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HomeMy WebLinkAboutC-3871 - PSA; Newport Coast ASBS (Areas of Special Biological Significance) Cross Contamination StudyPROFESSIONAL SERVICES AGREEMENT WITH EVEREST INTERNATIONAL CONSULTANTS, INC. FOR NEWPORT COAST AREA OF SPECIAL BIOLOGICAL SIGNIFICANCE CROSS- CONTAMINATION STUDY THIS AGREEMENT is made and entered into as of this k,. day of f 200 by and between the CITY OF NEWPORT BEACH, a Municipal eorporation ( "City"), and EVEREST INTERNATIONAL CONSULTANTS, INC. a California Corporation whose address is 444 West Ocean Boulevard, Suite 1104, Long Beach, California, 90802 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is investigating the reasons for the decline of the sensitive marine areas, the so -call Areas of Special Biological Significance (ASBSs) along Newport Coast C. City desires to engage Consultant to study potential transport of pollutants from Newport Bay to the ASBSs ("Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Dr. Ying Poon. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of December, 2007, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Thirty -Four Thousand Two Hundred Fourteen Dollars and no /100 ($134,214.00) without prior 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 The City shall make progress payments monthly as the Project work proceeds based on the percentage of Project work completed. The Consultant shall furnish a summary breakdown of the Scope of Services 0 0 and budget for the Project in a format acceptable to the City, showing the amount included therein for each principal category or task of the Project work, in such detail as reasonably requested, to provide a basis for determining progress payments. All requests for payment shall show the percentage of work completed for each task of the Scope of Services, the position and hours of each person who performed work under that task, a brief description of the services performed under each task, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval by City staff of a request for payment. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 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 performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Dr. Ying Poon 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 3 • • shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Stein, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever 111 0 10 nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 5 • • 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 coverage required herein. Insurance certificates must be approved by 9 City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Reguirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for 7 • 0 any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional 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 (10 calendar days written notice of non - payment of premium) written notice has been received by City. P • 0 F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. Except as specifically authorized herein, the services to be 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. N r Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 10 0 0 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 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. 11 • • 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 terrns 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: Robert Stein Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3322 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Dr. Ying -Keung Poon Everest International Consultants, Inc. 444 West Ocean Boulevard, Suite 1104 Long Beach, CA 90802 Phone: (562) 435 -9305 Fax: (562) 435-9310 12 0 41 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 terrination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13 • • 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. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 34. 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. 35. 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. 36. 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. 37. 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. 14 0 • IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPR VED AS TO FORM: Off_ C. Assistant City Attorney for the City of Newport Beach ATTEST: By: —M—. l LaVonne Harkless, City Clerk �rvokr� CITY OF NEWPORT BEACH, /J /� A MunicioaYCoboration . . ,, A/ i%AayoT--- for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Y.'c A / "r.c�: d < � t` Print Name: V,--, s - (` 4" "y F' 00" By: (Fina �cial Officer) Title: app Print Name: MfFRCg a-r2E T LEE Attachments: Exhibit A – Scope of Services Exhibit B – Schedule of Billing Rates F :\UserslPBW\Shared\AgreementsTY 06- 0AEverest -ASBS Cross Contamination.doc 15 • Ak EVEREST July 26, 2006 Mr. Robert Stein Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Subject: Newport Coast and Laguna Beach ASBS Protection Program: Cross - Contamination Study — Cost Proposal Dear Bob: Thank you for selecting Everest International Consultants, Inc. (Everest) to assist the City of Newport Beach on the subject project. We greatly appreciate the opportunity to work on this exciting study. Per your request, we have prepared the attached cost proposal for the project. The cost estimate shows the labor cost and other direct costs for each of the individual tasks described in our proposal submitted on July 13, 2006. The proposed fee to complete the project would not exceed $134,214.00. Please refer to the attachment for detailed cost breakdown. If you have any questions regarding our cost proposal, please contact me at (562) 435 -9308. Sincerely, Everest International Consultants, Inc. Ying -Keung Poon, D.Sc., P.E. Vice President/Principal Engineer EVEREST INTERNATIONAL CONSULTANTS, INC. 444 West Ocean Boulevard, Suite 1104, Long Beach, CA 90802 TEL (562) 435 -9305 • FAX (562) 435 -9310 1 0 2. 