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HomeMy WebLinkAboutC-3610(B) - PSA for Consulting regarding the Landfill Gas Protection System at the Newport Terrace CondominiumsC -3� PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 24th day of March 2005 by and between CITY OF NEWPORT BEACH ( "CITY "), and SCS Engineers whose address is 3900 Kilroy Airport Way, Suite 100, Long Beach, California, 90806 -6816 ( "CONSULTANT "), 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 desires to engage CONSULTANT to perform certain investigations relative to the Coyote Canyon Landfill as specified in Exhibit A ( "Project'). C. The principal member of CONSULTANT is, for the purposes of this Project, Mark B. Beizer, PE. D. CITY has solicited and received a proposal from CONSULTANT, has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to contract with CONSULTANT under the terms of conditions provided 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 March 24, 2005 and shall terminate on June 30, 2005, unless terminated earlier as specified Section 26. 2. SERVICES TO BE PERFORMED CONSULTANT shall diligently perform all the duties specified in the scope of services attached as Exhibit "A." 0 0 3. COMPENSATION TO CONSULTANT CITY shall pay CONSULTANT for the services in accordance with Exhibit B. No rate changes shall be made during the term of this Agreement without prior written approval of CITY. 3.1 CONSULTANT shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 CONSULTANT shall submit monthly invoices to CITY payable by CITY within thirty (30) days of receipt of invoice subject to the approval of CITY and based upon the following payment schedule: invoices to be completed upon completion of each task outlined in Exhibit "K. 3.3 CONSULTANT shall not receive any compensation for extra work without prior written authorization of CITY. Any authorized compensation shall be paid in accordance with Exhibit "B ". 3.4 CITY shall reimburse CONSULTANT only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by CITY. Such costs shall be limited and shall include nothing more than the following costs incurred by CONSULTANT: A. The actual costs of sub - consultants for performance of any of the services which CONSULTANT agrees to render pursuant to this Agreement which have been approved in advance by CITY and awarded in accordance with the terms and conditions of this Agreement. B. 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. STANDARD OF CARE 4.1 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 the community professional standards. All 2 0 0 services shall be performed by qualified and experienced personnel who are not employed by CITY nor have any contractual relationship with CITY. CONSULTANT represents and warrants to CITY that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. CONSULTANT further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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, or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. 5. INDEPENDENT PARTIES CITY retains CONSULTANT as an independent contractor. CONSULTANT is not an 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 cause any of CONSULTANT's employees or agents, to be the agents or employees of CITY. CONSULTANT is responsible for, and has control over the details and means of performing the work, so long as CONSULTANT is compliance with the terms of this Agreement. Anything in this Agreement which may appear to give CITY the right to direct CONSULTANT as to the details of the performance of the services or to exercise a measure of control over CONSULTANT shall mean that CONSULTANT shall follow the desires of CITY only with respect to the results of the services. 6. COOPERATION CONSULTANT agrees to work closely and cooperate fully with CITY's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. CITY agrees to cooperate with the CONSULTANT on the Project. 7. PROJECT MANAGER CONSULTANT shall assign the Project to 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 Project term. CONSULTANT has designated Mark Beizer to be its Project Manager. CONSULTANT shall not remove or reassign any personnel designated in this Section or assign any new 3 or replacement person to the Project without the prior written consent of CITY. CITY's approval shall not be unreasonably withheld with respect to 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. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by CONSULTANT in accordance with any schedule specified in Exhibit "A ". 8.1 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 which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond CONSULTANT's control. 8.2 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. 9. CITY POLICY CONSULTANT will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with CITY goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by CONSULTANT shall conform to applicable CITY, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and CITY. 11. PROGRESS CONSULTANT is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and ►.I progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. INDEMNIFICATION AND HOLD HARMLESS, AND LIENS CONSULTANT shall indemnify, defend (with counsel reasonably acceptable to the party defended), save and hold harmless CITY and its City Council, boards and commissions, officers and employees (collectively City officers) from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of CONSULTANT, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of CITY or City officers, or other contractors, excepting only the active negligence, fraudulent or willful misconduct of CITY and City officers and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting CONSULTANT's indemnification of CITY and City officers, and prior to commencement of work, CONSULTANT shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to CITY. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with CITY prior to exercising any right or performing any work pursuant to this Agreement. 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 Bests Key Rating Guide: unless otherwise approved by the CITY Risk Manager. A. Worker's compensation insurance covering all employees and principals of CONSULTANT, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability (including, without limitation, contractor liability insurance covering CONSULTANT's obligations under Paragraph 12 of this Agreement), in a minimum amount 0 0 of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance. covering any owned and rented vehicles of CONSULTANT in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. 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). CONSULTANT agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, CONSULTANT shall look solely to its insurance for recovery. CONSULTANT hereby grants to CITY on behalf of any insurer providing comprehensive general and automotive liability insurance to CONSULTANT a waiver of any right of subrogation which any such insurer of said CONSULTANT may acquire against CITY by virtue of the payment of any loss under such insurance. 14. . PROHIBITION AGAINST TRANSFERS CONSULTANT shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of CITY. Any attempt to do so without consent of CITY shall be null and void. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of CITY. 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 ^r, 0 responsibility for such changes unless CITY has given. CONSULTANT prior notice and has received from CONSULTANT written consent for such changes. CONSULTANT shall, at such time and in such form as CITY may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by CITY. 17. CITY'S RESPONSIBILITIES In order to assist CONSULTANT in the execution of his responsibilities under this Agreement, CITY agrees to provide access to, and upon request of CONSULTANT, one copy of all existing record information on file at CITY. CONSULTANT shall be entitled to rely upon the accuracy of data information provided by CITY or others without independent review or evaluation. CITY will provide all such materials in a timely manner so as not to cause delays in CONSULTANT's work schedule. 18. ADMINISTRATION This Agreement will be administered by the City Attorney or her designee and the City Attorney shall be considered the Project Administrator and shall have the authority 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. 19. 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. All such records shall be clearly identifiable. CONSULTANT shall allow a representative of CITY to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS CITY may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to 7 • • 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 designee with respect to such disputed sums. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by CONSULTANT, the additional design, construction and /or a 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. 22. CONFLICTS OF INTEREST A. 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 when it is reasonably foreseeable that interest could be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making decisions when it is reasonably foreseeable that the participation could materially affect such interest. B. If CONSULTANT is 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 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. 23. NOTICES All notices, demands, requests or approvals to be given under 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 notices, demands, requests or approvals from CONSULTANT to CITY shall be addressed to CITY at: Robin Clauson City Attorney City of Newport Beach D 24. 0 0 3300- Newport Boulevard (949) 644 -3131 FAX (949) 644 -3139 All notices, demands, requests or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: Attention: Mark Bezier SCS Engineers 3900 Kilroy Airport Way, Suite 100 Long Beach, CA 90806 -6816 Tel: 562 - 426 -9544 Fax: 562- 427 -0805 TERMINATION In the event 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 the default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting parry fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice. CITY shall have the option, at its sole discretion and without cause, of, terminating this Agreement by giving seven (7) days' prior written notice to CONSULTANT. Upon termination of this Agreement, CITY shall pay to the CONSULTANT that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 25. 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. 26. INTEGRATED CONTRACT This Agreement represents the full and nature whatsoever between the Parties and agreements of whatsoever kind o agreement or implied covenant shall b ecomplete understanding of every kind or hereto, and all preliminary negotiations r nature are merged herein. No verbal held to vary the provisions herein. Any modification of this Agreement will be effective only by written execution signed by both CITY and CONSULTANT. 27. PATENT INDEMNITY The CONSULTANT shall indemnify CITY, its agents, officers, representatives and employees against 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM AND CONTE Ro in Clauson, City Attorney AV - ATTEST: CITY OF NEWPORT BEACH A Municipal Corporation By: Homer Bludau City Manager r CONSULTANT / r , B L �, By: LaVonne Harkless City Clerk se-,lZ e �, V /� F:\users\cat\shared\burnham\jwa\acq\coyote\agcoyoteSCS022205 10 0 EXHIBIT A March 30, 2005 File No. 01203269.00 Ms. Robin Ciauson City Attorney City of Newport Beach P.O. Box 1768 Newport Beach, California 92658 -8915 Attention: Bob Burnham 0 Subject: Revised Proposal for Services. Coyote Canyon Landfill. Environmental Due Diligence Dear Ms. Clauson: Pursuant to discussions at January 19 and March 2 (with Arcadis) meetings at the offices of Rutan & Tucker, attended by Bob Burnham of the city, this letter constitutes a proposal for SCS Engineers to provide consulting services to the City of Newport Beach. The work involves performing aspects of a due diligence effort for the City's use in considering acquisition of the Coyote Canyon Landfill. The site is currently owned by The Irvine Company (TIC), which has operations, maintenance, and lease agreements with the County of Orange Integrated Waste Management Department (County) and Gas Recovery Systems, Inc. (GRS). SCS had been performing related services for the City under subcontract to the law firm of Greenberg Traurig. SCS is in the process of closing out the Greenberg contract. It is understood that SCS will be working with the City's outside counsel, Rutan & Tucker, as well as Arcadis. Our work will focus principally on the GRS energy project and facilities, although we will be involved in team discussions which may consider other aspects of the site. The new work would involve the following activities: Task 1. Evaluation of the Methane /Energy Producing Capacity of the Landfill, Including the Existing Co- Generation Plant on the Landfill The purpose of the task is to evaluate the long term economic and technical viability of the existing landfill gas fired power plant at the Coyote Canyon Landfill. The evaluation will consider regulatory and power market conditions, the terms of the 0 0 existing contract between GRS and SDG &E, and the physical condition of the power plant and the well field. The principal question to be addressed is how long the plant will continue to operate. The question is relevant to the acquisition of the landfill, since the revenues produced by the power plant cover the operation /maintenance cost of the landfill gas collection system, and provide a royalty payment to the property owner. SCS will conduct a review of the following issues /considerations • Prepare a projection of recoverable landfill gas over the next 30 years. • Prepare an overview assessment of the