HomeMy WebLinkAbout06 - On-Call PSA for Environmental Consulting SupportQ �EwPpRT
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<,FORN'P City Council Staff Report
May 26, 2020
Agenda Item No. 6
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Bob Stein, Assistant City Engineer
PHONE: 949-644-3322
TITLE: Approval of On -Call Professional Services Agreement with Moffatt &
Nichol Engineering for Environmental Consulting Support
ABSTRACT:
Staff requests approval of an On -Call Professional Services Agreement with Moffatt &
Nichol to provide scientific and engineering support in the City's technical planning and
response to ocean, bay and watershed water quality requirements and regulations.
RECOMMENDATION:
a) Determine this action is exempt from the California Environmental Quality Act (CEQA)
pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because
this action will not result in a physical change to the environment, directly or indirectly;
and
b) Approve On -Call Professional Services Agreement with Moffatt & Nichol for
environmental consulting support for a term of two years and a total not -to -exceed
amount of $200,000, and authorize the Mayor and City Clerk to execute the
agreement.
FUNDING REQUIREMENTS:
The adopted budget(s) includes funding for these On -Call services. Services for
individual projects will be expensed to the corresponding Public Works Department
Maintenance and Operating Budget and/or Capital Improvement Program (CIP) Budget.
DISCUSSION:
Water quality in Newport Bay and along the coast is very good and continues to improve.
Some pollutants, while at very low concentrations, are still slightly above regulatory
standards and potentially pose a threat to marine life. The Regional Water Quality Control
Board, along with the State Water Resources Control Board and USEPA, are intent that
the county and cities in the Newport Bay Watershed take steps to (1) continue monitoring
and further reduce pollutants in Bay water and sediments, and (2) assist the Regional
Board is revising outdated regulatory standards.
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Approval of On -Call Professional Services Agreement with Moffatt & Nichol Engineering
for Environmental Consulting Support
May 26, 2020
Page 2
As these tasks are scientifically difficult and finding common ground among the
stakeholders is challenging, significant planning and research is often needed in order to
prepare for discussions with all the interested parties.
To provide staff with adequate resources to deal with the increasingly complex and
sometime contentious water quality regulations, the City issued a Request for Proposals
(RFP) in December 2019 for On -Call Professional Environmental Consulting Services.
Under this request, staff will use the selected environmental consultant to assist in
discussions with the Regional Board and stakeholders on the appropriate strategic and
technical approach for tackling Total Maximum Daily Load (TMDL) tasks, develop efficient
work plans to mitigate problems, perform field monitoring to track down pollutant sources,
assess impacts of residual levels of pollution, and design water quality improvement
projects.
Proposals received were independently evaluated by a review team consisting of three
staff members from Public Works. Evaluations were based and ranked in accordance
with each proposal's demonstration of the firm's experience with TMDL programs and
ocean protection requirements, water conservation practices, environmental scientific
and engineering monitoring and design experience, grant application preparation, and the
ability of the firm to deploy appropriate resources. The following two firms submitted
proposals:
Firm Name
Total Score
Rank
Moffatt & Nichol
270
1
Burns & McDonnell
255
2
Upon completion of the qualifications -based review of the proposals, Moffatt & Nichol's
sealed fee schedule was opened, reviewed and confirmed to be reasonable and feasible
based on the firm's expertise and available resources. Staff now requests approval of an
On -Call Professional Services Agreement with Moffatt & Nichol to provide the identified
services.
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).
ATTACHMENT:
Attachment A — Professional Services Agreement with Moffat & Nichol
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ATTACHMENT A
ON-CALL PROFESSIONAL SERVICES AGREEMENT
WITH MOFFATT & NICHOL FOR
ENVIRONMENTAL CONSULTING SUPPORT SERVICES
THIS ON-CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement") is
made and entered into as of this 26th day of May, 2020 ("Effective Date"), by and between
the CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and MOFFATT & NICHOL, a California corporation ("Consultant"), whose
address is 4225 E. Conant Street, Suite 101, Long Beach, CA 90808, 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 environmental consulting support
services related to water quality and conservation programs on an on-call/as-
needed basis. ("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 May 25, 2022, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
2.1 Consultant shall perform the on-call services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Upon written request from the Project Administrator as defined herein,
Consultant shall provide a letter proposal for Services requested by the City (hereinafter
referred to as the "Letter Proposal"). The Letter Proposal shall include the following:
2.1.1 A detailed description of the Services to be provided;
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2.1.2 The position of each person to be assigned to perform the Services,
and the name of the individuals to be assigned, if available;
and
2.1.3 The estimated number of hours and cost to complete the Services;
2.1.4 The time needed to finish the specific project.
2.2 No Services shall be provided until the Project Administrator has provided
written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall
diligently perform the duties in the approved Letter Proposal.
