Loading...
HomeMy WebLinkAboutC-3771 - PSA; Balboa Marina Dock Replacement Project0 0 0311 PROFESSIONAL SERVICES AGREEMENT WITH MERKEL & ASSOCIATES, INC. FOR PREPARATION OF CEQA DOCUMENTATION FOR THE BALBOA MARINA DOCK REPLACEMENT PROJECT THIS AGREEMENT is made and entered into as of this "day of 2005, by and between the CITY OF NEWPORT BEACH, a Municipal Cor oration C'City "), and MERKEL & ASSOCIATES, INC., a corporation whose address is 5434 Ruffin Road, San Diego, California, 92123 ( "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 replace the aging Balboa Marina Dock located seaward of 151, 201 & 251 E. Coast Highway and 333 & 341 Bayside Drive, Newport Beach, California. C. City desires to engage Consultant to prepare an Initial Study and Mitigated Negative Declaration and other environmental documents in accordance with the California Environmental Quality Act (CEQA) for the dock replacement plan (hereinafter "Project "). The City also desires to engage Consultant to oversee the preparation of a noise and vibration study as part of the Project, due to the pile driving activity associated with the dock replacement. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Rachel Woodfield, Project Manager. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 1 0 0 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Work attached hereto as Exhibit A and incorporated herein by reference. All work and documents shall be prepared in accordance with and shall contain all items required by the California Environmental Quality Act (CEQA), CEQA Implementing Guidelines and City of Newport Beach ordinances and policies. Consultant shall furnish all environmental documents and forms to City in electronic format, Microsoft Word 2000, or other format acceptable to City. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the Billing Schedule set forth in Exhibit A. No rate changes shall be made during the term of this Agreement without the prior written approval of the Project Administrator. Consultant's compensation for all work performed in accordance with this Agreement, including reimbursable expenses and subconsultant fees, shall not exceed the total contract price of Thirty-Three Thousand and Thirty -Three Dollars ($33,033). 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Work 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 2 0 0 expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Work 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 such approval. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 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 Rachel Woodfield 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. it 6. ADMINISTRATION 0 This Agreement will be administered by the Planning Department. Patricia L. Temple, Planning Director 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 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 As 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 4 promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or P 0 0 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 Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 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 6 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 (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insurers 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. 7 L 0 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 (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venture or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or co- tenancy, 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 Work. 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. 17 18. 19. 20. 21 0 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. 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. Consultant does, however, reserve the right to utilize generic biological information collected during the course of the investigation to prepare scientific papers, talks, seminars, or marketing materials for public dissemination. 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. 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. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and 0 0 9 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. 22. 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. 23. 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold T • • harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. 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: Attention: Patricia L. Temple, Planning Director Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3200 Fax: 949 - 644 -3229 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Barbara Merkel, President Merkel & Associates, Inc. 5434 Ruffin Road San Diego, California, 92123 Phone: (858) 560 -5465 Fax: (858) 560 -7779 27. 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 parry 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, 11 9 0 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. 28. 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. 29. 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. 30. 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. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Work or any other attachments attached hereto, the terms of this Agreement shall govern. 