HomeMy WebLinkAboutC-3817(A) - PSA for Cu/Metals Marina Study - Lower Newport BayAMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT WITH ORANGE COUNTY
COASTKEEPER
FOR CU /METALS MARINA STUDY — LOWER NEWPORT BAY
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, is
entered into as of this 2nd day of February, 2007, by and between the CITY OF
NEWPORT BEACH, a Municipal Corporation ( "CITY "), and Orange County
Coastkeeper a non - profit organization whose address is 3151 Airway Ave., Ste. F -110,
Costa Mesa, , California, 92626 ( "CONSULTANT "), and is made with reference to the
following:
RECITALS:
A. On September 6, 2005, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "AGREEMENT ", for Contract
services for the Cu /Metals Marina Study, hereinafter referred to as "PROJECT ".
B. CITY and CONSULTANT have not entered into any separate AMENDMENTS of
the AGREEMENT..
C. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services
not included in the AGREEMENT or prior AMENDMENTS and to extend the term
of the AGREEMENT to April 15, 2007.
D. CITY desires to compensate CONSULTANT for professional services needed
for PROJECT.
E. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter
referred to as "AMENDMENT NO. 1 ", as provided here below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. CONSULTANT shall diligently perform all the services set forth in the Scope of
Services attached to the AGREEMENT by reference. The City may elect to
delete certain tasks of the Scope of Services at its sole discretion.
2. 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 to the AGREEMENT. Consultant's compensation for all
work performed in accordance with this AMENDMENT NO. 1, including all
reimbursable items and subconsultant fees, shall not exceed Ninety Thousand
Dollars and no /100s ($90,000 without prior written authorization from City.
3. The term of the AGREEMENT shall be extended to April 15 2007.
4. Except as expressly modified herein, all other provisions, terms, and covenants
set forth in AGREEMENT shall remain unchanged and shall be in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1
on the date first above written.
APPROV D AS TO FORM:
City Attorney
for the City of Newport Beach
ATTEST:
B : a c
LaVonne Harkless,
City Clerk
�@ -
CITY OF NEWPORT BEACH,
A Muni 'pal Co po tion
By:
Mayor
for the City of Newport c
CONSULTANT:
By:
(Corporate Officer)
Title: e pi'Vel--tui -P,Vje-r 5
Print Name: T 4; o-m5ty,
By:
(Financial Officer)
Title:
IC IR1111010171 al
C
PROFESSIONAL SERVICES AGREEMENT WITH
ORANGE COUNTY COASTKEEPER
THIS AGREEMENT is made and entered into as of this 8th day of August , 2006, by
and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and
ORANGE COUNTY COASTKEEPER, a non - profit organization, whose address is 3151
Airway Ave., #F110, Costa Mesa, California, 92626 ( "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 identify the contribution of metals to Lower Newport Bay from
storm drains during wet and dry weather conditions (winter & summer);
C. City desires to engage Consultant to manage subconsultant services to complete
the tasks identified in the California State Water Resources Control Board
Agreement Number 05- 226 -180 -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 and Ray Hiemstra.
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 August 8, 2006, and shall
terminate on the 1st day of March , 2008, 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
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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 budget detail and
payment provisions attached hereto as Exhibit B and incorporated herein by
reference. In no event shall Consultant's compensation exceed Ninety
Thousand Dollars ($90,000.00) without additional written 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 quarterly invoices to City describing the work
performed the preceding three months. 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 each quarterly invoice within 30
days of receipt of the invoice.
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
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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 City Manager's Office. Dave Kiff
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.
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8. STANDARD OF CARE
8.1 All of the services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and
technical personnel required to perform the services required by this
Agreement, and that it will perform all services in a manner
commensurate with community professional standards. All services shall
be performed by qualified and experienced personnel who are not
employed by City, nor have any contractual relationship with City.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license
during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City
to furnish timely information or to approve or disapprove Consultant's
work promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
and employees (collectively, the "Indemnified Parties ") from and against any and
all claims (including, without limitation, claims for bodily injury, death or damage
to property), demands, obligations, damages, actions, causes of action, suits,
losses, judgments, fines, penalties, liabilities, costs and expenses (including,
without limitation, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work 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
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
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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
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.
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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 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
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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 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
judgment may be necessary for its proper protection and prosecution of
the work.
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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 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.
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18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Consultant
shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Consultant. By acceptance of CADD data, City agrees to indemnify
Consultant for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by City in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file of City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
judgment as a design professional and is supplied for the general guidance of
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
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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
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.
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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:
Dave Kiff, Assistant City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92660
(949) 644 -3002
Fax 644 - 644 -3020
e -mail: dkiff @city.newport- beach.ca.us
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention: Ray Hiemstra
Orange County Coastkeeper
3151 Airway Ave., F110
Costa Mesa, CA 92626
714 - 850 -1965
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 parry 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.
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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
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.
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36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
Pn
By:
Robin Clauson,
City Attorney
for the City of Newport Beach
ATTEST:
LaVonne Harkless,
City Clerk
for the City of Newport Beach
CITY OF NEWPORT PEACH,
A Munici orpor �n
By:��
Mayor
for the City of Newport Beach
ONSULTANT:
ry Br wn`, xecutive Director
Orange County Coastkeeper
Attachments: Exhibit A — Scope of Services
Exhibit B — Budget Detail and Payment Provisions
Exhibit C* - General Terms and Conditions GTC 1005
Exhibit D — Special Terms and Conditions
*Items shown with an Asterisk (*), are hereby incorporated by reference and made part of this agreement
as if attached hereto. These documents can be viewed at www.ols.dgs.ca.gov/standard+language
F:\Users\CMO\DKiff\My Documents\Water Quality Testing Program -- 2006\Storm Drain\06-08-08 PSA with CoastKeeper for Storm
Drain Study.doc
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Exhibit A
SCOPE OF WORK
1. Service Overview
The City of Newport Beach agrees to provide the State Water Resources Control Board
(SWRCB), Santa Ana Regional Water Quality Control Board (SARWQCB) the services described
herein.
The City of Newport Beach will investigate the metal loading to Lower Newport Bay from Storm
drains from storm water and dry weather runoff. The goal of this project is to collect data to
determine if the loading of metals from storm drains in the Lower Bay is a significant source of
metals to the Lower Bay. This study will also determine exceedences of dissolved metals in
storm drain runoff compared to CTR Water Quality Criteria to determine the water quality of storm
drain runoff to the Lower Bay.
2. Service Location
The services shall be performed in Upper and Lower Newport Bay.
3. Project Representatives
A. The Program Representatives during the term of the Agreement will be:
State Water Resources Control Board
City of Newport Beach
Contract Manager: Linda Candelaria
Project Director: Dave Kiff
Address: 3737 Main St., Suite 500
Riverside, CA 92501
Address: 3300 Newport Blvd.
Newport Beach, CA 92663
Phone: 951 782 -4991
Phone: 949 644 -3002
E -mail: Candelaria waterboards.ca. ov
E -mail: Dkiff@city.newport-beach.ca.us
B. Either party may make changes to the information above by giving ten (10) days written
notice to the other party. Said changes shall not require an amendment to this agreement.
4. Services to be Performed
Background
A. Newport Bay is the second largest estuarine embayment in southern California. The Upper
Bay is a state ecological reserve and provides refuge, foraging areas, and breeding grounds
for a number of threatened and endangered species. It provides a critical natural habitat for
terrestrial and aquatic species, and serves as a spawning and nursery habitat for commercial
and noncommercial fish species. Lower Newport Bay, referred to as the outer harbor, was
formerly a coastal lagoon. It is four miles long and is oriented parallel to the coastline. The
Lower Bay has an open -water area of approximately 600 acres and is a regionally important
recreational area. It is one of the largest pleasure craft harbors in the United States and
harbors both recreational boats - sail boats, yachts, duff ies, rowboats, and commercial boats
— fishing and charter boats.
