HomeMy WebLinkAboutC-5764 - PSA for Arches Drain Fecal Indicator Bacteria Source Investigation StudyJ
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h AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT
J WITH DONNA FERGUSON FOR ARCHES DRAIN FECAL INDICATOR BACTERIA
SOURCE INVESTIGATION STUDY
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One') is made and entered into as of this 24th day of December,
2015 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and DONNA FERGUSON sole proprietor
("Consultant"), whose address is 6505 Coyote Street, Chino Hills, California 91709, and
is made with reference to the following:
RECITALS
A. On December 9, 2013, City and Consultant entered into a Professional Services
Agreement ("Agreement") to conduct a bacteria source investigation study to
identify sources of fecal indicator bacteria ("FIB") concentrations that have been
attributed to urban runoff that is discharged from the Arches Drain into the Lower
Newport Bay ("Project').
B. City desires to enter into this Amendment No. One to extend the term of the
Agreement to June 30, 2016 and to update insurance requirements.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
1. TERM
Section 1 of the Agreement is amended in its entirety and replaced with the
following: "The term of this Agreement shall commence on the Effective Date, and shall
terminate on June 30, 2016, unless terminated earlier as set forth herein."
2. INSURANCE REQUIREMENTS
Exhibit C to the Agreement is amended in its entirety and replaced with Exhibit
C-1, attached hereto and incorporated herein by reference.
3. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTO N OFFICE
Date:
By: A�)
Aaron C. Harp
City Attorney
ATTEST:
Date:
By: 1 i u4L
eilani I. Brown
City Clerk aE��aoq,
CITY OF NEWPORT BEACH,
a California munigipal corporation
Date: /' Z/-/
By`_��1A. 1�
David A. Webb
Public Works Director
CONSULTANT: DONNA FERGUSON, a
sole proprietor
Signed in Counterpart
Donna Ferguson
Lead Investigator/Sole Proprietor
[END OF SIGNATURES]
Attachments: Exhibit C-1 — Insurance Requirements
Donna Ferguson Page 2
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to
be executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date:
By:
Aaron C. 14arp g
City Attorney
ATTEST:
CITY OF NEWPORT BEACH,
a California municipal corporation
Bv:
David A. Webb
Public Works Director
CONSULTANT: DONNA FERGUSON, a
sole proprietor
Date:
By: By: ct%y W54-
Leilani I. Brown Donna Ferguson
City Clerk Lead Investigator/Sole Proprietor
[END OF SIGNATURES]
Attachments: Exhibit C-1 - Insurance Requirements
Donna Ferguson Page 2
EXHIBIT C-1
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
1. Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements.
A. Workers' Compensation Insurance. Consultant shall maintain Workers'
Compensation Insurance, statutory limits, and Employer's Liability
Insurance with limits of at least one million dollars ($1,000,000) each
accident for bodily injury by accident and each employee for bodily injury
by disease in accordance with the laws of the State of California, Section
3700 of the Labor Code.
Consultant shall submit to City, along with the certificate of insurance, a
Waiver of Subrogation endorsement in favor of City, its officers, agents,
employees and volunteers.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, two million dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
Donna Ferguson Page C-1
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included
as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Donna Ferguson Page C-2
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type. If the
Consultant maintains higher limits than the minimums shown above, the
City requires and shall be entitled to coverage for higher limits maintained
by the Consultant. Any available insurance proceeds in excess of the
specified minimum limits of insurance and coverage shall be available to
the City.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
Donna Ferguson Page C-3
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 1/22/16 Dept./Contact Received From: Raymund
Date Completed:
3/30/16
Sent to: Raymund By:
Company/Person required to have certificate: Donna Ferguson
Type of contract: All Others
Chris/Alicia
GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 12/23/15-12/23/16
A. INSURANCE COMPANY: Mercury Casualty Company
INSURANCE COMPANY: Mercury Casualty Company
B. AM BEST RATING (A-: VII or greater): A+:XIII
B.
C. ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D. LIMITS (Must be $1M or greater): What is limit provided?
1,000,000/2,000,000
E. ADDITIONAL INSURED ENDORSEMENT— please attach
® Yes ® No
F. PRODUCTS AND COMPLETED OPERATIONS (Must
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
include): Is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
❑ Yes ❑ No
G. ADDITIONAL INSURED FOR PRODUCTS AND
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
COMPLETED OPERATIONS ENDORSEMENT (completed
(What is limits provided?)
Operations status does not apply to Waste Haulers)
❑ Yes ❑ No
H. ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
Haulers only):
included?
® Yes ❑ No
I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be
❑ N/A ® Yes ❑ No
included): Is it included?
® Yes ❑ No
J. CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ®No
K. ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L- NOTICE OF CANCELLATION:
❑ NIA ® Yes ❑ No
II. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 12/24/15-12/24/16
A.
INSURANCE COMPANY: Mercury Casualty Company
B.
AM BEST RATING (A-: VII or greater) A+:XIII
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
0 Yes ❑ No
D.
LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
1,000,000
E.
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
® N/A ❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ® Yes ❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A 0 Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: Signed Exemption Form 3-28-16
A. INSURANCE COMPANY:
B. AM BEST RATING (A-: VII or greater):
C. ADMITTED Company (Must be California Admitted):
D. WORKERS' COMPENSATION LIMIT: Statutory
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
F. WAIVER OF SUBROGATION (To include): Is it included?
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM
H. NOTICE OF CANCELLATION:
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
HAVE ALL ABOVE REQUIREMENTS BEEN MET?
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
3/30/16
Date
❑ Yes ❑ No
❑ Yes ❑ No
❑ Yes ❑ No
®N/A ❑ Yes ❑ No
❑ N/A ® Yes ❑ No
® NIA ❑ Yes ❑ No
® NIA ❑ Yes ❑ No
0 N/A ❑ Yes ❑ No
® Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _;
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
Approved:
Risk Management Date
+ Subject to the terms of the contract.
9
z o
PROFESSIONAL SERVICES AGREEMENT
WITH DONNA FERGUSON FOR
V ARCHES DRAIN FECAL INDICATOR BACTERIA SOURCE INVESTIGATION
STUDY
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and
entered into as of this 9th day of December, 2013 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City'), and DONNA FERGUSON, a Sole Proprietor ("Consultant"), whose address is
6505 Coyote St., Chino Hills, CA 91709, and is made with reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to conduct a bacteria source investigation
study to identify sources of fecal indicator bacteria ("FIB") concentrations that
have been attributed to urban runoff that is discharged from the Arches Drain into
the Lower Newport Bay ("Project").
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
HEMERA-ZiT1
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2015, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
i • ill al 4
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the. Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Forty
Thousand Dollars and 00/100 ($40,000.00), without prior written authorization from
City. No billing rate changes shall be made during the term of this Agreement without
the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) calendar days after approval of the monthly invoice by City staff.
4.3 City shall 'reimburse Consultant only for those costs or expenses
specifically identified in Exhibit B to this Agreement or specifically approved in writing in
advance by City.
Donna Ferguson Page 2
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 Consultant shall designate a Project Manager, who shall coordinate all
phases of the Project. This Project Manager shall be available to City at all reasonable
times during the Agreement term. Consultant has designated Donna Ferguson to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. The
City's Public Works Director or designee shall be the Project Administrator and shall
have the authority to act for City under this Agreement. The Project Administrator shall
represent City in all matters pertaining to the Services to be rendered pursuant to this
Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
Donna Ferguson Page 3
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first-
class firms performing similar work under similar circumstances.
8.2 All Services shall be performed by qualified and experienced personnel
who are not employed by City. By delivery of completed Work, Consultant certifies that
the Work conforms to the requirements of this Agreement, all applicable federal, state
and local laws, and the highest professional standard.
8.3 Consultant represents and warrants to City that it has, shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.4 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, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties') from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attomeys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), which may arise from or in any manner
relate (directly or indirectly) to any breach of the terms and conditions of this
Agreement, any Work performed or Services provided under this Agreement including,
without limitation, defects in workmanship or materials or Consultant's presence or
activities conducted on the Project (including the negligent, reckless, and/or willful acts,
errors and/or omissions of Consultant, its principals, officers, agents, employees,
vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly
by any of them or for whose acts they may be liable, or any or all of them).
