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HomeMy WebLinkAboutC-3790 - PSA for Preparation of a Beach Sand and Shoreline Report0 9 c -3+qo PROFESSIONAL SERVICES AGREEMENT WITH MOFFATT & NICHOL FOR PREPARATION OF A BEACH SAND AND SHORELINE REPORT THIS AGREEMENT is made and entered into as of this �� day of ©C4X:(x,.. , 2005, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and MOFFATT & NICHOL, a California corporation whose principal place of business is 3780 Kilroy Airport Way, Suite 600, Long Beach, California, 90806 ( "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 cant' 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 conduct a study of the City's coastline in order to anticipate potential sand erosion and flooding issues for improved shoreline management. The proposed tifle of the report is: "State of the Newport Beach Shoreline." C. City desires to engage Consultant to research and write the report, and to perform the historical and technical data review necessary. The report is to be written in a user - friendly format for use by the general public and decision - makers. 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 Michael J. 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 the 31P day of December, 2006, unless terminated earlier as set forth herein. 2. 3. 4. i SERVICES TO BE PERFORMED Consultant shall diligently perform all th Services attached hereto as Exhibit A and City may elect to delete certain tasks discretion. TIME OF PERFORMANCE 0 e services described in the Scope of incorporated herein by reference. The of the Scope of Services at its sole Time is of the essence in the performance of services under this Agreement and Consultant shall perform the services in accordance with the schedule included in Exhibit C. 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 Consultants 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 Consultants 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. COMPENSATION TO CONSULTANT In accordance with this Section and the Billing Rate/Payment Schedule, attached hereto as Exhibit B and incorporated herein by reference, the City shall pay Consultant for the services on a lump sum basis after the tasks denoted in the Billing Rate/Payment Schedule attached hereto as Exhibit B are completed. Consultants compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Forty -Eight Thousand, Six Hundred and Fourteen Dollars ($48,614.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invokes 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 wok billed on an hourly basis, and a description of any 2 0 0 reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the billing rates listed in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee provided for in this Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Chris Webb to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. i 0 6. ADMINISTRATION 0 This Agreement will be administered by the Public Works Department. Sean Crumby shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement. City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature, that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City 4 0 0 to fumish 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, "Claimsl, which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 5 0 11. COOPERATION 0 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 POUCY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature . A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 0 Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shag 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 fin-tit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shag 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 perfomed 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 7 • • and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultants operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Ciaims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultants 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 The parties recognize that a substantial inducement to City for entering Into this Agreement is the professional reputation, experience and competence of J 0 0 Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 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 E i • provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Wont and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a 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 10 0 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. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Michael Sinacori Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 -644 -3315 Fax: 949 - 644-3308 11 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Michael J. McCarthy, P.E. Moffatt & Nichol 3780 Kilroy Airport Way, Suite 600 Long Beach, CA 90806 Phase: (562) 426 -9551 Fax: (562) 424 -7489 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 aired 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 care 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. 