5cop¢ a6,Suvic¢s r� u 1 Using the Scope of Services outlined in the RFP as a guide, Everest proposes to complete the Study following the approaches described in the following tasks — (1) collect and analyze available data to quantify potential pollutant and sediment loadings to the Study Area, (2) conduct a sediment budget analyses for the Study Area and evaluate sediment 1 erosion /deposition characteristics of the ASBSs, (3) produce pollutant loading report, and (4) develop and use a hydrodynamic and water quality model to evaluate potential impacts to the three ASBSs from various pollutant and sediment sources. The approaches for each 1 task were developed to fulfill the goals and objectives of the Program and Study described in Section 1.2. 1 Knowing that the Study is funded by a Proposition 50 grant with a defined budget, we have developed a scope with flexibility such that the level of detail for each individual task can be adjusted to ensure all tasks can be completed within budget and achieve the goals of the 1 Study. The final approaches for the Study will be refined upon consultation with the City and the Technical Advisory Committee (TAC). 2.1 TASK 1: COLLECT AND REVIEW AVAILABLE DATA (RFP SCOPE ITEMS # 1 AND 2) Everest will collect and review available data pertinent for achieving the goals of the Study. 1 The data being collected and reviewed can be categorized in three broad categories: 1) pollutants discharging onto the coastline from the watersheds, 2) characteristics of the ASBS areas, and 3) coastal characteristics (e.g. tides, longshore currents, and waves). 1 The watershed and loading data will be used to understand and characterize pollutant types and loadings (i.e., identify and quantify potential pollutants) and sediment yields that may affect the Study Area. The data will be analyzed, incorporated into the sediment budget 1 analyses described in Task 2, and summarized in the Pollutant Loading Report described in Task 3. Data collected for the ASBSs will be used to characterize the existing conditions of the 1 Study Area. Water quality data collected for ASBSs will be used to examine whether there is any correlation between constituents found in the ASBSs with other potential pollutant sources (e.g., CCA #69 specified in the RFP). Sediment characteristic data for the ASBSs 1 will be used for the evaluation of sediment erosion /deposition characteristics of the ASBSs as described in Task 4. 1 Data collected to characterize the coastal conditions for the Study Area are crucial for evaluating the transport and mixing of the pollutants being discharge into the Study Area. In addition, the waves and current data will be used to evaluate sediment deposition and 1 transport for the ASBS areas as described in Task 4. 1 1 Everest International Consultants, Inc. 1 • /klewyort Cea3I and 4aenna Beach fl,��B,S (7eetecaom Pe6oam: CYCJl- COntandnaUOn stuJy ' Watershed and Pollutant and Sediment Loading Data We will collect available data for the watersheds, discharges, and outlets within or near the ' Study Area. Figure 1 shows the watersheds that are draining into the Study Area. These includes: San Diego Creek, East Costa Mesa /Newport Beach, Los Trancos /Muddy Creek and Laguna Canyon. Major discharges from these watersheds are shown in Table 1. In the ' table, the pollutants of concerns (303d listed) from each of these watersheds and the major creeks /rivers are also shown. Table 1 — Major Watersheds, Rivers and Waterbodies in the Study Area 7 AREA WATERSHED (Mill MAJOR RIVER OR WATERBODY 303(d) POLLUTANT Fecal Coliform Pesticides San Diego Creek 112.2 San Diego Creek Metals Unknown Toxicity Pathogens Upper Newport Bay Ecological Metals Reserve Pesticides Santa Isabel Channel East Costa Big Canyon Mesa /Newport 13.2 East Costa Mesa Channel Beach Lower Newport Bay Metals Pesticides Buck Gully Fecal Coliform Total Coliform Morning Canyon Pelican Point Creek Pelican Point Middle Creek Los Pelican Hill Waterfall Creek Trancos /Muddy 11.2 Los Trancos (Crystal Cove Fecal Coliform Creek Creek ) Total Coliform Muddy Canyon Moro Canyon Emerald Canyon Bacterial Indicators Laguna Canyon 10.5 Laguna Canyon Channel (Laguna Main Beach ' Figure 2 shows the major discharges and outlets from these watersheds discharging into the Study Area. The figure shows all the major areas of concern that are listed in the RFP (CCA #69, Buck Gully, Crystal Cove, Laguna Canyon, Heisler Park storm drains) and other discharges and outlets that may impact the ASBSs. ' Everest International Consultants, Inc. t. -� )f. N , i I I X'- �E � Newpprte9 P Qc� c Watersheds in Study Area / F San Diego Creek G East Costa Mesa /Newport Beach H Los Trancos /Muddy Creek I Laguna Canyon Channel > � E .F Source: http: www. ocwatersheds .com/brochures/ocwatersheds pdf Figure 1. Watersheds in the Study Area Figure 2. Major Discharges and Outlets in Study Area 0 0 0 IF14 Cea a anJi Aa8ana ls"OAf1$B$'Pmeeaeeon'AWPWN.. Cvau- CantaMtaatten$tw)q We have identified the following reports/studies that may provide useful flow /pollutants/sediment data for the Study Area. If Everest is selected for this project, we will coordinate with the City and other consultants working on related ASBS studies to collect and review other pertinent data for the Study. • 1972- Present. Orange County Sanitation District. Marine Monitoring — Annual Reports" • 2005. Santa Ana Regional Water Quality Control Board. "Orange County Coastal Watershed Citizens Monitoring Project, Midterm Review" • 2004. Santa Ana Regional Water Quality Control Board. "Watershed Management initiative Chapter" • 2004. U.S. Army Corps of Engineers. "Serrano Creek Corridor Ecosystem