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence or willful misconduct of the Indemnified Parties: 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. This indemnity shall apply to all claims
and liability regardless of whether any insurance policies are applicable. The policy
Donna Ferguson Page 4
limits do not act as a limitation upon the amount of indemnification to be provided by
Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No
civil service status or other right of employment shall accrue to Consultant or its
employees. Nothing in this Agreement shall be deemed to constitute approval for
Consultant or any of Consultant's employees or agents, to be the agents or employees
of City. Consultant shall have the responsibility for and control over the means of
performing the Work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to direct
Consultant as to the details of the performance of the Work or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of City
with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultants indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement or for other periods as specified in this Agreement, policies of
insurance of the type, amounts, terms and conditions described in the Insurance
Requirements attached hereto as Exhibit C, and incorporated herein by reference.
Donna •..
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall
be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint -venture or syndicate or co -tenancy, which shall result in changing
the control of Consultant. Control means fifty percent (50%) or more of the voting
power or twenty-five percent (25%) or more of the assets of the corporation, partnership
or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents'), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
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17.3 All written documents shall be transmitted to City in formats compatible
with Microsoft Office and/or viewable with Adobe Acrobat,
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and/or restoration expense shall be
Donna Ferguson Page 7
bome by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
28. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
24.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination of this Agreement by City. Consultant shall indemnify and hold harmless
City for any and all claims for damages resulting from Consultant's violation of this
Section.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Bob Stein, Assistant City Engineer
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Donna Ferguson
Donna Ferguson
6505 Coyote St.
Chino Hills, CA 91709
Donna Ferguson•..-
26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non -defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
Donna Ferguson._ .
28.3 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.
28.4 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.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Donna Ferguson -.. IM
-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY AT �ElY'S OFFICE
Date:
By:
Aaron C. Harp
City Attorney �` Q
ATTEST:
Date: 8.111''
M
Leilani I. Brown
City Clerk
a
U
%�ffioRNx
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: �.�4,-j
o �
By:
David bb Y'
Public Works Director
CONSULTANT: Donna Ferguson, a Sole
Proprietor
Date: � '-/-'7 /� y
Donna Ferguson
Lead Investigator, Sole Proprietor
[END OF SIGNATURES]
Attachments: Exhibit A - Scope of Services
Exhibit B - Schedule of Billing Rates
Exhibit C - Insurance Requirements
Donna Ferguson Page 11
EXHIBIT A
SCOPE OF SERVICES
Arches Drain Fecal Indicator Bacteria Source Investigation Study
Scope of Work
November 25, 2013
Introduction
Bacteria water quality in the Lower Newport Bay has continued to improve over last
decade. The majority of Bay water sampling sites monitored by the Orange County
Health Care Agency (OCHCA) have been meeting Fecal Coliform TMDL standards
except at BNB35, located in the Newport Channel at the west end of the Harbor below
the Newport Boulevard Bridge. Elevated fecal indicator bacteria (FIB) concentrations
here have been attributed to urban runoff that is discharged from the Arches Drain into
the Harbor Towers Marina (Grant et al., 2009). The Arches Drain conveys
approximately 30,000 to 40,000 gallons of urban runoff from a one square mile
watershed in the Cities of Costa Mesa and Newport Beach, and Caltrans Right -of -Way
which is discharged into the Bay.
