HomeMy WebLinkAbout10 - Harbor Wide Sediment Sampling in the Nearshore Areas Under Residential Slips and Commercial MarinasP0 m CITY OF
z NEWPORT BEACH
cl't City Council Staff Report
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September 12, 2017
Agenda Item No. 10
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Chris Miller, Harbor Resources Manager,
cmiller@newportbeachca.gov
PHONE: 949-644-3043
TITLE: Approval of Professional Services Agreement with Anchor QEA,
LLC for Harbor Wide Sediment Sampling Necessary for the
City's Regional General Permit (RGP-54) for Dredging in the
Nearshore Areas Under Residential Slips and Commercial Marinas
ABSTRACT:
To satisfy the requirements of the City's existing RGP-54 dredging permit, the harbor's
sediment along the nearshore area must be tested every five years to verify compatibility
with both nearshore and offshore disposal. Since the current 5 -year sediment
characterization will expire in July 2018, a new round of testing must be performed to
keep the City's permit valid. Public Works staff requests City Council approve a single
source Professional Services Agreement with Anchor QEA, LLC to perform the sediment
characterization, analyze the results, and seek final approval from the regulatory
agencies.
RECOMMENDATION:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or
reasonably foreseeable indirect physical change in the environment) and 15060(c)(3)
(the activity is not a project as defined in Section 15378) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or indirectly;
b) Approve a Professional Services Agreement with Anchor QEA, LLC for nearshore
sediment sampling services at a not -to -exceed fee of $280,305.00, award the
Agreement pursuant to a single source justification, and authorize the Mayor and City
Clerk to execute the Agreement; and
c) Approve Budget Amendment No. 18BA-007 transferring $280,305.00 from Account
No. 10001-980000-181-107 (Harborwide Dredging Planning) to Account No. 10001-
980000-18H01(Regional General Permit - RGP54).
10-1
Approve Professional Services Agreement with Anchor QEA, LLC for Sediment
Sampling for the City's Regional General Permit (RGP-54) for Dredging in the
Nearshore Area Under Residential Slips and Commercial Marinas
September 12, 2017
Page 2
FUNDING REQUIREMENTS:
The current adopted budget includes sufficient funding for this contract. It will be
expensed to the Capital Improvement Program, Account No. 10001-980000-18H01.
DISCUSSION:
The City's Federal RGP-54 permit provides residential and commercial property owners
with a streamlined approval process for small maintenance dredging projects at their
respective docks and marinas. As a condition of this permit, the City commits to a full
harbor -wide nearshore sediment testing program every five years to ensure the sediment
is clean and suitable for either beach or open ocean disposal. The testing involves full
material grain size, toxicity and biological sampling, and includes post project analysis
and approval. In general, prior testing has yielded consistent results throughout the
harbor from each prior sampling episode; therefore, Public Works staff is not expecting
any significant concerns. However, the sampling is still required as a continuing
confirmation that conditions have not changed. During the last permit iteration with the
regulatory agencies, staff again requested a longer sampling interval, but was denied.
The proposed work involves sampling from a vessel at 54 previously approved locations
over ten days using vibracore equipment, and includes a single reference sediment
sample site in the ocean. Sediment chemistry analysis includes total organic carbon, total
solids, metals, polycyclic aromatic hydrocarbons, polychlorinated biphenyl (PCB)
congeners, organochlorine (OC) pesticides, organotins and pyrethroids. Biological
testing includes solid phase and suspended particulate phase bioassays, and
bioaccumulation tests. A final Sampling and Analysis Report will be prepared to
document the results, and will be presented for approval by the Dredged Material
Management Team (DMMT), which is a group of Federal and State regulatory agencies
who approve all dredging sampling programs.
Public Works staff is requesting that the City Council award this agreement to Anchor
QEA based on a recent RFP selection process, in which Anchor QEA was awarded an
On -Call Contract with the City for marine related engineering services. Anchor QEA
specializes in marine -related projects with a local emphasis on comprehensive dredging
projects both large and small. They have previously assisted the City with various
iterations of the RGP-54 program including sediment testing, permitting negotiations and
the approval of the City's unique eelgrass impact program. Their experience in the
Southern California region with various ports and harbors is extensive.
Anchor QEA was chosen for this project because of their previous sediment testing
knowledge for this same program in 2013, their intimate familiarity of the permit details
and nuances that were negotiated during the entitlement process and their ability to react
immediately before the rainy season this fall (Turbidity from rainfall affects sampling
accuracy). In addition, Anchor QEA assisted the City prepare the Sampling and Analysis
Plan which has already been approved by the DMMT, so this project is ready to proceed
immediately.