Restoration Project Planning Reconnaissance Phase Section 905(b) Report" • 2003. City of Laguna Beach. "Initial Study and Conceptual Restoration Plan for Laguna Canyon Creek, City of Laguna Beach, California" • 2003. State Water Resources Control Board. Discharges into State Water Quality Protection Areas" (includes G1S data) • 2000. U.S. Army Corps of Engineers, County of Orange, State of California, and City of Newport Beach. "tipper Newport Bay Ecosystem Restoration Feasibility Study Final Report and Technical Appendices" • 1998. City of Newport Beach. "Conceptual Revegetation Plan and Monitoring Program, Buck Gully/Little Corona Beach Outlet Structure and Sewer Pipeline Replacement Project Corona del Mar, California" • 1996. City of Newport Beach. Report on Storm Runoff Condition in Buck Gully and Morning Canyon" • 1996. U.S. Army Corps of Engineers. Fluvial Sediment Investigation — Orange County Coast Final Report, Coast of California Storm and Tidal Waves Study, South Coast Region, Orange County" • 1986. City of Newport Beach. "Investigation of Shore Conditions at Little Corona Beach" ASBS Characteristics We have identified the following reports/studies that may have useful information in characterizing existing conditions (e.g. habitat, water quality, sediment) for the ASBSs. We understand there will be other monitoring studies under the same grant that would provide additional information for the ASBSs. These new data, when available, will be incorporated into this proposed Study. • 2006. California's Critical Coastal Areas. "State of the CCAs Report" • 2004. California Department of Fish and Game. Marine Life Protection Initiative" Everest international Consultants, Inc. 1 ' 01000[ C04# ana A46an4 Bead f1,SB$'p"Idceten' veuows. CftM -Cnatan 1#r4f1on$taDy ' • 1979. State Water Resources Control Board. "California Marine Waters Areas of Special Biological Significance Reconnaissance Survey Report Newport Beach Marine Life Refuge, Orange County" ' • 1979. State Water Resources Control Board. "California Marine Waters Areas of Special Biological Significance Reconnaissance Survey Report Irvine Coast Marine Life Refuge, Orange County" ' Coastal Characteristics ' We will collect and review available data related to wind, fides, longshore currents, waves, sediment transport, and water quality for the Study Area. The following is a list of reports/studies that may provide useful information for the Study Area that we will review. • 2004. U.S. Environmental Protection Agency and U.S. Army Corps of Engineers. "Draft Environmental Impact Statement Proposed Site Designation of the LA-3 Ocean Dredged Material Disposal Site off Newport Bay, Orange County, California" • 2000. Orange County Sanitation District. "Ocean Circulation and Plume Dispersion Modeling Review, with Emphasis on Orange County Sanitation District's Offshore Outfall and Wastewater Plume" • 1998. U.S. Army Corps of Engineers. "Coast of California Storm and Tidal Waves Study, South Coast Region, Orange County Surveys, Comparative Profiles, and Volume Changes" • 1997. Coastal Frontiers Corporation. "Sediment Budget Analysis: Dana Point to Newport Bay, California" • 1996. U.S. Army Corps of Engineers. "Energy Flux and Longshore Transport, Orange County, Coast of California Storm and Tidal Waves Study, Orange County" • 1996. U.S. Army Corps of Engineers. "California Sediment Budget Summary, Orange County, California Final Report, Coast of California Storm and Tidal Waves Study, South Coast Region, Orange County" • 1996. U.S. Army Corps of Engineers. "Nearshore Hydrodynamic Factors and Wave Study of the Orange County Coast" • 1995. U.S. Army Corps of Engineers. "Coast of California Storm and Tidal Waves Study, South Coast Region, Orange County Seacliff Erosion and Its Sediment Contributions — Dana Point to the San Gabriel River' • 1993. U.S. Army Corps of Engineers. "Coast of California Storm and Tidal Waves Study, South Coast Region, Orange County Existing State of Orange County Coast, Final Report" • 1988. City of Laguna Beach. "Guidelines for Shoreline Protection" ' We also understand that the Southern California Coastal Ocean Observing System (SCCOOS) has planed to install a high - frequency (HF) radar at the end of the Newport Pier to measure longshore currents. These data, when available, will be very useful for ' understanding the longshore transport for the Study Area and will be incorporated into the hydrodynamic and water quality model described in Task 4. ' Everest International Consultants, Inc. 1 ' rare Ceafe aMa 44OU184 B940AA, 51,5 ptoeaeten'PNV AV. C,V!!- Ceatwkrlwweraw,$tnay 2.2 TASK 2: SEDIMENT BUDGET ANALYSIS (RFP SCOPE 1TEM # 3) As specified in the RFP, Everest will conduct a sediment budget analysis for the Study Area ' based on available data supplemented by analyses, if necessary. The sediment budget analysis will include three major components: (1) sediment discharge from streams and creeks, (2) longshore sediment transport, and (3) cross -shore sediment transport. Other minor sediment contributing source to the Study Area (for example, sediment yield from cliff ' erosion) will also be looked into but in less detail. ' Sediment discharge from streams and creeks will be estimated based on the data collected under Task 1. If deemed necessary (e.g., missing data for a major stream), addition analysis will be performed to estimate potential sediment yields for streams lacking data. ' Sediment yields for these streams will be estimated based on drainage area, land use, and other physical watershed characteristics. Everest has performed similar analyses to determine sediment loadings to Buena Vista Lagoon as part of a lagoon restoration feasibility study. ' The Study Area is within the Laguna Beach Group of mini littoral cells, which comprise of approximately 