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HomeMy WebLinkAboutC-8053-1 -PSA for OC Pesticide TMDL - Mitigation Work Plan Evaluation and RecommendationsM PROFESSIONAL SERVICES AGREEMENT WITH ANCHOR QEA, LLC FOR v OC PESTICIDE TMDL - MITIGATION WORK PLAN EVALUATION AND RECOMMENDATIONS THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 28th day of April, 2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and ANCHOR QEA, LLC, a Washington limited liability company ("Consultant"), whose address is 27201 Puerta Real, Suite 350, Mission Viejo, California 92691, 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 provide an evaluation of the City's draft work plan for a Regional Water Quality Control Board pesticide Total Maximum Daily Load ("TMDL") ("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: lisomilA:7i' The term of this Agreement shall commence on the Effective Date, and shall terminate on March 30, 2018, 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. 3. TIME OF PERFORMANCE 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 Fifty Thousand Dollars and 001100 ($50,000.00), 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. Anchor QEA, LLC 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 Shelly Anghera, Ph.D. 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. 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 perform all Services in a manner commensurate with community professional standards Anchor QEA, LLC Page 3 and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. 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 legally recognized professional standards. 8.2 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. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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, attorneys' 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 limits do not act as a limitation upon the amount of indemnification to be provided by Consultant. Anchor QEA, LLC Page 4 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 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 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. 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 Anchor QEA, LLC Page 5 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, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information 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. Anchor QEA, LLC Page 6 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 Anchor QEA, LLC Page 7 borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. 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: David A. Webb, Public Works Director 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: Shelly Anghera, Ph.D. Anchor QEA, LLC 27201 Puerta Real, Suite 350 Mission Viejo, CA 92691 Anchor QEA, LLC Page 8 al�@iWc1111,K 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. Anchor QEA, LLC Page 9 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 race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, 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] Anchor QEA, LLC Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY6S OFFICE Date: By: -,Q— Aaron C. Harp (AM a%j 24 lu City Attorney ATTEST: J� Date: 6� By: vvW" Ji PJww, Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation nate� - ! 1 GG By: /)o A. / David A. Webb Public Works Director CONSULTANT: Anchor QEA, LLC, Washington limited liability company Date: Signed in Counterpart By: Steve Cappellino Partner Date: Signed in Counterpart RV - Shelly Anghera. Ph.D. Partner [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Page 11 Anchor QEA, LLC IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: By: Aaron C. Harp (Am a+I2aliu City Attorney ATTEST: Date: M Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation By: David A. Webb Public Works Director CONSULTANT: Anchor QEA, LLC, e Washington limited liability company Date:�s I (� By:�_� Steve Cappellino Partner Nartner [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Anchor QEA, LLC Page 11 EXHIBIT A SCOPE OF SERVICES Anchor QEA, LLC Page A-1 G- ANCHOR OEA Suite 350 Misson Viejo, California 92691 Phone 949.347 2780 February 24, 2016 Bob Stein, Ph.D. City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Re: Scope of Work and Cost Estimate to Revise the Draft Work Plan for Organochlorine Compound Total Maximum Daily Loads for San Diego Creek and Upper and Lower Newport Bay Dear Dr. Stein: Anchor QEA, LLC, is pleased to provide this scope of work and cost estimate to revise the Draft Work Plan for organochlorine compound (OC) Total Maximum Daily Loads (TMDLs) for San Diego Creek and Upper and Lower Newport Bay. I reviewed the Draft Work Plan, the original TMDL developed by the U.S. Environmental Protection Agency in 2002, and the revised TMDL developed by the Regional Water Quality Control Board (RWQCB; Resolution No. R8-2011-0037). I believe the entire work plan must be rewritten and reorganized to provide a strategic, programmatic approach to TMDL compliance. The Draft Work Plan confuses the audience with errors and inappropriate expectations and