The City of Newport Beach has implemented best management practices to reduce
bacterial loads from the Arches Drain including constructing a natural filter or "bioswale"
in the drain and installing two Continuous Deflection Separator (CDS) units above the
bioswale. In addition, the City of Costa Mesa has screened 115 catch basins and also
implemented Low Impact Development,
From 2008-2008 bacteria source identification studies were conducted at Newport Bay
to identify potential sources of FIB. Higher levels of E. coli and Enterococcus during dry
weather were associated with low tides and lower salinity levels, indicating that tidal
flows of storm drain runoff were a major source of bacteria to the Bay (Grant et al.,
2009). Additional studies were conducted at the Balboa Yacht Basin (BYB) and Dunes
Marina to investigate boat vessel waste and bottom sediment as sources of FIB (Grant
et. al, 2004). It was also hypothesized that high bacteria levels within these marinas
areas could account for elevated levels elsewhere in the Bay. The results of the marina
studies showed that the bottom sediment in the Bay contained high levels of E. coli and
Enterococcus bacteria, which were also found to be well mixed in the water column,
suggesting that re -suspension of sediment could explain occasional exceedances in FIB
standards. There is some evidence to suggest that sediment act as a sink and not a
source of FIB. At sampling locations, bacterial levels were not found to peak during
periods of high flow velocity and FIB concentrations in water were not always higher
than that of sediment. The study also indicated that during the study period, the marinas
(and boats) were not important sources of FIB to the Bay because bacteria levels were
higher at channel sites located outside of the marinas.
In recent years, molecular markers (DNA sequences) specific to human -associated
Bacteroides species, such as HF183 have become more widely used to investigate
sources of fecal pollution to urban runoff (Ahmed et al., 2007; Sercu et al., 2009; Sauer
et al. 2011). The Orange County Public Health Laboratory (OCPHL) has experience
using HF183 and was selected by the EPA to participate in nationwide studies to
validate the method for regulatory testing.
Donna Ferguson Page A-1
In addition to advancements in molecular -based methods, significant knowledge gains
have been made regarding the role of "naturalized strains of FIB. DNA fingerprinting
and mesocosm studies have shown that E. coli and Enterococcus are capable of
persisting and growing in a variety of environmental sources including soil, beach sand,
algae and seawrack, suggesting that they may represent naturalized populations
(Whitman et al., 2003; Ishii et al., 2006; Hartz et al., 2008; Yamahara et al., 2009;
Imamura et al., 2011; Byappanahalli et al., 2012a; Byappanahalli at al., 2012b; Ran et
al„ 2013). These studies suggest that FIB present in secondary sand habitats are not
always primarily of fecal origin and should be considered "allochthonous microbes" to
represent opportunistic introductions generally from other natural or cultural sources
that may then become naturalized if they adapt and replicate in the environment.
Study Goal and Objectives
The goal of the Arches Drain Fecal Indicator Bacteria Source Investigation Study is to
identify and prioritize sources of fecal coliforms and Enterococcus found at site BNB35
in Newport Harbor near the discharge point of the Arches Drain. The investigation area
will include the Arches Drain outlet, Harbor Tower Marina, the upstream Arches Drain
bioswale, and adjacent CDS units (and immediate vicinity).
The proposed scope of work will expand upon previous studies conducted in Newport
Bay and incorporate advanced genetically -based MST methods to investigate fecal and
non -fecal sources of FIB. The study will (1) analyze FIB in urban runoff conveyed from
the Arches Drain into the Harbor Tower Marina, (2) investigate boating practices, pump
out station and other activities in the marina that may be contributing FIB and (3) assess
FIB sources immediately upstream of the CDS units above the bioswale. Enterococcus
isolated from water and biofilm samples (on sediment, vegetation or storm drain
surfaces) will be quantified and characterized to species and strain level using a
combination of culture methods and DNA typing methods. Enterococcus will be
characterized rather than E. coli, because previous genetic studies on E. coli have
shown that this species includes a high diversity of strain types and would therefore
require extensive isolation of strains to encompass strain diversity representative of
sources of contamination (Gordon 2001; McLellan at al., 2003). Instead of focusing on a
single species groups, the work will assess species diversity and strain types
representative of dominant species to increase the likelihood of finding clonal (i.e.,
genetically identical) strains. DNA fingerprinting will be conducted by the OCPHL using
pulsed -field gel electrophoresis, the same method used by Grant (et al., 2009). The
laboratory is a member of PulseNet, a national laboratory network made up of 87
laboratories to detect outbreaks using PFGE.