13 miles of coastline between Newport Harbor at the north and Dana Point to the south. This group of mini littoral cells has been regularly surveyed and studied by the U.S. Army Corps of Engineers. Information obtained under Task 1 will be used for this Study to determine the longshore and cross -shore sediment transport components of the ' sediment budget for the Study Area. 2.3 TASK 3: POLLUTANT LOADING REPORT (RFP SCOPE ITEMS #2,4 AND 5) Based on the data collected under Task 1, we will select and analyze the data that are ' useful for the Study to prepare the Pollutant Loading Report. The report will be a comprehensive summary of the available data, with focus on the pollutants listed in the 303d list, for the Study Area. The report will likely include the following sections: (1) Description of the ASBSs and coastal watersheds; (2) Pollutant sources, types and loadings; (3) Sediment ' yields, (4) Data gaps; (5) Summary of findings. A draft report will first be submitted to the City and TAC for review. After receiving the comments from the City, either a final individual Pollutant Loading Report accounting for the comments provided by the City and the TAC will be prepared or the Pollutant Loading Report with comments incorporated will be consolidated and submitted as part of the final ' Cross - Contamination Report under Task 5. ' 2.4 TASK 4: HYDRODYNAMIC AND WATER QUALITY MODELING (RFP SCOPE ITEM # 6) As specified in the RFP, a numerical hydrodynamic and water quality model will be developed for the Study Area and the model will be used to determine if the constituents ' from the Harbor and other coastal canyons have the potential to reach the ASBSs. The RFP also specifies that the model will be used to evaluate potential sediment erosion and Everest International Consultants, Inc. • 0 lVdoopopd C0411 4n� 449nn4 -AQ4eA14-5BJ wedaclion ?00604m: Crnu- Cantnµ/nntion rjeady deposition for the Study Area, as well as to identify the most probable direction of sediment discharges and other pollutants of concern for the Study Area. The use of a hydrodynamic and water quality model to achieve the goals specified in the RFP summarized above is illustrated in this proposal through examples. Figure 3 shows an example numerical model grid that has been setup for the Study Area. This example grid covers the three ASBSs and sufficiently extends along the coastline that allows pollutant discharges along the coastline to be simulated. The model grid shown in the figure is for illustration only, a final model grid will be chosen after reviewing all available data so that appropriate model boundaries for the grid, discharge locations, and grid resolution can be incorporated. The model will be used in two ways to evaluate the potential impact to the ASBSs from various discharges. The first is to use the model to track the movement of "numerical tracers' representing constituents discharging from various source locations. Figure 4 shows an example of the movement of "numerical tracers" being released at the middle of the Newport Harbor entrance channel during ebb tide with a typical dry weather flow. The dots on the red line indicate locations of the tracer at an hourly interval for a total of 48 hours. This example shows that constituents exiting Newport Harbor can potentially impact ASBS #32. By releasing numerical tracers at different discharge locations along the Study Area, this method can be used to quickly assess potential impacts of different discharges to the ASBSs under various hydrodynamic conditions (e.g., tide and flow conditions). Everest has used this approach to assess the impact of contaminated sediment discharges from Ballona Creek to Santa Monica Bay, in particular to the beaches adjacent to the Creek. The hydrodynamic and water quality model will also be used to simulate how pollutants being discharged onto the Study Area will be mixed and dispersed by tides and longshore currents once being discharged along the coastline. Figure 5 shows an example of mixing and dispersion by tides (longshore current not included) for a pollutant with concentration of 1 ppm (parts per million) being discharged continuously from Buck Gully onto the Study Area under typical dry weather flow. The figure shows the pollutant concentrations along the coastlines two days after the pollutant was released. By releasing pollutants from different discharge locations, the relative impacts of pollutants from different sources along the Study Area on the ASBSs can be evaluated. Everest has used this approach to help the City evaluate the relative impacts of five major storm drains to Newport Harbor. Note that only tidal currents have been considered in these examples shown above to illustrate the use of the hydrodynamic and water quality model. Longshore currents in the Study Area will play an important role in pollutant and sediment transport and will be included in the model. The way to incorporate longshore current into the model will depend on whether adequate longshore current data are available. If adequate data are found upon completion of Task 1, the longshore current can be directly incorporated as an input condition to the hydrodynamic model. However, if longshore current data are lacking, wave modeling will be performed to determine the wave breaking conditions for the Study Area. Longshore currents for the Study Area will then be estimated based on the wave modeling results. Everest has conducted this type of wave modeling in many studies in Southern California. Everest International Consultants, Inc. 10 Figure 3. Numerical Model Grid and Bathymetry for the Study Area E Figure 4. Pollutant Pathways for Discharges from Newport Harbor 0 n u Figure 5. Effects of Pollutant Discharge from Buck Gully Creek to the Study Area 0 0 • • Coati aal Aagana