12 0 31. INTEGRATED CONTRACT 0 This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: - __ (' , - It/", / Aa on C. Harp Assistant City Attorney ATTEST: B LaVonne Harkless, City Clerk �o �aFr, U CITY OF NEWPORT BEACH, A Municipal Corporation Bd4":�IA� taoityof Newport Beach MOFFATT & NICHOL: By:' VI' WZ2Z (C rporate Officer) Title:/Cel- Print Name: An &? By.101 —ir ial b -f ficer) Title: / leoc-e Print Name: Attachments: Exhibit A - Scope of Services Exhibit B - Billing Rate/Payment Schedule Exhibit C - Project Schedule F:\USERS\PBW\SharedWgreements\FY 05-06\Moffatt & Nichol -Sand Study.doc 14 Exhibit A 0, F.ATT & NICHOL September 22, 2005 City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92659-8915 Attn: Mr. Sean Crumby, Associate Civil Engineer 3780 Kilroy Airport Way, Suite 600 Long Beach, California 90806 (562)426-9551 (562) 424-7489 Subj: Exhibit A — Scope of Services for Shoreline Data Analyses and Presentation Services Dear Mr. Crumby: Moffatt & Nichol (M&N) is pleased to present this proposal to assist the City of Newport Beach for shoreline technical data analyses and presentation services. The City needs to understand the short- and long-term trends of the shoreline to anticipate potential erosion, flooding, and changes to the beach for improved management. Technical data exist of local shoreline conditions and the City wishes to make them presentable for use by the general public and decision -makers. The City may add the information to their website in the future for ready access to the public. This proposal presents a scope of work, estimated fee, and schedule to prepare the information package for public use. Scope of Work 1. Attend Kick -Off Meeting With City Staff— Meet with City staff to clarify objectives, set direction, formulate the approach, and identify deliverables and the project schedule. The meeting will occur at City offices. 2. Collect and Review Existing Available Technical Shoreline Data — Research and review existing available technical shoreline data. Sources will include the City of Newport Beach, the County of Orange, the U.S. Army Corps of Engineers, and others as appropriate. Data will include historic and existing shoreline processes and conditions, projected shoreline conditions, sediment transport, sediment volume changes, beach profiles and widths, and short- and long-term trends. Mr. Sean Crumby UNA Proposal for Shoreline Data Analyses and Planning, Preparation of a Public Information Package HOFFATT & \ICAOL September 22, 2005 Page 2 3. Present the Status of Data Review and a Proposed Public Use Package to the City — Meet with City staff to present the status of technical data review, and a proposed data presentation concept for City consideration. A decision of the specific type of presentation approach will be made at this meeting (for example, a Draft "State of the Newport Beach Shoreline Report"). 4. Prepare a Draft Public Information Package for Shoreline Data — A draft "State of the Newport Beach Shoreline Report" or other similar document will be prepared that summarizes the state of the City's coast, and recommends management actions in a way that can be understood by the general public. It is envisioned to be a user-friendly document that presents information of the shoreline in relatively simple, non-technical terms, yet allows the user to "drill down" into more technical concepts and data sources, if desired. The Report would possess colorful graphic illustrations of concepts and easy - to -read matrices to convey information. It will be crafted to serve as a "living" document that the City could update and modify over time as new information becomes available or as the local shoreline evolves. The City could review the document and offer suggested modifications for preparation of a final version. 5. Prepare a Final Public Information Package for Shoreline Data — A final "State of the Newport Beach Shoreline Report" or similar document will be prepared based on City comments on the draft version. The Report can be modified in whatever way the City consider necessary for optimization. It would be amenable for use as a hard- or electronic copy, and be able to be loaded onto the City's website for broad access. The final report will be submitted as ten hardcopies (with one reproducible master) and 10 CD's. 6. Final Presentation to the City — The document will be presented to the City for dissemination and possible uploading to the City website. Mr. Sean Crumby Proposal for Shoreline Data Analyses and Planning, Preparation of a Public Information Package �u).aTr R su:noi. September 22, 2005 Page 3 Estimated Fee The work can be completed for a fee not -to -exceed $48,614 to be billed as a lump sum. The estimated fee by task is provided below. ESTIMATED FEE TASK 1. Attend Kick -Off Meeting FEE $952 2. Collect and Review Existing Technical Data $13,580 3. Present the Status of Data and a Proposed Public Information Package to the City $1,920 4. Prepare Draft Public Information Package $17,660 5. Prepare Final Public Information Package $11,492 6. Final Presentation to the Ci $2,260 Reimbursable Expenses (Mileage, xeroxin , CDs)$750 TOTAL,, Proposed Schedule This work can be completed within 6 months or less from Notice -to -Proceed. Thank you for the opportunity to assist the City with this effort and please call Chris Webb of our office with any questions or comments. Sincerely, MOFFATT & NICHOL Michael J. McCarthy, P.E. Vice -President rn (f) all \C O - cl .