Identifying matching or clonal strains of enterococci could prove useful for assessing
potential sources, including natural reservoirs. Bacteria replicate by attaching to
surfaces, forming biofilm and producing clonal cells. Thus, finding high densities of
clonal strains derived from the same parent would be indicative of bacterial growth.
Investigating spatial and temporal distribution of clonal strain types could be done to
assess the persistence of enterococci in water and biofilm.
Donna FergusonPage Alt
Microbial communities are frequently habitat specific. Thus, characterizing
Enterococcus populations among individual samples could be useful for making
comparisons across sampling locations and sample types. For example, Enterococcus
populations found in the CDS units could be compared to populations found in runoff in
the bioswale and further downstream at the Arches Drain outlets. In addition, DNA
typing could be conducted on predominant Enterococcus strains found in the CDS unit
or biofilm in the bioswale to assess enterococcal regrowth.
Recent investigations of potential sources of bacteria upstream of the CDS units have
not been conducted. These include illicit discharges into the drain, nuisance flows, pet
waste and decaying vegetation. Measuring FIB levels in drain flows upstream may
provide further insight as to source inputs and relative contributions of FIB downstream.
Finally, marina and boat operations in the lower Bay, such as boat washing, vessel
waste disposal and maintenance of pumpout stations will be investigated to assess
potential inputs of FIB into the marina. Elevated bacteria counts resulting from marina
related activities are likely to be more sporadic in nature and may explain occasional
increases in FIB concentrations.
Investigation Plan
The initial phase of the study will involve a review of historical monitoring data and
reports relevant to the Arches Drain bioswale and Newport Blvd. Bridge sampling sites
BNB35 (Task 1).
Perform a preliminary sampling event to identify potential sampling sites in the bioswale
and marina and determine relative contributions of fecal coliforms and Enterococcus in
water and biofilm samples (Task 2). The preliminary sampling event will be followed by
three additional sampling events to be conducted in June 2014 to assess temporal
variability in FIB concentrations at the proposed sampling sites shown in Figures 3 & 4
(Task 3). Proposed sampling dates and testing methods are shown in Table 1.
Sampling will be performed at low tide to access runoff flows and biofilm at the Arches
Drain outlets. Water and biofilm samples will be analyzed for FIB concentrations and
HF183 human marker to assess human fecal pollution. Water samples will also be
analyzed for salinity levels and temperature. A subset of FIB samples (20%) collected
for the three sampling events will be tested in duplicate at the OCHCA laboratory to
determine variability of FIB.
Task 3 will also include gathering information on marina operations and conducting field
observations during sampling events. Potential source inputs of FIB to the runoff in the
Arches Drain further upstream near the CDS units will also be investigated.
Enterococcus isolates obtained from water and biofilm samples will be archived for
speciation and DNA analysis (Task 4). Up to five each of fecal coliform and
Enterococcus isolates from each sample will be identified to species level and
characterized by DNA typing to assess regrowth.
The lead investigator, Donna Ferguson, will analyze the study data and prepare a draft
report summarizing the study findings and providing recommendations (Task 5). The
Donna Ferguson Page A-3
draft report will be submitted to City of Newport Beach and Dr. Jack Skinner for review
and comments. A final report will be completed by Donna Ferguson within one months
of receiving the City's comments on draft report.
Scope of Work
Task 1: Review Previous FIB Monitoring Data including:
• Final Reports: Newport Bay Fecal Indicator Bacteria Source Identification
Project. The Contribution of Marinas to Fecal Indicator Bacteria Impairment in
Lower Newport Bay, Southern California.
• OCHCA Historical Monitoring Data: Compare FIB levels with tidal conditions
(spring versus neap tides and ebb versus flood flow)
Task 2: Conduct preliminary FIB sampling event at the outfall of the Arches Drains,
Newport Boulevard Bioswale and Harbor Towers Marina.
• Collect and analyze water and biofilm samples to identify potential sampling
sites and determine relative levels of FIB
• Archive Enterococcus isolates for speciation and DNA typing
Task 3: Conduct 3 FIB Sampling Events at the Arches Drain outfalls, Newport
Boulevard Bioswale, CDS Units and Harbor Towers Marina.