does not meet the minimum requirements outlined in Resolution No. R8-2011-0037. A revised Work Plan is necessary to set accurate expectations, to motivate engagement of the working group, and provide strategic path for the TMDL implementation process. A complete revision of the work plan is necessary because of the following: • The Draft Work Plan does not clearly address the required elements described in the Resolution and the intended nature of the adaptive management TMDL process; • The current approach leads the group down an unknown path of data collection scenarios and contains data collection methods that are not consistent with or relevant to demonstrating TMDL compliance; and www.anchorqea.com Dr. Bob Stein, City of Newport Beach February 24, 2016 • The Work Plan has defensive language that may result in closing off productive communication and collaborative opportunities with the RWQCB. The remainder of this letter details each of these concerns. The Draft Work Plan does not address the required elements and the intended nature of the adaptive management TMDL process. The Draft Work Plan does not address the implementation activities outlined in the TMDL, and it does not address the recommended actions by the Independent Advisory Panel. This TMDL is unique in that it allows for adaptive management and reconsideration of numeric targets. Usually, anti -backsliding laws prevent any relaxation in water quality objectives once included in a Basin Plan Amendment and relevant permits. Instead, this TMDL allows the dischargers an opportunity to use sound science to justify modifications to compliance methods (e.g., numeric targets and waste load allocations), provides flexibility in the implementation actions, and allows for cost-saving adjustments in monitoring programs. However, to be provided the flexibility of an adaptive management TMDL, the work plan must provide a "comprehensive, watershed plan for BMP implementation, monitoring, special investigations and other actions that will assure compliance with the OCs TMDLs' (Resolution No. R8-2011-0037). In addition, the work plan must address recommendations from the Independent Advisory Panel for the development of alternative compliance methods. Finally, Phase I Implementation Tasks 2, 3, 5, and 6 from the revised TMDL "must be considered in work plan development and implementation" (Resolution No. R8-2011-0037). I do not believe that the current Work Plan meets any of these requirements. The current approach leads the group down an unknown path of data collection scenarios and contains data collection methods that are not consistent with or relevant to demonstrating TMDL compliance. The approach applied in the Draft Work Plan focuses on non -targeted, non-strategic monitoring activities that may or may not inform the Conceptual Site Model. A more practical, targeted, and scientifically based approach would be to summarize all available data and then determine if further data are required to develop a draft Conceptual Site Model. The only data collection required at this time is to support compliance monitoring. The Draft Work Plan proposes compliance monitoring using the State's Sediment Quality Objectives (SQO). However, SQOs are not listed as approved metrics for demonstrating compliance; instead, the TMDL metrics are numeric targets for Dr. Bob Stein, City of Newport Beach February 24, 2016 Page 3 sediment, water and tissue. Consequently, the collection of data using the SO -0 methodologies is not consistent with demonstrating TMDL compliance in the TMDL. Use of the SQOs as metrics for evaluating compliance must be negotiated with the RWQCB before implementation, and the endpoints used to define compliance must be clarified. The Work Plan has defensive language that may result in closing off productive communication and collaborative opportunities with the RWQCB. Throughout the Draft Work Plan, the text suggests that TMDLs are unjustified and that the collection of additional data through non -targeted monitoring will result in TMDL compliance. That simply will not happen. The TMDL is already in effect, and only demonstrating compliance with all numeric targets in sediment, water, fish tissue, and bird egg tissues will relax the need for reductions in pollutant loadings. Current fish tissue and bird egg tissue data show levels of OC pesticides (specifically polychlorinated biphenyls [PCBs) and DDTs) above the numeric criteria. No matter how many sediment samples are collected, this will not change the fact that water quality objectives are not being met and the beneficial uses continue to be impaired. Delisting is considered infeasible for sediment -related compounds; any discussion of delisting sediment -based pollutants in this watershed leads the working group in the wrong direction. The only changes to the 303(d) list will be the addition of new pollutants and with that more controls. The water quality objectives must be met within 4 years (i.e., by December 31, 2020), and the Work Plan still has not been approved by the RWQCB. Based on my review, I do not expect the RWQCB to approve