grantee and its contractors shall not
unlawfully discriminate against, harass, or allow harassment against any employee or applicant for
employment because of sex, race, religion, color, national origin, ancestry, disability, medical condition,
marital status, age (over 40) or denial of family -care leave, medical -care leave, or pregnancy - disability leave.
The Grantee and its contractors shall ensure that the evaluation and treatment of their employees and
applicants for employment are free of such discrimination and harassment.
17. NOTICE: The Grantee shall promptly notify the SWRCB of events or proposed changes that could affect the
scope, budget, or work performed under this Agreement. The Grantee agrees that no substantial change in
the scope of the Project will be undertaken until written notice of the proposed change has been provided to
the SWRCB, and the SWRCB has given written approval for such change. The Grantee shall notify the
SWRC6 at least ten (10) working days prior to any public or media event publicizing the accomplishments
and /or results of this Agreement and provide the opportunity for attendance and participation by SWRCB's
representatives. The Grantee shall promptly notify the SWRCB in writing of completion of work on the Project.
�8. PERMITS, CONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Grantee shall procure all permits
and licenses necessary to accomplish the work contemplated in this Agreement, pay all charges and fees,
and give all notices necessary and incidental to the due and lawful prosecution of the work. Any contractors,
outside associates, or consultants required by the Grantee in connection with the services covered by this
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Agreement shall be limited to such individuals or firms as were specifically identified and agreed to during
negotiations for this Agreement, or as are specifically authorized by the SW RCB's Grant Manager during the
performance of this Agreement. Any substitutions in, or additions to, such contractors, associates, or
consultants, shall be subject to the prior written approval of the SWRCB's Grant Manager. Any waiver of
rights with respect to a default or other matter arising under the Agreement at any time by either party shall
not be considered a waiver of rights with respect to any other default or matter. Any rights and remedies of
the State provided for in this Agreement are in addition to any other rights and remedies provided by law. The
Grantee shall not contract with any party who is debarred or suspended or otherwise excluded from or
ineligible for participation in federal assistance programs under Executive Order 12549, "Debarment and
Suspension ". The Grantee shall not contract with any individual or organization on USEPA's List of Violating
Facilities. (40 CFR, Part 31.35, Gov. Code 4477) The Grantee certifies to the best of its knowledge and
belief, that it and its principals:
a. Are not presently debdrred, suspended, proposed for debarment, declared ineligible, or voluntarily
excluded by any federal department or grantee;
b. Have not within a three -year period preceding this Agreement been convicted of or had a civil judgment
rendered against them for commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public
transaction; violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery,
bribery, falsification or destruction of records, making false statements, or receiving stolen property;
c. Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (federal,
state or local) with commission of any of the offenses enumerated in paragraph (b) of this certification;
and
d. Have not within a three -year period preceding this application /proposal had one or more public
transactions (federal, state or local) terminated for cause or default.
19. OPERATIONS & MAINTENANCE: The Grantee shall maintain and operate the facility and structures
constructed or improved as part of the project throughout the term of this Agreement, consistent with the
purposes for which this grant was made. The Grantee assumes all operations and maintenance costs of the
facilities and structures; the SWRCB shall not be liable for any cost of such maintenance, management or
operation. The Grantee may be excused from operations and maintenance only upon the written approval of
the Grant Manager. For purposes of this Agreement. "operation costs" include direct costs incurred for
material and labor needed for operations, utilities, insurance, and similar expenses. "Maintenance costs"
include ordinary repairs and replacements of a recurring nature necessary to prolong the life of capital assets
and basic structures, and the expenditure of funds necessary to replace or reconstruct capital assets or basic
structures.
20. PREVAILING WAGES AND LABOR COMPLIANCE: If applicable, the Grantee agrees to be bound by all the
provisions of State Labor Code Section 1771 regarding prevailing wages. If applicable, the Grantee shall
monitor all agreements subject to reimbursement from this Agreement to assure that the prevailing wage
provisions of State Labor Code Section 1771 are being met. The Grantee agrees to fulfill its responsibilities
under Section 1771.8 of the Labor Code, where applicable.