B. The local beachfront communities also support water recreational services, with tourism as
one of the most important land use activities in the regional area. Beneficial uses for Newport
Bay have been designated by the Santa Ana Regional Water Quality Control Board
(SARWQCB) and include shellfish harvesting, marine habitat, spawning reproduction and
development, wildlife habitat, commercial and sport fishing, navagation, water contact
recreation, non contact recreation, and municipal and domestic supply; and regulates water
quality to support those uses. However, beneficial uses of the Bay are threatened by
numerous sources of pollutant loading from within the Bay or from streams /channels entering
City of Newport Beach
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Exhibit A
SCOPE OF WORK
into the Bay. Therefore, the U.S. Environmental Protection Agency and Santa Ana Regional
Water Quality Control Board have adopted Total Maximum Daily Loads (TMDLs) for Newport
Bay for fecal coliform, nutrients, sediment, and toxic pollutants including metals and organics.
C. A Toxics TMDL for Newport Bay was promulgated in June 2002 by USEPA, and a Metals
TMDL for Newport Bay is currently under development by the Regional Board. Metals shown
to exceed the CTR Water Quality criteria in Newport Bay include Cu, Pb and Zn. Recent
Studies have shown that metals are present in Newport Bay at levels that raise concerns for
the health of the bay ecosystem (Bay, 2003 - 2004). Cu and other metals are known to be
toxic to fish and other aquatic species. However, the amount of metal loading to Lower
Newport Bay from storm drains is unknown.
D. Automobile brake pads are a known source of Cu but the concentration of Cu in storm water
or dry weather runoff to Newport Bay is unknown. Automotive repair shops are another
potential source of metals to Newport Bay since autos are cleaned, repaired and
sandblasted, resulting in metallic residue that could potentially be discharged into the Bay
(although a no discharge rule is in effect via the State Board's general industrial storm water
permit). Other metals such as lead, copper, arsenic, zinc, mercury, nickel, lead, chromium,
and tin have many functions in auto operation, maintenance, and repair. Metals can enter the
waterways during uncontrolled pressure washing, painting, machining or fueling activities.
Metals in the water may adsorb to suspended particles and settle, form salt precipitates, or
be flushed out of the marina. Benthic organisms that lie in the sediment may ingest these
metals, and filter feeders, such as mollusks, may accumulate metals from the water. In
addition, sediments may be resuspended and release metals back into the water.
E. Metal inputs to the Bay from storm drain inputs maybe significant in winter. At present there
are over 200 storm drains (fifty large storm drains over 12 inches in diameter) that empty into
Lower Newport Bay and studies show high metal concentrations around storm drains in the
Rhine Channel section of the bay (Bay 2003, OCCK 2004).
5. Tasks to be Performed
Task 1: Project Management
The Contractor will provide all technical and administrative services as needed for Agreement
completion, coordinate budgeting and scheduling to assure that the Agreement is completed
within budget and on schedule. The Contractor will provide copies of subcontracts required for
this project to the Contract Manager.
Task 2: Identify the extent of Metals contamination in urban runoff to lower Newport Bay
(Storm drain Sampling):
This study will identify the contribution of metals to Lower Newport Bay from storm drains during
wet and dry weather. Water samples will be collected from approximately 20 major storm drains
during wet and dry weather conditions (winter & summer).
Task 2.1 Sampling Plan and Quality Assurance Project Plan (QAPP)
The Contractor (or Subcontractor) will prepare a sampling plan with the assistance of the
Contract Manager to address project tasks, and submit to Contract Manager prior to the
start of sample collection in the field. The Contractor (or Subcontractor) will also prepare
a QAPP with the assistance of the Contract Manager, and submit to Regional Board QA
Officer for approval prior to the start of sample collection in the field. The QAPP will
delineate sample collection and analysis methods to ensure that data quality objectives
are met.
I
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Exhibit A
SCOPE OF WORK
Task 2.2 Sample Collection and Analysis
Water samples will be collected from approximately twenty (20) major storm drains during
four storm and two dry weather events. Water samples will be collected four times in the
winter (two winters) and twice in the summer. Water samples will be analyzed for metals
of concern (Cu, Cd, Cr, Ni, Pb, Zn, Sn) to determine the metal concentrations in storm
drain runoff, and flow rates will be measured so that metal loading from storm drains can
be determined. Samples will be analyzed by a contract lab for total and dissolved metals.
Task 2.3 Quarterly Progress Reports
Progress reports will be submitted quarterly to the Contract Manager.
Task 3 - Data Analysis and Draft/Final Reports
Task 3.1 Data Analysis
Orange County Coastkeeper will analyze the data from the sampling program. Dissolved
metal concentrations will be compared with CTR water quality standards and a project
GIS will be created using this data. Dissolved /total metals ratios will also be calculated to
determine the percentage of metals in the dissolved phase — this is related to the more
bioavailable fraction of metals. Flow data will be collected using meters installed in
selected storm drains and will continually log flow data over a period of weeks to
characterize daily flow cycles. The flow data will be used along with the metal
concentration data to determine metal loading to the Lower Bay. Data will be submitted
to the Contract Manager as it is received from the lab.
Tasks 3.2 Draft Final Report and 3.3 Final Report
When the data has been analyzed,
Manager for review and comment.
submitted to the Contract Manager.
Schedule for Completion
a Draft Report will be submitted to the Contract
The report will then be revised and a Final Report
Task No.
Deliverables
Deliverable Timeframe
ASK 1:
Project Management
Project duration
ASK 2:
Storm drain Sampling
Mar. 2006 — Sept. 2006
Task 2.1
Task 2.2
Task 2.2
Task 2.3
Sampling Plan & QAPP
1
>ummer Sampling
Ninter Sampling
Duarterly Progress Reports
Prior to Sample collection
June 2006 — Sept. 2006
Winter 2006, 200
Beqinninq June 2006
ASK 3:
Data Analysis & Reports
Task 3.1
Task 3.2
Task 3.3
Data Analysis
Draft Report /Revision
Final Report
Ongoing until Sept. 2007
Oct. 2007 — Dec. 2007
Mar. 1, 2006
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Exhibit B
BUDGET DETAIL AND PAYMENT PROVISIONS
1. Invoicing and Payment
A. For services satisfactorily rendered, and upon receipt and approval of the invoices, the State
agrees to compensate the Contractor for actual expenditures incurred in accordance with the
rates specified herein, which is attached hereto and made a part of this Agreement.
B. Invoices shall include the Agreement number and shall be submitted in triplicate not more
frequently than quarterly in arrears to:
Linda Candelaria, Ph.D.
Santa Ana Regional Water Quality Control Board
3737 Main Street, Suite 500
Riverside, CA 92501 -3339
C. The original and one (1) approved copy of the invoice or payment request will be forwarded to the
State Water Board's Accounting Operations Section by the Contract Manager. 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 Contractor.
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 Contract Manager.
D. Payments prior to satisfactory completion of all work required by the Agreement shall not exceed,
in the aggregate, ninety percent (90 %) of the total earned with the balance to be paid upon
satisfactory completion of the Agreement.
E. The invoice shall contain the following information:
1. The word "INVOICE" should appear in a prominent location at the top of the page(s);
2. Printed name of the Contractor;
3. Business address of the Contractor, including P.O. Box, City, State, and Zip Code;
4. Name of State Water Board AND the Regional Water Board being billed;
5. The date of the invoice;
6. The number of the Agreement upon which the claim is based; and
7. An itemized account of the services for which the State Water Board is being billed;
(a) The time period covered by the invoice, i.e., the term "from" and "to ";
(b) A brief description of the services performed;
(c) 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;
(d) 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 shaft include all costs incurred by the
Contractor under the terms of this Agreement; and
(e) Original signature of Contractor (not required of established firms or entities using
preprinted letterhead invoices).
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Exhibit B
BUDGET DETAIL AND PAYMENT PROVISIONS
2. Timely Submission of Final Invoice
A. A final undisputed invoice shall be submitted for payment no more than ninety (90) calendar days
following the expiration or termination date of this Agreement, unless a later or alternate deadline
is agreed to in writing by the Contract Manager. Said invoice should be clearly marked "Final
Invoice ", thus indicating that all payment obligations of the State Water Board under this
Agreement have ceased and that no further payments are due or outstanding.