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 and the Letter Proposal. 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 and the Letter Proposal,
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 Letter Proposal
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 Thousand Dollars and 001100 ($200,000.00), 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.
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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 and the Letter Proposal or specifically approved
in writing in advance by City.
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 and the Letter Proposal.
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 Kim Garvey 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.
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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
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 (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"), and which relate (directly or indirectly) to the negligence,
recklessness, or willful misconduct of the Consultant or its principals, officers, agents,
employees, vendors, suppliers, subconsultants, subcontractors, anyone employed
Moffatt & Nichol Page 4
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, active 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 the
Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. 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.
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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 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 and the Letter Proposal. 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.
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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 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.
17.4 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.
Moffatt & Nichol Page 7
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.
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.
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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") and/or Government Code §§ 1090 et
seq., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
25.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. 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.
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: Shelly Anghera
Moffatt & Nichol
4225 E. Conant Street, Suite 101
Long Beach, CA 90808
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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.).
28. TERMINATION
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
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 parry of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
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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.
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.
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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: S, i S- 0-o
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: By:
Phar n C. Harp Will O'Neill
C Attorney Mayor
ATTEST:
Date:
Leilani I. Brown
City Clerk
CONSULTANT: MOFFATT & NICHOL, a
California corporation
Date:
By:
Michelle L. Anghera, PhD
Vice President
Date:
By.-
Omar
y:Omar Jaradat
Vice President
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B -- Schedule of Billing Rates
Exhibit C — Insurance Requirements
Moffatt & Nichol Page 12
6-14
EXHIBIT A
SCOPE OF SERVICES
Moffatt & Nichol Page A-1 6-15
EXHIBIT A
SCOPE OF SERVICES
ON-CALL ENVIRONMENTAL CONSULTING SUPPORT SERVICES
Consultant shall provide the following on-call environmental consulting support services related to water
quality/conservation programs, including, but not necessarily limited to:
Task 1: ASBS Protection Program
Several coastal areas in the City have been designated as Area of Special Biological Significance ("ASBS")
and have special monitoring and water quality conditions to maintain the highest water quality by the
State Water Resources Control Board. These areas support an unusual variety of aquatic life, and often
host unique individual species. ASBS are basic building blocks for a sustainable, resilient coastal
environment and economy.
During 2012-2013, Consultant's team member, MBC Aquatic Sciences, conducted the monitoring for all
ASBS areas for the City — Shorecliffs, Cameo Shores, and Crystal Cove. MBC conducted stormwater
discharge monitoring at multiple outfalls during qualifying storm events. A pre -storm shoreline receiving
water sample was collected at one of the designated outfalls to be sampled. During the storm, stormwater
samples were collected at three outfalls and the corresponding receiving water shoreline location.
Physical parameters were measured for each sample collection event and site. Collected samples were
analyzed for multiple potential contaminants to evaluate stormwater effects in the ASBS. In 2014, an
additional season of monitoring was conducted at Crystal Cove to determine the effectiveness of a
vegetated filtration strip in a creek bed and a constructed gravel filtration system, with samples collected
pre- and post- the application of best management practices ("BMPs"). MBC's close proximity to the
outfalls provided quick response time to storm events, significantly reducing costs to the City. MBC's crews
are skilled stormwater samplers with years of experience collecting samples.
Consultant will provide ongoing monitoring support, testing, and reporting services. The services include
assisting in the preparation of a City-wide Monitoring Plan and Quality Assurance Project Plan for all
monitoring requirements by Environmental Protection Agency ("EPA") and the state of California,
including:
• Conduct flow reduction and water quality effectiveness monitoring at three recently installed
water quality improvement projects in the Shorecliffs and Cameo Shores communities for dry
weather and storm flows.
• Conduct monitoring at four outfall discharge locations and one ASBS receiving water site.
Sampling shall be performed in conjunction with current and planned water quality improvement
installations in the communities of Shorecliffs and Cameo Shores.
• Collect samples for chemical analyses in accordance with the Bight '18 ASBS Program and deliver
samples to a specified laboratory for analysis.
• Perform a chronic toxicity analysis using a single species.