this Work Plan. Without an approved Work Plan, all dischargers will be required to complete each implementation task individually and meet the current numeric targets and waste load allocations. There is an opportunity here to adjust the direction, develop risk based compliance targets, and receive credit for pollution controls that are already in place. Anchor QEA has been down this path through other similar TMDLs, we understand the effort that is needed and the efficiencies gained when the discharger runs the program rather than being directed by the RWQCB. We are eager to help the City of Newport Beach negotiate a path with the RWQCB and lead the stakeholders through an environmentally and economically responsible process to restore water quality and maintain beneficial uses in the watershed. Dr. Bob Stein, City of Newport Beach February 24,2016 SCOPE OF WORK For a time and materials budget not to exceed $50,000, Anchor QEA will revise the Work Plan as outlined in the recommended approach, keeping as much of the introduction as possible. To most efficiently execute the revised Work Plan, I recommend meeting with the Irvine Company to gain acceptance of the proposed approach. An annotated outline will be developed and shared with the RWQCB for concurrence. Once approved, a revised draft work plan will be prepared. Anchor QEA will support the City of Newport Beach in sharing the revised work plan with the other stakeholders. Budget Assumptions The following assumptions were made when compiling this scope of work: • One in-person meeting with the Irvine Company. • Irvine Company consulting team will assist in the development of the work plan. • An annotated outline of the proposed work plan will be drafted. • One in-person meeting with the RWQCB. • A draft work plan will be developed based on the annotated outline. • One in-person meeting with workgroup members to share the revised draft work plan. • Responding to comments from the workgroup and developing a final work plan is beyond the $50,000 budget. Additional budget can be estimated after comments are received. Dr. Bob Stein, City of Newport Beach February 24, 2016 I appreciate the opportunity to provide this scope of work and cost estimate for completing this work. If there are any questions, please do not hesitate to call me at (714) 296-9018. Sincerely, '& (4,�'�u iit I Shelly Anghera, Ph.D. Principal Scientist Anchor QEA, LLC Attachment Recommended Approach for the new Work Plan General comments for Draft Work Plan Shelly Anghera, Ph.D., Resume RECOMMENDED APPROACH IN A NEW WORK PLAN Task 1: Develop a Cooperative Compliance Monitoring and Reporting Plan Question: Is there a clear regulatory framework for determining TMDL compliance? Assessment steps include the following: 1. Gain regulatory acceptance on approaches to demonstrate compliance, including acceptance of SQO policy based tools and risk assessment framework. 2. Develop a risk-based compliance process. This effort directly addresses recommendations from the IAP: - IAP Recommendation 1: Development of management thresholds for bioaccumulative compounds such as OCs should be approached through a structured risk assessment process. - IAP Recommendation 2: Sediment water, and tissue targets should be derived as part of an integrated modeling approach that incorporates specific endpoints and information about the entire foodweb. 3. Develop a Contaminated Sediment Management Plan (CSMP). This TMDL requires numeric targets in sediment be achieved, and like others of this kind, it assumes dredging will be required to be compliant. It is recommended that a CSMP be developed that outlines the risk- based process for sediment remediation programs. These documents have been developed for multiple areas in Los Angeles County. It sets the Regional Water Quality Control Board's (RWQCB's) expectations on effectiveness of sediment remediation programs and gains approval on a more strategic watershed -based approaches. This document may be written later in the process, but this effort will include Implementation Task 6 in Resolution No. R8-2011-0037: - Implementation Task 6: Evaluate the feasibility and mechanisms to fund future dredging operations within the San Diego Creek, Upper and Lower Newport Bay Question: How should the compliance monitoring program be designed? Assessment steps include the following: 1. Determine how compliance be determined, e.g., through 1) SQO assessment tools, 2) numeric targets, or 3) meeting waste load allocations. This determination will be based on negotiations with the RWQCB regarding Task lc. 2. Develop cost sharing agreements with all parties. Seethe Greater Harbor Regional Monitoring Coalition's CCMRP as an example. This effort directly addresses Implementation Task 2 and 3 in the Resolution. - Implementation Task 2: Develop proposed agriculture BMP and monitoring program to assess and control OC discharges. Once the CSM or other quantitative methods have confirmed the source linkage to the impairment, and BMPs are developed, then the monitoring plan can be developed to assess the effectiveness of the