B. The State Water Board may, at its discretion, choose not to honor any delinquent final invoice if
the Contractor fails to obtain prior written State Water Board approval of an alternate final invoice
submission deadline. Written State Water Board approval shall be sought from the Contract
Manager prior to the expiration or termination date of this Agreement.
3. Budget Contingency Clause
A. Limitation of State Liability:
The maximum amount to be encumbered under this Agreement for the 2005 -06 fiscal year
ending June 30, 2006 shall not exceed $90,000.
B. It is mutually agreed that 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 further force and effect. In this event, the State shall have no liability to
pay any funds whatsoever to Contractor or to furnish any other considerations under this
Agreement and Contractor shall not be obligated to perform any provisions of this Agreement.
C. 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 Contractor to reflect the reduced amount.
3. Prompt Payment Clause
Payment will be made in accordance with, and within the time specified in, Government Code
Chapter 4.5, commencing with Section 927.
• City of Newport Beach
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Exhibit B
BUDGET DETAIL AND PAYMENT PROVISIONS
4. Budget
Line Item Budget
Description
Totals
Primary Contractor
Personnel
Hrly. Rate
Hrs.
Project Director
$98
9.18
$
900
Administrative Assistant
$41
38.4
$
1,575
Insurance
$
450
Total Personnel
$
2,925
Operating Expenses
$
3,575
Total Primary Contractor
$
6,500
Subcontractor
Personnel
Project Manager
$40
600
$
24,000
Project Assistants
$15
600
$
9,000
Executive Director
$150
6
$
900
Bookkeeper
$60
26.25
$
1,575
Insurance
$
450
Total Personnel
$
35,925
Operating Expenses
$
13,575
Analytical Lab
$
34,000
Total Subcontractor
$
83,500
TOTAL COSTS
$
90,000
• • City of Newport Beach
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Exhibit D
SPECIAL TERMS AND CONDITIONS
DISPUTES: Not withstanding the provisions of the Department of General Services General Terms
and Conditions (GTC), any dispute arising under or relating to the terms of this Agreement, or related
to the performance hereunder, which is not disposed of by Agreement shall be decided by the State
Water Board's Project Representative, who shall reduce such decision to writing and mail or
otherwise furnish a copy thereof to the Contractor. The decision of the State Water Board's Project
Representative shall be final and conclusive unless, within fifteen (15) calendar days from the date of
receipt of such copy, the Contractor mails or otherwise delivers a written appeal to the State Water
Board's Executive Director. The decision of the State Water Board's Executive Director, or
authorized representative, on such appeal 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 any substantial evidence. In connection with
any appeal under this Section, the Contractor shall be afforded an opportunity to be heard and to
offer evidence and argument in support of the appeal. Pending final decision on any dispute
hereunder, the Contractor shall proceed diligently with the performance of the Agreement work as
directed by the State Water Board's Project Representative unless the Contractor has received notice
of termination. Decisions on any disputes hereunder may include decisions of both fact and law;
provided, however, that nothing herein shall be construed as making final any decision on a question
of fact or law in the event of any subsequent legal proceeding before a court of competent jurisdiction.
Authority to terminate performance under the terms of this Agreement is not subject to appeal under
this Section. All other issues including, but not limited to, the amount of any equitable adjustment,
and the amount of any compensation or reimbursement which should be paid to the Contractor shall
be subject to the disputes process under this Section. (PCC 10240.5, 10381, 22200 et seq, 40 CFR
31.70)
2. RIGHTS IN DATA: The Contractor 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 purpose whatsoever. If any such work is copyrightable, the Contractor may
copyright the same, except that, as to any work which is copyrighted by the Contractor, the State
reserves a royalty -free, nonexclusive, and irrevocable license to reproduce, publish, and use such
work, or any part thereof. (40 CFR 31.34, 31.36)
3. PROPERTY ACQUISITIONS: Property, as used in this section, shall include:
Equipment - Tangible property (including furniture) with a unit cost of $5,000.00 or more and a normal
useful life of at least one (1) year. Actual cost includes the purchase price plus all costs to acquire,
install and prepare the equipment for its intended use.
a. Furniture - Standard office furnishings including desks, chairs, bookcases, credenzas, tables,
coat racks, etc.
b. Portable Assets - Items considered "highly desirable" because of their portability and value; e.g.,
calculators, typewriters, dictaphones, cameras and microscopes.
c. Electronic Data Processing (EDP) Equipment - All computerized and auxiliary automated
information handling including system design and analysis, conversion of data, computer
programming, information storage and retrieval, voice, video and data communications, requisite
system controls, simulation and all related interactions between people and machines.
The Contractor may purchase property under this Agreement only if specified in Exhibit "B" (Budget
Detail and Payment Provisions). Any property purchased by the Contractor with funds provided
under this Agreement shall be the property of the State during the customary depreciable life thereof.
• • City of Newport Beach
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Exhibit D
SPECIAL TERMS AND CONDITIONS
The Contractor shall promptly report any such purchase to the SWRCB Project Representative and to
the State's Property Officer (Property Officer). Should this Agreement be terminated for any reason,
or upon expiration and failure to negotiate renewal hereof, all such property shall be returned to the
State within the timeframe negotiated between the Contractor and the State.
Prior written authorization by the SWRCB Project Representative shall be required before the
Contractor will be reimbursed for any property purchases not specified in the Budget. The Contractor
shall provide to the SWRCB Project Representative all particulars regarding the necessity for such
property and the reasonableness of the cost.
Before property purchases made by the Contractor are reimbursed by the State, the Contractor shall
submit paid vendor receipts identifying the Agreement number, purchase price, description of the
item, serial number, model number, and location including street address where property will be used
during the term of this Agreement. Said paid receipts shall be attached to Contractor's invoices.
The Contractor shall keep adequate and appropriate records of all property purchased with
Agreement funds and at the time of purchase prepare a "Property Purchased with State Funds"
(Form SWRCB 3 -016) and submit one copy to the SWRCB Project Representative and one copy to
the Property Officer. A copy must be retained by the Contractor.
The State reserves the right at any time to evaluate the cost of property and reimburse at an amount
equal to costs reflected in but not limited to Agreements the State Department of General Services,
Office of Procurement has negotiated with vendors who supply the same type of property.
All property shall be tagged after acquisition by Contractor in accordance with instructions provided.
The purpose of tagging assets is to designate the assets as belonging to the State.
Whenever property is lost, stolen, or destroyed, the Contractor shall immediately report the loss, theft
or destruction to the local law enforcement agency (or the California Highway Patrol (CHP) if the
crime occurs on either state -owned or state leased property) and to the SWRCB Project
Representative and prepare a Property Survey Report. In the case of stolen property, the Contractor
shall also complete a CHP Report of Crime on State Property form (Std. 99), obtain a copy of the law
enforcement agency's report and submit these to the SWRCB Project Representative. The
Contractor shall adjust its property accounting records and retain a copy of the Property Survey
Report as documentation.
Losses of State property due to fraud or embezzlement shall be reported in the same manner as
described above. The Contractor shall be charged with any loss and damages to State property due
to the Contractor's negligence.
Contractor shall, at the request of the State, submit an inventory of property furnished or purchased
under the terms of this Agreement. Such inventory will be required not more frequently than annually.
Upon termination, expiration or failure to negotiate renewal of this Agreement, all property purchased
with Agreement funds shall promptly be returned to the State. The Contractor shall prepare an
"Inventory of State Furnished Property" (Form SWRCB 3 -017) and submit to the State and shall at
that time query the SWRCB Project Representative as to the State's requirements, including the
manner and method, in returning said property to the State. Final disposition of such property shall
be at State expense in accordance with instructions from the SWRCB Project Representative to be
issued immediately after receipt of the final inventory.