32. 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. 33. 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. 34. 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. 12 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Asst. C for the City of Newport City Clerk Attachment: Exhibit A — Scope of Work 13 CITY OF NEWPORT BEACH, A Municipal Corporation By: `" - Homer Bludau, y Manager for the City of Newport Beach CONSULTANT: B X>.� 4 ar ra Merkel, President & Treasurer Merkel & Associates, Inc. E Merkel & Associates, Inc. 5434 Ruffin Road San Diego, California 92123 Ph. (858) 560 -5465 Fx. (858) 560 -7779 March 21, 2005 M &A #05- 049 -01 Mr. James W. Campbell RECEIVED BY Senior Planner PLANNING DEPARTMENT City of Newport Beach CITY OF NEWPORT BEACH 3300 Newport Blvd. P.O. Box 1768 MAR 3 0 2005 Newport Beach, CA 92658 -8915 AM PM 71819110111112111213141516 Re: Balboa Marina Reconstruction Project Dear Mr. Campbell, Thank you for contacting Merkel & Associates, Inc. (M &A) for assistance in preparation of environmental documents to satisfy the requirements of the California Environmental Quality Act (CEQA) for the Balboa Marina Reconstruction Project. In response to your request, M &A is providing this cost proposal for staff assistance services. The purpose of these services would be to prepare an Initial Study (IS) and Mitigated Negative Declaration (MND), attending meetings, and processing the IS and MND. As you requested, we included the preparation of a noise and vibration study in this scope of work, due to the pile driving activity associated with this project. A proposal was solicited from the firm that you recommended, and their cost has been incorporated into the total budget. SCOPE OF WORK Task 1. Initial Project Review. M &A staff will review all of the project related materials submitted by the applicant and the City General Plan, and related plans and ordinances. The purpose of this task is to familiarize ourselves with the project components, technical studies, and regulatory constraints. Task 2. Initial Project Meeting and Site Visit. M&A's project manager and biological analyst will schedule a meeting with City to clarify issues identified in Task 1. M &A staff will also visit the site to familiarize themselves with the existing conditions and physical characteristics of the site. Task 3. Biological Study 3d Party Review. M &A biologists will review the technical adequacy of the Balboa Marina Biological Survey & Assessment and the Balboa Marina Eelgrass Survey reports prepared by Tetra Tech, Inc. If inadequacies are identified, a letter report will be sent to the City identifying and suggesting approaches to correcting the inadequacies. 0 0 Task 4. Geotechnical Study 3rd Party Review. Terracosta Consulting Group will review the technical adequacy of the Geotechnical Investigation Report prepared by Geotechnical Professionals, Inc. If inadequacies are identified, a letter report will be sent to the City identifying and suggesting approaches to correcting the inadequacies. Task 5. Noise and Vibration Studv Wieland Associates will conduct a noise and vibration analysis and prepare a report documenting the results of the analysis. The analysis will include an identification of nearby sensitive properties and wildlife habitats, ambient noise and vibration measurements in the project area, and noise and vibration measurements of representative pile driving and extraction activities. Impacts to nearby sensitive properties and wildlife habitats resulting from the construction of the project will be assessed. The determination of impact significance will be based on City, State, Federal, and generally recognized standards and guidelines. Where significant impacts are identified, Wieland Associates will identify methods by which the construction noise and vibration may be reduced to a less than significant level. A draft report will be submitted to M &A and the City for review. A final report will be prepared following the receipt of comments. Task 6. Initial Studv M &A will prepare an Initial Study (IS) using the City's standard Environmental Checklist Form. Information contained in the Environmental Information Form prepared by the applicant, and the technical studies submitted by the applicant, will be incorporated into the Initial Study to the extent feasible. This information will be supplemented by M &A's independent analysis of the project's effects on the physical environment. Task 7. Mitigated ed Negative Declaration • Mitigated Negative Declaration (MND) will be prepared based on the analysis contained in the IS. • Mitigation Monitoring and Reporting Report (MMRP) will be attached to the MND. Task 8. MND & IS Review by City Staff The MND & IS will be transmitted to the City for review and comment. Task 9. City Staff Meeting M&A's Project Manager and Director will meet with City staff to review and discuss the City's comments. Task 10. MND & IS Revision The MND & IS will be revised as indicated in the City comments. This task assumes the City comments are limited to the submitted material and do not include any new analysis or technical study requirements. Task 11. Preparation of Notices M &A will prepare the following notices: (a) Notice of Completion (NOC) as required by the State Clearinghouse; and (b) newspaper notice using the City's standard template. Task 12. Submit Public Review Draft MND & IS M&A will submit 25 copies of the Public Review Draft MND and 1S to the City and 15 copies of the MND and IS to the State Clearinghouse for distribution to responsible and trustee agencies. • .