condition of the power plant, with the specific goal of identifying mechanical and electrical problems that could lead to a shortened plant life. • Project plant and well field operation /maintenance cost over the next 15 years. • Project power sales rates and power sales revenues over the next 15 years. • Prepare a primary pro forma and alternative pro formas to forecast project economic viability over a 15 -year timeframe. • Conduct a regulatory compliance review of air and wastewater, specific to the GRS/ powerplant operations (i.e., landfill compliance will be addressed by Arcadis or others). SCS will visit the power plant and will collect information on power plant and well field performance (the latter will be specific to the energy project, not to landfill environmental compliance). Information on operation /maintenance costs will be collected. If the power plant owner chooses to not divulge information on operation /maintenance cost, SCS will estimate those costs. The time span on which the analysis will be performed will be adjusted based on the likely duration of economically recoverable quantities of gas. We currently assume that it will be no more than 15 years. As our work proceeds and actual data are evaluated, we can extend the analysis if it would be of value to the city. We will identify potential options available to the city after the plant ceases operation, but will not perform extensive analysis on such options. (The base case post -plant scenario will be operation of a flaring system, the cost of which will be estimated under Task 2.) SCS will prepare a report, documenting its work and conclusions. Task 2. Evaluation of Operational Costs of Coyote Canyon Landfill With and Without GRS As part and parcel of its evaluation of the methane /energy producing capacity of the Landfill, SCS is to review and evaluate the tasks and costs associated with the continued monitoring and maintenance of the Coyote Canyon Landfill, presently and into the future. The evaluation of the tasks and costs involved in maintaining the Landfill, in accordance with the Post - Closure Maintenance Plan, is to be conducted under two scenarios. First, SCS will assume that GRS will continue to operate the Gas Recovery System and the Co- Generation Plant on the Site. Second, SCS will assume that GRS is no longer operating on the Landfill, and that no Co- Generation Plant is in operation. Costs for operations, monitoring and maintenance will be estimated for a period of 30 years. Task 3. Peer Review of Arcadis' Evaluation of Compliance With Post - Closure Plan Requirements of the Landfill; Consultations and Meetings SCS will conduct a peer- review of Arcadis' analysis of the "operational" requirements of the Landfill (to be conducted as part and parcel of Arcadis' Landfill Evaluation and Assessment Scope of Work). SCS will issue a report documenting its work and its conclusions. SCS will be also available on a time and materials basis to meet with the city, its counsel and consultants, and other parties as may be appropriate to coordinate and advance the project. ESTIMATED FEE AND SCHEDULE Our estimated cost to complete the work described herein: Task Estimated Fee Task 1. Economic Evaluation of GRS Plant and LFG Recovery System $15,000 Task 2. Evaluation of Operational Costs 8,000 Task 3. Peer Review and Project Consultations 6,000 Total Fee $29,000 SCS looks forward to continuing our assistance to the City on the Coyote Canyon project, and we hope this proposal addresses the City's needs. Please advise us how you wish to proceed. If you have questions about this proposal, please call. Sincerely, smcerery, Mark B. Be' r E. Vice Preside Mark B. Beizer, P.E. Vice President SCS ENGINEERS MBB /jml cc: Richard G. Montevideo 0 0 EXHIBIT B COYOTE CANYON DUE DILIGENCE SERVICES FEESCHEDULE (Effective July 1, 2004, through June 30, 2005) 1. SCS will be compensated for time and materials in accordance with the hourly rates shown below. Total compensation will not exceed $29,000 without the approval of the City of Newport Beach Principal.................................................................. ............................... $195 ProjectDirector., ........................................................................... ........... 175 Certified Industrial Hygienist ....... ..............................: ............................150 Senior Technical Manager ............ ............................... ............................150 ProjectManager ............................ ............................... ............................135 Senior Professional ....................... ............................... ............................115 Project Professional ...................................................... ......:......................95 Superintendent.............................................................. .............................90 Staff Professional .......................................................... .............................80 Project Administrator .................................................... .............................70 Operator........................................................................ .............................85 Senior Engineering Technician ..................................... .............................70 Designer/Drafter ........................................................... .............................70 Administrative / Secretarial .......................:.................... .............................55 Technician..................................................................... .............................55 Laborer.......................................................................... .............................50 General Terms 1. Scheduled rates are effective through June 30, 2005. Work performed thereafter is subject to a new Fee Schedule. 2. Scheduled labor rates include overhead, administration, and profit. Costs for outside consultants and subcontractors, and for job - related employee travel and subsistence, reproduction, telephone, equipment, and supplies are billed at actual cost. 3. Company trucks are invoiced at $50.00 for up to a half day of use (less than four hours) or $100.00 for up to a full day (company cars at $40/$80), including up to 100 miles of use. A surcharge of $0.15 per mile is applied for over 100 miles of use per day. Employee private vehicles are charged at $0.405 per mile. 4. Mark Beizer will be billing as a principal. 0 0 0-- 3e10ca) PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this 6�lt day of 2003, by and between CITY OF NEWPORT BEACH, a California Charter City ( "CITY "), and SCS Engineers whose address is 3711 Long Beach Boulevard, Ninth Floor, Long Beach, California, 90807, California, ( "CONSULTANT"), 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 desires to engage CONSULTANT to perform a due diligence investigation to determine the integrity and operational status of an existing landfill gas collection and control system operated by the Newport Condominium Association ( "ASSOCIATION ") at the Newport Condominium Landfill (the "PROPERTY ") and upon the terms and conditions contained in this Agreement ( "Project "). C. The principal members of CONSULTANT, are for purpose of this Project, are Mark B. Beizer, PE and Michael D. Geyer, PD, CIH, CSP. D. CITY has solicited and received a proposal from CONSULTANT, has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to contract with CONSULTANT under the terms of conditions provided 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 26`" day of March, 2003, and shall terminate upon completion of CONSULTANT's services pursuant to the Agreement, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 0 9 CONSULTANT shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" attached hereto and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT CITY shall pay CONSULTANT for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of CITY. CONSULTANT's compensation for all work performed in accordance with this Agreement, including costs, fees, and incidental expenses, shall not exceed the total contract price of eighty thousand dollars plus ($80,000.00) plus a five percent (5 %) contingency of four thousand dollars ($4,000.00). 3.1 CONSULTANT shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. Consultant shall provide, with each invoice to CITY, the total amount billed and remaining within each task. 3.2 CONSULTANT shall submit monthly invoices to CITY payable by CITY within thirty (30) days of receipt of invoice subject to the approval of CITY and based upon the following payment schedule: invoices to be completed upon completion of each task outlined in Exhibit 'W'. 3.3 CONSULTANT shall not receive any compensation for extra work without prior written authorization of CITY. Any authorized compensation. shall be paid in accordance with Exhibit "B ". 3.4 CITY shall reimburse CONSULTANT only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by CITY. Such cost shall be limited and shall include nothing more than the following costs incurred by CONSULTANT: A. The actual costs of subCONSULTANTs for performance of any of the services which CONSULTANT agrees to render pursuant to this Agreement which have been approved in advance by CITY and awarded in accordance with the terms and conditions of this Agreement. B. 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. 2 • 0 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, CITY may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 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 the 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. CONSULTANT represents and warrants to CITY that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. CONSULTANT further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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 or governmental agencies, or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. 5. INDEPENDENT PARTIES CITY retains CONSULTANT on an independent Consultant basis and CONSULTANT is not an 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 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 details in means of performing the work provided that CONSULTANT is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give CITY the right to direct CONSULTANT as to the details of the performance of the services or to exercise a measure of control over CONSULTANT shall mean that CONSULTANT shall follow the desires of CITY only with respect to the results of the services. 3 • 0 6. COOPERATION CONSULTANT agrees to work closely and cooperate fully with CITY's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. CITY agrees to cooperate with the CONSULTANT on the Project. 7. PROJECT MANAGER CONSULTANT shall assign the Project to 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 Project term. CONSULTANT has designated Michael D. Geyer to be its Project Manager. CONSULTANT shall not bill any personnel to the Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without CITY's prior written approval by name and specific hourly billing rate. CONSULTANT shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of CITY. CITY's approval shall not be unreasonably withheld with respect to 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. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by CONSULTANT in accordance with the schedule specified in Exhibit "A ". The failure by CONSULTANT to strictly adhere to the schedule, may result in termination of this Agreement by CITY, and the assessment of damages against CONSULTANT for delay. Notwithstanding the foregoing, CONSULTANT shall not be responsible for delays which are 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. 8.1 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 which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant 0 0 reasonable time extensions for unforeseeable delays, which are beyond CONSULTANT's control. 8.2 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. 8.3 The CONSULTANT waives any right to bring a claim for additional payment due to project delay. CONSULTANT's sole remedy in such a case is the extension of the performance period. 9. CITY POLICY CONSULTANT will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with CITY goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by CONSULTANT shall conform to applicable CITY, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and CITY. 11. PROGRESS CONSULTANT is responsible to keep the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. INDEMNIFICATION AND HOLD HARMLESS, AND LIENS CONSULTANT shall indemnify, defend (with counsel reasonably acceptable to the party defended), save and hold harmless CITY, its CITY Council, boards and commissions, officers and employees, and also the Newport Condominium Association ( "ASSOCIATION "), its directors, officers, members, agents and representatives from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of CONSULTANT, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of CITY or the ASSOCIATION, or their employees, or other contractors, excepting only 5 0 0 the active negligence or willful misconduct of CITY or the ASSOCIATION, their officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. CONSULTANT shall not suffer or permit to be enforced against the PROPERTY that is the subject of CONSULTANT's work under this Agreement, or any part thereof, any mechanics', materialmen's, contractors' or subcontractors' liens or any related lien claim for damages arising from CONTRACTOR's performance under this Agreement. CONSULTANT shall pay or cause to be paid all such liens or claims before any enforcement action is brought. CONSULTANT agrees to indemnify, defend (with counsel reasonably acceptable to the party defended) and hold the CITY or the ASSOCIATION, their members, and the property of the ASSOCIATION and its members (including the PROPERTY) free and harmless from all liability for any and all such liens and claims related to CONTRACTOR's performance under this Agreement, together with reasonable attorneys' fees and all costs and expenses incurred in connection with such lien claims. CONSULTANT hereby waives its right to. assert and /or record a mechanics' or materialmen's lien against the ASSOCIATION, its members' property (including the PROPERTY), or any portion thereof. 