State policies and procedures applicable to procurement with nonfederal funds shall apply to
procurement by Contractor under this Agreement provided that procurements conform to applicable
State law and the standards identified in this section. These include but are not limited to statutes
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Exhibit D
SPECIAL TERMS AND CONDITIONS
applicable to State agencies, statutes applicable to State college and university public works projects,
the California Constitution governing University of California contracting, the State Administrative
Manual (SAM), statutes applicable to specific local agencies, applicable city and county charters and
implementing ordinances including policies and procedures incorporated in local government
manuals or operating memoranda. (40 CFR 31.36) (SCM 7.29)
4. INCOME RESTRICTIONS: The Contractor agrees that any refunds, rebates, credits, or other
amounts (including any interest thereon) accruing to or received by the Contractor under this
Agreement shall be paid by the Contractor to the State, to the extent that they are properly allocable
to costs for which the Contractor has been reimbursed by the State under this Agreement.
5. UTILIZATION OF DISABLED VETERAN BUSINESS ENTERPRISE (DVBE) PARTICIPATION
REQUIREMENTS: In accordance with Public Contract Code Section 10115 at seq., the Contractor
must meet or exceed the participation goals of not less than 3 percent for disabled veteran business
enterprises (DVBE) or make a good faith effort to meet these goals.
The Contractor agrees to use the DVBE subcontractors or suppliers originally identified by the
Contractor unless the Contractor requests substitution in writing beforehand to the SWRCB Project
Representative and the SWRCB Project Representative has approved such substitution. At a
minimum, the request must include:
a. A written explanation of the reason for the substitution; and
b. The identity of the person or firm substituted.
The request and the SWRCB Project Representative's approval is not to be construed as an excuse
for noncompliance with any other provision of law, including but not limited to the subletting and
subcontracting Fair Practices Act or any other Agreement requirements relating to substitution of
subcontractors.
Failure to adhere to at least the level of participation for DVBE proposed by the Contractor may be
cause for Agreement termination and recovery of damages under the rights and remedies due the
State.
EVALUATION OF CONTRACTOR: Within sixty (60) days after the completion of this Agreement, the
SWRCB Project Representative shall complete a written evaluation of the Contractor's performance
under this Agreement. If the Contractor did not satisfactorily perform the work, a copy of the
evaluation will be sent to the State Department of General Services, Office of Legal Services, within
five working days of completion of the evaluation. (SCM 3.02 at seq, PCC 10369)
DISCLOSURE REQUIREMENTS: Any document or written report prepared in whole or in part
pursuant to this Agreement shall contain a disclosure statement indicating that the document or
written report was prepared through Agreement with the State. The disclosure statement shall
include the Agreement number and dollar amount of all Agreements and subcontracts relating to the
preparation of such documents or written reports. The disclosure statement shall be contained in a
separate section of the document or written report.
If the Contractor or subcontractor(s) are required to prepare multiple documents or written reports, the
disclosure statement may also contain a statement indicating that the total Agreement amount
represents compensation for multiple documents or written reports.
The Contractor shall include in each of its subcontracts for work under this Agreement a provision
which incorporates the requirements stated within this Section. (Gov. Code 7550, 40 CFR 31.20)
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Exhibit D
SPECIAL TERMS AND CONDITIONS
8. PERMITS, SUBCONTRACTING, WAIVER, REMEDIES AND DEBARMENT: The Contractor 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 subcontractors, outside associates, or consultants required by the Contractor in connection with
the services covered by this 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 Project Representative during the performance of this Agreement. Any
substitutions in, or additions to, such subcontractors, associates, or consultants, shall be subject to
the prior written approval of the SW RCB Project Representative.
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.
Contractor shall not subcontract 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 ". Contractor shall not subcontract with any individual or organization on
USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code 4477)
9. 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 State.
10. NOVATION: If the Contractor proposes any novation Agreement, the State shall act upon the
proposal within 60 days after receipt of the written proposal. The State may review and consider the
proposal, consult and negotiate with the Contractor, and accept or reject all or part of the proposal.
Acceptance or rejection may be made orally within the 60 -day period, and confirmed in writing within
five days. No novation shall become operative or otherwise binding on the State pursuant to this
paragraph in the absence of a formal Agreement amendment which has been approved in
accordance with all applicable State policy, laws and procedures.
11. PRIORITY HIRING CONSIDERATIONS: In the event this agreement is in excess of $200,000 or any
amendment thereto causing the original agreement to exceed $200,000 the Contractor shall give
priority consideration in filling vacancies in positions funded by this Agreement to qualified recipients
of aid under Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the California
Welfare and Institutions Code in accordance with Article 3.9 (commencing with Section 11349) of
Chapter 2 of Part 3 of Division 9 of the Welfare and Institution Code. (PCC 10353 W &I 11200, 11349,
2CCR, 1896.30 SCM 5.3)
12. LIABILITY INSURANCE: (If applicable) The Contractor shall provide and maintain, during the period
of the Agreement, liability insurance in a form satisfactory to the State. The Contractor shall furnish a
certificate of insurance to the State along with the executed Agreement.
The certificate of insurance shall state a limit of liability of not less than one million dollars
($1,000,000.00) per occurrence for bodily injury and property damage liability combined. The
certificate of insurance shall show that hazardous activities are protected through commercial general
liability, pollution liability, and additional insurance as may be necessary. Hazardous activities are
defined as activities performed by the Contractor which may result in substantial risk of serious injury
• • City of Newport Beach
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Exhibit D
SPECIAL TERMS AND CONDITIONS
to persons or damage to property and include, but are not limited to, the following type of work or
service: excavation, drilling, or demolition; pest control, fumigation, crop or agricultural spraying or
application of chemicals of any type; transporting persons by any mode of transportation (automobile
liability insurance is required in addition to public liability insurance); use of any aircraft or watercraft;
and treatment, removal, storage or any other handling of hazardous substances, including but not
limited to, toxic waste, petroleum waste, asbestos and like substances.
The certificate of insurance shall meet such additional standards as may be determined by the State,
either independently or in consultation with the Department of General Services, Office of Risk and
Insurance Management (DGS- ORIM), as essential for protection of the State. Such additional
standards shall include coverage for error, mistake, omission, or malpractice. The certificate of
insurance shall also provide that:
a. The insurer shall not cancel the insured's coverage prior to thirty (30) days written notice to the
State.
b. The State, it's officers, agents, employees, and servants are named as additional insured, but
only insofar as the operations under this Agreement are concerned.
c. The State shall not be responsible for any premiums or assessments on the Contractor's policy.
d. The Contractor's policy shall be primary and noncontributing as required by the DGS -ORIM.
e. Evidence of insurance shall meet the requirements specified and shall be of a form and content
which is acceptable to the DGS -GRIM.
f. The insurance will be issued by an insurance company or will be provided through partial or total
self- insurance that is acceptable to the DGS -ORIM.
The liability insurance herein required shall be in effect at all times during the term of this Agreement.
The Contractor shall provide the SW RCB Project Representative and DGS -GRIM at least thirty (30)
days prior to said expiration or cancellation date, a new certificate of insurance evidencing insurance
coverage as provided for herein for the remainder of the Agreement term or for a period not less than
one (1) year. New certificates of insurance are subject to the approval of the DGS -ORIM, and no
services shall be performed prior to the obtaining of such approval. In the event the Contractor fails
to keep in effect, at all times, insurance coverage as herein provided, the State may, in addition to
any other remedies it may have, terminate this Agreement.
The insurance required above shall cover all Contractor supplied personnel and equipment used in
the performance of this Agreement. If subcontractors performing work under this Agreement do not
have insurance equivalent to the above, Contractor liability shall provide such coverage for the
subcontractor, except for coverage for error, mistake, omissions, or malpractice, which shall be
provided by the subcontractor if such insurance is required by the State.
13. LICENSING: (If applicable) The Contractor shall have a valid air taxi operator certificate as specified
in Part 135 of the Federal Aviation Regulations. All Contractor pilots must possess a commercial
license and be instrument rated or have an airline transport pilot (ATP) rating.