- N 69 . �- 4 69 64 69 69 It O O O NN -4 N -- r- N NN 00 - .- 4 69 69 � 69 69 64 It � It 00 00 fn � o 0 N 0 69 69 • � C) dam' dam' 69 69 -- 69 69 69 69 N O O p N O N C4 N O N N S.. • O N X • bjGM • - N 00 N 00 N • a? N O N Cd cd Cid cd 0 W aR rA Q W� y'ba, o Q o �CJ w o v Fav d„ U ; a A o `� Y a a' '0 H ri 0 A4 ° �r A4 9L4 0, a �d 0 FIq hk,A 0 (B d ca C m � W U co s Y U Y N C L E f6 Q � Z (B Y Q co cu C O O T � Cl) cu E G T o U c M c CD T M o T C: � L M O N CL c c LL FIq hk,A O M r F, ,,A T- N N T L 0 (B d y-. U) C m � W U o s Y U O M r F, ,,A T- N N T L c a� m 0 Y U Y C Q E f6 CIf � Z (B Y Y N co cu C C O M r F, ,,A T- N N T L L U U CIf (B C C O O � c�6 � E 0 o U c c � o C: L O CL c c (a •� O U a� LL C: Q c O C1 Ln CO N O U_ N I— U) U) H Z a`> E fl- 00 0) O T N M d' cD f— N Q. U � c) NW- 03- 2005 16.23 FROM: 7149391654 • Fax#: 1�'`igd [j g ^ -3 31 TCW496443318 P.1,1 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: Dept. /Contact Received From: tI,<�a cif U 1 Date Completed: IO f. bI C Sentto; f {m . rq4 By Company /Person required to have certiricate: fI e ftc' I �L- 1. GENERAL LIABILITY LL, `� r { t /Ire �. i'�fc1111V A �� ` A A. INSURANCE COMPANY: 1 l B. AM BEST RATING (A: VII or greater): S. AM BEST RATING (A: Vll or greater) V ADMITTED COMPANY (Must be California Admitted): C. ADMITTED Company (Must be California Admitted): & ❑ No LIMITS (Must be $1M min. BI & PO and $500,000 UM): What is limits provided? Is Company admitted in California? es p Sf D. LIMITS (Must be $1 M or greater): What is limit provided? Nu W".1Oct E. PRODUCTS AND COMPLETED OPERATIONS (Must include): is it included? Wes EJN6 F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of officers, officals, employees and volunteers): Is It included? Yes No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be Included): „! 0-?es [1 No AM BEST RATING (A: VII or greater): Is it included? C. LIMITS: Statutory H. CAUTION! (Confirm that loss or liability of the named insured Is not WAIVER OF SUBROGATION (ro include): Is it included? U'Yeess Q No limited solely by their negligence) Does endorsement include "solely by HAVE ALL ABOVE REQUIREMENTS BEEN MET? negligence" wording? 0 Yes o I. NOTIFICATION OF CANCELLATION: Although there is a provision that requlres,notifmation of cancellation by certified mail; per Lauren Farley, the City wig accept the endeavor wording. II. AUTOMOBILE LABILITY ,J� 's 3 " r f i e �tr A INSURANCE COMPANY: ! F"'N : B. AM BEST RATING (A: VII or greater): C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted In California? [Yes, ❑ No D. LIMITS (Must be $1M min. BI & PO and $500,000 UM): What is limits provided? tf lLsc+'- E, ADDITIONAL INSURED WORDING TO INCLUDE (The City its �, officers, officials, employees and volunteers): Is It included? t; res ❑ No F. PRIMARY & NON- CONTRIBUTORY WORDING (For Waste Haulers only): �✓ Is it included? © -'Yes [3 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 '' Cc.o)aD?� � f ) A. INSURANCE COMPANY: +' ' ;� {" cite C r:: "I: ! 'u ' B, AM BEST RATING (A: VII or greater): C. LIMITS: Statutory D. WAIVER OF SUBROGATION (ro include): Is it included? U'Yeess Q No HAVE ALL ABOVE REQUIREMENTS BEEN MET? MAres, [] No IF NO, WHICH ITEMS NEED TO BE COMPLETED? • • • OCT 11. 2005 • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT • c��,ol7 -�� Agenda Item No. 5 - October 11, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Mike Sinacori 949 - 644 -3311 msinacori@city.newport-beach.ca.us SUBJECT: BEACH SAND STUDY AND MONITORING PROGRAM -APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH MOFFATT & NICHOL RECOMMENDATION: Approve a Professional Services Agreement with Moffatt & Nichol, of Long Beach, California, for professional engineering services at a contract price of $48,614 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: Sand replenishment in Newport Beach has always been vital in keeping the beaches well nourished. Although ocean currents cause sand to move in, out, and downcoast (littoral drift) , Newport Beach has been able to maintain its wide beaches because of the ongoing federal sand replenishment projects at Surfside /Sunset and West Newport. In order to document this phenomenon, the Public Works Department is recommending that a study be prepared to document the history of the sand migration and to develop a tool to understand the short and long term trends of the City's shoreline. The proposed "State of the Newport Beach Shoreline" report will examine sand transport, erosion, and flooding issues for City beaches including West Newport, Balboa Peninsula, and Big Corona beaches. Much technical data exists from many sources and this data needs to be made easily understandable by the public and decision - makers. Moffatt & Nichol was invited to submit a proposal to provide professional engineering services because they have completed similar studies for other cities in Orange County. Staff negotiated with Moffatt & Nichol to provide