1.3. INSURANCE Without limiting CONSULTANT's indemnification of CITY and the ASSOCIATION, and prior to commencement of work, CONSULTANT shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to CITY and the ASSOCIATION. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with CITY and the ASSOCIATION prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add CITY, its elected officials, officers, agents, representatives and employees, and also the ASSOCIATION, its directors, officers, members, agents and representatives, as additional insured for all liability arising from CONSULTANT's services as described herein. 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 Bests Key Rating Guide: unless otherwise approved by the CITY Risk Manager. h V 0 0 A. Worker's compensation insurance covering all employees and principals of CONSULTANT, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability (including, without limitation, contractor liability insurance covering CONSULTANT's obligations under Paragraph 12 of this Agreement), in a minimum amount of two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and properly damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of CONSULTANT in a minimum amount of two million dollars ($2,000,000) combined single limit per accident for bodily injury and property damage. D. 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). Said policy or policies shall be endorsed to state that coverage shall not be canceled by CONSULTANT, except after thirty (30) days' prior notice has been given in writing to CITY and the ASSOCIATION. CONSULTANT shall give CITY and the ASSOCIATION prompt and timely notice of claim made or suit instituted arising out of CONSULTANT's operation hereunder. 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. CONSULTANT agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, CONSULTANT shall look solely to its insurance for recovery. CONSULTANT hereby grants to CITY and the ASSOCIATION, on behalf of any insurer providing comprehensive general and automotive liability insurance to CONSULTANT, the CITY, or the ASSOCIATION, with respect to the services of CONSULTANT herein, a waiver of any right of subrogation which any such insurer of said CONSULTANT may acquire against CITY or the ASSOCIATION by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS CONSULTANT shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, 7 directly or indirectly, by operation of law or otherwise without prior written consent of CITY. Any attempt to do so without consent of CITY shall be null and void. 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, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of CITY. 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. CONSULTANT shall, at such time and in such form as CITY may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by CITY. 17. CITY'S RESPONSIBILITIES In order to assist CONSULTANT in the execution of his responsibilities under this Agreement, CITY agrees to provide the following: A. Access to, and upon request of CONSULTANT, one copy of all existing record information on file at CITY. CONSULTANT shall be entitled to rely 11 0 upon the accuracy of data information provided by CITY or others without independent review or evaluation. CITY will provide all such materials in a timely manner so as not to cause delays in CONSULTANT's work schedule. B. Blueprinting, CADD plotting, copying and other services through CITY's reproduction company for each of the required submittals. CONSULTANT will be required to coordinate the required submittals with CITY's reproduction company. All other reproduction will be the responsibility of CONSULTANT and as defined above. C. Street base digital file in AutoCAD (DXF) compatible format. 18. ADMINISTRATION This Agreement will be administered by the General Services Department and David E. Niederhaus shall be considered the Project Administrator and shall have the authority 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. 19. 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. All such records shall be clearly identifiable. CONSULTANT shall allow a representative of CITY to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS CITY may withhold payment 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. Nor shall such withholding give rise to any mechanics' or materialmen's lien against the ASSOCIATION's or its members property, including the PROPERTY. CONSULTANT shall have an immediate right to appeal to the CITY Manager or his designee with respect to such disputed sums. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of seven percent [7 0 0 (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions. in the work accomplished by CONSULTANT, the additional design, constrution and/or a 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. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS CITY reserves the right to employ other CONSULTANTs in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 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. B. 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 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. . 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of CITY. 25. NOTICES All notices, demands, requests or approvals to be given under 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. T All notices, demands, requests or approvals from CONSULTANT to CITY shall be addressed to CITY at: David E. Niederhaus, Director General Services Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3057 Fax (949) 650 -0747 Copy to: Robin L. Clauson, Assistant City Attorney Office of the City Attorney 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3131 Fax(949)644 -3139 All notices, demands, requests or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: Michael D. Geyer SCS Engineers 3711 Long Beach Boulevard, Ninth Floor Long Beach, CA 90807 -3315 Each party shall provide a courtesy copy of all notices, demands, requests or approvals to the ASSOCIATION, at: Thomas Bois Bois & Macdonald 2030 Main Street, Suite 520 Irvine, CA 92614 (949)660-0011x.20 Fax(949)660-0022 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure 11 • such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 CITY shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to CONSULTANT as provided herein. Upon termination of this Agreement, CITY shall pay to the CONSULTANT that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 12 i 27. COMPLIANCES 0 CONSULTANT shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by CITY. 28. 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. 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. Any modification of this Agreement will be effective only by written execution signed by both CITY and CONSULTANT. 30. CADD DELIVERABLES CADD data delivered to CITY shall not include the professional stamp or signature of an engineer or architect. 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. 13 31. PATENT INDEMNITY The CONSULTANT shall indemnify CITY, its agents, officers, representatives and employees against 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM AND CONTENT: i Robih Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: < I Ll LgVonne Harkless City Clerk CITY OF NEWPORT BEACH A California Charter Cit By: Steve Bro berg,yor for the City of Ne ort Beach CONSULTANT By: F:\users\cat\shared\da\Projects\NewportTerraceLandfill\ProfServAgt.doc 14 Environmental Consultants February. 27, 2003 File No. 01201221.01 • 3711 Long Beach Boulevc Ninth Floor Long Beach, CA 90807 -3315 562 426.9544 FAX 562 427.0805 www.scsengineers.com FEB % 8 2003 Ms. Robin Clauson cir op`oas-'aFpcx Assistant City Attorney City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92658 -8915 Subject: Revised Proposal For Services — Investigation and Assessment of the Landfill Gas Protection System, Newport Terrace Condominiums Dear Ms. Clauson: Pursuant to our discussions, this letter constitutes a revised proposal for SCS Engineers (SCS) to further investigate the landfill gas (LFG) collection and control system at the subject condominium complex. This effort will focus on a system -wide integrity assessment, specifically flow testing principal LFG components at 13 locations where header pipes connect to extraction well laterals, the extraction wells, and interconnection (trench) piping surrounding the larger landfill area. The attached figure shows the 13 locations that are addressed in the scope of this investigation. If it can be demonstrated that the extraction wells and major collection system components still have integrity, then additional efforts can focus on the vacuum distribution network (e.g., the main below -grade header pipes), the system blower, etc. However, if major system components are no longer functional, then it can be assumed that other system components may also lack integrity and a new LFG collection and control system for the site is probably necessary. It is anticipated that this work can be accomplished by excavating intersections of header and laterals, testing and inspecting the pipes at these locations (where possible), and replacing and/or. repairing isolation valves where warranted. Some locations to be excavated are readily accessible and :others are not. Accessibility will be further determined during the development of the work plan (Task. 1). Pipe condition may be assessed with a cabled video camera. Pressure and flow testing of extraction wells will be accomplished using portable blowers, with gas exhausted through carbon canisters to minimize odors. Our proposed scope of work is described in detail below. Assumptions are also described in the following. narrative. The effort is divided into. four tasks. Task No. 2 is further divided into two phases, which include several sub -tasks during each phase. Each (excavation and testing) phase is color -coded on the figure. Phase 1 will assess eight locations throughout the site, six of which include significant system components and two other locations within the site that may provide additional relevant data. Phase 2 includes four locations specifically within the rubble fill area: The sequence of the phases has been planned to assess major components first; followed by those components that effect smaller portions of the site. However, during Phase 1 work efforts, if it is determined that most major system components lack substantial integrity, it maybe decided that no additional investigation is warranted, and the assessment may stop. At that point, Task No. 4 would be initiated. � IT � .A �Xl��� Offices Nationwide a �' ! • 31. PATENT INDEMNITY The CONSULTANT shall indemnify CITY, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in CONSULTANTs drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM AND CONTENT: Robin Clauson, Assistant City Attorney for the City of Newport Beach . ATTEST: By: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A California Charter City By: Steve Bromberg, Mayor for the City of Newport Beach CONSULTANT 22 14 0 Ms. Robin Clauson February 27, 2003 Page 2 Task No. 3 includes an assessment of a separate group of LFG extraction wells along the eastern site. boundary. Task No. 3 will be performed regardless of the progress of Task No. 2. TASK 1 —WORK PLAN DEVELOPMENT AN APPROVAL Based on the number of interested parties, SCS will develop a comprehensive work plan that describes in detail the work being performed at each location, goals, proposed schedule, and anticipated inconveniences to site residents. SCS anticipates communicating the work plan to residents via the homeowners association (HOA) and has allocated time for a meeting with the HOA and their representatives. SCS also proposes. to provide the work plan to staff of the Orange County LEA and the State CIWMB. Although their advance approval is not strictly required, we believe it in the interest of a smooth project to keep those agencies informed. Moreover, we do not expect their review to result in a change to our work plan. TASK 2 — EXCAVATION, SYSTEM COMPONENT TEST, AND RESTORATION The locations selected for excavation, assessment and testing are divided into two groups, or phases. It is anticipated that each phase will proceed consecutively, i.e., Tasks 2a through 2e for Phase 1, then Tasks 2a through 2d for Phase 2. However, if the assessment begins to yield favorable data (i.e., most system components appear to have integrity and system vacuum can be restored), the progress may be accelerated and efforts may begin to do the phases concur- rently. If, however, the assessment begins to yield data that reflects a loss of integrity of major system components, the entire investigation may stop. The following narrative details the effort proposed in each task, for each phase of this investigation. Task 2a — Locating and Clearing Excavations At each location, underground site utilities will be identified and the excavation locations/ methods will be modified as necessary. If warranted, geophysical testing maybe performed before excavating to locate buried LFG system components — one day of testing (ground penetrating. radar) is assumed. Near the landfill perimeter, some