B¢aa!A52L5'Awdc Eon'% mgP4w: Crass- Contanimaon$Ea)Y As specified in the RFP, the hydrodynamic model will also be used to evaluate potential sediment deposition and erosion at the ASBSs. To evaluate the potential erosions at the ASBSs, the bed shear stress generated by the interaction between waves and currents (tidal and longshore) at the ASBSs will be evaluated. (Waves interacting with currents will generate significantly higher bed shear stress than those generated by currents alone). The bed shear stress will then be compared with the critical shear stress for initiation of motion of the sediments at the ASBSs to determine potential erosion in the Study Area. 2.5 TASKS: PREPARATION OF CROSS - CONTAMINATION REPORT (RFP SCOPE ITEMS # 7 AND 8) The Cross - Contamination Study Report will be prepared based on the data obtained under Task 1, sediment budget analyses performed under Task 2, the pollutant loading report prepared under Task 3, and the hydrodynamic wand water quality modeling conducted for the Study Area under Task 4. The report will highlight the followings: (1) Study objectives and goals; (2) Description of the Study Area; (3) Available data; (4) Sediment budget analyses for the Study Area; (5) Development of the hydrodynamic and water quality model; (6) Model simulations to assess potential impacts of various discharges to the three ASBSs; and (7) Findings and conclusions. A draft report will first be submitted to the City and TAC for review. After receiving the comments from the City, a final Cross - Contamination Report accounting for the comments provided by the City and the TAC will then be prepared. Everest International Consultants, Inc. 14 Tab Week Beginning 2006 2007 September Octooer November DecemeM January February March 10 17 2a 1 8 15 22 29 5 12 19 26 3 10 1 17 1 24 1 31 1 7 1 14 1 21 1 28 4 11 1 18 1 25 1 a 11 19 25 Data Collection and Review 2 Sediment Budget Analysis J Pollutant Loading Regon a Draft Report b Re." c final Report i Hydrodynamic and Water Quality Modeling a Model Set -Jp b. Simulal,on and Analyei5 mom 5 Cross-Contamination Study Report a. Draft Report b Review c Final Report e1 Kick-all Meeenq MOMNy Meebng5 M x D • Figure 6. Proposed Project Schedule • for Newport Coast and Laguna Beach ASBS Protection Program: Cross - Contamination Study Everest International Consultants, Inc. A COSTPROPOSAL EVEREST for Newport Coast and Laguna Beach ASBS Protection Programs Cross - Contamination Study July 26, 2006 M x i r1 L J • caasul E"Mt R.sowm" T..m Slana9.m.nl Labor Other DIMt Cwn (ODC) Labor T.sL Dscni,Wn hr.1.31 61x11.0.43 SMCQPM CO cop" C Copes. (Labor• Ta.O E310Ui441 S4 En01nwr CADK3*, I MS.., (26x11) I"011 111.111 R.pa1 BBi011q ooc ODcl Total B1v1oOM Total FgM4 labor TOUI 7a sl S . 310LNr. 7606Y. 11 I . 300100 Sr. $0.10 S1A01Ea. 5200 b. 5255 IF. 50664. 140is4 Mmux 1141.5 MaM 1q.s AIn44.5 IIOd. Aman6 Il.it l Mnou. Durtiv M.N.. 0u Mrowi As4� 0rllp Msuia Ilpi4a 1 Aw�4tleDw 84 $0.020 M $4.We 40 S3.540 W 160 518656 100 545 SO SO SO 50 545 S +8101 24 $2.040 630.741 2 S.onwnsi BW9al 32 S4.0B0 48 54,008 W M 60 $S am 50 621 fo f0 SD W $22 $0678 I 65.670 3 Pa .L..&V P.pon M 562M 48 54.808 b 6].540 M 51560 160 516.96 50 522 1000 5100 100 5100 10 520 10 620 5261 1 S167m 24 $2040 f15,766 v W 4 BD 513.400 240 624,480 240 Slg200 40 S2.600 800 556980 100 545 W 50 W 50 545 556725 16 51360 $60.055 Du.Nh 61o6aL�i 5 ['� CorNamru6on 60 50.300 54 $8,525 40 63.200 b 52600 204 321626 100 345 2000 5200 400 5400 M 640 10 320 5705 $2233) 28 52.380 524.713 Total 216 1 542.780 446 $5696 376 530.080 104 36.780 1364 $125316 400 $178 1000 3700 500 5300 30 $60 M 540 $1078 5126 394 W $%620 5154.214 M x i r1 L J • CIIenH1- 5462 FVFRFINTF ACOR CERTIFICA100F LIABILITY INSUROCE ' MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH 08111/06 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Dealey, Renton & Associates P. O. Box 10550 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Santa Me, CA 92711 -0550 LIMITS 714 427.6810 INSURERS AFFORDING COVERAGE INSURED Everest International Consultants Inc INSURER Ac United States Fidelity & Guaranty INSURER B. 'St. Paul Protective Insurance Co. 444 W. Ocean Blvd., Suite 1104 Long Beach, CA 90802 INSURER C: Hudson Insurance Company INSURER D: INSURER INDP. CONTRACTORS COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. SR TYPE OF INSURANCE POLICY NUMBER POLICYMFFECIVE PODUTEEXPIRATION LIMITS A GENERAL LIABILITY BKO1380162 05/30/06 05130/07 EACH OCCURRENCE $2,000,000 X COMMERCIAL GENERAL LIABILITY CLAIMS MADE QOCCUR INDP. CONTRACTORS FIRE DAMAGE (Any one fire) $2000000 MED EXP(Any one perean) $10000 PERSONAL &ADV INJURY $2,000,000 X CONTRACTUAL INCLUDED X BFPD, XCU GENERAL AGGREGATE $4,000,000 GEN'L AGGREGATE LIMITAPPLES PER: PRODUCTS -COMPIOPAGG $4000000 POLICY F-IJEcT F LOC A AurcumLE LIABILITY ANY AUTO SK01380162 05/30/06 05f3O/O7 COMBINED SINGLE LIMIT (Ea mcldent) 52,000,000 BODILY INJURY (Per parson) $. ALL OWNED AUTOS SCHEDULED AUTOS X BODILY INJVRY (Per acddard) f HIREDALJrOS NON-OWNED AUTOS X PROPERTY DAMAGE (Per aoddent) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT 5 OTHER THAN EA A G $ ANY AUTO $ AUTO ONLY: AGO EXCESS LIABILITY EACH OCCURRENCE $ AGGREGATE 5 OCCUR CLAIMS MADE 5 $ DEDUCTIBLE $ RETENITON 5 B WORKERS COMPENSATION AND BM2178630 05125f06 05/25107 X WCSTATIU OTR- EMPLOYERWLIABILITY E.L. EACH ACCIDENT $1000,000 EL. DISEASE �EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 C DINER Professional AEE7137501 05!30/06 05/30/07 $1,000,000 per claim ability $1,000,000 annl aggr. DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES IEXCLUSONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS General Liability policy excludes claims arising out of the performance of professional services Re: Professional Services Agreement for Newport