the necessary scope of services for a not -to- exceed fee of $48,614. The scope of Moffatt & Nichol's professional services will include: • Attend a kick off meeting SUBJECT: Beach Sand Study monitoring Program — Approval of Professional Se r Agreement with Moffatt and Nichol October 11, 2005 Page 2 • Collecting and reviewing existing technical and historical data including sand surveys that are performed annually, projected shoreline conditions, sediment transport, sediment volume changes, beach profiles and widths, and short/long term trends • Presentation of the status of data, recommended management actions, and a proposed public information package to the City that will be used in a public out reach effort • Preparation of Public Information Package Environmental Review: Engineering studies are not projects as defined in the California Environmental Quality Act (CEQA) Implementing Guidelines. Funding Availability: There are sufficient funds available in the following account for the project: Account Description Account Number Amount General Fund 7014- C5100812 $48,614.00 Prepared by: Submitted by: Mi ael J. Sinacori, P.E. ph . Badum P ncipal Engineer Pub Ic Works Director Attachment: Professional Services Agreement • • E e 0 0 THIS AGREEMENT is made and entered into as of this 11th day of October, 2005, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and MOFFATT & NICHOL, a California corporation whose principal place of business is 3780 Kilroy Airport Way, Suite 600, Long Beach, California, 90806 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to conduct a study of the City's coastline in order to anticipate potential sand erosion and flooding issues for improved shoreline management. The proposed title.of the report is: "State of the Newport Beach Shoreline." C. City desires to engage Consultant to research and write the report, and to perform the historical and technical data review necessary. The report is to be written in a user - friendly format for use by the general public and decision- makers. 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 Michael J. . 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 the W' day of December, 2006, 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. PROFESSIONAL SERVICES AGREEMENT WITH MOFFATT & NICHOL FOR PREPARATION OF • A BEACH SAND AND SHORELINE REPORT THIS AGREEMENT is made and entered into as of this 11th day of October, 2005, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and MOFFATT & NICHOL, a California corporation whose principal place of business is 3780 Kilroy Airport Way, Suite 600, Long Beach, California, 90806 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to conduct a study of the City's coastline in order to anticipate potential sand erosion and flooding issues for improved shoreline management. The proposed title.of the report is: "State of the Newport Beach Shoreline." C. City desires to engage Consultant to research and write the report, and to perform the historical and technical data review necessary. The report is to be written in a user - friendly format for use by the general public and decision- makers. 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 Michael J. . 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 the W' day of December, 2006, 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. 0 0 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 C. 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 is In accordance with this Section and the Billing Rate /Payment Schedule, attached hereto as Exhibit B and incorporated herein by reference, the City shall pay Consultant for the services on .a lump sum basis after the tasks denoted in the Billing Rate /Payment Schedule attached hereto as Exhibit B are completed. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Forty-Eight Thousand, Six Hundred and Fourteen Dollars ($48,614.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit 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. 4.2 City shall reimburse Consultant only for those costs or expenses • specifically approved in this Agreement, or specifically approved in 2 advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: • A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the billing rates listed in Exhibit B. 4.4 Notwithstanding any other provision of this Agreement, when payments made by City equal 90% of the maximum fee .provided for in this • Agreement, no further payments shall be made until City has accepted the final work under this Agreement. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Michael J. McCarthy to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Sean • Crumby 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. 3 7 9 Q • 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. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed • by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 . Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature, that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 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 0 all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, • losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and/or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR • It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY • Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. • B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. . C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employee's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work • performed by Consultant for City. 0 0 ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million • dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv.. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance • policy shall be endorsed with the following specific language: L 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. 7 vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either • party except after thirty (30) calendar days written notice has been received by City. 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 The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for • reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written E: 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. 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 ".dva g" _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. F!7 21 22. 23. 24. 25. 0 0 INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, • representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and 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. 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. 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. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. • 10 26. CONFLICTS OF INTEREST 9 • The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Michael Sinacori • Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949- 644 -3315 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Michael J. McCarthy, P.E. Moffatt & Nichol 3780 Kilroy Airport Way, Suite 600 Long Beach, CA 90806 Phone: (562) 426 -9551 Fax: (562) 424 -7489 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 11 steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole • discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach . of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY • If any term or portion of this Agreement is held to be invalid, illegal, or otherwise 12 • • • E 0 unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp Assistant City Attorney ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation M Mayor for the City of Newport Beach RBF CONSULTING: 0 (Corporate Officer) Title: Print Name: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Billing Rate /Payment Schedule Exhibit C — Project Schedule F: \USERS \PB\MShared\Agreements\FY 05-06 \Moffatt & Nichol -Sand Study.doc 13 0 Exhibit A NTOFFATT &.XiC 101, September 22, 2005 City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, CA 92659 -8915 Attn: Mr. Sean Crumby, Associate Civil Engineer 0 Subj: Exhibit A — Scope of Services for Shoreline Data Analyses and Presentation Services Dear Mr. Crumby: Moffatt & Nichol (M &N) is pleased to present this proposal to assist the City of Newport Beach for shoreline technical data analyses and presentation services. The City needs to understand the short- and long -term trends of the shoreline to anticipate potential erosion, flooding, and changes to the beach for improved management. Technical data exist of local shoreline conditions and the City wishes to make them presentable for use by the general public and decision - makers. The City may add the information to their website in the future for ready access to the public. This proposal presents a scope of work, estimated fee, and schedule to prepare the information package for public use. Scope of Work Attend Kick -Off Meeting With City Staff— Meet with City staff to clarify objectives, set direction, formulate the approach, and identify deliverables and the project schedule. The meeting will occur at City offices. 2. Collect and Review Existing Available Technical Shoreline Data — Research and review existing available technical shoreline data. Sources will include the City of Newport Beach, the County of Orange, the U.S. Army Corps of Engineers, and others as appropriate. Data will include historic and existing shoreline processes and conditions, projected shoreline conditions, sediment transport, sediment volume changes, beach profiles and widths, and short- and long -term trends. • • • 0 0 Mr. Sean Crumby • Proposal for Shoreline Data Analyses and Planning, htOFFATTA.�tt:R01. Preparation of a Public Information Package September 22, 2005 Page 2 • • 3. Present the Status of Data Review and a Proposed Public Use Package to the City — Meet with City staff to present the status of technical data review, and a proposed data presentation concept for City consideration. A decision of the specific type of presentation approach will be made at this meeting (for example, a Draft "State of the Newport Beach Shoreline Report"). 