BMP. - Implementation Task 3: Develop proposed monitoring program to assess OCs inputs from open spaces. Once the CSM has confirmed the source linkage to the impairment, and BMPs are developed, then the monitoring plan can be developed to assess the effectiveness of the BMP. Question: What other data collection programs are ongoing that may offer efficiencies? Assessment steps include the following: 1. Develop a programmatic Quality Assurance Project Plan (QAPP). This effort is optional but is recommended if stakeholders plan to develop a site-specific model; also will ensure data standards are upheld and comparable if there are different monitoring programs from which data are being evaluated. The QAPP will ensure all data collection programs are consistent, standardized, and will eliminate dueling datasets, which allows forgreater data sharing ease and completeness. See the Greater Harbor Regional Monitoring Coalition's Programmatic QAPP as an example. Task 2: Confirm Impairment Using Existing Data Representing Current Conditions and the SQO Assessment Tools Question: Do current data support the implantation of controls for organochlorine compound (OC) pesticides as defined in the Total Maximum Daily Load (TMDL)? Confirm impairment exists with available data that reflect current conditions. Assessment steps include the following: 1. Develop a database of all available and relevant data. This data summary review will allow efforts to support recommendations from the Independent Advisory Panel (IAP): - IAP Recommendation 8: Available trend data on tissue levels in the watershed should be examined to determine if the data can be interpreted equally well from different perspectives. Tracking of trends should be expanded by including one or more representative resident marine or estuarine fish in routine monitoring programs. 2. Determine if numeric targets are exceeded. If yes, are other risk-based human health and wildlife thresholds exceeded? 3. Use Sediment Quality Objectives (SQO) assessment tools to evaluate sediment condition. - SQO direct effects assessment: Evaluate available data. - SOO indirect effects assessment: Run SQO indirect effects to determine if there is an impairment that can be linked to sediment from the site. —Does this model suggest impairment? Would additional data allow a more accurate assessment? Is there a pattern where more recent data suggest less impairment than older data? Task 3: Develop Conceptual Site Model for OC Pesticides in Watershed Question: Are the sources and receptors of the contaminants defined and understood? Develop a Conceptual Site Model (CSM) and confirm major sources, sinks, and receptors and pathways for contaminants of potential concern in the watershed. Assessment steps include the following: 1. Develop a CSM. The CSM will directly address Implementation Task 5 in Resolution No. R8- 2011-0037 and recommendations from the IAP: - Implementation Task 5: Evaluate sources of OCs; develop and implement BMPs. Once the source has been linked to the impairment then an effective BMP can be designed. - IAP Recommendation 2: Sediment water, and tissue targets should be derived as part of an integrated modeling approach that incorporates specific endpoints and information about the entire foodweb. - IAP Recommendation 9: Sediment mass balance models should be developed for each contaminant. This task should be included in the TMDL implementation work plan - IAP Recommendation 10: Potential unidentified sources of pollutants that could become important as contaminant levels decline should be investigated. Question: Are there any data gaps in the CSM that need to evaluate unknown contaminant pathways which would prevent the identification and/or effectiveness of management alternatives? Is the linkage defined and understood? Are all the sources identified? Assessment steps include the following: 1. Perform data gaps analysis to determine most critical information gaps. Task 4: Develop Risk Assessment Framework Questions: Since the TMDL allows for the development water quality objectives that are risk based, can an alternative risk-based water quality objective be developed that is protective of beneficial uses? Assessment steps include the following: 1. Review to directly address recommendations from the IAP: - IAP Recommendation 3: The Office of Environmental Health Hazard Assessment's (OEHHA) fish tissue targets related to human health should be reviewed and a decision made as to which targets (Fish Consumption Guidelines (FCGs) or Advisory Tissue Levels (ATLs)) are most appropriate for use in the OCs TMDLs. Anchor QEA has already developed a white paper that articulates the advantages of using ATLs over FCGs from a technical perspective. However, if the SQO for indirect effects are used in the evaluation of compliance, this metric will be dependent on assumptions used in the State Policy for the calculation of fish consumption risk to humans (i.e,. assumptions such as risk level, consumption rate, etc.). - IAP Recommendation 4: Development of appropriate and protective wildlife criteria should build on the efforts