14. CONTRACT MODIFICATIONS: The SW RCB may, at any time, without notice to any sureties, by
written order designated or indicated to be a "contract modification ", make any change in 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. In no event can the contract modification have any
impact on the budget specified in Exhibit B. If the Contractor intends to dispute the change, the
Contractor must, within ten (10) days after receipt of a written "contract modification ", submit to the
SWRCB a written statement setting forth the disagreement with the change.
• • City of Newport Beach
05- 226 -180 -0
Page 6 of 6
Exhibit D
SPECIAL TERMS AND CONDITIONS
15. TERMINATION: Not withstanding the provisions of the Department of General Services General
Terms and Conditions, the SWRCB may terminate performance of work under this Agreement upon
30 days written notice.
Any termination shall be effected by written notice to the Contractor, either hand - delivered to the
Contractor or sent certified mail, return receipt requested. The notice of termination shall specify the
effective date of termination.
Upon receipt of notice of termination, and except as otherwise directed in the notice, the Contractor
shall:
a. Stop work on the date specified in the notice;
b. Place no further orders or enter into any further subcontracts for materials, services or facilities
except as necessary to complete work under the Agreement up to effective date of termination;
c. Terminate all orders and subcontracts;
d. Promptly take all other reasonable and feasible steps to minimize any additional cost, loss, or
expenditure associated with work terminated, including, but not limited to reasonable settlement
of all outstanding liability and claims arising out of termination of orders and subcontracts;
e. Deliver or make available to the SWRCB all data, drawings, specifications, reports, estimates,
summaries, and such other information and material as may have been accumulated by the
Contractor under this Agreement, whether completed, partially completed, or in progress.
In the event of termination, an equitable adjustment in the price provided for in this Agreement shall
be made. Such adjustment shall include reasonable compensation for all services rendered,
materials supplied, and expenses incurred pursuant to this Agreement prior to the effective date of
termination. (PCC 10253, G.C. 11010.5, 40 CFR 31.36)
16. BUDGET FLEXIBILITY: Subject to the prior review and approval of the SWRCB Project
Representative, line items shifts of up to $25,000 or ten percent of the annual contract total,
whichever is less, may be made up to a cumulative maximum of $50,000 per fiscal year. Line item
shifts may be proposed /requested by either the SWRCB or the Contractor in writing and must not
increase or decrease the total contract amount allocated per fiscal year.
17. COMPUTER SOFTWARE: Contractor certifies that it has appropriate systems and controls in place
to ensure that State funds will not be used in the performance of this contract for the acquisition,
operation or maintenance of computer software in violation of copyright laws.
• i C-NIA
PROFESSIONAL SERVICES AGREEMENT WITH
ORANGE COUNTY COASTKEEPER
THIS AGREEMENT is made and entered into as of this (ath day of S0-1?6652005, 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 extent of copper (Cu) in Newport Bay,
specifically as it may relate to boating and marina activities;
C. City desires to engage Consultant to manage subconsultant services to complete
the tasks identified in the California State Water Resources Control Board
Agreement Number 04- 391 -180 -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 and Ray Hiemstra.
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 VIII 2005, and shall
terminate on the 1st day of February, 2007, unless termin ed 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
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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 budget detail and
payment provisions attached hereto as Exhibit B and incorporated herein by
reference. In no event shall Consultant's compensation exceed Seventy -Five
Thousand Dollars ($75,000.00) without additional written 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 quarterly invoices to City describing the work
performed the preceding three months. 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 each quarterly invoice within 30
days of receipt of the invoice.
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
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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 City Manager's Office. Dave Kiff
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
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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,
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
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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
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
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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 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.
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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 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
judgment may be necessary for its proper protection and prosecution of
the work.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
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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 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
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shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Consultant. By acceptance of CADD data, City agrees to indemnify
Consultant for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version
of AutoCAD used by City in ".dwg" file format on a CD, and should comply with
the City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file of City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
judgment as a design professional and is supplied for the general guidance of
City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the
accuracy of such opinions as compared to contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work to be
performed under this Agreement. Consultant shall maintain complete and
accurate records with respect to the costs incurred under this Agreement and
any services, expenditures and disbursements charged to City, for a minimum
period of three (3) years, or for any longer period required by law, from the date
of final payment to Consultant under this Agreement. All such records and
invoices shall be clearly identifiable. Consultant shall allow a representative of
City to examine, audit and make transcripts or copies of such records and
invoices during regular business hours. Consultant shall allow inspection of all
work, data, Documents, proceedings and activities related to the Agreement for a
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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
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
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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:
Dave Kiff, Assistant City Manager
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92660
(949) 644 -3002
Fax 644 - 644 -3020
e -mail: dkiff @city.newport- beach.ca.us
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 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,
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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
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:
Gam- C_
Robin Clauson,
('itv Attr�rnav
CITY OF NEWPORT BEACH,
A Municipal Corporation
By: anc:�-- L�A
D e tiff
Ass ' ant City Manager
for the City of Newport Beach
City Clerk
��UR911kr-L`S
Y� ,,11' / �aaer—
'��browfi, tx6c6five Director
Orange County Coastkeeper
Attachments: Exhibit A — Scope of Services
Exhibit B -- SWRCB Grant Agreement No. 04-391-180-0
F:\users\cat\shared\d b\Ag\Templates\P rofServ2003revised Fi nal.doc
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3.
4.
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Exhibit A
Scope of Work
Service Overview
City of Newport Beach
Contractor agrees to provide to the State Water Resources Control Board (SWRCB)
the services described herein.
Cu /Metals Marina Study — Lower Newport Bay. This study will examine the Cu/metal
concentrations in the water and sediments in a number of marinas in Lower Newport
Bay to determine if the Cu leached from Cu antifouling boat paints remains in marina
waters and sediments or is flushed out with the tides. It will also examine some
storm water inputs to marinas. The study will include marinas with and without
stormdrains, along with channel sites, to attempt to determine if boats in marinas are
a major source of Cu to Lower Newport Bay marinas.
Service Location
The services shall be performed at Newport Bay marinas, channels and stormdrain
locations.
Service Hours
The services shall be provided as needed for the requirements of the project.
Project Representatives
A. The project representatives during the term of this agreement will be:
L1
Linda Candelaria, PhD, Dave Kiff, Assistant City Manager
Telephone: (951) 782 -4991 Telephone: (949) 644 -3002
Fax: (951) 781 -6288 Fax: (949) 644 -3020
E -mail: Icandelaria(Mwaterboards.ca.00v E -mail: DKif`dcity.newport-
=u:
State Water Resources Control I°
Santa Ana Regional Water Quality
Control Board
Attention: Linda Candelaria, PhD,
3737 Main Street, Suite 500
Riverside, CA 92501 -3339
City of Newport Beach
Attention: Dave Kiff
Assistant City Manager
3300 Newport Blvd.
Newport Beach, CA 92663
Telephone: (951) 782 -4991 Telephone: (949) 644 -3002
Fax: (951) 781 -6288 Fax: (949) 6443020
E -mail: Iandelaria a)waterboards.ca.aov E -mail: DKiffecitv.newport-
Page 1 of 4
Exhibit A
Scope of Work
N..1;
City of Newport Beach
04- 1321 -180-0
C. Either party may make changes to the information above by giving ten (10) days
written notice to the other party. Said changes shall not require an amendment
to this agreement.
5. Background and Goals
A Toxics TMDL for Newport Bay was promulgated in June 2002 by USEPA, and a
Metals TMDL for Newport Bay is currently under development by the Santa Ana
Regional Water Board. Metals shown to exceed the CTR values in Lower Newport
Bay include Cu, Pb and Zn. Recent Studies have shown that metals are present in
Newport Bay at levels that raise concerns for the health of the bay ecosystem (Bay,
2003- 2004). Cu and other metals are known to be toxic to fish and other aquatic
species. Cu antifouling boat paints are a known source of Cu to the Lower Bay.