10-2
Approve Professional Services Agreement with Anchor QEA, LLC for Sediment
Sampling for the City's Regional General Permit (RGP-54) for Dredging in the
Nearshore Area Under Residential Slips and Commercial Marinas
September 12, 2017
Page 3
The proposed scope of work will have a not -to -exceed fee of $280,305.00. Anchor QEA
fees, hours and rates are reasonable and competitive.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not
result in a direct or reasonably foreseeable indirect physical change in the environment)
and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA
Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no
potential for resulting in physical change to the environment, directly or indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
ATTACHMENTS:
Attachment A — Professional Services Agreement
Attachment B — Budget Amendment
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ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH ANCHOR QEA, L.P. FOR
SEDIMENT SAMPLING FOR THE CITY OF NEWPORT BEACH REGIONAL
GENERAL PERMIT (RGP) 54
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 12th day of September, 2017 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and ANCHOR QEA, L.P., a California limited partnership ("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 sediment sampling in order to update
City's Regional General Permit (RGP) 54 sediment suitability determination.
("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:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2019, 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.
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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 Two Hundred Eighty
Thousand Three Hundred Five Dollars and 001100 ($280,305.00), 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, L.P. Page 2
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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 Steve Cappellino 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
and with the ordinary degree of skill and care that would be used by other reasonably
Anchor QEA, L.P. Page 3
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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, employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services contemplated
by this Agreement (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 orwillful 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, L.P. Page 4
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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 orfor 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 be
construed as an assignment: The sale, assignment, transfer or other disposition of any
Anchor QEA, L.P. Page 5
M.
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.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
Anchor QEA, L.P. Page 6
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17.4 CADD data delivered to City shall include the professional stamp of the
engineer or architect in charge of or responsible for the Work. City agrees that Consultant
shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage conditions
or duration; or (c) any use by City, or anyone authorized by City, of CADD data for
additions to this Project, for the completion of this Project by others, or for any other
Project, excepting only such use as is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a
CD, and should comply with the City's digital submission requirements for improvement
plans available from the City's Public Works Department. The City will provide Consultant
with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall
be transmitted to City in formats compatible with Microsoft Office and/or viewable with
Adobe Acrobat.
17.5 All improvement and/or construction plans shall be prepared with indelible
waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six
inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to
City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting
("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90)
days after finalization of the Project. For more detailed requirements, a copy of the City
of Newport Beach Standard Design Requirements is available from the City's Public
Works Department.
18. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents the
Consultant's judgment as a design professional and is supplied for the general guidance
of City. Since Consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, Consultant does not guarantee the accuracy of
such opinions as compared to Consultant or contractor bids or actual cost to City.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept confidential
unless City expressly authorizes in writing the release of information.
20. 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.
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21. 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.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction of
the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall not
discontinue Work as a result of such withholding. Consultant shall have an immediate
right to appeal to the City Manager or designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of return
that City earned on its investments during the time period, from the date of withholding of
any amounts found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would have
resulted if there were not errors or omissions in the Work accomplished by Consultant,
the additional design, construction and/or restoration expense shall be borne by
Consultant. Nothing in this Section is intended to limit City's rights under the law or any
other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
25. CONFLICTS OF INTEREST
25.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
25.2 If subject to the Act, Consultant shall conform to all requirements of the Act.
Failure to do so constitutes a material breach and is grounds for immediate termination
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of this Agreement by City. Consultant shall indemnify and hold harmless City for any and
all claims for damages resulting from Consultant's violation of this Section.
26. NOTICES
26.1 All notices, demands, requests or approvals, 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.
26.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Public Works Director
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
26.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Steve Cappellino
Anchor QEA, LP
27201 Puerta Real, Suite 350
Mission Viejo, CA 92691
27. 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.).
P*�1:4N hIIill YIN IEel i! I
28.1 In the event that either party fails or refuses to perform any of the provisions
of this Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a period
of two (2) calendar days, or if more than two (2) calendar days are reasonably required
Anchor QEA, L.P. Page 9
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to cure the default and the defaulting party fails to give adequate assurance of due
performance within two (2) calendar days after receipt of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, and
thereafter diligently take steps to cure the default, the non -defaulting party may terminate
the Agreement forthwith by giving to the defaulting party written notice thereof.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
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.
29. STANDARD PROVISIONS
29.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
29.2 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.
29.3 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.
29.4 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.
29.5 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.
29.6 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.
Anchor QEA, L.P. Page 10
10-13
29.7 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.
29.8 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.
29.9 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.
29.10 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.
29.11 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.