• Collect tidally -influenced samples at a single location within the harbor jetty during the same
monitoring events at Newport Coast outfalls and receiving water, as well as representative
samples along the shoreline of Newport Coast. Assume five locations down coast of the jetty.
Samples shall be analyzed for total and dissolved metals and total suspended solids.
• Deploy instrumentation to assess freshwater impacts in the ASBS receiving water.
These studies are supported by a strong team of chemists, toxicologist, marine scientists, and marine
biologists. The ability to provide cost-effective, accurate, and rapid chemistry results to support the
required stormwater, water quality, and sediment investigations required to implement this contract, is
one of the most critical aspects for Consultant to ensure compliance with required monitoring programs.
Consultant utilizes local laboratories that have a long-term working relationship with Consultant and
extensive experience working on marine projects. Consultant includes biologists that are experienced in
performing marine and terrestrial biological surveys throughout Southern California. Consultant
understands the necessity of conducting biological surveys without interrupting the marina operations
and Consultant is experienced in working in the Upper and Lower Newport Bay as well as the Pacific
Ocean. Consultant has extensive experience with marine and terrestrial survey techniques and
equipment, acquired through many years of field work in academic research and professional consulting
services. Consultant has the experience and staff to design and implement biological surveys and then
provide quantitative analysis of the data for inclusion in reports that exceed resource agency standards.
Task 2: Dry Weather Diversion Program
As with the Task 1 monitoring support, Consultant includes experienced local scientists with the local
resources necessary to support the scope of services. Consultant includes members to support field
collection services, chemical, biological, and toxicological laboratories, and data quality review and data
analysis. The key personnel (described in the Statement of Qualifications) have the relevant experience
and qualifications for this contract. Consultant has provided a highly efficient program with redundant
field and reporting teams to easily meet all monitoring and reporting needs. Based on the City's request,
the following services will be performed:
• Conduct monthly flow and quarterly water quality monitoring and reporting during the dry
season, which varies by area, in accordance with the discharge permits.
• Analyze samples per requirements in the permit issued by Orange County Sanitation
Department ("OCSD") and provide flow and water quality results to OCSD.
• Assist the City in conducting hydraulic and electronic meter calibrations per the requirements
in the permit issued by OCSD.
TASK 3: TMDL Strategic Support and Monitoring Support
Consultant, through the Latitude contract, is providing strategic water and sediment quality services to
the City related to organochlorine ("OC") pesticide and copper Total Maximum Daily Load ("TMDLs") for
San Diego Creek, Upper Newport Bay, and Lower Newport Bay. In addition, this team has provided
technical and strategic support of the Fecal Indicator Bacteria ("FIB") TMDL through support of special
studies to inform these evolving criteria.
For all existing and pending TMDLs, Consultant's assistance has included reviewing and commenting on
regulatory documents, leading technical presentations at public meetings, designing special studies, and
6-17
assisting City staff in developing environmentally and economically responsible processes to maintain
water quality and track the progress toward attainment of all relevant beneficial uses in the watershed.
This continued support will include the following tasks related to the various TMDLs and other water
quality management programs:
• Continue to assist the City and County and the County's consultant in the development of work
products related to sediment and water quality characterization in the Upper and Lower Newport
Bay.
• Assist City staff in the development of technical comments and presentation materials in response
to Regional Board and other regulatory materials available during the public review process.
• Design of special studies to fill data gaps, ongoing data review, and coordination with other
Newport Bay Funding Partner consultant teams. Data gaps include sediment, water, and fish
tissue chemistry in both the Upper and Lower Newport Bay to be detailed in the work plan.
• Continue regular engagement, including meeting attendance, with the Newport Bay Funding
Partners.
• Continue supporting the City of Newport Beach Water Quality/Coastal Tidelands group
information requests.
• Provide technical and strategic support for all Sediment Quality Objective ("SQO") assessment
related studies, including stressor identification studies. The Newport Bay Funding Partners are
engaged in an investigative order to determine sediment quality in the Upper and Lower Newport
Bay using the State's recently updated SQO. Assist the City in the SQOs assessment method to
determine TMDL compliance for sediment condition.
• Conduct field sampling studies for the various TMDLs as required and/or as requested.
• Assist the City with TMDL and Time Sensitive Order ("TSO") compliance and implementation.