These paints are designed to leach Cu into the water, mostly as cuprous oxide, to
reduce the fouling of boat bottoms with barnacles and algae. The leaching of Cu
from antifouling boat paints is well documented, and has been quantified in a study
by SCCWRP. However, the question remains as to the disposition of the Cu once it
is released into the marina — Does the Cu remain in the marina, adsorb onto the
sediments, or flush out of the bay with the tides? These are site specific questions
which cannot be answered by a general Cu leaching study. In addition, Chromated
Cu Arsenate has been used as a wood preservative for dock pilings.
Boatyards are another potential source of Cu to Newport Bay since boat hulls are
cleaned, scraped and sandblasted, and there is a potential for discharge into the Bay
(although a no discharge rule is in effect via the State Board's general industrial
stormwater permit). According to USEPA marina data, higher levels of Cu have
been found near maintenance area drains and fuel docks than at other locations,
suggesting that maintenance areas and fueling stations are sources of metals to the
water and good targets for pollution prevention practices. Other metals such as lead,
copper, arsenic, zinc, mercury, nickel, lead, chromium, and tin have many functions
in boat operation, maintenance, and repair. Common metal containing products used
in boat activities include gasoline, anti - fouling paints, pesticides, and wood
preservatives. Metals can enter the waterways during uncontrolled pressure
washing, painting, antifouling or fueling activities. Metals in the water may adsorb to
suspended particles and settle, form salt precipitates, or be flushed out of the
marina. Benthic organisms that lie in the sediment may ingest these metals, and filter
feeders, such as mollusks, may accumulate metals from the water. In addition,
sediments may be resuspended and release metals back into the water.
An additional source of metals to Newport Bay is urban runoff which may enter the
Bay via storm drains or surface runoff. Metal inputs to the Bay from stormwater
inputs can be significant in winter. Over fifty larger storm drains empty into Newport
Bay (over 200 smaller storms drains to Lower Newport Bay) and studies show high
metal concentrations around storm drains in the Rhine Channel section of the bay
(Bay 2003, OCCK 2004). Some Lower Bay storm drain inputs into marinas will also
be examined in an attempt to separate metal inputs from storm drains and metal
inputs from boats to marinas.
Page 2 of 4
0 0
City of Newport Beach
— na z01 1 sin n
Exhibit A
Scope of Work
This Study — This study will examine the Cu /metal concentrations in the water and
sediments in a number of marinas in Lower Newport Bay to determine if the Cu
leached from Cu antifouling boat paints remains in marina waters and sediments or
is flushed out with the tides. It will also examine some stormwater inputs to marinas.
The study will include marinas with and without stormdrains, along with channel
sites, to attempt to determine if boats in marinas are a major source of Cu to Lower
Newport Bay marinas.
6. Services to be Performed
Goals (Objective)
The goal of this project is to determine if Cu antifouling boat paints are a significant
source of Cu contamination to the water column and sediments in marinas, and
Lower Newport Bay in general, and to determine the amount of Cu and other metals
present in marina waters and sediments.
A. Work:
Task 1 — Project Management
The Contractor will provide all technical and administrative services as needed for
Agreement completion, coordinate budgeting and scheduling to assure that the
Agreement is completed within budget and on schedule. The Contractor will provide
copies of subcontracts required for this project.
Task 2 — Identify the extent of Cu contamination in Marina waters and
sediments (Marina/Boatyard Sampling):
This study will identify the contribution of Cu and other metals to marinas from boat
paints and other marina activities such as routine boat maintenance. Marina,
channel and some storm drain samples will be collected.
Task 2.1 Sampling Plan and Quality Assurance Project Plan (QAPP)
The Contractor (or Subcontractor) will prepare a sampling plan with the
assistance of Regional Board staff to address project tasks, and submit to
Contract Manager prior to the start of sample collection in the field. The
Contractor (or Subcontractor) will also prepare a QAPP and submit to Contract
Manager for approval prior to the start of sample collection in the field. The
QAPP will delineate sample collection and analysis methods to ensure that data
quality objectives are met.
Task 2.2 Sample Collection and Analysis
Water and sediment samples will be collected from 3 to 4 sites in 6 to 8
marinas /channels. (Marinas to be sampled will be selected from the twenty
marinas in Newport Bay). Water and sediment samples will be collected twice
Page 3 of 4
0 •
City of Newport Beach
Exhibit A
Scope of Work
in the winter and summer. One winter sampling event may include a storm
event. Both water and sediment samples will be analyzed for Cu plus other
metals of concern (Cd, Cr, Ni, Pb, Zn) to determine the metal concentrations in
marinas in Lower Newport Bay. Water and sediment samples will also be
collected near several boatyards outside the Rhine Channel, and from or near
storm drains that empty into selected marinas.
(Tasks 2.2.1 and 2.2.2 will refer to Summer and Winter sampling, respectively.)
Task 2.3 Quarterly Progress Reports
Progress reports will be submitted quarterly to the Contract Manager.
Task 3 - Data Analysis and Draft/Final Reports
Task 3.1 Data Analysis
Orange County Coastkeeper will collect, compile, and perform statistical
analyses on data from the sampling program and load the data into a project
spreadsheet. Statistics will be performed on data and graphs will be
constructed. Metal concentrations will be compared with water quality standards
(CTR values for metals). GIS information may be plotted on maps. Data will be
submitted to the Regional Board as it is received from the lab.
Tasks 3.2 Draft Final Report and 3.3 Final Report
When the data has been analyzed, a Draft Report (including graphs and tables)
will be submitted to the Contract Manager for review and comment. The report
will then be revised and a Final Report submitted to the Contract Manager.
7. Target Completion Timeframes
Task NoJDeliverables
arget/Deliverablelrimeframe
Task 1: Project Management
Project duration
Task 2: Marina/Boatyard Sampling
July 2005 — April 2006
Task 2.1 Sampling Plan & QAPP
Task 2.2.12: Summer Sampling
Task 2.2.2: Winter Sampling
Task 2.3 Quarterly Progress Reports
Prior to Sample collection
July 2005 — Sept. 2005
Oct. 2005 —April 2006
Beginning Sept. 2005
Task 3: Data Analysis & Reports
Task 3.1 Data Analysis
Task 3.2 Draft Report /Revision
April- Aug 2006
Aug. 2006 — Dec. 2006
Task 3.3 Final Report
Jan. 31, 2007
Page 4 of 4
c-�sr-r
' . STATE OF CALIFORNIA •
STANDARD AGREEMENT
STD 213 (Rev 06)03) AGREEMENT NUMBER
1
04 -391 -180 -0
REGISTRATION NUMBER
This Agreement is entered into between the State Agency and the Contractor named below:
STATE AGENCY'S NAME (Also referred to as SWRC8 or the State)
State Water Resources Control Board
CONTRACTOR'S NAME
(Also referred to as contractor)
City of Newport Beach
2. The term of this May 1, 2005 through January 31, 2007
Agreement is:
3. The maximum amount $ 75,000
of this Agreement is: Seventy Five Thousand Dollars.
4. The parties agree to comply with the terms and conditions of the following exhibits, which are by this reference made a
part of the Agreement.
Exhibit A — Scope of Work
4 pages
Exhibit B — Budget Detail and Payment Provisions
2 pages
Exhibit C' - General Terms and Conditions
GTC 304
Exhibit D — Additional Provisions
2 pages
Exhibit E — Special Terms and Conditions
5 pages
Items shown with an Asterisk (') are hereby incorporated by reference and made part of this agreement as if attached hereto.
These documents can be viewed at www.ols.dos.ca.gov /Standard +Lanpuacte
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto.
CONTRACTOR
CONTRACTOR'S NAME (if other than an individual, state whether a corporadon, partnership, etc.)
City of Newport Beach
nor ype)
M1
Dave Kiff, Assistant City
3300 Newport Blvd.
Newport Beach. CA 92663
STATE OF CALIFORNIA
State Water
BY (Authorized Sip
PRINTED NAME AND TITLE OF PERSON SIGNING - `�
Esteban Almanza, Chief, Division of Admini rative Services
ADDRESS
1001 1 Street, 18w Floor, Sacramento, CA 95814
California Department of
General services Use Only
.a
N0V 3 2005
l
❑ Exempt per.