underway by the Biological Technical Assistance Group (STAG) to develop and refine TRVs based on the best available current science. - IAP Recommendation 5: Protective prey tissue levels (targets) should be selected and/or calculated for three species of wildlife bird species: the clapper rail, least tern, and osprey. - IAP Recommendation 6: A thorough review of the literature on contaminant effects, thresholds, and screening values relevant to these three bird species of concern in Newport Bay should be undertaken. - IAP Recommendation 7: Current science does not yet permit setting reliable targets for toxaphene to the extent possible for other contaminants; it is likely that any sediment control measures used to address DDT issues in the Newport Bay Watershed would also be effective for toxaphene. COMMENTS ON CURRENT APPROACH APPLIED IN DRAFT WORK PLAN • IAP recommendations are not directly addressed through the planned efforts. Significant effort and investment has been made to bring these experts together. The RWQCB is willing to have them weigh in on applicability of appropriate targets and management approaches. Providing this group the needed information will have immense impacts on the feasibility of management alternatives. • The tasks identified within the Basin Plan Amendment are not directly addressed or not addressed at all. Fulfilling the minimum expectations of the RWQCB will open communication and cooperation. The RWQCB has specific obligations to meet the Clean Water Act; organizing the Work Plan to show that efforts are responsive to the Basin Plan Amendment is crucial to stakeholder groups that are advocating more restrictive management actions. • The approach seems to be focused on what data can be collected (the actual tools) rather than focusing on how compliance will be demonstrated. The SQO policy provides assessment tools and technical guidance that RWQCB staff may use to help understand sediment -related impairments to benthic infauna (direct effects) and human risk from fish consumption (indirect effects; currently under development). It seems the more meaningful approach would be to understand impairments caused by sediment (to both benthic and fish tissue), water (fish tissue), and fish tissue (to both human and wildlife). Current Task 1: Construct a Conceptual Site Model and Risk Assessment Framework that Will Guide Any Needed Technical Assessments with Available Data from Past and Ongoing Current Studies to Determine Whether Evidence of Current Problems Exist Comment on Approach: Because the TMDL is already adopted, the confirmation of water quality impairments is not needed unless it is believed that the environment has substantially changed or that the targets do not reflect current state water quality criteria. An evaluation of TMDL numeric targets confirms the targets are relevant to other similar TMDLs (Marina del Rey, Dominguez Channel and Greater Harbor Waters, Calleguas, etc.). However, the Dominguez Channel and Greater Harbor Waters TMDL allows compliance to be demonstrated through the SQO policy. In addition, dredging of Lower Newport Bay removed contaminated sediments from portions of the harbor. Therefore, it is justified to reassess available sediment, water, and tissue quality data that reflects current conditions. Sufficient data are available to evaluate sediment quality using the SQO direct and indirect assessment tools without collecting new data. To use the SQO indirect effect tool, as part of this approach it might be beneficial to complete a CSM to determine appropriate fish species to be used in the tool. Task 2: Design and Implement a TMDL-related Monitoring Plan that Will Fill Key Data Gaps Comment on Approach: A more appropriate process would be to develop the minimal monitoring program required in the TMDL. This task is designed to assess compliance. The TMDL requires monitoring program and any identified data gaps need to be collected in a program that is specifically designed to meet those particular objectives. Monitoring programs should not define where and what data gaps exist, rather the review of existing data should define the data needs after CSM development. Any programs conducted by the RWQCB or SCCWRP may provide supplemental data or an opportunity for efficiencies where similar objectives may exist. Task 3: Evaluate Best Management Practices (BMPs) in Regard to Current Technologies and the Development of BMP Approaches Comment on Approach: BMPs have been implemented throughout the region for other TMDLs, MS4, and stormwater related programs. The working group should document those BMPs and evaluate how effective those BMPs are for OC pesticides and sediment load reductions. The group should review ongoing monitoring programs that area already approved and document which ones sufficiently meet the task recommendations in the Basin Plan Amendment. The working group should also develop a reporting process so those programs satisfy the requirements of this program as well. After the CSM is complete and the major sources of OC pesticides are understood, then BMP effectiveness at cutting