vegetation may need to be cleared ;to facilitate access. However; cost for removal of large shrubs and /or trees is not provided for within this proposal. Task.2b Excavate System Piping At each location, header connections will be excavated. It is anticipated that each excavation will be approximately Oft by 4-ft and 3 -ft deep and not encounter obstructions that would limit the excavation; no shoring or bracing,is expected. SCS will be responsible for repairs or modifications to landscape irrigation systems to accommodate the excavations. Soil will be stockpiled on site. Lighted barriers will be erected to protect residents from open excavations. Ms. Robin Clauson February 27, 2003 Page 3 Specifically during Phase 2, a traffic control plan will be developed, traffic-rated covers will be used where appropriate, and lighted barricades will be placed in the street during the investigation of system components within the Rubble Fill Area. Task 2c— Testing and Inspection At piping intersections, connections and valves will be cut loose from header piping. Video inspection of the pipes will take place if access is available. Control/isolation valves will be installed and /or repaired where appropriate and monitoring ports will be installed upstream and downstream of each valve to measure vacuum. We assume existing system piping to be 6-in PVC or smaller.. Once isolation valves are in place, pressure and flow testing will be performed with a portable blower unit. The blower will also be used to provide a vacuum to LFG collection system components (e.g., wells and sand trenches) in an attempt to detemiine the integrity and utility of collection components. Individual extraction wells will not be accessed; however, the common lateral pipe connecting several wells will be (tested). Parameters tested will include: • Pipe Tests — Openness, flow, pressure integrity, occlusions, and fluid entrapment in settled areas. • Measured vacuum in soils near LFG collectors. • LFG composition and indicators of atmospheric intrusion/short- circuiting Task 2d Backfill. Compaction and Restoration As Task 2c progresses and is completed, excavations will be backfilled and compacted as soon as practical. Certified compaction is not provided for in this proposal. SCS will attempt to mini- mize the number of excavations open at any one time. At this time, it is not anticipated that any concrete cutting and /or patching is necessary in hardscape areas, with the exception of asphalt cutting and repair in Phase 2 within the Rubble Fill Area. Task 2e — Progress Report Summary A brief progress report will be prepared summarizing the findings of the investigation after Phase 1. This report will summarize observations in a matrix - format for each location, and include results of: • Pipe tests. • Vacuum in soils. • Gas characteristics. After Phase 2, the final report will be prepared (see Task 4). 0 Ms. Robin Clauson February 27, 2003 Page 4 TASK 3 — FLOW TEST OF EAST SITE BOUNDARY Concurrently with Phase 1 effort, an extended flow test will be performed on the three east boundary extraction wells: W -101, W -102, and W -103. During Task No. 2b - Phase 1 exca- vation efforts, the lateral connecting wells W -101 through WA 03 will also be excavated to accommodate the,test/flow equipment This test will be performed for approximately 24 hours, during which time.:pressure and methane will be periodically measured at existing monitoring probes in the area. This test is designed to evaluate the effectiveness of the three extraction wells at controlling. LFG migration from the landfill into adjacent off -site areas. The goals of this test include: reducing methane concentrations in the wells and increasing vacuum in perimeter monitoring probes. SCS requests the HOA's and City's assistance in gaining access to monitoring probes located in the residential community adjacent to the site, in Costa Mesa. TASK 4 — DATA COMPILATION AND REPORT OF FINDINGS After Task 2 and Task 3 are complete, SCS will compile the data and prepare a report of find- ings. The report will be submitted to the City within 2 weeks of completing all field work. ASSUMPTIONS We assume that: • AII, City permits and construction fees will be waived. . • The HOA and their representatives, e.g., Bryan A. Stirrat Associates (BAS), will cooperate with SCS, to include: site access, coordination and cooperation, providing historical information, site assistance, etc. • Work can be performed during normal work hours,-i.e, Monday through Friday, 8:00 a.m. to 5:00 p:m. An attempt will be made to perform those activities that create the most noise and /or nuisance near the middle of the day, and not first thing in the morning; especially at locations close to site structures. However, most of the anticipated locations are near at least one site structure. • Access can be readily provided. If access is limited, special equipment may be required. In locations that have significant access restrictions, excavation may require hand- digging and hand- backfilling. In these situations, additional time and expenses may be necessary that are not currently provided for in this proposal. Weather conditions will be favorable during the all construction efforts and the buried pipe connections, as identified on the attached drawing, can be reasonably located. • Utility (electrical'and water) service will be available, and provided and paid for by the HOA. Y" Ms. Robin Clauson February 27, 2003 Page 5 PROPOSED FEE AND SCHEDULE For each task, the estimated fee and schedule is listed below: Task SCS Engineers Contractors & Supplies Duration Task 1 $5,500 $0 4 weeks Task 2a $5,500 $2,000 1 week Task 2b $4,500 $10,000 2 weeks . Task 2c $13,500 $6,000 2 weeks Task 2d $4,500 $16,000 1 week Task 2e $2,500 $0 Included Task 3 $5,000 $2,000 Included Task 4 $3,000 $0 .2 weeks Subtotal $44,000 $36,000 3 months TOTAL ESTIMATED FEE: $80,000 Note: Three months may be an optimistic schedule given the number of interested parties and the potential for each to review and comment on the work plan, provide suggestions for alter- native approaches, communications between parties, etc., and finalize an agreement prior to initiating the work effort. Moreover, the fees listed above for each task are representative of the entire project with all tasks being performed in conjunction with one another. The fees and work efforts cannot be separated into individual projects without revising the fee upwards to account for separate management, administrative and mobilization costs. We propose that SCS be compensated on a time and materials basis in accordance with the standard SCS Engineers Fee Schedule (copy enclosed). Invoices prepared by SCS will identify expenditures on a monthly basis and remaining, balance of authorized. funds. The principal contact for this project will continue to be our Project Manager, Michael Geyer, who will bring support staff, SCS Field Services (our in -house construction subsidiary, who specializes in landfill construction efforts) and other subcontractors, equipment, and technical specialists into the project as appropriate. If this proposal meets with your approval, the work can be executed under the 'terms and conditions set forth in an agreement, with this proposal incorporated therein, executed between . SCS and the City. This proposal is valid for a period of 60 days from the date shown above. q6 Ms. Robin Clauson February 27, 2003 Page 6 If there are any questions regarding this submittal, please direct them to either of the under- signed. regards, Michael L\Peyer, PE, CIH, CSP Project Mahager r Mark B. Beizerizer, , E Vice President SCS ENGINNE MDG/MBB/jml J =0 mlo ED ED E:l 0 Ell -KprtA �� MI. p7 0 29 9 4% to* suu°mxxK W. L! 11 tiw ul If 6 Ir l'- -27 f Im WJ Q w w-12 r. b, G c c) UNDEVELOPED LAND L,EOEND EXISTING VERTICAL 0 EXISTING WON-COMPLIANCE GAS EXTRACTION WELL GAS MONITORING PROBE o EXISTING COMPLIANCE GAS -BELOW-GRADE HEADER NEW MONITCOMPLIANCE GAS ORING PROBE `- ABOVE - GRADE HEADER MONITORING PROBE HEADER VALVE OP oa 11 BALBOA BLVD SCALE: V=150' SOURCE: BRYAN A. STIRRAT & ASSOICATES. NEWPORT TERRACE CONDOMINfUM COMPLEX. 212000 9- • =0 tmo . ED ED 0 LJ ED 4 l — "M I1 .,• _ !'. wort �r °Flrt ' lea 25 t Wansww a. rt \ a. ff wuEW�wx a. 1 '_I t'a -e 11t W~ W AArr a4 rs-tJ .1 a I�— 48 aB pp I 56 LEGEND UNDEVELOPED LAND 4 EXISTING VERTL & 0 EXdNG NON - COMPLIANCE GAS EXTRACTION WELL GAS MONITORING PROBE m EXISTING COMPLIANCE GS - -BELOW -GRADE HEADER MWORING. PROBE -ABOVE -GRADE HEADER NEW O MONITORING PROM HEADER VALVE 9 F J �y �ev BALBOA'BLVD SCALE: 1" =150' SOURCE: BRYAN A. STIRRAT 8 ASSOICATES, NEWPORT TERRACE CONDOMINIUM COMPLEX, 2/2000 Location of Prooposed Excavations. . L i wo r , xflV �eaxwxr uc O Q E:) U ED 0 — Y' - v-» [J It r - - - - - - - err. a. q a OP SCALE: 1" =150' SOURCE: BRYAN A STIRRAT d ASSOICATES, NEWPORT TERRACE CONDOMINIUM COMPLEX. W2090 Location of Prooposed Excavations. .c, If f I • KI se io „ W (21 zi UNDEVELOPED LAND LEGEND EXISTNG VERTICAI. o EXISTING NON- COMPLI"E GAS EXiRACT10N WELL - GAS MONITORING PROBE ® EXISTING COMPLIANCE GAS - -BELOW -GRADE HEADER MONITORING PROBE NEW O — ABOVE -GRADE HEADER MONITDRINNGGPROBE -: HEADER VALVE SCALE: 1" =150' SOURCE: BRYAN A STIRRAT d ASSOICATES, NEWPORT TERRACE CONDOMINIUM COMPLEX. W2090 Location of Prooposed Excavations. .c, If f I • KI Sao ttiV �._� _ slkvFw solve w -1� u� - 6'() einmfa a. sf_ M1�...rsT 04 o(i_ 9NWFfl'(WY. R.. 1 1 \ J 'I NT w 1 t 0 u.- � b N iF— —Lp _ t{ L E G E N10 UNDEVELOPED LAND B A L B O A B L V D EXISTING VERTICAL 0 EXEMG NON—COMPLIANCE GAS EXTRACTION WELL - GAS MONITORING PROBE SCALE: 1" =150' a EXISTING COMPLMCE GAS - -BELOW —GRADE HEADER MONITORING PROBE -- ABOVE_GRADE HEADER © NEW COMPLIANCE GAS - SOURCE: BRYAN A. 3TIRRAT & ASSOICATES, NEWPORT TERRACE MONITORING PROBE ^HEADER VALVE CONDOMINIUM COMPLEX, 200e Location of Prooposed Excavations. 0 • wo unu _E:l El ED 0 F II �mo U - 7 C-31 BALBOA BLVD SCALE: 1"=150', SOURCE: BRYAN A. STtRRAT & ASSOICATES. NEWPORT TERRACE C:ONDOWNPJM COMPLEY, 2MM •- 0 i UNDEVELOPED LAND LEGEND EXISTING VERTICAL 0 EXISTING NON - COMPLIANCE GAS EXTRACTION WELL GAS MONITORING PROBE EXISTING COMPLIANCE GAS - - BELOW-GRADE HEADER MONITORING PROBE 00 NEW COMPLIANCE GAS ABOVE-GRADE HEADER MONITORING PROBE HEADER VALVE C-31 BALBOA BLVD SCALE: 1"=150', SOURCE: BRYAN A. STtRRAT & ASSOICATES. NEWPORT TERRACE C:ONDOWNPJM COMPLEY, 2MM •- 0 i .1 W --3 =0 P:w 0 Jb cl:-13 V u- UNDEVELOPED LAND LEGEND EXISTING VERTICAL 0 EXISTMG NON—COMPLIANCE GAS EXTRACTION WELL GAS MOMORING PROBE EXISTING COMPLIANCE GAS -- — BELOW—GRkDE HEADER MONITORING PROBE —ABOVE —GRADE HEADER @NEW COMPLIANCE GAS HEADER VALVE 'MONITORING PROBE B A L B O A B L V D SCALE: 1'=150' SOURCE: BRYAN A. STIRRAT & ASSOICATES, NEWPORT TERRACE GONDOMINWM COMPLEX, 212OW Location of Prooposed Excavations. l* 0 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT MAR 1 � 2003 Agenda Item No. 8 March 25, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: General Services Department David E. Niederhaus, Director (949) 644 -3055 email dniederhaus @city.newport- beach.ca.us Office of the City Attorney Robin Clauson, Assistant City Attorney (949) 644 -3131 email: rclauson @city.newport- beach.ca.us SUBJECT: Newport Terrace Landfill Gas Issue ISSUE: City participation in the investigation and assessment of the operation and integrity of the Landfill Gas Protection System at the Newport Terrace Condominium site. RECOMMENDATIONS: 1. Approve the attached Cooperation and Cost Sharing Agreement for the preliminary investigation of the Newport Terrace Landfill site. 2. Approve the attached budget amendment for $75,595 for the City's share of the system investigation,. and future legal assistance and landfill engineering expertise, related to the Newport Terrace Landfill site. 3. Approve the attached Professional Services Agreement with SCS Engineering and the City of Newport Beach. DISCUSSION: Background: The Newport Terrace Condominium Development is located on a 41 -acre property that was altemately used as a sand and gravel pit and a City landfill.from 1953 to 1967. The property is within the City boundaries bordered by 190 Street and the Talbert Marsh, (see attached map). In the early 1970s Leadership Housing Systems (LHS) processed entitlements to build 280 condominiums over and around portions of the landfill. As a condition to the Newport Terrace Landfill Gas Issue March 25, 2003 Page 2 development approval, LHS was required to comply with Califomia Water Quality Control Board requirements to control and monitor methane gas produced by the closed City landfill. During the 1970s,. LHS installed a landfill gas migration control and monitoring system ( "System ") to mitigate subsurface migration of gas from the landfill. The System was turned over to the Newport Terrace Homeowners Association ( NTHOA) to operate and maintain. In the past ten years, the NTHOA has received numerous notices from the Orange County Health Care Agency, the Local Enforcement Agency (LEA) of the Califomia Integrated Waste Management Board (CIWMB) regarding methane levels at the site. In 2000, the CIWMB commenced an extensive investigation of the site and produced a lengthy report. The report found no immediate health hazards inside the condominiums, but made recommendations to improve the System to better handle the methane levels produced at the site. As a result, in June 2002 the LEA issued a Mandatory Remediation Order (Order) to the NTHOA. In July 2002, by a separate letter, the CIWMB notified the City of the Order and informed the City that if the NTHOA failed to take corrective action, the City would be liable for the cost of the corrective action as the prior owner /operator of the landfill. City staff met with NTHOA Board members, management representatives, lawyers and landfill gas engineers