HomeMy WebLinkAboutC-4934 - PSA for Lower Buck Gully Channel Restoration ProjectPROFESSIONAL SERVICES AGREEMENT WITH
RBF CONSULTING
FOR LOWER BUCK GULLY CHANNEL RESTORATION PROJECT
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of this day of August, 2011 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and RBF
CONSULTING, a California corporation ( "Consultant'), whose address is 14725 Alton
Parkway, Irvine, California 92618, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City is planning to construct a channel restoration project in Lower Buck Gully.
C. City desires to engage Consultant to provide professional consulting services for
the Lower Buck Gully Channel Restoration Project, which includes preparing
environmental review and monitoring programs, water quality monitoring,
regulatory permitting support services, and construction support services
( "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 John
McCarthy, P.E.
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 December 31, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. Consultant shall diligently perform all the services
described in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of
the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and the Services shall be performed to completion in a diligent and timely
manner. The failure by Consultant to perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.1.1 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.
3.2 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.
3.3 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
4.1 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 Seventy One
Thousand, Seven Hundred Seventy Seven Dollars and no /100 ($71,777.00) 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.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and /or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) days after approval of the monthly invoice by City staff.
4.3 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:
4.3.1 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.
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4.3.2 Approved reproduction charges.
4.3.3 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.
4.4 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
5.1 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 John McCarthy; P.E. to
be its Project Manager. Consultant shall not remove or reassign the Project Manager or
any personnel listed in Exhibit A or assign any new or replacement personnel to the
Project without the prior written consent of City. City's approval shall not be
unreasonably withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection or construction management
services for City, the Project Manager and any other assigned staff shall be equipped
with a cellular phone to communicate with City staff. Consultant's cellular phone
number will be provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. Robert Stein,
Assistant City Engineer, or his designee, shall be the Project Administrator and shall
have the authority to act for City under this Agreement. The Project Administrator or his
authorized representative shall represent City in all matters pertaining to the Services to
be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 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.
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7.1.2 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.
7.1.3 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. By delivery of
completed Work, Consultant certifies that the Work conforms to the requirements of this
Agreement and all applicable federal, state and local laws and the professional standard
of care.
8.2 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
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.
8.4 The term Construction Management or Construction Manager does not
imply that Consultant is engaged in any aspect of the physical work of construction
contracting. Consultant shall not have control over or be in charge of and shall not be
responsible for the project's design, City's project contractor ( "Contractor "), construction
means, methods, techniques, sequences or procedures, or for any health or safety
precautions and programs in connection with the Work. These duties are and shall
remain the sole responsibility of the Contractor. Consultant shall not be responsible for
the Contractors' schedules or failure to carry out the Work in accordance with the
contract documents. Consultant shall not have control over or be responsible for acts or
omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or
employees, or of any other persons performing portions of the Work.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties) from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
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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 the negligence, recklessness, or willful misconduct of the
Consultant or its principals, officers, agents, employees, vendors, suppliers,
subconsultants, subcontractors, anyone employed directly or indirectly by any of them
or for whose acts they may be liable or any or all of them.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence, active negligence or willful misconduct of the Indemnified Parties.
Nothing in this indemnity shall be construed as authorizing any award of attorney's fees
in any action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the Work
to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction
with City's Project Administrator in advance of all critical decision points in order to
ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
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14. INSURANCE
14.1 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, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
14.2 Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this contract. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
14.2.1 Consultant shall procure and maintain for the duration of the
contract insurance against claims for injuries to persons or damages to property, which
may arise from or in connection with the performance of the Work hereunder by
Consultant, his agents, representatives, employees or subconsultants. The cost of such
insurance shall be included in Consultant's bid.
14.3 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.
14.4 Coverage Requirements.
14.4.1 Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Consultant's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code In
addition, Consultant shall require each subconsultant to similarly maintain Workers'
Compensation Insurance and Employer's Liability Insurance in accordance with the
laws of the State of California, Section 3700 for all of the subconsultant's employees.
14.4.1.1 Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change.
14.4.1.2 Consultant shall submit to City, along with the
certificate of insura nce, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
14.5 General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than o ne million dollars ( $1,000,000) per
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occurrence for bodily injury, personal injury, and property damage, including without
limitation, blanket contractual liability.
14.6 Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities of the Consultant
arising out of or in connection with Work to be performed under this Agreement,
including coverage for any owned, hired, non -owned or rented vehicles, in an amount
not less than one million dollars ($1,000,000) combined single limit for each accident.