Coast Area of Special Biological Significance Cross - Contamination Study (See Attached Descriptions) City of Newport Beach, Public Works Department Att: Shaun Oyler 3300 Newport Blvd. Newport Beach, CA 92658 -9915 nf9 SQ1ARAnOd U1A170R SHOULD ANYOFTHEASOVE DESCRIBED POLICIESSE CANCELLED BEFORETHE EXPIRATION DATE THEREOF, THE ISSUING INSURER WALL ENDEAVOR TOMAS.30— DAYSWRIITEN NOTK:ETOTHE CERTIFICATE HOLDERNAMED TOTHE LEFT, BVTFAILURE TODOSOSHALL IMPOSE NO OBLIGATION GR LIABILITYOF ANYHIND UPON THE DISVRER,ITS AGENTS OR 1211 O ACORD CORPORATION 1981 • • Policy Number: BKO1380162 Owners Lessees or Contractors (Form B) ADDITi6NAL INSURED Change(s) Effective: 08/11/06 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance policy under the following: LIABILITY COVERAGE PART: Schedule Name of Person or Organization: City of Newport Beach, Public Works Department Att: Shaun Oyler 3300 Newport Blvd. Newport Beach, CA 92658 -8915 SECTION II - WHO IS AN INSURED is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. Name of Person or Organization Continued: its officers, agents, employees and volunteers PRIMARY INSURANCE: IT IS UNDERSTOOD AND AGREED THAT THIS INSURANCE IS PRIMARY AND ANY OTHER.INSURANCE MAINTAINED BY THE ADDITIONAL INSURED SHALL BE EXCESS ONLY AND NOT CONTRIBUTING WITH THIS INSURANCE. SEVERABILITY OF INTEREST: IT IS AGREED THAT EXCEPT WITH RESPECT TO THE LIMIT OF INSURANCE, THIS COVERAGE SHALL APPLY AS IF EACH ADDITIONAL INSURED WERE THE ONLY INSURED AND SEPARATELY TO EACH INSURED AGAINST WHOM CLAIM IS MADE OR SUIT IS BROUGHT. WAIVER OF SUBROGATION: IT IS UNDERSTOOD AND AGREED THAT THE COMPANY WAIVES THE RIGHT OF SUBROGATION AGAINST THE ABOVE ADDITIONAL INSURED($), BUT ONLY AS RESPECTS THE JOB OR PREMISES DESCRIBED IN THE CERTIFICATE ATTACHED HERETO. CL/BF 22 40 03 95 0 E WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT This endorsement changes the policy to which it is attached effective on the inception date of the policy unless a different date is indicated below. (The following "attaching clause" needs to be completed only when this endorsement is issued subsequent to preparation of the policy.) This endorsement forms a part of Policy No. BW02178630 Issued to: Everest International 'Consultants Inc By: St. Paul Protective Insurance Co. Premium (if any) TBD We have a right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us). You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule.. The additional premium for this endorsement shall be 2 -5% of the California workers compensation premium otherwise due on such remuneration. Person or Organization City of Newport Beach, Public Works Department Att: Shauna Oyler 3300 Newport Blvd. Newport Beach, CA 92658 -8915 WC 04 03 06 (Ed. 4.84) Schedule Job Description Name of Person or Organization Continued: its officers, agents, employees and volunteers Countersigned by Authorized Representative AUG-14 -2006 NON 03;33 PN Bro Brown Inc FAX NO. 7121 4192 P. 01 Pax #; _- P`�'ci.M 331 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach Tills checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 911q 10 4? Dept. /Contact Received From: Oh6tt Y�Gf QI itti _ Date Completed: ly � y Sent to; ___S% r, � By: lY1a ,d� �r-� V. . . Company/Parson required to have certificate: �V e S� %.xia:Ld h w A_jb f. GENERAL LIABILITY A. INSURANCE COMPANY: B. AM BEST RATING (A: VII or greater): 6-t X V " C. ADMITTED Company (Must be California Admitted): Is Company admitted In California? es El No D. LIMITS (Must be $1M or greater): What Is limit provided? I- L Y A -R K.0 %o 0- E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? es I] No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its ��^^ officers, officials, employees and volunteers): Is It Included? P'41 as ❑ No G. PRIMARY & NON- CONTRIBUTORY WORDING (Must be included): [j No Is it Included? es H. CAUTION! (Confirm that toss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes o L NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. If.. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: uuu u N_ (rA� B. AM BEST RATING (A: VII or greater): _---A4-W- C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? Yes ❑ No D. LIMITS (Must be $11VI min. BI & PD and $500.000 UM): What is limits provided? ` a E. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it Included? es © No F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Hauler only): Is it included? P/ A- ❑ Yes Q No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. III. WORKERS' COMPENSATION �� A ` ry i �� Jh�ay -� A. INSURANCE COMPANY: tX % '�c� (•o B. AM BEST RATING (A: VII or greater): Al XV _ C, LIMITS: Statutory D. WAIVER OF SUBROGATION (To include); Is it included? Yes E No HAVE ALL ABOVE REgUIREMENTS BEEN MET? Uyes ❑ No If NQ. WHICH rrgMS NEED TO BE COMPLETED? _ • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 August 8, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE FROM: Public Works Department Robert Stein M.5 (0 8 V9 949 -644 -3322 or rstein @city.newport- beach.ca.us SUBJECT: ASBS PROTECTION PROGRAM: CROSS CON TA191INA110N SMUT,- APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH EVEREST INTERNATIONAL CONSULTANTS, INC. RECOMMENDATION: Approve a Professional Services Agreement with Everest International Consultants, Inc. (Everest), of Long Beach, California, for a study on potential pollutant impacts from Newport Bay at a not to exceed price of $134,214 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: The City has initiated a program to protect and renovate sensitive marine life areas, so- called Areas of Special.Biological Significance (ASBS), along Newport Coast. One of the goals of the program is to improve water quality in the ASBSs to bring these areas into conformance with the California Ocean Plan. Under this