21. PROFESSIONALS: The Grantee agrees that only licensed professionals will be used to perform services
under this Agreement where such services are called for.
22. RECORDS: Without limitation of the requirement to maintain Project accounts in accordance with generally
accepted accounting principles, the Grantee agrees to:
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a. Establish an official file for the Project which shall adequately document all significant actions relative to
the Project;
b. Establish separate accounts which will adequately and accurately depict all amounts received and
expended on this Project, in all grant funds received under this Agreement;
c. Establish separate accounts which will adequately depict all income received which is attributable to the
Project, especially including any income attributable to grant funds disbursed under this Agreement;
d. Establish an accounting system which will adequately depict final total costs of the Project, including both
direct and indirect costs;
e. Establish such accounts and maintain such records as may be necessary for the state to fulfill federal
reporting requirements, including any and all reporting requirements under federal tax statutes or
regulations; and
f. If Force Account is used by the Grantee for any phase of the Project, establish an account that
documents all employee hours, and associated tasks charged to the Project per employee.
23. RIGHTS IN DATA: The Grantee agrees that all data, plans, drawings, specifications, reports, computer
programs, operating manuals, no and other written or graphic work produced in the performance of this
Agreement are subject to the rights of the State as set forth in this section. The State shall have the right to
reproduce, publish, and use all such work, or any part thereof, in any manner and for any purposes
whatsoever and to authorize others to do so. If any such work is copyrightabre, the Grantee may copyright
the same, except that, as to any work which is copyrighted by the Grantee, the State reserves a royalty-free,
nonexclusive, and irrevocable license to reproduce, publish, and use such work, or any part thereof, and to
authorize others to do so. The Grantee shall not utilize the materials for any profit- making venture or sell or
0—grant rights to a third party who intends to do so.
24. STATE REVIEWS AND INDEMNIFICATION: The parties agree that review or approval of Project
applications, documents, permits, plans and specifications or other Project information by the SWRCB is for
administrative purposes only and does not relieve the Grantee of its responsibility to properly plan, design,
construct, operate, maintain, implement, or otherwise carry out the Project. To the extent permitted by law,
the Grantee agrees to indemnify, defend and hold harmless the SWRCB and the State against any loss or
liability arising out of any claim or action brought against the SWRCB and /or the State from and against any
and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature
whatsoever arising out of, resulting from, or in any way connected with (1) the Project or the conditions,
occupancy, use, possession, conduct or management of, work done in or about, or the planning, design,
acquisition, installation or construction, of the Project or any part thereof; (2) the carrying out of any of the
transactions contemplated by this Agreement or any related document; (3) any violation of any applicable law,
rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive
Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the
California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the
California Hazardous Waste Control Law and California Water Code Section 13304, and any successors to
said laws), rule or regulation or the release of any toxic substance on or near the System; or (4) any untrue
statement or alleged untrue statement of any material fact or omission or alleged omission to state a material
fact necessary to make the statements required to be stated therein, in light of the circumstances under which
they were made, not misleading with respect to any information provided by the Grantee for use in any
disclosure document utilized in connection with any of the transactions contemplated by this Agreement. To
the fullest extent permitted by law, the Grantee agrees to pay and discharge any judgment or award entered
or made against the SWRCB and /or the State with respect to any such claim or action, and any settlement,
compromise or other voluntary resolution. The provisions of this section shall survive the term of this
Agreement.
�. SWRCB ACTION, COSTS, AND ATTORNEY FEES: The Grantee agrees that any remedy provided in this
Agreement is in addition to and not in derogation of any other legal or equitable remedy available to the
SWRCB as a result of breach of this Agreement by the Grantee, whether such breach occurs before or after
completion of the Project, and exercise of any remedy provided by this Agreement by the SWRCB shall not
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preclude the SWRCB from pursuing any legal remedy or right which would otherwise be available. In the
event of litigation between the parties hereto arising from this Agreement, it is agreed that the prevailing party
shall be entitled to such reasonable costs and /or attorney fees as may be ordered by the court entertaining
such litigation.