• Investigate marina operations (including use of vessel waste pump out
station)
• Investigate potential source inputs of FIB to areas near CDS units (e.g. City
yard)
• Collect and analyze additional water and biofilm samples to identify potential
sampling sties and to determine relative levels of FIB to assess bacterial
loading from bioswale and Arches drain outlets
• Analyze samples using DNA molecular markers to assess human fecal
pollution
• Measure temperature and salinity levels in water
• Archive Enterococcus isolates for speciation and DNA typing
• Assess CDS units as source and investigate other nearby sources
• Measure bacteria levels in CDS units
• Identify sources (ex. nuisance flows, illicit discharges, pet waste) and
measure bacteria levels in drain flows below source input
Task 4: Perform Enterococcus Speciation and DNA Strain Typing
• Analyze the data.
• Prepare a final report including recommendation for additional investigations if
warranted.
Donna Ferguson '... At
Table 1. Summary of Sampling Plan Tasks and Schedule
Tas
k
Total
Proposed Sampling
Description
Methods
Samplesles
Date & (Time)
No.Sites
1
Review Previous FIB Monitoring Data
Conduct Preliminary FIB
Sampling Event in Arches
EPA Method
2
Drain Bioswale and Harbor
1600 &
8
14
513/14 (7:00 a.m.)
Towers Marina
SM 9222D
Conduct 3 FIB Sampling
EPA Method
10
612/14 (7:00 a.m.)
3
Events in Arches Drain
1600,
15
( including
6/3/14 (8:00 a.m.)
Bioswale, CDS Units and
SM 9222D,
replicates)
613/14 (12:30 a.m.)
Harbor Towers Marina
HF183
Perform Enterococcus
Microscan,
4
Speciation
traditional
NA
-50
NA
biochemicals
Pulsed -field
4
Conduct DNA Fingerprinting
elelctrophoresi
NA
-50
NA
s PFGE
5
Conduct Data Analysis and Prepare Final Report
Donna Ferguson'.rAM
-
EXHIBIT B
SCHEDULE OF BILLING RATES
Task No.
Description
Cost
Summary
1
Review Previous FIB Monitoring Data
$1,000
2
Conduct Preliminary FIB Sampling Event in Arches Drain Bioswale
and Harbor Towers Marina
$2,000
3
Conduct 3 FIB Sampling Events in Arches Drain Bioswale, CDS
Units and Harbor Towers Marina
$8,000
4
Perform Enterococcus Speciation and DNA Strain Typing
$25,200
5
Conduct Data Analysis and Prepare Final Report
$3,800
Total Cost Estimate
$40,000
Donna Ferguson Page B-1
�«
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coverage Requirements
A. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than one million dollars ($1,000,000) per
occurrence, one million dollars ($1,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract
(including the tort liability of another assumed in a business contract) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a contract.
B. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than one million dollars ($1,000,000)
combined single limit each accident.
4. Other Insurance Requirements. The policies are to contain, or be endorsed to
contain, the following provisions:
A. Waiver of Subrogation. All insurance coverage maintained or procured
pursuant to this Agreement shall be endorsed to waive subrogation
against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing
insurance evidence in compliance with these requirements to waive their
77
Donna Ferguson Page C-1
right of recovery prior to a loss. Consultant hereby waives its own right of
recovery against City, and shall require similar written express waivers
from each of its subconsultants.
B. Additional Insured Status. All liability policies including general liability,
excess liability, pollution liability, and automobile liability, if required, but
not including professional liability, shall provide or be endorsed to provide
that City and its officers, officials, employees, and agents shall be included
as insureds under such policies.
C. Primary and Non Contributerv. All liability coverage shall apply on a
primary basis and shall not require contribution from any insurance or self-
insurance maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days notice of cancellation (except for nonpayment for which ten
(10) calendar days notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance
to City as evidence of the insurance coverage required herein, along with
a waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance
certificates and endorsement must be approved by City's Risk Manager
prior to commencement of performance. Current certification of insurance
shall be kept on file with City at all times during the term of this
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at any time.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non-compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
Donna Ferguson Page C-2
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type.