contract, the consultant will analyze if pollutant loads within Newport Bay are transported to the ASBS regions along Newport Coast. Under a separate contract, the information collected under this cross contamination study will be compared to data on pollutant loads from the canyons reported in the Newport Coast Flow and Water Quality Assessment, and other activities that could impact the marine areas (such as public trampling, scavenging, and fishing activities), to determine the best course of action to protect the ASBSs. Five firms were invited to submit proposals to provide numerical modeling and analysis services. Three firms responded to the City's request for proposals: • Everest International Consultants, Inc. • Moffatt & Nichol • Sea Engineering .The proposals were independently reviewed by a committee of five members to evaluate each firm's understanding of the project, qualifications of the project team and ASl311116tection Program: Cross Contamination — Approvoroiessional Services Agreement with Everest Intemational Consultants, Inc. August 8, 2006 Page 2 past experience on similar projects, before ranking Everest the highest. Upon selection, staff negotiated with Everest to provide the necessary scope of services for a fee of $134,214.00. Everest has completed numerical modeling and analysis services competently and professionally on similar projects for the City of Newport Beach and other local agencies in Southern California. The scope of numerical modeling and analysis services will include: 1. Review and analyze water quality data and sediment budget for Newport Bay and the ASBS 2. Prepare a Pollutant Loading Report 3. Develop a Hydrodynamic and Water Quality Model for the study area 4. Prepare a Cross - Contamination Impact Report Funding Availability: There are sufficient funds available from the State Water Resources Control Board Grant Agreement No. 05- 230 -550 -0, Integrated Coastal Watershed Management Plan, within the following account for the project: Account Description Account Number Amount . Environmental Contributions 7255- C5100889 134,214.00 Total: $134,214.00 Environmental Review: All tasks fall under the Information .Gathering class of projects and are therefore categorically exempt pursuant to CEQA guidelines, Article 19, Section 15306. Prepared by: C Robert Stein Principal Civil Engineer Submitted by: Attachment: Professional Services Agreement Works Director PROFESSIONAL SERVICES AGREEMENT WITH EVEREST INTERNATIONAL CONSULTANTS, INC. FOR NEWPORT COAST AREA OF SPECIAL BIOLOGICAL SIGNIFICANCE CROSS-CONTAMINATION STUDY THIS AGREEMENT is made and entered into as of this — day of 200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and EVEREST INTERNATIONAL CONSULTANTS,- INC. a California Corporation whose address is 444 West Ocean Boulevard,. Suite 1104, Long Beach, California, 90802 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is investigating the reasons for the decline of the sensitive marine areas, the so -call Areas of Special Biological Significance (ASBSs) along Newport Coast C. City desires to engage Consultant to study potential transport of pollutants from Newport Bay to the ASBSs ( "Project "). D. Consultant possesses the skill,. experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Dr. Ying Poon. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31st day of December, 2007, unless terminated earlier as set forth herein. C n 2. SERVICES TO BE PERFORMED , Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible. for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. .3.1 Consultant shall . submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a , delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not-to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Thirty-Four Thousand Two Hundred Fourteen Dollars and no /100 ($134,214.00) without prior 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 The City shall make progress payments monthly as the Project work proceeds based on the percentage of Project work completed. The Consultant shall fumish a summary breakdown of the Scope of Services . 2 0 0 and budget for the Project in a format acceptable to the City, showing the amount included therein for each principal category or task of the Project work, in such detail as reasonably requested, to provide a basis for determining progress payments. All requests for payment shall show-the percentage of work completed for each task of the Scope of Services, the position and hours of each person who performed work under that task, a brief description of the services performed under each task, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval by City staff of a request for payment. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 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 performed without the prior written authorization of City. As used herein, "Extra Work". means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope. of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Dr. Ying Poon 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 3 0 10 shall not be unreasonably withheld with respect to the removal or assignment of . non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Stein, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such , materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services' through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it. will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all 49 licenses, permits, qualifications, insurance and approvals of whatsoever 11 . nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "indemnified Parties) from -and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, . losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees- in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 5 10. 