4. Prepare a Draft Public Information Package for Shoreline Data — A draft "State of the Newport Beach Shoreline Report" or other similar document will be prepared that summarizes the state of the City's coast, and recommends management actions in a way that can be understood by the general public. It is envisioned to be a user - friendly document that presents information of the shoreline in relatively simple, non - technical terms, yet allows the user to "drill down" into more technical concepts and data sources, if desired. The Report would possess colorful graphic illustrations of concepts and easy - to -read matrices to convey information. It will be crafted to serve as a "living" document that the City. could update and modify over time as new information becomes available or as the local shoreline evolves. The City could review the document and offer suggested modifications for preparation of a final version. 5. Prepare a Final Public Information Package for Shoreline Data — A final "State of the Newport Beach Shoreline Report" or similar document will be prepared based on City comments on the draft version. The Report can be modified in whatever way the City consider necessary for optimization. It would be amenable for use as chard- or electronic copy, and be able to be loaded onto the City's website for broad access. The final report will be submitted as ten hardcopies (with one reproducible master) and 10 CD's. 6. Final Presentation to the City —The document will be presented to the City for dissemination and possible uploading to the City website. MOFF.ATT & NICAnI. Estimated Fee 0 0 Mr. Sean Crumby Proposal for Shoreline Data Analyses and Planning, Preparation of a Public Information Package September 22, 2005 Page 3 The work can be completed for a fee not -to- exceed $48,614 to be billed as a lump sum. The estimated fee by task is provided below. ESTIMATED FEE Proposed Schedule This work can be completed within 6 months or less from Notice -to- Proceed. Thank you for the opportunity to assist the City with this effort and please call Chris Webb of our office with any questions or comments. Sincerely, MOFFATT & NICHOL Michael J. McCarthy, P.E. Vice - President E • 7 TASK Attend Kick -Off Meeting FEE $952 2. Collect and Review Existing Technical Data $13,580 3. Present the Status of Data and a Proposed Public Information Package to the City $1,920 4. Prepare Draft Public Information Package $17,660 5. Prepare Final Public Information Package $11,492 6. Final Presentation to the City $2,260 Reimbursable Exi2enses Wi lea e, xeroxin ,CDs $750 TOTAL Proposed Schedule This work can be completed within 6 months or less from Notice -to- Proceed. Thank you for the opportunity to assist the City with this effort and please call Chris Webb of our office with any questions or comments. Sincerely, MOFFATT & NICHOL Michael J. McCarthy, P.E. Vice - President E • 0 • EXHIBIT B — TABLE OF MANHOURS TASK HOURS HOURLY ; 1 BY Super- BY visor I I $121 TASK 1. Attend Kick -Off $185 2 2 $185 2 $370 $340 $242 $952 Meeting 2. Collect and 8 0 100 $1,480 $0 $12,100 $13,580 Review Existing Technical Data 3. Present the Status 2 2 10 $370 $340 $1,210 $1,920 of Data and a Proposed Public Information Package to the City 4. Prepare Draft 8 24 100 $1,480 $4,080 $12,100 $17,660 Public Information Package 5. Prepare Final 4 12 72 $740 $2,040 $8,712 $11,492 Public Information Package 6. Final Presentation 2 4 10 $370 $680 $1,210 $2,260 to the City Reimbursable Expenses (Mileage, xeroxin ,materials $750 TOTAL n LJ 0 • City of Newport Beach Shoreline Data Analysis and Presentation Services Exhibit C Schedule :Task 1 - Attend Kickoff Meeting with City Staff !Task 2 - Collect and Review Existing Available Technical ,Shoreline Data 6 Task 3 - Present the Status of Data Review and a Proposed Public Use Package to the City 7 :Task 4 - Prepare a Draft Public Information Package for Shoreline Data Task 4A. City Review Period J 10 11 Task 5 - Prepare a Final Public Information Package for .Shoreline Data 13 Task 6 - Final Presentation to the City 14 15 Moffatt & Nichol September 22, 2005 Nov Oct __Dec - . . .... ............. .. . ...... * 10126 10127 11129 + 11130 y. p Ma 311 X.W 3115 * 4/26 • • • E e To the Mayor and the City Council of Newport Beach' (It 05 "RECEIVED AFTER AGENDA PRINTED` At 4-n-OT My name is Hanne R. Parks, Mrs. Robert J. Parks and we live at 1504 S.Bay Front Balboa Island, that is the little Island. In front of our house is a groin a long wooden plank buried deeply into the sand. This groin keeps the sand in front of us nice and high all year long. Clearly one side of the sand is much higher than the other. The grand Canal near us and its flow influences this on the south bay here. Years ago most private piers here had a groin built right under their pier which kept all the little island south beaches high. Since then came new owners who let the groins under their pier rot and they are mostly gone (here and there some pieces are left). Now the beaches down from us are very low in part unusable. Our beach in front is every ones favorite spot all year since the groin keeps the sand so high. Solution on the south. Bay on the little Island, build some groins and we will all have nice beaches within about a year. Do study the groins, the sand is usually higher and piled up on one side Yours Hanne R. Parks z T � f] N J -L (TJ f i JI w o 0