26. TERMINATION, IMMEDIATE REPAYMENT, INTEREST: This Grant Agreement may be terminated by written
notice at any of this Grant Agreement time prior to completion of the Project, at the option of the SWRCB,
upon violation by the Grantee of any material provision after such violation has been called to the attention of
the Grantee and after failure of the Grantee to bring itself into compliance with the provisions of this
Agreement within a reasonable time as established by the SWRCB. In the event of such termination, the
Grantee agrees, upon demand, to immediately repay to the SWRCB an amount equal to the amount of grant
funds disbursed to the Grantee prior to such termination. In the event of termination, interest shall accrue on
all amounts due at the highest legal rate of interest from the date that notice of termination is mailed to the
Grantee to the date of full repayment by the Grantee.
27. TIMELINESS: Time is of the essence in this Agreement.
28. TRAVEL AND PER DIEM: Any reimbursement for necessary travel and per diem shall be at rates not to
exceed those amounts paid to the State's represented employees under collective bargaining Agreements
currently in effect. No travel outside the State of California shall be reimbursed unless prior written
authorization is obtained from the SWRCB.
29. UNENFORCEABLE PROVISION: In the event that any provision of this Agreement is unenforceable or held
to be unenforceable, then the parties agree that all other provisions of this Agreement shall continue to have
full force and effect and shall not be affected thereby.
30. VENUE: The SWRCB and the Grantee hereby agree that any action arising out of this Agreement shall be
filed and maintained in the Superior Court in and for the County of Sacramento. California, or in the United
States District Court in and for the Eastern District of California. The Grantee hereby waives any existing
sovereign immunity for the purposes of this Agreement.
31. WITHHOLDING OF GRANT DISBURSEMENTS: The SWRCB may withhold all or any portion of the grant
funds provided for by this Agreement in the event that the Grantee has materially violated, or threatens to
materially violate, any term, provision, condition, or commitment of this Agreement; or the Grantee fails to
maintain reasonable progress toward completion of the Project.
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10 EXHIBIT D
Grant Program Terms & Conditions
1. The Grantee certifies that it is a municipality, a local public agency, a community college, a state college, the
University of California, or a 501(c)(3) or 501(c)(5) nonprofit organization.
2. The Grantee certifies that this project is intended to produce sustained, long -term water quality or
environmental restoration or protection benefits for a period of 20 years.
3. The Grantee certifies that this project is intended to address the causes of degradation, rather than
symptoms.
4. This project is consistent with water quality and resource protection plans prepared, implemented, or adopted
by the SWRCB, the applicable Regional Water Quality Control Board, and the California Coastal Commission.
S. Notwithstanding Exhibit A, the Grantee shall submit a monitoring and reporting plan that will do all of the
following:
a. identifies the nonpoint source or sources of pollution to be prevented or reduced by project
b. describes the baseline water quality or quality of the environment to be addressed
C. describes the manner that project will prevent or reduce pollution and demonstrate desired environmental
results.
6. Notwithstanding Exhibit A, upon completion of the project, the Grantee shall submit a report to the SWRCB
that summarizes the completed activities and indicates whether the purposes of the project have been met.
The report shall include information collected by the recipient in accordance with the project monitoring and
reporting plan, including a determination of the effectiveness of the project in preventing or reducing pollution.
7. The Grantee shall inform the SWRCB with regard to necessary public agency approvals, entitlements, and
permits that may be necessary to implement the project. The Grantee shall certify to the SWRCB, at the
appropriate time, that it has obtained those approvals, entitlements, and permits.
8. The Grantee certifies that if a recovery plan for coho, steelhead, or other threatened or endangered aquatic
species exists, this project is consistent with such a plan and, if feasible, implements actions in such a plan.
9. The Grantee hereby certifies that it has not received any funding for this project under WC § 79110 — 79117
(Proposition 13 Nonpoint Source Pollution Control).
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