29.12 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, L.P. Page 11
10-14
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S , OFFICE
Date: /
By:
Aaron C. Harp g. 3o 17
City Attorney
ATTEST:
Date:
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Kevin Muldoon
Mayor
CONSULTANT: Anchor QEA, L.P., a
California limited partnership
Date:
By:
Leilani I. Brown Steve Cappellino
City Clerk General Partner
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Anchor QEA, L.P. Page 12
10-15
EXHIBIT A
SCOPE OF SERVICES
ANCHOR QEA, L.P. - SEDIMENT SAMPLING FOR THE CITY OF NEWPORT
BEACH REGIONAL GENERAL PERMIT (RGP) 54
Task 1 – Mobilize Field Equipment and Collect Sediment Samples
Consultant will conduct sediment sampling at 54 stations within five distinct
composite areas. Sampling locations and composite areas are consistent with those
previously sampled during the 2013 program, with only minor exceptions. Specifically,
seven sampling locations from 2013 were dredged or are planned for dredging under the
existing RGP 54 and, therefore, were slightly moved. Sediment cores will be collected
using an electric vibracore to the maximum authorized dredge depth of -10 feet mean
lower low water (MLLW) plus 2 feet of overdepth, except for Stations 1-5 and 4-12, which
will be sampled to a reduced depth of -7 feet MLLW plus 1 foot of overdepth. During the
2013 program, elevated mercury was measured at these stations in the bottom intervals
of each core. In addition, the Zdayer (the 0.5 -foot interval below project depth plus
overdepth) at each of the 54 stations will be collected and archived to characterize the
new surface layer, if requested by the Dredged Material Management Team (DMMT).
Multiple cores may be required at each station to obtain a sufficient volume for analysis.
Individual cores from each area will be combined to create composite samples for
chemical analysis and biological testing. Reference sediment will be collected in close
proximity to the LA -3 disposal site and used for comparative purposes. Site water will be
collected and used to create elutriate samples for bioassay testing. A Health and Safety
Plan (HASP) has previously been developed for sediment sampling in Newport Bay;
therefore, only minimal—if any—updates are anticipated. The HASP will be distributed to
the project team for review and acknowledgement prior to sampling activities.
Assumptions are as follows:
• Vibracore sampling will be performed at 54 stations within five composite areas.
• Two Consultant personnel will spend 10 days in the field performing vibracore
sampling (consistent with the 2013 program).
• Subcontractor (Leviathan Environmental Services) will provide vibracore
equipment and a sampling vessel.
• The City will provide a location to dock the sampling vessel for the duration of the
sampling program.
• Subcontractor (Seaventures, Inc.) will collect reference sediment at LA -3 by using
a pipe dredge.
Task 2 – Sediment Laboratory Analysis
Five composite samples and the LA -3 reference sample will be submitted for
sediment chemistry and biological testing. In addition, it is anticipated that up to 20
Anchor QEA, L.P. Page A-1
10-16
discrete samples from individual stations or Z -layers may be submitted for analysis of
mercury. All testing will be performed according to Ocean Disposal -Testing Manual
(OTM) and Inland Testing Manual (ITM) guidelines. Sediment and tissue chemistry will
be performed by our subconsultant, Eurofins Calscience, Inc., and biological testing will
be performed by our subconsultant, Nautilus Environmental. Sediment chemistry of
composite and reference samples will include grain size, total organic carbon, total solids,
metals, polycyclic aromatic hydrocarbons, polychlorinated biphenyl (PCB) congeners,
organochlorine (OC) pesticides, organotins, and pyrethroids. Biological testing will
include solid phase and suspended particulate phase bioassays, and bioaccumulation
tests. Upon completion of bioaccumulation testing, tissue samples will be submitted for
chemical analysis. The final analyte list for tissue samples will be established based on
sediment chemistry results. Consultant will negotiate a reduced analyte list with the
appropriate regulatory agencies following the initial sediment testing. Based on previous
RGP data from 2013, this cost estimate assumes that tissue chemistry will include lipids,
mercury, PCBs, and OC pesticides; however, this is subject to DMMT approval.
Consultant will perform data validation to ensure sediment and tissue chemistry meets
the project data quality objectives.
Assumptions are as follows:
• Costs are based on constituents typically analyzed for dredged material
assessments within the region.
• Five composite samples and reference sediment will be submitted for sediment
chemistry and biological testing.
• Up to 20 discrete samples from individual cores or Zdayer samples will be
submitted for mercury analysis.
• 66 tissue samples will be submitted for lipids, mercury, PCBs, and OC pesticides;
however, the reduced analyte list is subject to DMMT approval.
• Samples will be archived at the chemistry laboratory for six months.