• Task 13. Public Review The City will distribute the MND for public review in accord with the normal distribution process. The State Clearinghouse will distribute copies of the MND to responsible and trustee agencies. Task 14. Review Comment Letters M &A will review continent letters received on the MND and discuss the approach to preparing responses with City staff, as needed. Task 15. Revise MND and IS M &A will revise the MND and IS as required to incorporate information contained in the comment letter received during public review. This task assumes that revisions are limited to clarifying the text of the MND/IS and inserting additional information contained in the comment letters. The cost schedule includes a reasonable estimate of the amount of time anticipated to be required for this task; however, responding to comments cannot be accurately predicted. Should the comments require any new analysis to be performed, a reanalysis of completed studies, or exceed the estimated cost of this task; a contract amendment will be submitted to the City. Task 16. Submit Final MND & IS M &A will submit 10 copies of the Final MND & IS to City. Task 17. Harbor Commission Hearin M &A's principal and/or Project Manager will attend the Harbor Commission hearing to assist City staff in presenting the MND and responding to questions from the Commission. Assumptions This proposal includes the following assumptions: 1. The City will schedule all hearings associated with this project. 2. Staff reports will be prepared by City staff. 3. City staff will distribute copies of the MND. 4. M &A will transmit documents to the State Clearinghouse for distribution to responsible agencies. 5. The applicant and/or City will provide M &A with reproducible masters and electronic copies of studies and documents prepared by the applicant. 6. Reproduction and mailing costs.will be billed at cost plus 15 %. Costs 0 The following table outlines the costs for the scope of work describe above. Any additional tasks or required meetings would be addressed through a separate scope of work. Tasks Costs Task 1. Initial Project Review $985 Task 2. Initial Project Meeting and Site Visit $1,760 Task 3. Biological S dy 3 Pviy Review $1,365 Task 4. Geotechnical Stud 3 Party Review $1,000 Task 5. Noise and Vibration Study See below Task 6. Initial Stud IS $2,990 Task 7. Mitigated Negative Declaration $1,215 Task 8. MND & IS Review by City Staff $150 Task 9. City Staff Meeting $1,320 Task 10. MND & IS Revision $1,050 Task 11. Preparation of Notices $570 Task 12. Submit Public Review Draft NM & IS $525 Task 13. Public Review $0 Task 14. Review Comment Letters $800 Task 15. Revise MND & IS $1,845 Task 16. Submit Final NM & IS $245 Task 17. Harbor Commission Hearing $1,320 Subtotal $17,140 Expenses (mileage/telephone/postage) $343 Printing estimated cost $1,300 Noise and Vibration Stud (Wieland Associates ) $14,250 TOTAL $33,033 If you have questions regarding this proposal or you need additional information, please do not hesitate to contact Rachel Woodfield (rwoodfield@merkelinc.com) or me (bmerkel@merkelinc.com) at (858) 560 -5465. We look forward to this opportunity to work with you. Sincerely, for Barbara L. Merkel President Wieland Associates, Inc. WA March 25, 2005 Ms. Rachel Woodfield Merkel & Associates 5434 Ruffin Road San Diego, CA 92123 E Acoustical Consultants Proposal File Pl 142 -05 Subject: Proposed Environmental Noise and Vibration Study for the Balboa Marina Reconstruction Project in Newport Beach Dear Ms. Woodfield: Based on the information submitted by Mr. Phillip Hinshaw, we propose to provide you with the following acoustical consulting services: SCOPE OF WORK 1. We will review any existing environmental documents related to the project. 2. We will establish significance criteria for noise and vibration levels during construction of the project based on City, State, Federal and generally recognized standards and guidelines. 3. We will conduct a survey of the study area to identify the geometry of the marina relative to the nearby sensitive properties and wildlife habitats. 4. We will obtain ambient noise and vibration measurements at the nearby sensitive properties and wildlife habitats to identify the existing environment. 5. We will analyze the existing noise and vibration environment at the nearby sensitive properties and wildlife habitats. 6. We will assess the impact of the existing noise and vibration environments on the nearby sensitive properties and wildlife habitats relative to the significance criteria. 7. We will obtain noise and vibration level measurements of representative pile driving and extraction activities. 8. We will analyze the noise and vibration environments that will occur at the nearby sensitive properties and wildlife habitats during construction of the project. 9. We will assess the impact of the construction noise and vibration environment on the nearby sensitive properties and wildlife habitats relative to the significance criteria. 