City of Newport Beach
04 -391 -180 -0
Exhibit B
Budget Detail and Payment Provisions
Invoicing and Payment
A. For services satisfactorily rendered, and upon receipt and approval of the invoices,
the State agrees to compensate the Contractor for actual expenditures incurred in
accordance with the rates and /or allowable costs specified herein.
B. Invoices shall include the Agreement number and shall be submitted in triplicate
not more frequently than quarterly in arrears to:
Linda Candelaria, Ph.D.
State Water Resources Control Board
Santa Ana Regional Water Quality Control Board
3737 Main Street, Suite 500
Riverside, CA 92501 -3339
C. Invoice shall:
1) Be prepared on company letterhead. If invoices are not on produced
letterhead invoices must be signed by an authorized official, employee or
agent certifying that the expenditures claimed represent actual expenses for
the service performed under this contract.
2) Bear the Contractor's name as shown on the agreement.
3) Identify the billing and/or performance period covered by the invoice.
4) Itemize costs for the filling period in the same or greater level of detail as
indicated in this agreement. Subject to the terms of this agreement,
reimbursement may only be sought for those costs and /or cost categories
expressly identified as allowable in this agreement and approved by SWRCB.
2. Budget Contingency Clause
A. It is mutually agreed that 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 further force and effect. In
this event, the State shall have no liability to pay any funds whatsoever to
Contractor or to furnish any other considerations under this Agreement and
Contractor shall not be obligated to perform any provisions of this Agreement.
B. 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
Contractor to reflect the reduced amount.
3. Prompt Payment Clause
Payment will be made in accordance with, and within the time specified in, Government
Code Chapter 4.5, commencing with Section 927.
Page 1 of 2
• •
Exhibit B
Budget Detail and Payment Provisions
4. Task Budget
City of Newport Beach
04- 391 -180 -0
Contractor will be reimbursed for services satisfactorily performed based on the follow
task:
Task
Description
Totals
1
Project Administration (City of NB & subcontractor)
$7,500
$39,000
2
Marina/Boatyard Sampling - Analysis
$63,750
Sampling/Field Work (Subcontractor)
$27,750
3
Data Analysis/ Final Report
$ 3,750
$ 4,000
2
Total Project Cost
$75,000
5. Line Item Budget
Page 2 of 2
Description
Totals
9
Labor
$39,000
Project Administration (Contractor + Subcontrt)
$ 7,250
Sampling/Field Work (Subcontractor)
$27,750
Data Analysis /Final Report (Subcontractor)
$ 4,000
2
Metals analyses — water + sediment
$36,000
(Subcontractor - analytical lab)
Total Project Cost
$75,000
Page 2 of 2
0 i
City of Newport Beach
04- 391 -180 -0
Exhibit E
Special Terms and Conditions
RIGHTS IN DATA: The Contractor 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 purpose whatsoever. If any such work is copyrightable, the Contractor
may copyright the same, except that, as to any work which is copyrighted by the Contractor, the
State reserves a royalty -free, nonexclusive, and irrevocable license to reproduce, publish, and
use such work, or any part thereof. (40 CFR 31.34, 31.36)
2. PROPERTY ACQUISITIONS: Property, as used in this section, shall include:
Equipment - Tangible property (including furniture) with a unit cost of $5,000.00 or more and a
normal useful life of at least one (1) year. Actual cost includes the purchase price plus all costs to
acquire, install and prepare the equipment for its intended use.
a. Furniture - Standard office furnishings including desks, chairs, bookcases, credenzas,
tables, coat racks, etc.
b. Portable Assets - Items considered "highly desirable" because of their portability and
value; e.g., calculators, typewriters, dictaphones, cameras and microscopes.
c. Electronic Data Processing (EDP) Equipment - All computerized and auxiliary automated
information handling including system design and analysis, conversion of data, computer
programming, information storage and retrieval, voice, video and data communications,
requisite system controls, simulation and all related interactions between people and
machines.
The Contractor may purchase property under this Agreement only if specified in Exhibit "B"
(Budget Detail and Payment Provisions). Any property purchased by the Contractor with funds
provided under this Agreement shall be the property of the State during the customary
depreciable life thereof. The Contractor shall promptly report any such purchase to the SWRCB
Project Representative and to the State's Property Officer (Property Officer). Should this
Agreement be terminated for any reason, or upon expiration and failure to negotiate renewal
hereof, all such property shall be returned to the State within the timeframe negotiated between
the Contractor and the State.
Prior written authorization by the SWRCB Project Representative shall be required before the
Contractor will be reimbursed for any property purchases not specked in the Budget. The
Contractor shall provide to the SWRCB Project Representative all particulars regarding the
necessity for such property and the reasonableness of the cost.
Before property purchases made by the Contractor are reimbursed by the State, the Contractor
shall submit paid vendor receipts identifying the Agreement number, purchase price, description
of the item, serial number, model number, and location including street address where property
will be used during the term of this Agreement. Said paid receipts shall be attached to
Contractor's invoices.
The Contractor shall keep adequate and appropriate records of all property purchased with
Agreement funds and at the time of purchase prepare a "Property Purchased with State Funds"
(Form SWRCB 3 -016) and submit one copy to the SWRCB Project Representative and one copy
to the Property Officer. A copy must be retained by the Contractor.
The State reserves the right at any time to evaluate the cost of property and reimburse at an
Page 1 of 5
• • City of Newport Beach
04- 391 -180 -0
Exhibit E
Special Terms and Conditions
amount equal to costs reflected in but not limited to Agreements the State Department of General
Services, Office of Procurement has negotiated with vendors who supply the same type of
property.
All property shall be tagged after acquisition by Contractor in accordance with instructions
provided. The purpose of tagging assets is to designate the assets as belonging to the State.
Whenever property is lost, stolen, or destroyed, the Contractor shall immediately report the loss,
theft or destruction to the local law enforcement agency (or the California Highway Patrol (CHP) if
the crime occurs on either state -owned or state leased property) and to the SWRCB Project
Representative and prepare a Property Survey Report. In the case of stolen property, the
Contractor shall also complete a CHIP Report of Crime on State Property form (Std. 99), obtain a
copy of the law enforcement agency's report and submit these to the SWRCB Project
Representative. The Contractor shall adjust its property accounting records and retain a copy of
the Property Survey Report as documentation.
Losses of State property due to fraud or embezzlement shall be reported in the same manner as
described above. The Contractor shall be charged with any loss and damages to State property
due to the Contractor's negligence.
Contractor shall, at the request of the State, submit an inventory of property furnished or
purchased under the terms of this Agreement. Such inventory will be required not more
frequently than annually.
Upon termination, expiration or failure to negotiate renewal of this Agreement, all property
purchased with Agreement funds shall promptly be returned to the State. The Contractor shall
prepare an "Inventory of State Furnished Property" (Form SWRCB 3-017) and submit to the State
and shall at that time query the SWRCB Project Representative as to the State's requirements,
including the manner and method, in returning said property to the State. Final disposition of
such property shall be at State expense in accordance with instructions from the SWRCB Project
Representative to be issued immediately after receipt of the final inventory.
State policies and procedures applicable to procurement with nonfederal funds shall apply to
procurement by Contractor under this Agreement provided that procurements conform to
applicable State law and the standards identified in this section. These include but are not limited
to statutes applicable to State agencies, statutes applicable to State college and university public
works projects, the California Constitution governing University of California contracting, the State
Administrative Manual (SAM), statutes applicable to specific local agencies, applicable city and
county charters and implementing ordinances including policies and procedures incorporated in
local government manuals or operating memoranda. (40 CFR 31.36) (SCM 7.29)
3. INCOME RESTRICTIONS: The Contractor agrees that any refunds, rebates, credits, or other
amounts (including any interest thereon) accruing to or received by the Contractor under this
Agreement shall be paid by the Contractor to the State, to the extent that they are properly
allocable to costs for which the Contractor has been reimbursed by the State under this
Agreement.