off linkage or reducing inputs can be assessed. Site- or BMP -specific monitoring programs can be developed when it is determined to be necessary in the implementation plan. It is likely the dischargers are implementing many pollution control measures, but the current approach does not provide a mechanism to demonstrate that. Task 4: Evaluate and Revise (as needed) 303(d) Listings, Risk-based Assessment Thresholds, and TMDL Targets Comment on Approach: The 303(d) list identifies waterbodies where a TMDL is needed. Newport Bay already has a TMDL; therefore, the only outcome is adding new compounds to the 303(d) list. The delisting process is not applicable with use of the SQO policy assessment tools. Furthermore, Newport Bay is not clean enough to consider delisting as an option. The use of alternative numeric targets is a technical issue that requires significant justification, hence the need for a Work Plan. Shelly Anghera, Ph.D. Partner, Principal Scientist Dr. Shelly Anghera is a principal scientist with more than 18 years of Education experience conducting field and laboratory studies related to marine Ph.D., Environmental Health eco -toxicology and sediment quality characterization. She has focused on sciences, University of California, Los Angeles,2004 providing specialized environmental services for the Ports of Long Beach shortcomings and worked closely with the Ports, other stakeholders, and and Los Angeles (Ports) for the past 12 years. Her expertise centers on B.S., Aquatic Biology, University of field study design, sediment characterization, water and sediment testing California, Santa Barbara, 1995 and analysis, implementation strategies for Total Maximum Daily Load requirements. Efforts include identification of contaminant sources and (TMDL) compliance, and California's Sediment Quality Objectives (SQOs) establishment linkages of pollutants to current impairments in order to application. Dr. Anghera's projects often focus on the integration of develop effective remedial actions. Our team is working closely with the multiple lines of evidence to determine water and sediment quality in Ports to develop responsible management solutions, based on sound marine systems. Recent projects include sediment management, TMDL science, to be considered at the TMDL reopener in 2018. support, water quality monitoring, and sediment and water quality characterization within the Los Angeles/Long Beach Harbor in support of the Water Resource Action Plan (WRAP). Project Experience Total Maximum Daily Loo Dr. Anghera is leading the development of a comprehensive strategy and Support program to support the Ports for implementation and compliance with Ports of Long Beach and Los Angeles the Greater Harbor Waters Toxics TMDLs. Anchor QEA identified scientific San Pedro Bay, California shortcomings and worked closely with the Ports, other stakeholders, and the regulators to provide the information needed to assess current conditions and develop implementation actions to address compliance requirements. Efforts include identification of contaminant sources and establishment linkages of pollutants to current impairments in order to develop effective remedial actions. Our team is working closely with the Ports to develop responsible management solutions, based on sound science, to be considered at the TMDL reopener in 2018. Contaminated Sediment Management Plans City of Long Beach, Los Angeles County Department of Public Works, and City of Los Angeles Southern California California State Sediment Quality Objectives Ports of Los Angeles and Long Beach San Pedro Bay, California Dr. Anghera led the development of three complimentary Contaminated Sediment Management Plans (CSMPs) forthe long-term management of legacy contaminants in marine sediments to ensure management actions are ecologically beneficial and logistically and economically feasible. The CSMPs detail a process to identify, prioritize, and manage chemically impacted sediments, where necessary, to protect and improve water quality. The CSMPs use a risk-based approach to assess impacts due to chemically mediated effects as a means for determining the magnitude and extent of possible cleanup actions. Dr. Anghera developed a series of reports and comment documents to determine implications of the State's Phase 1 (Direct Effect) SQOs and the pending Phase II (Indirect Effects) SQOs. Dr. Anghera continues to attend and present findings at the Technical Advisory Committee meetings, on behalf of the Ports, to evaluate approaches for applying the SQO tools to long-term monitoring programs and TMDL compliance programs. Shelly Anghera, Ph.D. Project Experience Greater Harbor Waters Toxics Dr. Anghera serves as the principal -in -charge of this program. The TMDL Compliance Monitoring Greater Harbor Waters Toxics TMDL requires the Responsible Parties Gateway Watershed Management of the Greater Harbor Waters to conduct compliance monitoring to Authority determine compliance with the TMDL targets. Dr. Anghera led the San Pedro Bay, California program design and strategic planning to gain consensus from the 14 