• The new version of the draft copper TMDL is expected to be released in the next year. There have
been many meetings between City and Regional Board staff regarding potential revisions and the
Regional Board's expectations. From these meetings the following effort is expected:
o The Regional Board will provide responses to the City's extensive comments. It is
expected the City will need to continue to reiterate concerns previously brought forward
that were not addressed adequately. The City may need to present testimony at the
Regional Board hearing and the State Water Board hearing. Consultant will review the
responses to comments and summarize the changes in the revised draft TMDL for City
staff review and assist in the development of new comments and presentation materials
for hearings.
o It is expected the revised copper TMDL will continue to require studies to evaluate metals
in both water and sediment in various areas throughout Newport Bay to fill data gaps.
Based on discussion with Regional Board staff, those studies may include sediment and
biological quality evaluations to better understand localized patterns of metals related to
specific areas and uses in the bay. In addition, hydrodynamic modeling studies may be
recommended to estimate the effectiveness of various management alternatives.
Consultant will support City staff in designing studies and collecting the requested
information. Consultant will assist the City in designing studies and developing workplans
as needed.
Task 4: Statewide Trash Provisions
Consultant will assist City staff in providing compliance with the statewide trash provisions. As with other
critical water quality improvement requirements, Consultant's staff will provide technical supportto assist
the City in developing a compliance program that is fiscally and environmentally responsible. We provide
proven engineering design for trash capture devices such as curb inlet screens, large trash interceptors,
and trash boom placement and management in harbors.
Task 5: Grant Proposals and Preparation
Consultant will assist in putting together grant applications, including developing exhibits, cost estimates,
and providing regulatory compliance. To date, Consultant grant support services have secured over $50
million in grant funding for recreation, transportation, and commercial waterfront projects on behalf of
its clients. Consultant's win rate has been 85%. Consultant's approach starts with identifying potential
programs, then we:
• Develop a coordinated strategy and schedule;
• Prepare and submit applications;
• Coordinate pre- & post -award efforts; and
• Document the process for grant compliance.
Consultant understands the importance of not only completing mandated monitoring and reporting but
that the information may be used as the basis for future conservation projects and grant applications.
Building on Consultant's experience and established relationships with federal, state, and local agencies,
Consultant shall provide the City expert support related to alternative and grant funding for their
waterfront projects—projects that revitalize and enhance the public experience.
Task 6: Water Conservation Program
The Consultant team is composed of specialized scientists that collect, analyze, and report data.
Consultant may analyze patterns, quantify water use, and investigate water use anomalies. Consultant
may also assist City staff in developing public communication tools to add efficiencies where possible.
Consultant may assist City staff in articulating the benefits of conservation and communicating use
patterns.
6-19
EXHIBIT B
SCHEDULE OF BILLING RATES
Moffatt & Nichol Page B-1 6.20
EXHIBIT B
FEE SCHEDULE
ENVIRONMENTAL CONSULTING SUPPORT SERVICES
PROFESSIONALS
TECHNICIANS
CLASSIFICATION
Supenisory Engineev-Scientist
Senior EngmeeriScientist
Engineer/Scientist III
Engineer. Scientist 11
FngineeriScientist I
Staff Engineer. Scientist
Senior Technician
Designer
CARD 11
CARD I
CLERICAL Project Controls.,'Word Processing
General Clerical
SPECIAL Principal Engineev Scientist
Deposition & Trial Testimony
HOURLY RATES
S 267.00
S 250.00
S 234.00
S 205.00
S 185.00
S 148.00
S 200.00
S 189.00
S 162.00
S 120.00
S 120.00
S 94.00
S 282.00
S 497.00
REIMBURSABLE EXPENSES (Unless Otherwise Provided in Written Agreement)
Subcontracts or Outside Services
cost+10%
Reproductions -In House
NlyiarPlots (B;'W�
S2.00'SF
Color Plots
S4.00/SF
Vellum Plots (Bi W)
S1.0G-SF
Bond Plots (B:'W)
S0.50 SF
Drax�wg Reproduction
Cost +10° o
Document Reproduction
S0.1 & sheet
-Outside Reproduction
Cost —10%
Travel Company Auto
Prevailing IRS
Rental Vehicle
Cost
Airfare
Cost
Meals and Lodging
Cost
6-21
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. Coveraqe 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
Moffatt & Nichol Page C-1 6.22
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.
rovisions:
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:
Moffatt & Nichol Page C-2 6-23
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. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. 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.
Moffatt & Nichol Page C-3 6-24
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. 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 Agreement, 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.
Moffatt & Nichol Page C-4 6-25