in September 2002 to sort out a response to the Order. There was general agreement that the first step in the process was to determine a plan of action to address the CIWMB report, evaluate the existing system, determine funding sources, and to identify a reasonable course of action to correct any deficiencies to the satisfaction of the CIWMB staff. The City Attomey's Office, with the assistance of outside specialized legal counsel, commenced negotiations with the attorney for the NTHOA seeking a cooperative agreement to fund a due diligence investigation into the integrity and operational status of the existing system (Investigation). As a result the City and NTHOA Board has agreed to jointly fund the cost of the Investigation and consider the results before any recommendations to repair, expand or replace the system are made. The Assistant City Attorney enlisted the assistance of SCS Engineers, Inc. of Long Beach to advise as to the status and condition of the system. SCS has reviewed the site, conferred with the NTHOA contractor that has operated the system, and developed a proposal to investigate the integrity of the system. The estimated cost of the Investigation is $80,000. However the Investigation is planned to occur in two phases to minimize costs depending upon the outcome of the first phase. The attached Cooperative Agreement proposes NTHOA and the City equally cost share the Investigation for an amount not to exceed $80,000, plus a $4,000 contingency provided by the City. Preliminary engineering and legal costs related to the City's prior ownership of the landfill has so far been funded in part from the City's Environmental Liability Fund (ELF) that was established to fund contingencies such as the NTC landfill and from the professional services budget of the City Attorney. Further costs such as site studies, engineering proposals, legal assistance,.and future consultations have been estimated in the attached I Newport Terrace Landfill Gas Issue March 25, 2003 Page 3 budget amendment and will also be funded from the ELF. Also included in the amendment is the City's share of the Investigation. Based on the findings of the Investigation, which is estimated to take three to six months, the City will consult with the NTHOA and LEA on the final remediation details. Environmental Review: The engineering services to be provided under the Professional Services Agreement with SCS Engineers to conduct a preliminary investigation have been reviewed and determined to be Categorically Exempt under CEQA Administrative Guidelines Sections 15309, Inspections and 15305, Information Collection. Funding Availability: The requested funds are not available in the current budget, and therefore a budget amendment is needed to transfer money from the ELF fund. However, the past and anticipated expenses related to the Landfill Gas Extraction System are directly related to the purposes of the ELF that was established under the City Franchise Agreements for Solid Waste Services in the City. Prepared by: David E. Niederhaus, General Services Director Submitted by: U Robin Clauson, Assistant City Attorney Attachments: (A) Cost Sharing Agreement (B) Budget Amendment (C) Professional Services Agreement (D) Map of the Newport Terrace area 3 • • Attachment A MUTUAL COOPERATION AND COST - SHARING AGREEMENT REGARDING PRELIMINARY INVESTIGATION OF THE NEWPORT TERRACE LANDFILL SITE This mutual cooperation and cost- sharing agreement (the "Agreement") is entered into as of this _ day of March, 2003 by and between the City of Newport Beach ( "City'l a California. Charter City, and the Newport Condominium Association ( "Association "), a California Non -Profit Corporation, collectively, the "Parties." RECITALS A. On June 20, 2002, the Orange County Health Care Agency ( "OCHCA ") issued a Corrective Action Order ( "CAO ") to the Association with regard to the Newport Condominium Landfill (the "Site "). A response to this order was due, after negotiation between the Association and the OCHCA, by December 20, 2002. B. The Association has requested that the City participate in the response to the CAO, and in the investigation and remediation of the Site. C. On December 20, 2002, the Parties jointly issued a response to the CAO. As a part of this response, the Parties proposed a preliminary investigation of the Site. The purpose of the investigation would be to perform a due diligence investigation to determine the integrity and operational status of an existing landfill gas collection and control system, and to determine whether methane gas generated by the Site can be controlled by the existing system, hereinafter referred to as the "investigation." D. On February 5, 2003, the OCHCA sent a letter to the Association, requesting certain further investigation and other action. The OCHCA has granted the Association an extension until April 4, 2003 to submit a Site Investigation Work Plan. E. On February 27, 2003; at the request of the City, SCS Engineers ( "SCS ".) submitted a proposal for investigation of the Site in general accordance with the desires of the, Parties. F. Now, therefore, the Parties wish to jointly fund an appropriate preliminary investigation of the Site by SCS and/or other consultants as necessary to begin to satisfy the requests and requirements of the OCHCA. TERMS AND CONDITIONS Therefore, the Parties agree as follows: 1. Purpose. The Parties enter into this Agreement for the purpose of jointly funding and cooperatively overseeing the investigation by SCS and /or other consultants. The Parties contemplate that such endeavors will include joint oversight of SCS, review by the OCHCA, and conference calls and meetings as may be required. Either or both parties may be represented from time to time in such activities by counsel. H 2. Cost Sharing. The Parties agree to share equally all costs, fees, and expenses charged by SCS, its subcontractors, suppliers and vendors in connection with the investigation contemplated in this Agreement. Such agreement is subject to the following limitations: (a) Scope of Work. The investigation conducted by SCS shall be consistent with the `.`Revised Proposal For Services- Investigation and Assessment of the Landfill Gas Protection System, Newport Terrace Condominiums" issued by SCS dated February 27, 2003, and attached as Exhibit A to this Agreement ("Proposal" or "Project"). Additional work by SCS and/or other consultants may be authorized only by written change order and joint written approval of both Parties. (b) Cost Limitation. In no event shall the cost of all work by SCS, its subcontractors, suppliers, and vendors under this Agreement, including fees, expenses, and costs of any kind, exceed a total of EIGHTY -FOUR THOUSAND DOLLARS ($84,000). The City agrees to be solely responsible for any costs that exceed EIGHTY THOUSAND DOLLARS ($80,000), up to an additional FOUR THOUSAND DOLLARS ($4,000). No costs beyond a total of EIGHTY -FOUR THOUSAND ($84,000) shall be authorized by this Agreement, absent written amendment to the Agreement. (c) Attorneys' Fees. Each Party shall bear its own attorneys' fees and expenses, and nothing in this Agreement shall be construed as an agreement to share any such fees and expenses. (d) Association Consultant. Parties acknowledge that the Association has previously retained a consultant, known as Bryan A. Stirrat & Associates ( "BAS "), to advise the Association with regard to the Site. Absent further authorization pursuant to paragraph 2(a) of this Agreement, the Parties agree that costs, fees, and expenses of BAS shall not be subject to cost sharing under this agreement, and the City shall not be responsible for any such costs, fees, or expenses. 3. Payment of Consultants. Within 30 days of execution of this Agreement, the City shall deposit FORTY -FOUR THOUSAND DOLLARS ($44,000), and the Association shall issue a check in the sum of FORTY THOUSAND DOLLARS ($40,000), made payable to "City of Newport Beach," both amounts to be deposited into a trust and agency account maintained by the City (the "Trust Account"), undencircumstances as agreed upon by counsel for the Parties, and in accordance with relevant law regarding such accounts. The City shall be authorized to make withdrawals from the Trust Account, without further approval or agreement by the Association, except as set forth below in Paragraph 3 (a) for purposes of execution of this paragraph. The City shall retain SCS pursuant to this Agreement. The Parties acknowledge that the Trust Account. may be a non - interest bearing account. (a) The City shall send copies of any invoices for fees, expenses, and costs from SCS to the primary person listed on behalf of the Association in Paragraph 12, below, 0 0 within thirty (30) days of receipt. Association shall have fourteen (14) days to review each SCS invoice. Should Association seek adjustment or recommend only partial payment of any SCS invoice Association shall notify City of each such adjustment within fourteen (14) days of receipt. Should Association fail to notify City of an adjustment or approval of an SCS invoice within fourteen (14) days of receipt then the Association shall waive its right of approval and City may immediately pay SCS. One -half of such Consultant's invoices shall be paid from the Trust Account established pursuant to this paragraph, in compliance with the terms of the Professional Services Agreement between SCS and the City. (b) The costs of the Trust Account, if any, shall be borne solely by the City. 4. Accounting. City shall be solely responsible for maintaining records of all contracts, change orders, invoices, invoice payments, invoice adjustments and all other reasonable and customary bookkeeping activities related to the Project. City shall provide to the Association copies of any and all reports by SCS, including updates regarding costs expended by SCS. 5. Reimbursement. The Parties hereby acknowledge that the Association's funds payment is a one -time contribution towards a total sum that is difficult at this time to estimate. Further, the Parties acknowledge that circumstances may arise where SCS does not elect to perform the entire scope of work contracted for in Exhibit A. In the event SCS for whatever reason does not perform the entire scope of work contracted for in Exhibit A then City shall reimburse Association its proportionate one -half (' /Z) share of the unused total funds in the Trust Account. Any such reimbursement shall take place within 7 days of the completion of payment of all invoices by SCS and the completion of payment of any other costs incurred pursuant to this Agreement. 6. Reooupment. The Parties hereby acknowledge and agree that there exist certain unresolved claims between them. The Parties acknowledge and agree that should their" unresolved claims be the subject of a legal action or proceeding of any type at any future time, each Parry hereby expressly reserves the right to seek in recoupment any and all sums paid for the Proposal and/or Project. Sharing Of Information And Work Product. (a) The Parties shall share all the results. of the investigation by SCS, including, without limitation, all test data, photographs, video tapes, inspection reports, meeting notes, correspondence, draft or final reports, and similar documents. Upon receipt by the Association of the draft report by SCS of its findings, conclusions and recommendations to the Parties as set forth in Task 4 of the Proposal (Exhibit A), the Association shall have fifteen (15) days to make any written comments, and proposed insertions or deletions. Should the Parties fail to agree upon the language of SCS' final report, then the Association expressly reserves, and nothing in this Agreement shall be deemed a waiver of, the Association's right to submit a separate report containing its findings, conclusions and recommendations. (b) The Association shall also share with the City all the results of any investigation performed by BAS (or any other consultants retained by the Association regarding landfill /methane gas)•at the Site,.or observation of SCS' or other consultants' activities by BAS, 0 0 including, without limitation, all test data, photographs, video tapes, inspection reports, meeting notes, correspondence, draft or final reports, and similar documents that are related to the investigation contemplated by this Agreement. The Association shall also instruct BAS to provide any such information that is currently available to BAS that bears on the systems operations and structures at the Site, and shall instruct BAS to cooperate in good faith with SCS during SCS's investigation of the Site. (c) . This entire Paragraph 7 expressly excludes any documents, of any type, produced by or for counsel for either Party, transmitted to a Party, and deemed by California law to be either attorney - client privileged communications or attorney work, product ( "Protected Documents "). The Parties agree that this Agreement does not require the sharing of any such Protected Documents. 