9
REQUIREMENTS: In accordance with Public Contract Code Section 10115 et seq., the
Contractor must meet or exceed the participation goals of not less than 3 percent for disabled
veteran business enterprises (DVBE) or make a good faith effort to meet these goals.
Page 2 of 5
0 0
City of Newport Beach
04- 391 -180 -0
Exhibit E
Special Terms and Conditions
The Contractor agrees to use the DVBE subcontractors or suppliers originally identified by the
Contractor unless the Contractor requests substitution in writing beforehand to the SWRCB
Project Representative and the SWRCB Project Representative has approved such substitution.
At a minimum, the request must include:
a. A written explanation of the reason for the substitution; and
b. The identity of the person or firm substituted.
The request and the SWRCB Project Representative's approval is not to be construed as an
excuse for noncompliance with any other provision of law, including but not limited to the
sublett ing and subcontracting Fair Practices Act or any other Agreement requirements relating to
substitution of subcontractors.
Failure to adhere to at least the level of participation for DVBE proposed by the Contractor may
be cause for Agreement termination and recovery of damages under the rights and remedies due
the State.
5. EVALUATION OF CONTRACTOR: Within sixty (60) days after the completion of this Agreement,
the SWRCB Project Representative shall complete a written evaluation of the Contractor's
performance under this Agreement. If the Contractor did not satisfactorily perform the work, a
copy of the evaluation will be sent to the State Department of General Services, Office of Legal
Services, within five working days of completion of the evaluation. (SCM 3.02 et seq, PCC 10369)
6. DISCLOSURE REQUIREMENTS: Any document or written report prepared in whole or in part
pursuant to this Agreement shall contain a disclosure statement indicating that the document or
written report was prepared through Agreement with the State. The disclosure statement shall
include the Agreement number and dollar amount of all Agreements and subcontracts relating to
the preparation of such documents or written reports. The disclosure statement shall be
contained in a separate section of the document or written report.
If the Contractor or subcontractor(s) are required to prepare multiple documents or written
reports, the disclosure statement may also contain a statement indicating that the total
Agreement amount represents compensation for multiple documents or written reports.
The Contractor shall include in each of its subcontracts for work under this Agreement a provision
which incorporates the requirements stated within this Section. (Gov. Code 7550, 40 CFR 31.20)
7. PERMITS, SUBCONTRACTING WAIVER REMEDIES AND DEBARMENT: The Contractor
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 subcontractors, outside associates, or consultants required by the Contractor in connection
with the services covered by this 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 Project Representative during the performance of this Agreement.
Any substitutions in, or additions to, such subcontractors, associates, or consultants, shall be
subject to the prior written approval of the SWRCB Project Representative.
Page 3 of 5
•
Exhibit E
Special Terms and Conditions
0
City of Newport Beach
04- 391 -180 -0
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.
Contractor shall not subcontract 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 ". Contractor shall not subcontract with any individual or
organization on USEPA's List of Violating Facilities. (40 CFR, Part 31.35, Gov. Code 4477)
9. 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 State.
10. NOVATION: If the Contractor proposes any novation Agreement, the State shall act upon the
proposal within 60 days after receipt of the written proposal. The State may review and consider
the proposal, consult and negotiate with the Contractor, and accept or reject all or part of the
proposal. Acceptance or rejection may be made orally within the 60 -day period, and confirmed in
writing within five days. No novation shall become operative or otherwise binding on the State
pursuant to this paragraph in the absence of a formal Agreement amendment which has been
approved in accordance with all applicable State policy, laws and procedures.
11. PRIORITY HIRING CONSIDERATIONS: In the event this agreement is in excess of $200,000 or
any amendment thereto causing the original agreement to exceed $200,000 the Contractor shall
give priority consideration in filling vacancies in positions funded by this Agreement to qualified
recipients of aid under Chapter 2 (commencing with Section 11200) of Part 3 of Division 9 of the
California Welfare and Institutions Code in accordance with Article 3.9 (commencing with Section
11349) of Chapter 2 of Part 3 of Division 9 of the Welfare and Institution Code. (PCC 10353 W &I
11200, 11349, 2CCR, 1896.30 SCM 5.3)
12. LIABILITY INSURANCE: (If Applicable) The Contractor shall provide and maintain, during the
period of the Agreement, liability insurance in a form satisfactory to the State. The Contractor
shall furnish a certificate of insurance to the State along with the executed Agreement.
The certificate of insurance shall state a limit of liability of not less than one million dollars
($1,000,000.00) per occurrence for bodily injury and property damage liability combined. The
certificate of insurance shall show that hazardous activities are protected through commercial
general liability, pollution liability, and additional insurance as may be necessary. Hazardous
activities are defined as activities performed by the Contractor which may result in substantial risk
of serious injury to persons or damage to property and include, but are not limited to, the following
type of work or service: excavation, drilling, or demolition; pest control, fumigation, crop or
agricultural spraying or application of chemicals of any type; transporting persons by any mode of
transportation (automobile liability insurance is required in addition to public liability insurance);
use of any aircraft or watercraft; and treatment, removal, storage or any other handling of
hazardous substances, including but not limited to, toxic waste, petroleum waste, asbestos and
like substances.
Page 4 of 5
0
Exhibit E
Special Terms and Conditions
11
City of Newport Beach
04- 391 -180 -0
The certificate of insurance shall meet such additional standards as may be determined by the
State, either independently or in consultation with the Department of General Services, Office of
Risk and Insurance Management (DGS- ORIM), as essential for protection of the State. Such
additional standards shall include coverage for error, mistake, omission, or malpractice. The
certificate of insurance shall also provide that:
a. The insurer shall not cancel the insured's coverage prior to thirty (30) days written notice to
the State.
b. The State, it's officers, agents, employees, and servants are named as additional insured, but
only insofar as the operations under this Agreement are concerned.
c. The State shall not be responsible for any premiums or assessments on the Contractor's
policy.
d. The Contractor's policy shall be primary and noncontributing as required by the DGS -ORIM.
e. Evidence of insurance shall meet the requirements specified and shall be of a form and
content which is acceptable to the DGS -GRIM.
f. The insurance will be issued by an insurance company or will be provided through partial or
total self- insurance that is acceptable to the DGS -ORIM.
The liability insurance herein required shall be in effect at all times during the term of this
Agreement. The Contractor shall provide the SWRCB Project Representative and DGS -GRIM at
least thirty (30) days prior to said expiration or cancellation date, a new certificate of insurance
evidencing insurance coverage as provided for herein for the remainder of the Agreement term or
for a period not less than one (1) year. New certificates of insurance are subject to the approval
of the DGS -GRIM, and no services shall be performed prior to the obtaining of such approval. In
the event the Contractor fails to keep in effect, at all times, insurance coverage as herein
provided, the State may, in addition to any other remedies it may have, terminate this Agreement.
The insurance required above shall cover all Contractor supplied personnel and equipment used
in the performance of this Agreement. If subcontractors performing work under this Agreement
do not have insurance equivalent to the above, Contractor liability shall provide such coverage for
the subcontractor, except for coverage for error, mistake, omissions, or malpractice, which shall
be provided by the subcontractor if such insurance is required by the State.
13. LICENSING: (If Applicable) The Contractor shall have a valid air taxi operator certificate as
specified in Part 135 of the Federal Aviation Regulations. All Contractor pilots must possess a
commercial license and be instrument rated or have an airline transport pilot (ATP) rating.
14. BUDGET FLEXIBILITY: Subject to the prior review and approval of the SW RCB Project
Representative, line items shifts of up to $25,000 or ten percent of the annual contract total,
whichever is less, may be made up to a cumulative maximum of $50,000 per fiscal year. Line
item shifts may be proposed /requested by either the SW RCB or the Contractor in writing and
must not increase or decrease the total contract amount allocated per fiscal year.
15. COMPUTER SOFTWARE: Contractor certifies that it has appropriate systems and controls in
place to ensure that State funds will not be used in the performance of this contract for the
acquisition, operation or maintenance of computer software in violation of copyright laws.
Page 5 of 5