11. 12. 13. 14. 0 9 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. COOPERATION Consultant agrees to work Project Administrator and a interest in the work to be Consultant on the Project. CITY POLICY closely and cooperate fully with City's designated my other agencies that may have jurisdiction or performed. City agrees to cooperate with the 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. 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.. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by L 0 City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City s Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with .. the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non- renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, Its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coveraae. 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 7 0 9 any owned, hired, non -owned or rented vehicles, in an amount not , less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000).. E. Endorsements. Each. general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 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 . sell- 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. A. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. e F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services. to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. 16. SUBCONTRACTING City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. Except as specifically authorized herein, the services to be 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. 7 • • Documents, including drawings and specifications, prepared by Consultant , pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of. CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or {c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this .Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version , of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City s latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. ME 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright Infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and Invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. ' 23. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding., Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. -Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the -event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 11 25. 26. 27. 0 0 CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under persons from making, or, participating in financially affect such interest. his Agreement, and (2) prohibits such making, decisions that will foreseeably 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. 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: Robert Stein Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3322 Fax: 949- 644 -3308 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Dr. Ying -Keung Poon Everest International Consultants, Inc. 444 West Ocean Boulevard, Suite 1104 Long Beach, CA 90802 Phone: (562) 435 -9305 Fax: (562) 435-9310 12 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall . pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities,. including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work .prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 13 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. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 34. 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. 35. 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. 36. 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. 37. 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. 14 0 0 •IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. n U 1I `I u APPROVED AS TO FORM: C� Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation am Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F:1UseFs%PBWlShMKKAgreements \FY 06- 0AEverest -ASBS Cross Contamination.doc 15 M X T D Figure 6. Proposed Project Schedule for Newport Coast and Laguna Beach ASBS Protection Program: Cross - Contamination Study • 1 �.. 111111 ■■■■eeee' ■■eeee ■--- - - - - -- - ■eeee■■- - o '. �.�� ee�eeeeeeeeeeeeeeeeeeeeeeeeeeee M X T D Figure 6. Proposed Project Schedule for Newport Coast and Laguna Beach ASBS Protection Program: Cross - Contamination Study • Everest International Consultants, Inc. COST PROPOSAL EVEpEST for Newport Coast and Laguna Beach ASBS Protection Program: Cross - Contamination Study ' July 26, 2006. .: @, .. coastal Ewmt Resowees Team Manapsment RMMIMPIM Taek Description � Eepineer Staff Enginaar Ce4DlClerltal MBeaps saw coples C~Ce$W. Celorcoplas Rapart.Bindhep (L'.sbor• elokpst Task PNa:lpal tabor Tebl 16.6,11) (5.6x11) (11x171 co Total Total EnsInser TWa1 WIl/Hr, S102Mr. $80111r. $0&W. $OA,pnba *10 tea. i1.001Ea• 5250,Ea. f2.001Ea. $001141. Maun Mown Moue aniunn[ Mews Mwn M1oun1 MMna Mn pwMq Amoum pueMNy MMUm pwmlly Mnum pueway Mama puumtly Nr,ema 11mw, aieou tloin Mourn Me COMW 1 Coaila: and M $k= 48 54,698 48 $3.610 so 180 315.558 100 SM $0 $0 is 30 $15.701 24 82,040 $20,741 DRevlaw Available Dab 2 Same Budget' 32 $4,980 46 54,898 50 SO 80 59.858 50 522. $a 30 SO $22 $9.578 $0 $5,578 40 35,200 48 $4,698 40 35,510 24 $1,560 160 916,480 50 $22 1,000 $100 100 5100 10 am 10 520 5282 $10,758 24 $2,040 $15,750 9 fondant Leading Repot 4 Hydmdynama:and carter 80 512,400 240 524,480 240 519,200 10 $2,600 500 $5a,680 100 $45 $0 $0 s0 SO 946 $66.726 18 $1,360 560486 Dw$b Modeling amine0en 5 80 SB,SDO 84 $6:528 10 $5.20D 40 52.600 204 $21.528 100 $45 2.000 $200 400 $400 20 $40 10 $20 $705 sn's33 25 $2,360 524,71 Rnns,00 Total 276 $42,760 448 545,603 378 530,080 104 58,780 1,204 $125,318 400 $178 5,000 $300 500 11500 30 te9 20 1 $40 $1,078 $128,394 92 S7,B2 M x W W •