separate stakeholders. The program includes receiving water quality monitoring during wet and dry weather, fish tissue sampling, and sediment quality sampling. Water Resource Action Plan Dr. Anghera developed the sediment management component of Ports of Long Beach and Los Angeles the WRAP for each of the Ports. Efforts included reviewing, San Pedro Bay, California summarizing, and presenting all available sediment data. Summarizing regulatory compliance standards was coupled with identifying priority management areas to bring the Ports into compliance. Project elements included developing sampling plans, collecting water, sediment, and soil samples throughout the harbor, analyzing data, reporting, presenting findings to stakeholders on behalf of the Ports, and representing the Ports at regulatory meetings. Rhine Channel Remediation Dr. Anghera led all sediment and water quality investigations and Lower Newport Bay conducted by Anchor QEA during the Rhine Channel sediment Dredging Projects remediation and Lower Newport Bay dredging projects. The projects City of Newport Beach included developing and negotiating a cost-effective and Newport Beach, California environmentally responsible monitoring program with the Regional Water Quality Control Board, which allowed these projects to proceed for more than 1 year without a single delay due to sediment resuspension. Her work included all agency negotiations and work plan development. Copper TMDL Assistance Dr. Anghera has been assisting the City of Newport Beach in City of Newport Beach preparing for impending copper boat paint regulations. Newport Beach, California Copper -based antifouling paints, used to protect underwater boat hulls by reducing the growth of marine organisms, have been identified as the largest source of copper contaminants in local boating harbors, including Upper and Lower Newport Bay. Boat -bottom cleaning and normal leaching activities have resulted in the release of copper into the water and sediments. Dr. Anghera's assistance has included conducting technical presentations for City staff to advise them of potential management strategies. On -Call Sediment and Water Dr. Anghera is the lead principal scientist and principal in charge for Quality Environmental Services the Ports'Sedimentand Water Quality contracts for the last 10years. Contract Services include, but are not limited to, dredged material Ports oflong Beach and LosAngeles assessments, water quality monitoring, stormwater services, marine San Pedro Bay, California biological surveys, sediment quality evaluations, Clean Water Act compliance requirements (i.e., NPDES permits, TMDL), sediment management, and environmental permitting. Shelly Anghera, Ph.D. Project Experience Municipal Co -permittees Urban Dr. Anghera was the principal scientist fora contract with the County Runoff Monitoring Program of San Diego from 2008 to 2009. She was responsible for client relations, internal resource and logistics management, senior -level County of San Diego and review of data interpretation and reporting in annual reports, and Co -permittees administration of task orders. She was responsible for the study San Diego, California, design of ABLM program for the 2010 to 2013 field effort. She advised co -permittees in the State's development of SQOs and co-authored SQO data interpretation of Bight'08 program. Selected Recent Presentations Invited speaker. Strategies forAchieving Compliance with Sediment Based TMDLs. 2015. Orange County Stormwater Division, Orange County, California. Invited speaker: Where do we put this stuff? Figuring out new sediment disposal options for the Los Angeles Region. 2015. California Marine and Navigation Affairs Committee, San Francisco, California. Running Out of Options: Regional Sediment Management Solutions in Southern California. 2015. Battelle Contaminated Sediments Conference, New Orleans, Louisiana. Invited speaker: Sediment Remediation Strategies for Design and Implementation. 2015. Los Angeles County Department of Public Works, Engineering Division, Alhabra, California. Invited speaker: Total Maximum Daily Loads: What are they are they and how can they impact coastal harbors? 2013. California Marine and Navigation Affairs Committee, Monterey Bay, California. Invited speaker: What Happens When All the Port Fills Are Full?. Newapproaches to sediment management in SoCal Bight. 2013. Western Dredgers Association, Long Beach, California. Invited Instructor: Total Maximum Daily Loads: What are they are they and how can they impact ports? 2013. Ports COPRI, Seattle, Washington. Fish Tissue Targets for PCB TMDLs: What is the Real Risk? An Example from the Greater Los Angeles and Long Beach Harbor Waters TMDL. 2013. Battelle Contaminated Sediment Conference, Dallas, Texas. Understanding Measures of Water Quality. Choosing the Appropriate Method and Permit Compliance Implications. 2012. Western Dredgers Association, Homer, Alaska. Winner of Best Paper. The Decision to Remediate Sediments to Meet TMDLs: Prioritizing Impacts, Benefits, and Fiscal Responsibilities. 