8. Confidentiality. The Parties agree that, to the extent authorized by law, and except as set forth below, all information exchanged pursuant to this Agreement and relating to the investigations conducted hereto, whether exchanged before or after execution of this Agreement, shall be held in strict confidence by the respective Parties, and shall not be disclosed by any Party to any other person without prior written consent from the other Party. All information in written or document form that the Parties intend to be kept confidential shall be marked "Confidential." If such information becomes the subject of judicial order, administrative order or subpoena requiring disclosure of such information by one of the Parties, such Party may satisfy its confidentiality obligations hereunder by notifying the Party that generated the information and by giving it an opportunity to protect the confidentiality of the information. The final report produced by SCS with regard to the investigation of the Site, as proposed in Exhibit A, shall not be confidential information under this Paragraph or this Agreement. The Parties acknowledge that the Association is legally obligated to make periodic reports and disclosures to its members, and that the City is legally obligated to disclose non - exempt public records upon request pursuant to Government Code § 6250 et seq. Accordingly, nothing in this Agreement shall be deemed to restrict the Parties from making reports or disclosures of information necessary to meet their respective obligations. The Association shall not include any copy of any report or other document of any sort developed by SCS marked "Confidential" without the approval of the City. 9. Attomey- Client Privilege and Attorney Work Product. All information disclosed by counsel to either Party pursuant to this Agreement is subject to the attorney - client privilege and work product doctrine. Exchange of such information, whether exchanged before or after the execution of this Agreement, is not and has not been intended to waive any attorney - client or attorney work product privilege otherwise available. 10. Withdrawal. Except as expressly provided in this paragraph, each Party retains the right to withdraw at any time from this Agreement.. Withdrawal shall be deemed effective when a Party provides written notice of withdrawal to counsel for the other Party. Withdrawal by either Party shall not relieve that Withdrawing Party from responsibility for paying for their proportionate one -half (' /2) share of 4 0 0 Project expenses to the date of issuance of notice of withdrawal. Withdrawal of a Party shall nonetheless obligate the Parry to participate in all costs of SCS' wind down. Should the City withdraw from this Agreement, it shall cause SCS to prepare an appropriate report with regard to the status of the SCS investigation at the time of withdrawal. In the case that the City withdraws from this Agreement, the City shall reimburse the Association its one -half (%) share, within 7 days from the date of notice of such withdrawal, of the costs of any tasks that have not yet been commenced as of the date of that notice. Withdrawal by any Party shall terminate all cost - sharing rights and obligations under Paragraph 2 above and all information sharing rights and obligations under Paragraph 7 above, but shall not relieve any Party of its obligations to preserve the confidentiality of information as provided in Paragraph 8 above. The Parties acknowledge that the SCS investigation is designed to take place in phases, and that the Parties may jointly instruct SCS to terminate such investigation at any Phase of the investigation. Absent express written notification to the contrary, suclr termination of the investigation shall not be considered withdrawal from this Agreement, and all terms and conditions of this Agreement shall remain in effect. 11. Right of Entry. The Parties acknowledge that SCS' investigation, as contemplated in Exhibit A, shall require the entry of SCS onto the Association's property. The Association agrees to negotiate with the City, in good faith, a license agreement that allows such entry onto the Associations' property, in order to effectuate the goals of this Agreement. 12. Notice. All notices under this Agreement shall be in writing, delivered by facsimile (with receipt confirmed), registered or certified mail (postage pre -paid, return receipt requested) or sent by a nationally recognized courier service to the other Party. Notices shall be addressed to the Parties as set forth below. City: Association: With copy to: James J. Dragna Bingham McCutchen LLP 355 South Grand Avenue, Suite 4400 Los Angeles, CA 90071 Fax: (21.3) 680-6499 Thomas Bois Bois & Macdonald 2030 Main Street, Suite 520 Irvine, CA 92614 Fax: (949) 660 -0022 Richard S. Fiore, Esq. Fiore, Racobs & Powers 0 0 38 Technology Drive, Suite 250 Irvine, CA 92618 Fax: (949) 727 -3311 13. Headings. The headings and titles used in this Agreement are for convenience only, are not themselves terms, and have no effect on the meaning or interpretation of any of the terms herein. 14. Governing Law and Venue. This Agreement shall be governed by and construed and enforced in accordance with the laws of California without regard to principles of conflicts of laws, and the Parties agree that the exclusive venue for an action under this Agreement shall be any court of competent jurisdiction located in Orange County. 15. Attorneys' Fees. If any legal action or other proceeding is commenced to enforce or interpret any provision of this Agreement, the prevailing party in such proceeding shall be entitled to an award of its actual expenses including, without limitation, expert witness fees and reasonable attorneys' and other professional fees and disbursements. (The phrase "prevailing party" shall include a party who receives substantially the relief sought by that party, whether by settlement, dismissal, summary judgment, judgment or otherwise.) 16. Severability. If any term or provision in this Agreement is determined to be illegal or unenforceable, all other terms and provisions in the Agreement shall remain effective and shall be enforced to the full extent permitted by law. 17. Jointly Drafted. The Parties agree that this Agreement was jointly drafted, and no inference or rule of construction shall be applied based on the assumption that either of the Parties drafted any provision in the Agreement. Each Party hereby waives the doctrine of contra proferentum as it may otherwise apply to the interpretation of the Agreement. 18. No Admission of Liability. Nothing in this Agreement, in whole or in part, is intended by the Parties to be an admission or indication of liability of any type whatsoever, nor may this Agreement, in whole or in part, be construed as an admission or indication of such liability. 1/I 6 r 19. Authori . The undersigned individuals represent that they are authorized to execute the Agreement on behalf of the respective Party. CITY OF NEWPORT BEACH, a California Charter City DATED: By: Its: NEWPORT CONDOMINIUM ASSOCIATION, a California Non - Profit Corporation DATED: By: Its: By: Its: O Attachment B GW of Newport Beach BUDGET AMENDMENT 2002 -03 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues Ix from unappropriated fund balance EXPLANATION: . This budget amendment is requested to provide for the following: To increase expenditure appropriations related to the Newport Terrace Landfill Gas issue. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 292 3605 REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description Environmental Liability Fund Balance Description Signed: Signed: Services Director City Manager NO. BA- 054 AMOUNT: $75,595.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance Amount Debit Credit $75,595.00 ` $75,595.00 Date Date Signed: City Council Approval: City Clerk Date Description Division Number 3155 Environmental Liability Account Number 8080 Services - Prof & Tech Division Number Account Number Division Number Account Number Division Number Account Number :!- Division Number Account Number Signed: Signed: Services Director City Manager NO. BA- 054 AMOUNT: $75,595.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance Amount Debit Credit $75,595.00 ` $75,595.00 Date Date Signed: City Council Approval: City Clerk Date 0 • Attachment C PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of 2003, by and between CITY OF NEWPORT BEACH, a California Charter City ( "CIT)r), and SCS Engineers whose address is 3711 Long Beach Boulevard, Ninth Floor, Long Beach, California, 90807, California, ( "CONSULTANT "), 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 desires to engage CONSULTANT to perform a due diligence investigation to determine the integrity and operational status of an existing landfill gas collection and control system operated by the Newport Condominium Association ( "ASSOCIATION ") at the Newport Condominium Landfill (the "PROPERTY") and upon the terms and conditions contained in this Agreement ( "Project"). C. The principal members of CONSULTANT, are for purpose of this Project, are Mark B. Beizer, PE and Michael D. Geyer, PD, CIH, CSP. D. CITY has solicited and received a proposal from CONSULTANT, has reviewed the previous experience and evaluated the expertise of CONSULTANT, and desires to contract with CONSULTANT under the terms of conditions provided 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 26'" day of March, 2003, and shall terminate upon completion of CONSULTANT's services pursuant to the Agreement, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED i2 0 0 CONSULTANT shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" attached hereto and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT CITY shall pay CONSULTANT for the services in accordance with the provisions of this Section and the scheduled billing rates, attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of CITY. CONSULTANTS compensation for all work performed in accordance with this Agreement, including costs, fees, and incidental expenses, shall not exceed the total contract price of eighty thousand dollars plus ($80,000.00) plus a five percent (5 %) contingency of four thousand dollars ($4,000.00). 3.1 CONSULTANT shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. Consultant shall provide, with each invoice to CITY, the total amount billed and remaining within each task. 3.2 CONSULTANT shall submit monthly invoices to CITY payable by CITY within thirty (30) days of receipt of invoice subject to the approval of CITY and based upon the following payment schedule: invoices to be completed upon completion of each task outlined in Exhibit "A ". 3.3 CONSULTANT shall not receive any compensation for extra work without prior written authorization of CITY. Any authorized compensation shall be paid in accordance with Exhibit "B ". 3.4 CITY shall reimburse CONSULTANT only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by CITY. Such cost shall be limited and shall include nothing more than the following costs incurred by CONSULTANT: A. The actual costs of subCONSULTANTs for performance of any of the services which CONSULTANT agrees to render pursuant to this Agreement which have been approved in advance by CITY and awarded in accordance with the terms and conditions of this Agreement. B. 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. 2 9 0 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, CITY may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 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 the 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. CONSULTANT represents and warrants to CITY that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. CONSULTANT further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 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 or governmental agencies, or any other delays beyond CONSULTANT's control or without CONSULTANT's fault. 5. INDEPENDENT PARTIES CITY retains CONSULTANT on an independent Consultant basis and CONSULTANT is not an 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 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 details in means of performing the work provided that CONSULTANT is in compliance with the terms of this.Agreement. Anything in this Agreement which may appear to give CITY the right to direct CONSULTANT as to the details of the performance of the services or to exercise a measure of control over CONSULTANT shall mean that CONSULTANT shall follow the desires of CITY only with respect to the results of the services. ,q 3 0 0 6. COOPERATION CONSULTANT agrees to work closely and cooperate fully with CITY's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. CITY agrees to cooperate with the CONSULTANT on the Project. 7. PROJECT MANAGER CONSULTANT shall assign the Project to 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 Project term. CONSULTANT has designated Michael D. Geyer to be its Project Manager. CONSULTANT shall not bill any personnel to the Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without CITY's prior written approval by name and specific hourly billing rate. CONSULTANT shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to the Project without the prior written consent of CITY. CITY's approval shall not be unreasonably withheld with respect to 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. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by CONSULTANT in accordance with the schedule specified in Exhibit "A ". The failure by CONSULTANT to strictly adhere to the schedule, may result in termination of this Agreement by CITY, and the assessment of damages against CONSULTANT for delay. Notwithstanding the foregoing, CONSULTANT shall not be responsible for delays which are 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. 8.1 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 which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant 5 0 0 0 reasonable time extensions for unforeseeable delays, which are beyond CONSULTANT's control. 8.2 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. 8.3 The CONSULTANT waives any right to bring a claim for additional payment due to project delay. CONSULTANT's sole remedy in such a case is the extension of the performance period. 