Task 3 — Sampling and Analysis Report and Dredged Material Management Team
Process
Consultant will prepare a Sampling and Analysis Report (SAR) documenting all
activities associated with collecting, processing, and analyzing sediment samples. The
SAR will include chemical and biological results, statistical analyses, QA/QC summaries,
and suitability assessments. Chemistry results will be compared to the reference
sediment and appropriate sediment quality guidelines. Biological results will be compared
to reference sediment and appropriate laboratory controls. A project map will be included
with the actual sampling locations. Sediment core logs, chain -of -custody forms, laboratory
reports, and data validation reports will be included as appendices. Consultant will
represent the project at the DMMT meeting to obtain final concurrence on dredged
material suitability.
Anchor QEA, L.P. Page A-2
10-17
Schedule
Consultant will begin this scope of work immediately upon authorization to proceed
from the City, with the expectation of a renewed DMMT sediment suitability determination
in advance of the July 2018 expiration.
Anchor QEA, L.P. Page A-3
10-18
EXHIBIT B
SCHEDULE OF BILLING RATES
ANCHOR QEA, L.P. - SEDIMENT SAMPLING FOR THE CITY OF NEWPORT BEACH
REGIONAL GENERAL PERMIT (RGP) 54
Task
Description
Proposed Cost
1
Mobilize Field Equipment and Collect Sediment
Samples
$113,066
2
Sediment Laboratory Analysis
$137,045
3
Sampling and Analysis Report and Dredge Material
Management Team Process
$30,194
Total Costs:
$280,305
Professional Level
Hourly Rate
Principal
$249
Senior Manager
$222
Manager
$207
Senior Staff
$184
Staff 3
$162
Staff 2
$145
Staff 1
$122
Senior CAD Designer
$128
CAD Designer
$107
Technician
$104
Technical Editor
$107
Project Coordinator
$103
"Annual escalation rate of 3% will be applied
of each year.
to the above hourly rates only, effective January 1"
Special Hourly Rates
National Expert Consultant
$412
Testifying Expert
1.5x the above professional
level rates
Expense Rates / Fees on Labor and Expenses
Rate
Computer Modeling
$10 /hr
Graphic Plots (varies with plot size)
$3-$6 p/sf
Mileage
IRS Standard per mile
Fee on pre -approved subcontractors/subconsultants
10%
Fee on pre -approved Travel and Other Direct Costs
10%
Fee on pre -approved Field Equipment and Supplies
10%
Anchor QEA, L.P. Page B-1
10-19
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 City Council, boards
and commissions, officers, agents, volunteers, employees and any person
or entity owning or otherwise in legal control of the property upon which
Consultant performs the Project and/or Services contemplated by this
Agreement.
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
Anchor QEA, L.P. Page C-1
10-20
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.
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 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 City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement 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, its City Council, boards and commissions, officers, agents, volunteers,
employees and any person or entity owning or otherwise in legal control of
the property upon which Consultant performs the Project and/or Services
contemplated by this Agreement 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:
Anchor QEA, L.P. Page C-2
10-21
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 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.
Anchor QEA, L.P. Page C-3
10-22
G. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this 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.
Anchor QEA, L.P. Page C-4
10-23
City of Newport Beach
BUDGET AMENDMENT
2017-18
EFFECT ON BUDGETARY FUND BALANCE:
Increase Revenue Estimates
Increase Expenditure Appropriations
X Transfer Budget Appropriations
SOURCE:
X from existing budget appropriations
from additional estimated revenues
from unappropriated fund balance
EXPLANATION:
This budget amendment is requested to provide for the following:
ATTACHMENT B
NO. BA- 18BA-007
AMOUNT:J $280,305.00
Increase in Budgetary Fund Balance
Decrease in Budgetary Fund Balance
X No effect on Budgetary Fund Balance
To transfer expenditure appropriations from the Harbor Dredging/Planning project to the
Regional General Permit-RGP54 project.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Object
REVENUE ESTIMATES
Org Object
EXPENDITURE APPROPRIATIONS
Description
Description
Amount
Debit Credit
Description
Org Number 10001 Tidelands CIP
Object Number 980000 CIP Exp
Project Number 18H07 Harbor Dredging/Planning $280,305.00
Project String E -18H07 -UNASSIGNED -100 -UNASSIGNED
Org Number 10001 Tidelands CIP
Object Number 980000 CIP Exp
Project Number 18H01 Regional General Permit-RGP54
Project String E -18H01 -UNASSIGNED -100 -UNASSIGNED
Automatic
Signed:
Fina Approval: Finance irec or
Signed: 14L— t"
Administrative Approval: City Manager
$280,305.00
tea- 5) - 1
�D Date
Date
Signed:
City Council Approval: City Clerk Date
10-24