10. Where significant impacts are identified, we will identify methods by which the construction noise and vibration may be reduced to levels of compliance. 11. We will prepare one copy of a draft report of our findings and recommendations for review and comment. 23276 South Pointe Drive, #114 Tel: (949) 829 6722 Laguna Hills, CA 92653 www.wielandassoc.com Fax: (949) 829 6670 • • PROPOSAL WAL Wieland Associates, Inc. Balboa Marina Reconstruction 12. We will respond to comments. 13. After review and comment, the draft will be revised and submitted as a final report in reproducible form for inclusion in the environmental documents to be prepared by Merkel & Associates and by A. D. Hinshaw Associates. 2 CONDITIONS 1. All tasks will be completed in a professional manner according to standard practice. 2. Any alteration or deviation from the proposed tasks involving extra costs will be executed only upon authorization and will become an extra charge over and above the proposed fee. 3. All agreements are contingent upon strikes, accidents, or delays beyond our control. 4. The work effort and fee authorized as a result of this proposal are valid for 6 (six) months. 3 FEE We propose to furnish acoustical consulting services in accordance with the above tasks and conditions for the following fee: Tasks 1 through 13: $14,250.00 Additional Consultation: Additional tasks conducted or expenses incurred at your request that are over and above those described above, including meetings or extra copies of our report, will be invoiced on a time - and - expense basis per our Fee Schedule, a copy of which is attached and incorporated herein by this reference. Project Chance When significant changes to the project, or corrections to the information that you have provided, occur after your authorization to proceed and necessitate reiteration of work, or additional work (for example, additional analysis), the charges for such work will be invoiced as an additional fee. Terms: Our terms are net 30 days. We bill on a monthly basis for work completed as of the invoice date. This is the entire agreement between Merkel & Associates and Wieland Associates, Inc., and there are no agreements, conditions, representations or understandings between us except as specifically set forth herein. If you wish to accept this proposal please return one signed copy of this document to our office. MERKEL & ASSOCIATES Z Proposal File P1142 -05 March 25, 2005 • 1 • WAk Wieland Associates, Inc. PROPOSAL Balboa Marina Reconstruction Thank you for the opportunity to provide you with our proposal for acoustical consulting services. If you have any questions please feel free to call us at 949/829 -6722. Sincerely, WIELAND ASSOCIATES, INC. Roberta R. Wieland David L. Wieland President Principal Consultant I Hereby Acknowledge and Accept This Proposal: Rachel Woodfield, for Merkel & Associates MERREL Ft ASSOCIATES Proposal File P1142 -05 Date March 25, 2005 Wi elandsociates, Inc. • WAL 4 Fee Schedule 4.1 Gabor PROPOSAL Balboa Marina Reconstruction Wieland Associates bills for labor on an hourly basis per the following schedule: Classification Principal Consultant Hourly Rate $120.00 Senior Consultant $95.00 Senior Associate Consultant $85.00 Associate Consultant $75.00 Technician $55.00 Graphic Artist $55.00 Word Processor $45.00 4.2 Expenses All expenses are billed to the client at cost, plus 10%. Mileage is invoiced at the rate of $0.40 per mile. MERKEL & ASSOCIATES 4 Proposal Rte P1142.05 March 25, 2005 Balboa Marina Cost Sheet 1 5/23/2005 11 Balboa Marina Reconstruction Project Cost Estimate Professional Services Work Task Responsibility M &A I Principal Project Manager Project Director $105 CEQA Analyst Senior (Biologist Graphics Clerical Task Hours Task Cost Total. Costs $185 $115 $90 $90 $55 $35 1 Initial project review M&A NN'T i1 2 2'ihifi{ 2 9 $085 2 3 Initial project meeting &site v isit Biology Study 3rd Study Review M&A M&A ' � t13i` �- =,t,�, 8 4yT,`ti"` `ts85`� rv+" T''«'1�7 5p s' - �._ _fu's,. ;i?' 16 13 $1;760 51,365 4 Geotechnical Study 3rd Party Review Terracosta �,5,.,`. ,,' ? 0 $1,000 5 Noise & Vibration Study Wieland S64e echr ical study below' a =: "! .rte ! �.ri` +, .- 0 6 Prepare Initial Study (IS) M&A ''` „t.f. v.: 2 ,”, jlydk} :. 16 _6, �`$'S_ a5 ;;._ 34 $2,990 7 Prepare Mitigated Negative Dec& MMRP M&A M&A _ -, ?wrg 1, r'iflfr 2 1 xa'1'li j'; 8 N 1'8.,, -, _Mu 14 _ 2 $1,215 8 City review of IS &MND 6 „= ,.y,1?;vz $150 9 City staff meeting M&A ,Y „Fj��}'(Gis:. 6 ,'.ya a 3= +�5,�2.;. 12 12 $1,320 $1,050 10 Revise lS &MND per City comments M &A �fijljklkif 2 11 Preparation of Notices M&Aj"IIlj 2 3 v 'Njwi a U” 2' •?w 7 $570 12 Print& submit draft IS & MND M&A OWEN Igp 1'3 ',; [„ �� ry'.' zh. 6 9 $525 13 Public Review City/OPR M&A M &A 0 $0 _ 14 Review comment letters 15 Prepare responses & Revise MND 4 °: ,= 2 2 :,';�211,1OU1 € 7y2ily� 1� 2 12 -x- s' v @8W M-4 Ojff 8 21 $800 $1,845 16 Submit final lS &MND M &A tt,i -r t X it �iul, IORA ^ 5 $245 $ 1,320 1 17 Harbor Comm hearing M &A 1r si,l; 4 6 39 �i4'iw6f' I 37 I 49 ``"``;v_N- 19 q, 0 26 12 I 174 - Professional Services Total $17,140 Technical Studies Preparation of noise and vibration analysis(Wieland Associates) _ $14,250 Technical Studies Total $14,250 Reimbursable Expenses Mileagelrelephone /Postage $343 51,300 Printing (Note' Printing costs will be bill at cost plus 15 %. Estimated costs are provided) No. $ ea. Screencheck ISlMND 5 $10 $50 Draft lS /MND _ 40 $400 Final ISlMND 10 $10 _ $100 Technical Reports 30 $25 $750 Expenses Total $1.,643 Project Total $33,033 Balboa Marina Cost Sheet 1 5/23/2005 11 • C, C��jl� -zoo) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 6 May 10, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Planning Department James Campbell, (949) 644 -3210 jcampbell@city.newport-beach.ca.us SUBJECT: Professional Services Agreement for Merkel & Associates RECOMMENDATION Approve a Professional Services Agreement with Merkel & Associates of San Diego, California, for professional environmental services to prepare a Mitigated Negative Declaration and associated documents as a not -to- exceed cost of $33,033 and authorize City Manager to sign the agreement. DISCUSSION The Irvine Company proposes to completely replace the Balboa Marina, which is located at 201 East Coast Highway. The commercial marina is located between Linda Isle and the commercial properties where the Newport Nautical Museum and Mama Gina's are located. Staff has conducted a preliminary evaluation of the proposed project and has concluded that a Mitigated Negative Declaration, at a minimum, should be prepared for the project. Council Policy K -3 allows the City to select a qualified consultant for environmental services without a competitive bidding process. Staff selected Merkel & Associates due to their expertise regarding marine environments and for their work for the City related to the Local Coastal Program update process. The consultant has provided a proposal to perform professional environmental services for the City and it is attached to the draft professional services agreement attached to this report. The proposal contains the scope of services through the completion of all necessary documents, a budget, and a time schedule for preparation and processing of the environmental documentation. 0 Serkel & Associates - PSA May 10, 2005 Page 2 Staff has reviewed the scope of services and believes that it will be adequate to meet or exceed the minimum requirements set forth by the California Environmental Quality Act. The scope of services will include a noise study and the review of two biological assessments prepared by other consultants. The environmental consulting fees for tasks described in the scope of services including staff hours, technical studies, direct expenses, and printing have been reviewed by staff and are considered appropriate and warranted. Funding Availability The cost of the contract, including staff time associated with its review and production, will be the responsibility of The Irvine Company. Prepared by: W c.. M mes W. Car pbell, nior Planner Submitted by: P icia LOTemple, Plann g Director Attachments: 1. Draft Professional Services Agreement with a proposal from Merkel & Associates Ll 0 PROFESSIONAL SERVICES AGREEMENT WITH MERKEL & ASSOCIATES, INC. FOR BALBOA MARINA DOCK REPLACEMENT PROJECT THIS AGREEMENT is made and entered into as of this _ day of 200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and Merkel & Associates, Inc., a corporation whose address is 5435 Rufin Road, San Diego, California. 92123 ( "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 prepare an Initial Study and Mitigated Negative Declaration and other environmental documents in accordance with the California Environmental Quality Act for the Balboa marina dock replacement project located seaward of 151, 201 & 251 E. Coast Highway and 333 & 341 Bayside Drive, Newport Beach, California ( "Project "). C. City desires to engage Consultant to prepare an Initial Study and Mitigated Negative Declaration and other environmental documents in accordance with the California Environmental Quality Act for the Balboa marina dock replacement project. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Project shall be Rachel Woodfield, Project Manager. 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 above written date, and shall terminate on the 31st day of December, 2005, unless terminated earlier as set forth herein. 0 0 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. All work and documents shall be prepared in accordance with and shall contain all items required by the California Environmental Quality Act (CEQA), CEQA Implementing Guidelines and City of Newport Beach ordinances and policies. Consultant shall furnish all environmental documents and forms to City in electronic format; Microsoft Word 2000, or other format acceptable to City. 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. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each parry hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10).calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section set forth in Exhibit A. No rate changes shall be made during the term of this Agreement without prior written approval of the Project Administrator. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of Thirty -three thousand, thirty- three dollars ($33,033). 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any L/ 0 0 reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with such approval. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. B. 