9. CITY POLICY CONSULTANT will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with CITY goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by CONSULTANT shall conform to applicable CITY, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and CITY. 11. PROGRESS CONSULTANT is responsible to keep the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. INDEMNIFICATION AND HOLD HARMLESS, AND LIENS CONSULTANT shall indemnify, defend (with counsel reasonably acceptable to the party defended), save and hold harmless CITY, its CITY Council, boards and commissions, officers and employees, and also the Newport Condominium Association ( "ASSOCIATION "), its directors, officers, members, agents and representatives from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of CONSULTANT, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement. This indemnity shall apply even in the event of negligence of CITY or the ASSOCIATION, or their employees, or other contractors, excepting only 5 {� • • the active negligence or willful misconduct of CITY or the ASSOCIATION, their officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. CONSULTANT shall not suffer or permit to be enforced against the PROPERTY that is the subject of CONSULTANTs work under this Agreement, or any part thereof, any mechanics', materialmen's, contractors' or subcontractors' liens or any related lien claim for damages arising from CONTRACTOR's performance under this Agreement. CONSULTANT shall pay or cause to be paid all such liens or claims before any enforcement action is brought. CONSULTANT agrees to indemnify, defend (with counsel reasonably acceptable to the party defended) and hold the CITY or the ASSOCIATION, their members, and the property of the ASSOCIATION and its members (including the PROPERTY) free and harmless from all liability for any and all such liens and claims related to CONTRACTOR's performance under this Agreement, together with reasonable attorneys' fees and all costs and expenses incurred in connection with such lien claims. CONSULTANT hereby waives its right to assert and /or record a mechanics' or materialmen's lien against the ASSOCIATION, its members' property (including the PROPERTY), or any portion thereof. 13. INSURANCE Without limiting CONSULTANT's indemnification of CITY and the ASSOCIATION, and prior to commencement of work, CONSULTANT shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to CITY and the ASSOCIATION. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with CITY and the ASSOCIATION prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add CITY, its elected officials, officers, agents, representatives and employees, and also the ASSOCIATION, its directors; officers, members, agents and representatives, as additional insured for all liability arising from CONSULTANT's services as described herein. All insurance policies shall be issued by an insurance company currently authorized by the In 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 Bests Key Rating Guide: unless otherwise approved by the CITY Risk Manager. 6 !7 • • A. Worker's compensation insurance covering all employees and principals of CONSULTANT, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability (including, without limitation, contractor liability insurance covering CONSULTANT's obligations under Paragraph 12 of this Agreement), in a minimum amount of two million dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of CONSULTANT in a minimum amount of two million dollars ($2,000,000) combined single limit per accident for bodily injury and property damage. D. 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). Said policy or policies shall be endorsed to state that coverage shall not be canceled by CONSULTANT, except after thirty (30) days' prior notice has been given in writing to CITY and the ASSOCIATION. CONSULTANT shall give CITY and the ASSOCIATION prompt and timely notice of claim made or suit instituted arising out of CONSULTANT's operation hereunder. 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. CONSULTANT agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, CONSULTANT shall look solely to its insurance for recovery. CONSULTANT hereby grants to CITY and the ASSOCIATION, on behalf of any insurer providing comprehensive general and automotive liability insurance to CONSULTANT, the CITY, or the ASSOCIATION, with respect to the services of CONSULTANT herein, a waiver of any right of subrogation which any such insurer of said CONSULTANT may acquire against CITY or the ASSOCIATION by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS CONSULTANT shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, 7 • • directly or indirectly, by operation of law or otherwise without prior written consent of CITY. Any attempt to do so without consent of CITY shall be null and void. 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, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by CONSULTANT pursuant to or in connection with this Agreement shall be the exclusive property of CITY. 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. CONSULTANT shall, at such time and in such form as CITY may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by CITY. 17. CITY'S RESPONSIBILITIES In order to assist CONSULTANT in the execution of his responsibilities under this Agreement, CITY agrees to provide the following: A. Access to, and upon request of CONSULTANT, one copy of all existing record information on file at CITY. CONSULTANT shall, be entitled to rely 8 E 0 upon the accuracy of data information provided by CITY or others without independent review or evaluation. CITY will provide all such materials in a timely manner so as not to cause delays in CONSULTANT's work schedule. B. Blueprinting, CADD plotting, copying and other services through CITY's reproduction company for each of the required submittals. CONSULTANT will be required to coordinate the required submittals with CITY's reproduction company. All other reproduction will be the responsibility of CONSULTANT and as defined above. C. Street base digital file in AutoCAD (DXF) compatible format. 18. ADMINISTRATION This Agreement will be administered by the General Services Department and David E. Niederhaus shall be considered the Project Administrator and shall have the authority 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. 19. 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. All such records shall be clearly identifiable. CONSULTANT shall allow a representative of CITY to examine, audit and make transcripts or copies of such records during normal 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 under this Agreement. 20. WITHHOLDINGS CITY may withhold payment 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. Nor shall such withholding give rise to any mechanics' or materialmen's lien against the ASSOCIATION's or its members property, including the PROPERTY. CONSULTANT shall have an immediate right to appeal to the CITY Manager or his designee with respect to such disputed sums. CONSULTANT shall be entitled to receive interest on any withheld sums at the rate of seven percent �1 9v (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. 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 would have resulted if there were not errors or omissions in the work accomplished by CONSULTANT, the additional design, construction and /or, a 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. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS CITY reserves the right to employ other CONSULTANTS in connection with the Project. 23. CONFLICTS OF INTEREST A. 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 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. B. 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 termination of this Agreement by CITY. CONSULTANT shall indemnify and hold harmless CITY for any and all claims for damages resulting from CONSULTANT' violation of this Section. 24. SUBCONSULTANT AND ASSIGNMENT A. Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of CITY. 25. NOTICES All notices, demands, requests or approvals to be given under 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. 10l 0 0 All notices, demands, requests or approvals from CONSULTANT to CITY shall be addressed to CITY at: David E. Niederhaus, Director General Services Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3057 Fax (949) 650 -0747 Copy to: Robin L. Clauson, Assistant City Attorney Office of the City Attorney 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 (949) 644 -3131 Fax(949)644 -3139 All notices, demands, requests or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: Michael D. Geyer SCS Engineers 3711 Long Beach Boulevard, Ninth Floor Long Beach, CA 90807 -3315 Each party shall provide a courtesy copy of all notices, demands, requests or approvals to the ASSOCIATION, at: Thomas Bois Bois & Macdonald 2030 Main Street, Suite 520 Irvine, CA 92614 (949)660-0011x.20 Fax(949)660-0022 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure 11 �� 0 0 such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 CITY shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to CONSULTANT as provided herein. Upon termination of this Agreement, CITY shall pay to the CONSULTANT that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 12 cJ 27. COMPLIANCES E CONSULTANT shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by CITY. 28. 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. 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. Any modification of this Agreement will be effective only by written execution signed by both CITY and CONSULTANT. 30. CADD DELIVERABLES CADD data delivered to CITY shall not include the professional stamp or signature of an engineer or architect. 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. oil 13 d 0 0 31. PATENT INDEMNITY The CONSULTANT shall indemnify CITY, its agents, officers, representatives and employees against 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM AND CONTENT: Robin Clauson, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A California Charter City Steve Bromberg, Mayor for the City of Newport Beach CONSULTANT 14 Environmental Consultants • 3711 Long Beach Boulevc�. 562 426.9544 Ninth Floor FAX 562 427 -0805 Long Beach, CA 90807 -3315 www.scsengineers.com I..S.CS. EN:GINEIRS February 27, 2003 File No. 01201221.01 FEB 2 S 2003 Ms. Robin Clauson cry oEwPORT gcAOn j Assistant City Attorney City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92658 -8915 Subject: Revised Proposal For Services — Investigation and Assessment of the Landfill Gas Protection System, Newport Terrace Condominiums Dear Ms. Clauson: Pursuant to our discussions, this letter constitutes a revised proposal for SCS Engineers (SCS) to further investigate the landfill gas (LFG) collection and control system at the subject condominium complex. This effort will focus on a system -wide integrity assessment, specifically flow testing principal LFG components at 13 locations where header pipes connect to extraction well laterals, the extraction wells, and interconnection (trench) piping surrounding the larger landfill area. The attached figure shows the 13 locations that are addressed in the scope of this investigation. If it can be demonstrated that the extraction wells and major collection system components still have integrity, then additional efforts can focus on the vacuum distribution network (e.g., the main below -grade header pipes), the system blower, etc. However, if major system components are no longer functional, then it can be assumed that other system components may also lack integrity and a new LFG collection and control system for the site is probably necessary. It is anticipated that this work can be accomplished by excavating intersections of header and laterals, testing and inspecting the pipes at these locations (where possible), and replacing and /or repairing isolation valves where warranted. Some locations to be excavated are readily accessible and others are not. Accessibility will be further determined during the development of the work plan (Task 1). Pipe condition may be assessed with a cabled video camera. Pressure and flow testing of extraction wells will be accomplished using portable blowers, with gas exhausted through carbon canisters to minimize odors. Our proposed scope of work is described in detail below. Assumptions are also described in the following narrative. The effort is divided into four tasks. Task No. 2 is further divided into two phases, which include several sub -tasks during each phase. Each (excavation and testing), phase is color -coded on the figure. Phase 1 will assess eight locations throughout the site, six of which include significant system components and two other locations within the site that may provide additional relevant data. Phase 2 includes four locations specifically within the rubble fill area. The sequence of the phases has been planned to assess major components first, followed by those components that effect smaller portions of the site. However, during Phase 1 work efforts, if it is determined that most major system components lack substantial integrity, it may be decided that no additional investigation is warranted, and the assessment may stop. At that point, Task No. 4 would be initiated. H'a1 TUB11 Jl t., Offices Nationwide � P90 Ms. Robin Clauson February 27, 2003 Page 2 Task No. 3 includes an assessment of a separate group of LFG extraction wells along the . eastern site boundary. Task No. 3 will be performed regardless of the progress of Task No. 2. TASK 1 —WORK PLAN DEVELOPMENT AND APPROVAL Based on the number of interested parties, SCS will develop a comprehensive work plan that describes in detail the work being performed at each location, goals, proposed schedule, and anticipated inconveniences to site residents. SCS anticipates communicating the work plan to residents via the homeowners association (HOA) and has allocated time for a meeting with the HOA and their representatives. SCS also proposes to provide the