E. Self-insured Retentions. Any self-insured retentions must be declared to
and approved by City. City reserves the right to require that self-insured
retentions be eliminated, lowered, or replaced by a deductible. Self-
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non -Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely -Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
Donna FergusonPage C
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. "
Date Received: 2/10/14 Dept./Contact Received From: Lucie
Date Completed: 2/24/14
Sent to: Lucie By: Chris/Carol _T
Company/Person required to have certificate:
Type of contract:
GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE:
1/22/14-1/22/15
Donna Ferguson
All Others
A.
INSURANCE COMPANY: Mercury Casualty Company
B.
AM BEST RATING (A-: VII or greater): A+:XIII
C.
ADMITTED Company (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS (Must be $1 M or greater): What is limit provided?
1,000,000/2,000,000
E.
ADDITIONAL INSURED ENDORSEMENT— please attach
® Yes ❑ No
F.
PRODUCTS AND COMPLETED OPERATIONS (Must
include): is it included? (completed Operations status does
not apply to Waste Haulers or Recreation)
❑ Yes ❑ No
G.
ADDITIONAL INSURED FOR PRODUCTS AND
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
❑ Yes ❑ No
H.
ADDITIONAL INSURED WORDING TO INCLUDE (The City
its officers, officials, employees and volunteers): Is it
included?
® Yes ❑ No
1.
PRIMARY & NON-CONTRIBUTORY WORDING (Must be
included): Is it included?
® Yes ❑ No
J.
CAUTION! (Confirm that loss or liability of the named insured
is not limited solely by their negligence) Does endorsement
include "solely by negligence" wording?
❑ Yes ® No
K.
ELECTED SCMAF COVERAGE (RECREATION ONLY):
® N/A ❑ Yes ❑ No
L.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
H. AUTOMOBILE LIABILITY
EFFECTIVE/EXPIRATION DATE: 1/15/14-1/15/15
A.
INSURANCE COMPANY: Mercury Casualty Company
B.
AM BEST RATING (A-: VII or greater) A+:XIII
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
® Yes ❑ No
D.
LIMITS - if Employees (Must be $1M min. BI & PD and $500,000
UM, $2M min for Waste Haulers): What is limits provided?
1,000,000
E.
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided?)
N/A
F.
PRIMARY & NON-CONTRIBUTORY WORDING (For Waste
Haulers only):
® N/A ❑ Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY:
❑ N/A ® Yes ❑ No
H.
NOTICE OF CANCELLATION:
❑ N/A ® Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE/EXPIRATION DATE: Siqned Workers' Compensation exemption form 14/14113
A. INSURANCE COMPANY:
B. AM BEST RATING (A- : VII or greater):
C. ADMITTED Company (Must be California Admitted):
D. WORKERS' COMPENSATION LIMIT: Statutory
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater)
F. WAIVER OF SUBROGATION (To include): Is it included?
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM:
H. NOTICE OF CANCELLATION:
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
N. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
Approved:
ool�
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
2/24/14
Date
❑ Yes ❑ No
❑ Yes ❑ No
❑ Yes ❑ No
® N/A ❑ Yes ❑ No
❑ NIA ® Yes ❑ No
® NIA ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
®NIA ❑ Yes ❑ No
RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _;
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval/exception/waiver:
F=
Risk Management Date
* Subject to the terms of the contract.
CITY OF NEWPORT BEACH
CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE
I hereby certify that in the performance of the work for which this Agreement is entered
into, I shall not employ any person in any manner so as to become subject to the Workers'
Compensation Laws of the State of California.
Executed on this A/ day of Ackb c 20/-9 at Cliff qtr/Is
California.
z4A.s Aq6 *-C n -
(Consultant's Signature)
f�Drtrta �L��sm-r , r�"ircrr!r�;f L. yt 5�
(Print Consultant's name and title)