2011. Battelle Contaminated Sediment Conference, New Orleans, Louisiana. EXHIBIT B SCHEDULE OF BILLING RATES Anchor QEA, LLC Page B-1 Anchor QEA, L.L.C. 2016 CLIENT BILLING RATES Professional Level Hourlv Rates Principal..................................................................................................................................... $241 SeniorManager.......................................................................................................................... $214 Manager...................................................................................................................................... $198 SeniorStaff.................................................................................................................................$173 Staff3.........................................................................................................................................$152 Staff2.........................................................................................................................................$137 Staff1.........................................................................................................................................$115 SeniorCAD' Designer...............................................................................................................$121 CADDesigner............................................................................................................................$101 Technician..................................................................................................................................$101 TechnicalEditor.........................................................................................................................$103 ProjectCoordinator......................................................................................................................$98 Annual escalation rate of 3% will be applied effective January I" of each year. Special Hourly Rates Nationalexpert consultant..........................................................................................................$393 All work by a testifying expert........................................................1.5 times professional level rate EXPENSE BILLING RATES Expense Rates Computer Modeling (per hour)...............................................................................................$10.00 Graphic Plots (varies with plot size)...................................................................................... $3-6/sf Mileage (per mile)..................................................................................... Current Federal Standard ' CAD= Computer Aided Design EXHIBIT C 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. Anchor QEA, LLC Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Reguirements. 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. Anchor QEA, LLC Page C-2 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 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 Anchor QEA, LLC Page C-3 judgment may be necessary for its proper protection and prosecution of the Work. Anchor QEA, LLC Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 1/7/16 Dept./Contact Received From: Raymund Date Completed: 1/7/16 Sent to: Raymund By: Chris/Alicia Company/Person required to have certificate: Anchor QEA Type of contract: Public Works I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 10/10/15 to 10/10/16 A. INSURANCE COMPANY: Travelers Indemnity Company of America B. AM BEST RATING (A-: VII or greater): A++; XV AM BEST RATING (A-: VII or greater) A++; XV C. ADMITTED Company (Must be California Admitted): ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ Yes ® No D. LIMITS (Must be $11M or greater): What is limit provided? 1,000,00012,000,000 E. ADDITIONAL INSURED ENDORSEMENT—please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does F. not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND ❑ Yes ❑ No G. COMPLETED OPERATIONS ENDORSEMENT (completed ® Yes ❑ No H. 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 I. 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 II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 10/10/15 to 10/10/16 A. INSURANCE COMPANY: Travelers Indemnity Company of America B. AM BEST RATING (A-: VII or greater) A++; XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ❑ 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: 0 N/A ® Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 10/10/15 to 10/10/16 A. INSURANCE COMPANY: Travelers Indemnity Company of America B. AM BEST RATING (A-: VII or greater): A++; XV C. ADMITTED Company (Must be California Admitted): ❑ Yes ® No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY ❑ N/A ® Yes ❑ No V POLLUTION LIABILITY ❑ N/A ® Yes ❑ No V BUILDERS RISK ® N/A ❑ Yes ❑ No 1/7/16 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach 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: Risk Management approved Non -Admitted status of GL Auto & Workers Comp carriers on 4/20/15. Approved: Risk Management * Subject to the terms of the contract. Date