work plan to staff of the Orange County LEA and the State CIW MB. Although their advance approval is not strictly required, we believe it in the interest of a smooth project to keep those agencies informed. Moreover, we do not expect their review to result in a change to our work plan. TASK 2 — EXCAVATION, SYSTEM COMPONENT TEST, AND RESTORATION The locations selected for excavation, assessment and testing are divided into two groups, or phases. It is anticipated that each phase will proceed consecutively, i.e., Tasks 2a through 2e for Phase 1, then Tasks 2a through 2d for Phase 2. However, if the assessment begins to yield favorable data (i.e., most system components appear to have integrity and system vacuum can be restored), the progress may be accelerated and efforts may begin to do the phases concur- rently. If, however, the assessment begins to yield data that reflects a loss of integrity of major system components, the entire investigation may stop. The following narrative details the effort proposed in each task, for each phase of this investigation. Task 2a — Locating and Clearing Excavations At each location, underground site utilities will be identified and the excavation locations/ methods will be modified as necessary. If warranted, geophysical testing may be performed before excavating to locate buried LFG system components — one day of testing (ground penetrating radar) is assumed. Near the landfill perimeter, some vegetation may need to be cleared to facilitate access. However; cost for removal of large shrubs and /or trees is not provided, for within this proposal. Task 2b — Excavate System Piping . At each location, header connections will be excavated. It is anticipated that each excavation will be approximately 4 -ft by 4 -ft. and 3 -ft deep and not encounter obstructions that would limit the excavation; no shoring or bracing -is expected. SCS will be responsible for repairs or modifications to landscape irrigation systems to accommodate the excavations. Soil will be stockpiled on site. Lighted barriers will be erected to protect residents from open excavations. r._I Ms. Robin Clauson February 27, 2003 Page 3 Specifically during Phase 2, a traffic control plan will be developed, traffic -rated covers will be used where appropriate, and lighted barricades will be placed in the street during the investigation of system components within the Rubble Fill Area. Task 2c — Testing and Inspection At piping intersections, connections and valves will be cut loose from header piping. Video inspection of the pipes will take place if access is available. Control /isolation valves will be installed and /or repaired where appropriate and monitoring ports will be installed upstream and downstream of each valve to measure vacuum. We assume existing system piping to be 6 -in PVC or smaller. Once isolation valves are in place, pressure and flow testing will be performed with a portable blower unit. The blower will also be used to provide a vacuum to LFG collection system components (e.g., wells and sand trenches) in an attempt to determine the integrity and utility of collection components. Individual extraction wells will not be accessed; however, the common lateral pipe connecting several wells will be (tested). Parameters tested will include: • Pipe Tests —Openness, flow, pressure integrity, occlusions, and fluid entrapment in settled areas. • Measured vacuum in soils near LFG collectors. • LFG composition and indicators of atmospheric intrusion /short- circuiting. Task 2d - Backfill. Compaction and Restoration As Task 2c progresses and is completed, excavations will be backfilled and compacted as soon as practical. Certified compaction is not provided for in this proposal. SCS will attempt to mini- mize the number of excavations open at any one time. At this time, it is not anticipated that any concrete cutting and/or patching is necessary in hardscape areas, with the exception of asphalt cutting and repair in Phase 2 within the Rubble Fill Area. Task 2e — Progress Report Summary A brief progress report will be prepared summarizing the findings of the investigation after Phase 1. This report will summarize observations in a matrix - format for each location, and include results of: • Pipe tests. • Vacuum in soils. • Gas characteristics. After Phase 2, the final report will be prepared (see Task 4). 11 Ms. Robin Clauson February 27, 2003 Page 4 TASK 3 — FLOW TEST OF EAST SITE BOUNDARY Concurrently with Phase 1 effort, an extended flow test will be performed on the three east boundary extraction wells: W -101, W -102, and W -103. During Task No. 2b - Phase 1 exca- vation efforts, the lateral connecting wells W -101 through W -103 will also be excavated to accommodate the test/flow equipment. This test will be performed for approximately 24 hours, during which time pressure and methane will be periodically measured at existing monitoring probes in the area. This test is designed to evaluate the effectiveness of the three extraction wells at controlling LFG migration from the landfill into adjacent off -site areas. The goals of this test include: reducing methane concentrations in the wells and increasing vacuum in perimeter monitoring probes. SCS requests the HOA's and City's assistance in gaining access to monitoring probes located in the residential community adjacent to the site, in Costa Mesa. TASK 4 — DATA COMPILATION AND REPORT OF FINDINGS After Task 2 and Task 3 are complete, SCS will compile the data and prepare a report of find- ings. The report will be submitted to the City within 2 weeks of completing all field work. ASSUMPTIONS We assume that: • All City permits and construction fees will be waived. • The HOA and their representatives, e.g., Bryan A. Stirrat Associates (BAS), will cooperate with SCS, to include: site access, coordination and cooperation, providing historical information, site assistance, etc. • Work can be performed during normal work hours,-i.e., Monday through Friday, 8:OC a.m. to 5:00 p.m. An attempt will be made to perform those activities that create the most noise and /or nuisance near the middle of the day, and not first thing in the morning; especially at locations close to site structures. However, most of the anticipated locations are near at least one site structure. • Access can be readily provided. If access is limited, special equipment may be required. In locations that have significant access restrictions, excavation may require hand - digging and hand - backfilling. In these situations, additional time and expenses may be necessary that are not currently provided for in this proposal. • Weather conditions will be favorable during the all construction efforts and the buried pipe connections, as identified on the attached drawing, can be reasonably located. • Utility (electrical and water) service will be available, and provided and paid for by the HOA. Ms. Robin Clauson February 27, 2003 Page 5 PROPOSED FEE AND SCHEDULE For each task, the estimated fee and schedule is listed below: Task SCS Enaineers Contractors & Supplies Duration Task 1 $5,500 $0 4 weeks Task 2a $5,500 $2,000 1 week Task 2b $4,500 $10,000 2 weeks Task 2c $13,500 $6,000 2 weeks Task 2d $4,500 $16,000 1 week Task 2e $2,500 $0 Included Task 3 $5,000 $2,000 Included Task 4 $3,000 $0 2 weeks Subtotal $44,000 $36,000 3 months TOTAL ESTIMATED FEE: $80,000 Note: Three months may be an optimistic schedule given the number of interested parties and the potential for each to review and comment on the work plan, provide suggestions for alter- native approaches, communications between parties, etc., and finalize an agreement prior to initiating the work effort. Moreover, the fees listed above for each task are representative of the entire project with all tasks being performed in conjunction with one another. The fees and work efforts cannot be separated into individual projects without revising the fee upwards to account for separate management, administrative and mobilization costs. We propose that SCS be compensated on a time and materials basis in accordance with the standard SCS Engineers Fee Schedule (copy enclosed). Invoices prepared by SCS will identify expenditures on a monthly basis and remaining balance of authorized funds. The principal contact for this project will continue to be our Project Manages, Michael Geyer, who will bring support staff, SCS Field Services (our in -house construction subsidiary.who specializes in landfill construction efforts) and other subcontractors, equipment, and technical specialists into the project as appropriate. If this proposal meets with your approval, the work can be executed under the terms and conditions set forth in an agreement, with this proposal incorporated therein, executed between SCS and the City. This proposal is valid for a period of 60 days from the date shown above. J Ms. Robin Clauson February 27, 2003 Page 6 If there are any questions regarding this submittal, please direct them to either of the under- signed. regards, Michael �3eyer, PE, CIH, CSP Project Ma ager Mark B. Beizer, E Vice President SCS ENGINNE MDG /MBB /jml J / mu .11V xO R( WE 0 0 EJ 0 0 —7 �J JD ryo SCALE: 1' =150' SOURCE: BRYAN A. STIRRAT 8 ASSOICATES. NEWPORT TERRACE CONDOMINIUM COMPLEX,? 12000 Location of Praoposed Excavations. S •! ,6 W 30 SR V 55 9 LEGEND UNDEVELOPED LAND e EXISTING VERTICAL O EXISTING NON- COMPLIANCE GAS EXTRACTION WELL GAS MONITORING PROBE e EXISTING COMPLIANCE GAS - -BELOW -GRADE HEADER MONITORING PROBE 3 NEW_ COMPLIANCE GAS —ABOVE -GRADE HEADER .... -.--- .....- �J JD ryo SCALE: 1' =150' SOURCE: BRYAN A. STIRRAT 8 ASSOICATES. NEWPORT TERRACE CONDOMINIUM COMPLEX,? 12000 Location of Praoposed Excavations. S •! wo mio 0 ED 0 0 ET-1 Ch W-1 7 Ic It too —10 nl t_ 0 Lu lz (0 �12 'n of c LEGEND UNDEVELOPED LAND EXISTING VERTICAL 0 EXISTING NON—COMPLIANCE GAS D(MkCTION WELL GAS MONITORING PROBE EXISTING COMPLIANCE GAS - BELOW—GRADE HEADER MONITORING PROBE ABOVE—GRADE HEADER NEW COMPLIANCE GAS MONITORING PROBF HEADER VALVE J to BALBOA BLVD �Z� SCALE: 1*=150' SOURCE: BRYAN A. STIRRAT & ASSOICATFS, NEWPORT TERRACE CONDOMINIUM COMPLEX, 212000 Location of Pfooposed Excavations. • dCCN LEGEND EXISTING VERTICAL O EXISTING NON - COMPLIANCE GAS EXTRACTION WELL GAS MONITORING PROBE ® EXISTING .COMPLIANCE GAS - - BELOW -GRADE HEADER MONITORING PROBE Go NEW GAS —ABOVE -GRADE HEADER MONITOR NG PROBE HEADER VALVE - Z� _ SCALE: 1" =150' SOURCE: BRYAN A. STIRRAT 5 ASSOICATES, NEWPORT TERRACE CONDOMINIUM COMPLEX, 712000 Location of Prooposed Excavations. • • — �Raxiaar uRc r � -BLMER SWIW II e o R u ooaoo R-3O ---r'pm6 (` S� �J SCALE: 1' =150" SOURCE: BRYAN A. STIRRAT B ASSOICATES. NEWPORT TERRACE CONDOMINIUM COMPLEX, 2/2000 Lo tlon of Prooposed Excavations. t'1 0 • - m y -- _ K UNDEVELOPED LAND LEGEND EXISTING VERTICAL 0 EXISTING NON - COMPLIANCE GAS EXTRACTION WELL GAS MONITORING PROBE EXISTING COMPLIANCE GAS - -BELOW -GRADE HEADER MONTORING PROBE NEW COMPLIANCE GAS — ABOVE -GRADE HEADER . _ . _...__ ......_ �J SCALE: 1' =150" SOURCE: BRYAN A. STIRRAT B ASSOICATES. NEWPORT TERRACE CONDOMINIUM COMPLEX, 2/2000 Lo tlon of Prooposed Excavations. t'1 0 • �N — �eaxoun ux[ rdM4R SIPigA .L i 17 VOR SIPCN- MKWGR. �I �r +.�. xn0 r10 Cl CJ 0 �•J o° a SCALE: 1"=150' SOURCE: BRYAN A. STIRRAT & ASSOICATES, NEWPORT TERRACE CONDOMINIUM COMPLEX, 2/2000 Location of Prooposed Excavations. • • UNDEVELOPED LAND LEGEND EXISTING VERTICAL 0 EXISTING NON - COMPLIANCE GAS EXTRACTION WELL - GAS MONITORING PROBE d EXISTING COMPLIANCE GAS - -BELOW -GRADE HEADER MONITORING PROBE —ABOVE-GRADE HEADER NEW COMPLIANCE GAS „ „-,,,,.,, ,,,,,T �•J o° a SCALE: 1"=150' SOURCE: BRYAN A. STIRRAT & ASSOICATES, NEWPORT TERRACE CONDOMINIUM COMPLEX, 2/2000 Location of Prooposed Excavations. • • mo w1v E:j E:l El E:) Elj F=wo C ------- 010 ao ------------ OF" so w w 13 6'a ti I G L I \13 0 .5 to I'z BALBOA BLVD -_�X� SCALE: 1"=150' SOURCE: BRYAN A. STIRRAT & ASSOIrATES, NEWPORT TERRACE CONDOMINIUM COMPLEX, 212000 UJ 0 0 0 UNDEVELOPED LAND LEGEND EXISTING VERTICAL 0 EXISTING NON—COMPLIANCE GAS EXTRACTION WELL GAS MONITORING PROBE EXISTING COMPLIANCE GAS - —BELOW —GRADE HEADER MONITORING PROBE NEW COMPLIANCE GAS ABOVE—GRADE HEADER MONITORING PROBE HEADER VALVE to I'z BALBOA BLVD -_�X� SCALE: 1"=150' SOURCE: BRYAN A. STIRRAT & ASSOIrATES, NEWPORT TERRACE CONDOMINIUM COMPLEX, 212000 UJ 0 0 Newport Terrace Condominiums NE City of Newport Beach General Services Department �l 1 I / ' � i✓ r- I S;-M MI, N W F \ 1 inch equals 0.25 mile ell I , I I I I I I r P" a 0 0 NEWPORT TERRACE CONDOMINUMS Arial Photograph m -�[4 d`�`�, -e� A -.- „ � +�• +I .lyjHl� te+t !'r v4 �N p }— +1r t o � r� -VIOL P�r`:l rw � 4 i ."-% i i i0 •�� A '� � �'f�� t t s �)jy • �gyl� t p ` j .`W Cy of Newport Beach BUDGET AMENDMENT 2002 -03 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND �X Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations related to the Newport Terrace Landfill Gas issue. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account 292 3605 REVENUE ESTIMATES (360 f) Fund/Division Account EXPENDITURE APPROPRIATIONS (3603) Description Environmental Liability Fund Balance Description Signed: Signed: City Services Director NO. BA- 054 AMOUNT: 575,595.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance MAR 2 :, 2003 Amount Debit Credit $75,595.00 $75,595.00 Date Date Signed: d�? Lf �TI t191, L `4�, 3 -0 _I-- 02 City Council Approval: City Clerk Date Description Division Number 3155 Environmental Liability Account Number 8080 Services - Prof & Tech Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Signed: City Services Director NO. BA- 054 AMOUNT: 575,595.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance MAR 2 :, 2003 Amount Debit Credit $75,595.00 $75,595.00 Date Date Signed: d�? Lf �TI t191, L `4�, 3 -0 _I-- 02 City Council Approval: City Clerk Date