14.7 Professional Liability (Errors & Omissions) Coverage. Consultant shall
maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) limit per claim and in the aggregate.
14.8 Other Insurance Provisions or Requirements.
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions:
14.8.1.1 Waiver of Subrogation. All insurance coverage
maintained or procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing insurance
evidence in compliance with these requirements to waive their right of recovery prior to
a loss. Consultant hereby waives its own right of recovery against City, and shall require
similar written express waivers and insurance clauses from each of its subconsultants.
14.8.1.2 Enforcement of Contract Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
14.8.1.3 Requirements not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
14.8.1.4 Notice of Cancellation. Consultant agrees to oblige
its insurance agent or broker and insurers to provide to City with thirty (30) days notice
of cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
14.9 Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement.
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14.10 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. The City is an
intended beneficiary of any Work performed by the subcontractor for purposes of
establishing a duty of care between the subcontractor and the City. 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
17.1 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.
17.2 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
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has given Consultant prior notice and has received from Consultant written consent for
such changes.
17.3 All improvement and /or construction plans shall be prepared with indelible
waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a
minimum thickness of three mils. Consultant shall provide to City `As- Built' drawings,
and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days
after finalization of the Project. For more detailed requirements, a copy of the City of
Newport Beach Standard Design Requirements is available from the City's Public
Works Department.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer or
architect in charge of or responsible for the Work. City agrees that Consultant shall not
be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage conditions
or duration; or (c) any use by City, or anyone authorized by City, of CADD data for
additions to this Project, for the completion of this Project by others, or for any other
Project, excepting only such use as is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a
CD, and should comply with the City's digital submission requirements for Improvement
Plans. The City will provide AutoCAD file of City Title Sheets. All written documents
shall be transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
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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. 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.
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
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allow a representative of City to examine, audit and make transcripts or copies of such
records and invoices during regular business hours. Consultant shall allow inspection
of all Work, data, Documents, proceedings and activities related to the Agreement for a
period of three (3) years from the date of final payment to Consultant under this
Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of the
dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or his /her designee with respect to such
disputed sums. Consultant shall be entitled to receive interest on any withheld sums at
the rate of return that City earned on its investments during the time period, from the
date of withholding of any amounts found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accom plished 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 the
law or any other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 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.
25.2 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.
26. NOTICES
26.1 All notices, demands, requests or approvals to be given under the terms of
this Agreement shall be given in writing, 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
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notices, demands, requests or approvals from Consultant to City shall be addressed to
City at:
Attn: Robert Stein, P.E.
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3322
Fax: (949) 644 -3318
26.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: John McCarthy, P.E.
RBF Consulting
14725 Alton Parkway
Irvine, CA 92618
Phone: (949) 472 -3505
Fax: (949) 472 -8373
27. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
28. TERMINATION
28.1 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, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
28.2 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
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reports, Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
29. STANDARD PROVISIONS
29.1 Compliance With all Laws
Consultant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all governmental entities, including federal, state,
county or municipal, whether now in force or hereinafter enacted. In addition, all Work
prepared by Consultant shall conform to applicable City, county, state and federal laws,
rules, regulations and permit requirements and be subject to approval of the Project
Administrator and City.
29.2 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.
29.3 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.
29.4 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.
29.5 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.
29.6 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.
29.7 Severabilitv
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.
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29.8 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.
29.9 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.
29.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
29.11 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE,/OF Ty,Q 04TY ATTORNEY
Assistant City Attorney
ATTEST:
Date: S' `
By: (wp(h— w- S' �
Leilani I. Brown
City Clerk �+
CITY OF NE PORT BEACH,
A Californ y ipal c rpora
Date: ?S ��
Public/Works Director
CONSULTANT: RBF CONSULTING,
California Corpgration.
Date: 92 It
By:
S. Robert Kallenbaugh
Chief Executive Officer
Date: $/24 f i
t
1
Doug Frost' V
Chief Finan ial Officer
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
RBF Consulting Page 14
EXHIBIT A
City of Newport Beach
EXHIBIT "A"
SCOPE OF SERVICES
ENGINEERING AND SUPPORT DURING CONSTRUCTION
BUCK GULLY RESTORATION PROJECT
August 1, 2011
The City of Newport Beach (Client) and RBF Consulting (Consultant) for mutual consideration
hereinafter set forth, and agree as follows:
A. SERVICES: Consultant agrees to perform the following services:
TASK 1 HABITAT MITIGATION AND MONITORING PLAN
RBF shall prepare a Habitat Mitigation and Monitoring Plan for the subject project. The HMMP
shall be prepared in accordance with the Corps' Los Angeles District Mitigation guidelines and
Monitoring Requirements, dated April 19, 2004 and the Mitigation Rule (33 C.F.R. Part 332; 73
FR 19670 -19687 (April 10, 2008)). The Plan shall be submitted to the regulatory agencies prior
to construction. As required, the Plan shall discuss:
Responsibilities and qualifications of the personnel to implement and supervise the plan.