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 Rachel Woodfield 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. 5- 0 0 6. ADMINISTRATION This Agreement will be administered by the Planning Department. Patricia L. Temple, Planning Director 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 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 0 0 to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and/or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure. of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 0 0 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 Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 0 0 9 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 (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000;000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insurers 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 0 0 0 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 (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venture or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, 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 16 0 0 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. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 0 0 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. )a 0 24. ERRORS AND OMISSIONS 0 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 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: Attention: Patricia L. Temple, Planning Director Planning Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3200 Fax: 949 - 644 -3229 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: 13 Attention: Barbara Merkee, President Merkel & Associates, Inc. 5435 Rufin Road San Diego, California, 92123 Phone: (858) 560 -5466 Fax: (858) 560 -7779 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default.in the performance of.this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. Iq 0 0 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 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. 15 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Aaron Harp, Assistant City Attorney for the City of Newport Beach- ATTEST: CITY OF NEWPORT BEACH, A Municipal Corporation By: Homer Bludau, City Manager for the City of Newport Beach CONSULTANT: By: By: LaVonne Harkless Barbara Merkle, City Clerk President Merkle & Associates, Inc. Attachments: Exhibit A — Scope of Services Rev: 08- 30 -04 /da 140 r, u 0 Merkel & Associates, Inc. 5434 Ruffin Road San Diego, California 92123 Ph. (858) 560-5465 Fx. (858) 560-7779 Mr. James W. Campbell Senior Planner City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Re: Balboa Marina Reconstruction Project Dear Mr. Campbell, March 21, 2005 M &A #05- 049 -01 Thank you for contacting Merkel & Associates, Inc. (M &A) for assistance in preparation of environmental documents to satisfy the requirements of the California Environmental Quality Act (CEQA) for the Balboa Marina Reconstruction Project. In response to your request, M &A is providing this cost proposal for staff assistance services. The purpose of these services would be to prepare an Initial Study (IS) and Mitigated Negative Declaration (MND), attending meetings, and processing the IS and MND. As you requested, we included the preparation of a noise and vibration study in this scope of work, due to the pile driving activity associated with this project. A proposal was solicited from the firm that you recommended, and their cost has been incorporated into the total budget. SCOPE OF WORK Task 1. Initial Project Review. M &A staff will review all of the project related materials submitted by the applicant and the City General Plan, and related plans and ordinances. The purpose of this task is to familiarize ourselves with the project components, technical studies, and regulatory constraints. Task 2. Initial Project Meeting and Site Visit. M &A's project manager and biological analyst will schedule a meeting with City to clarify issues identified in Task 1. M &A staff will also visit the site to familiarize themselves with the existing conditions and physical characteristics of the site. Task 3. Biological Study P Parry Review. M &A biologists will review the technical adequacy of the Balboa Marina Biological Survey & Assessment and the Balboa Marina Eelgrass Survey reports prepared by Tetra Tech, Inc. If inadequacies are identified, a letter report will be sent to the City identifying and suggesting approaches to correcting the inadequacies. Task 4. Geotechnical Study 3`d Party Review. Terracosta Consulting Group will review the technical adequacy of the Geotechnical Investigation Report prepared by Geotechnical Professionals, Inc. If inadequacies are identified, a letter report will be sent to the City identifying and suggesting approaches to correcting the inadequacies. Task 5. Noise and Vibration Studv Wieland Associates will conduct a noise and vibration analysis and prepare a report documenting the results of the analysis. The analysis will include an identification of nearby sensitive properties and wildlife habitats, ambient noise and vibration measurements in the project area, and noise and vibration measurements of representative pile driving and extraction activities. Impacts to nearby sensitive properties and wildlife habitats resulting from