The responsibilities of the City, Specialists, and Maintenance Personnel that would supervise
and implement the plan shall be specified.
Site preparation and planting implementation. Site preparation shall include: (1) protection of
existing native species; (2) trash and weed removal; (3) native species salvage and reuse (i.e.,
duff); (4) soil treatments (i.e., imprinting, decompacting); (5) temporary irrigation installation (if
required); (6) erosion - control measures (i.e., rice or willow wattles); (7) seed mix application; and
(8) container species planting. This task includes one rapid assessment (CRAM) for the project
site.
Schedule. A schedule shall be developed which includes planting in late fall and early winter
(between October 1 and January 30) or dictated by the regulatory agencies.
Maintenance plan /guidelines. The Maintenance Plan shall include: (1) weed control; (2)
herbivory control, (3) trash removal; (4) irrigation system maintenance (if required); (5)
maintenance training; and (6) replacement planting.
Monitoring Plan. The Monitoring Plan shall include: (1) qualitative monitoring (i.e., photographs
and general observations); (2) quantitative monitoring (i.e., randomly placed transects); (3)
performance criteria, as approved by the above - listed resource agencies; (4) monthly reports for
the first year and reports every other month thereafter; and (5) annual reports, which shall be
submitted to the resource agencies on a y early basis, for five years. City staff, or their designee,
shall monitor and maintain the project site for five years to ensure successful establishment of
riparian habitat within the restored and created areas.
Long -term preservation. Long -term preservation of the site shall also be outlined in the
conceptual Mitigation Plan to ensure the mitigation site is not impacted by future development.
Buck Gully Restoration Project — Support during Construction
Page 2 RRF
City of Newport Beach
This task includes the preparation of a Draft and Final Plan. This task includes response to
comments and revisions associated with client and /or regulatory agency reviews. This task
includes up to two (2) site visits in order to obtain reference site information and review potential
plant palettes. Mitigation monitoring is excluded from this task.
TASK 2 BIOLOGICAL REVIEW AND MONITORING
Pursuant to the project's Final Streambed Alteration Agreement, RBF shall provide a biological
review of the construction and landscape drawings as well as the regulatory permits prior to
construction.
Consultant shall provide qualified biologists to monitor the site, as needed during the
construction period. This task is a budget item based on up to 5 monitoring days. The results of
the monitoring shall be included in a memorandum to be provided to the City.
TASK 3 ADDITIONAL PERMIT SUPPORT
RBF shall provide continued regulatory services for the processing of the permit applications
through the Corps, Regional Board, CDFG and CCC. The processing shall include required
correspondence or telephone calls between the reviewing staff related to the permit or points of
clarification and coordination with the project team. This task assumes attendance at a Coastal
Hearing outside of the County of Orange. This task includes one (1) on -site meeting with the
regulatory agencies, if requested. This task includes the continued delivery of biweekly permit
tracking logs for the Client.
TASK 4 FIELD SUPPORT SERVICES
Consultant shal I provide review of Contractor's submittals, shop drawings, and construction
layouts as required and observe the work in progress. Consultant shall respond to Request for
Information's (RFls) submitted through the Owner's Construction Manager and provide written
response to Owner as appropriate. When requested by Owners, the engineering proj ect
manager will share interpretations, opinions, and possible solutions to field issues and coordinate
additional services required. Upon request by Owner's Construction Manager, Consultant will
review and respond to change order req uests submitted by the Contractor and prepare estim ates
of quantities and cost supporting the change. A budget amount of 60 hours has been allocated
for this task.
TASK 5 SITE RECONNAISSANCE AND FLOW METER INSTALLATION
Weston Solutions shall perform a site visit and reconnaissance to identif y the most appropriate
locations for installing flow monitoring equipment. Up to five monitoring sites are anticipated: one
site at the mouth of Buck Gully, one site directly above the wetland, one site directly above the
erosion control device and two sites further upstream of the erosion control devices. The type of
flow monitoring equipment used will depend on site conditions and flow regimes at the time of
the reconnaissance and anticipated f lows during storm vents.