the construction of the project will be assessed. The determination of impact significance will be based on City, State, Federal, and generally recognized standards and guidelines. Where significant impacts are identified, Wieland Associates will identify methods by which the construction noise and vibration may be reduced to a less than significant level. A draft report will be submitted to M &A and the City for review. A final report will be prepared following the receipt of comments. Task 6. Initial Studv M &A will prepare an Initial Study (IS) using the City's standard Environmental Checklist Form. Information contained in the Environmental Information Form prepared by the applicant, and the technical studies submitted by the applicant, will be incorporated into the Initial Study to the extent feasible. This information will be supplemented by M &A's independent analysis of the project's effects on the physical environment. Task 7. Mitigated Negative Declaration • Mitigated Negative Declaration (MND) will be prepared based on the analysis contained in the IS. • Mitigation Monitoring and Reporting Report (MMRP) will be attached to the MND. Task 8. MND & IS Review by City Staff The MND & IS will be transmitted to the City for review and comment. Task 9. City Staff Meeting M &A's Project Manager and Director will meet with City staff to review and discuss the City's comments. Task 10. MND & IS Revision The MND & IS will be revised as indicated in comments are limited to the submitted material study requirements. the City comments. This task assumes the City and do not include any new analysis or technical Task 11. Preparation of Notices M &A will prepare the following notices: (a) Notice of Completion (NOC) as required by the State Clearinghouse; and (b) newspaper notice using the City's standard template. Task 12. Submit Public Review Draft MND & IS M &A will submit 25 copies of the Public Review Draft MND and IS to the City and 15 copies of the MND and IS to the State Clearinghouse for distribution to responsible and trustee agencies. Jgr� ! • Task 13. Public Review The City will distribute the MND for public review in accord with the normal distribution process. The State Clearinghouse will distribute copies of the MND to responsible and trustee agencies. Task 14. Review Comment Letters M &A will review comment letters received on the MND and discuss the approach to preparing responses with City staff, as needed. Task 15. Revise MND and IS M &A will revise the MND and IS as required to incorporate information contained in the comment letter received during public review. This task assumes that revisions are limited to clarifying the text of the MND/IS and inserting additional information contained in the comment letters. The cost schedule includes a reasonable estimate of the amount of time anticipated to be required for this task; however, responding to comments cannot be accurately predicted. Should the comments require any new analysis to be performed, a reanalysis of completed studies, or exceed the estimated cost of this task; a contract amendment will be submitted to the City. Task 16. Submit Final MND & IS M &A will submit 10 copies of the Final MND & IS to City. Task 17. Harbor Commission Hearine M &A's principal and/or Project Manager will attend the Harbor Commission hearing to assist City staff in presenting the MND and responding to questions from the Commission. Assumption s This proposal includes the following assumptions: 1. The City will schedule all hearings associated with this project. 2. Staff reports will be prepared by City staff. 3. City staff will distribute copies of the MND. 4. M &A will transmit documents to the State Clearinghouse for distribution to responsible agencies. 5. The applicant and /or City will provide M &A with reproducible masters and electronic copies of studies and documents prepared by the applicant. 6. Reproduction and mailing costs will be billed at cost plus 15 %. �9 n Costs 4 The following table outlines the costs for the scope of work describe above. Any additional tasks or required meetings would be addressed through a separate scope of work. Tasks Costs Task 1. Initial Project Review $985 Task 2. Initial Project Meeting and Site Visit $1,760 Task 3. Biological Stud y 3` P M Review $1,365 Task 4. Geotechnical Study 3` Party Review $1,000 Task 5. Noise and Vibration Study See below Task 6. Initial Stud IS $2,990 Task 7. Mitigated Negative Declaration D $1,215 Task 8. MND & IS Review by City Staff $150 Task 9. City Staff Meeting $1,320 Task 10. MND & IS Revision $1,050 Task 11. Preparation of Notices $570 Task 12. Submit Public Review Draft MND & IS $525 Task 13. Public Review $0 Task 14. Review Comment Letters $800 Task 15. Revise MND & IS $1,845 Task 16. Submit Final MND & IS $245 Task 17. Harbor Commission Hearing $1,320 Subtotal $17,140 Expenses (mileage/telephone/postage) $343 Printing estimated cost $1,300 Noise and Vibration Stud (Wieland Associates) $14,250 TOTAL $33,033 If you have questions regarding this proposal or you need additional information, please do not hesitate to contact Rachel Woodfield (rwoodfield@merkelinc.com) or me (bmerkel @merkelinc.com) at (858) 560 -5465. We look forward to this opportunity to work with you. Sincerely, for Barbara L. Merkel President AO