At each site, flow will be measured during four monitoring events: dry weather pre- and post -
construction and wet weather pre- and post- construction. During each monitoring event, a
stream rating will be conducted so that flows from the flow meters can be combined with
Buck Gully Restoration Project— Support during Construction
Page 3
City of Newport Beach
constituent concentrations to produce load estimates
TASK 6 DRY WEATHER MONITORING
Two dry weather monitoring events will be conducted by Weston Solutions, one prior to project
implementation and one following project completion. During each event, grab sam pies will be
collected from each of the five monitoring sites in the proper containers and analyzed for the
following constituents: total suspended solids (TS S), total and dissolved metals, pyrethroid
pesticides, general chemistry, and indicator bacteria (total coliforms, fecal coliforms, and
enterococci). Constituent concentrations will be combined with the flow monitoring data to
calculate loads for each constituent. The effectiveness of the restoration project will be
determined by comparing pre- and post - constru ction constituent loads.
TASK 7 WET WEATHER MONITORING
Similar to dry weather, two wet weather monitoring events will also be conducted by Weston
Solutions: one prior to project implementation and one following project completion. Weston will
monitor a storm that is predicted by the National Weather Service to produce greater than 01
inches of rain. During each event, grab sam pies will be collected from each of the five
monitoring sites in the proper containers and analyzed for the sam constituents as those
monitored during dry weather: TSS, total and dissolved metals, pyrethroid pesticides, general
chemistry, and indicator bacteria. Similar to the dry weather analysis, constituent concentrations
during wet weather will be combined with the flow monitoring data to calculate loads for each
constituent. The effectiveness of the restoration project will be determined by comparing pre -
and post- construction constituent loads.
Buck Gully Restoration Project — Support during Construction
Page 4
EXHIBIT B
RBF REP 2010 Site Schedule
Team Member Hourly Rate
PrincipaWn -Change 225
C O 11 R IS LTI N a Proleal Director 215
Professional Fees Estimation Sr. Engineer 163
Design Engineer /Envimnmenlal 5pecia4sl 135
Designer /CADD lie
PROJECT DATA Eneimn Analyst /Planner 97
Clerical 63
Project Name: Buck Gully Restoration Project She Survey hts) 130
Support during Construction Gre M1ic Anisl 97
RBF Job Number: 18-104465
Estimate Dale: August 1, 2011 -
Estimator, John McCadh
Were Imm Der'domen
Estimated Manhoan
Set:Dlals
Task Fee
Prione,tks Comge
Prufen Olreomt
Se Edguaeer
Deng. FnO�Pet
Env. ^. ecali9
DbsynenCAOD
Eeeauo Analysl
1Planrwr
Clerical
Bio Surety
Graphic Aml
Fee
5astotels
Fee
H,urs
Fee
Total,
_
Fee
Noun
Project Design Changes
1. harbl. Wt said AWNtahi Plan
0,
4
0
'24
16'
60
0-
a
1 10
104
Prepare plan Andresod
4
24
16
Go
511.810
104
2.. Bm' Gel Reyiev+ and MmRolm
- 0
0.
0
16.
0
0
0
0
0
be
Dialectical Review
16
32,150
16
Fred MOnnarN S d-yu
8
40
$4960
46
1 Addifieiml corral, S _. r1 _.. _ -. -
-_ 0
2
0
- -. - -_ ti
_ - -_ n
_ -. - -. 16
0
0
S41.
-. ....3(
Suppoft and Meeting Atlereanu,
2
16
16
$4140
34
f S¢61 doment SaNCes. _ _ -. -. -. _
_ _0_
_19_
_.12
- _. -.i3-
0
0
0
V.
e
.
59,720.
60
Adddional Capped 5corces based on 60 hours
16
12
]2
59.720
60
i. She R.moull.o and FWv Debar harmallatem
0
0
- 0'
0
0
0
0
- 0
a.
-- `.2.926
0
Weston Solutions Fee
52.876
0
S. Drorweirather b,mLgiN
-- 0
0
0
0
0
0
0
a,
0
31 821
C
Weston Sohdions Fee
519.671
0
2. Vol Wonder l4oAobe
0
0
o
a
v
0
0
a.
.15740
0
Wa,um 5shomme Fee
$15.740
0
$71,277
262
$71,277
262
Ex ereer
SSOD
G
Reimbursable I im ro m hies
$500
TOTALS
$71,777
262
$71,777
262
Buck Gully- Supped during Consltudion_Fre.se Page 1 pl t