HomeMy WebLinkAbout09 - Approval of PSA for Regional General Permit (RGP-54) Sediment Suitability CharacterizationQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
June 28, 2022
Agenda Item No. 9
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, Administrative Manager, cmiller@newportbeachca.gov,
PHONE: 949-644-3043
TITLE: Approval of Professional Services Agreement with Anchor QEA, LLC
for Regional General Permit (RGP-54) Sediment Suitability
Characterization
ABSTRACT:
A condition of the City of Newport Beach's Regional General Permit (RGP-54) requires a
sediment suitability characterization of the material along the harbor's perimeter and
within the permitted area. Accordingly, staff issued a Request for Proposals (RFP) for
these professional services, and requests the City Council's approval to enter into a
professional services agreement with Anchor QEA, LLC for a total contracting authority
amount of $324,553.
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 Professional Services Agreement with Anchor QEA, LLC, for Regional
General Permit Sediment Suitability Characterization for a total amount of $324,553,
and authorize the Mayor and City Clerk to execute the agreement.
DISCUSSION:
Dredging under private residential slips and commercial marinas is the responsibility of
the respective property owners in Newport Harbor. Depending on several factors such as
location, wind waves, tidal current, boat wakes, lateral sediment flow and vessel draft
required within each slip, some areas in the harbor require frequent dredging while other
areas might rarely be dredged over the years.
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Approval of Professional Services Agreement with Anchor QEA, LLC for Regional
General Permit (RGP-54) Sediment Suitability Characterization
June 28, 2022
Page 2
Because the dredging permit process is complicated and cumbersome, especially for
those who are unaccustomed to processing marine -related permits, the City has
maintained and been the permittee of the RGP-54 for several decades. The RGP-54 is a
harbor -wide permit managed by the City but used by the residents for their dredging
needs, assuming their project complies with the conditions therein. The RGP-54 is
commonly referred to as a single permit, but it is really a combination of three separate
and distinct permits from the California Coastal Commission, the Army Corps of
Engineers, and the Regional Water Quality Control Board, all of which must be separately
negotiated with the goal of inter -agency consistency.
As the underlying permittee of the RGP-54, the City must also comply with the conditions
as well as ensure the residents' compliance. The permit is valid for five years and it was
recently renewed within the past year with several improvements. However, a major
condition that has been ongoing for several decades is the requirement that the sediment
be recharacterized every five years to determine its suitability for either open -ocean
disposal at the federally managed disposal zone located six miles from the entrance
channel ("LA-Y), or for beach nourishment within the harbor.
The sediment characterization process and subsequent negotiations with the regulatory
agencies is complicated particularly given the various permit conditions as well as the
geographical extent of characterizing the perimeter of the harbor.
The City issued a Request for Proposals (RFP) in May 2022. Services requested in the
RFP included developing a Sampling and Analysis Plan; requesting approval from the
regulatory and resource agencies; mobilizing sampling vessels and collecting samples;
conducting laboratory analysis (chemical and biological); developing a Sampling and
Analysis Report and presenting the characterization results to the regulatory and resource
agencies; negotiating any new terms within the RGP-54 based on the sampling results;
and sampling and testing additional areas within the harbor not covered by the RGP-54
in preparation for the upcoming harbor -wide dredging project. The RFP was advertised
on the City's PlanetBids Portal, and it was viewed by the marine engineering industry.
Staff confirmed that at least three consultants who specialize in sediment characterization
received and viewed the RFP.
The City received one response to the RFP. Staff believes that due to the complexity of
the project and limited pool of local coastal consulting firms, many qualified engineering
consultants opted to pass on proposing on the work effort. Anchor QEA, LLC is qualified
in the field of sediment characterization and coastal engineering and is familiar with the
RGP-54 program after having previously assisted the City with sediment characterization,
negotiated renewal and permit management.
Staff reviewed the proposal to confirm responsiveness to the RFP. The proposal included
the required background, experience, similar work history, and ability to perform the
specific tasks as outlined in the Scope of Service. The sealed fee schedule was reviewed
and confirmed to be reasonable with a majority of the direct costs being associated with
the sediment collection process and chemical and biological laboratory analysis.
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Approval of Professional Services Agreement with Anchor QEA, LLC for Regional
General Permit (RGP-54) Sediment Suitability Characterization
June 28, 2022
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Staff now requests approval of a Professional Services Agreement with Anchor QEA, LLC
for an amount of $324,553.
FISCAL IMPACT:
The current adopted Capital Improvement Program (CIP) budget includes sufficient
funding for this agreement. It will be expensed to the Tidelands Capital Fund in the Public
Works Department, 10101-980000-22H07. The Tidelands Capital Fund was created to
allow for the sequestration of incremental increases from tidelands rent adjustments
solely to finance critical in -harbor capital improvements, like sea walls repair, dredging,
piers and important amenities.
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 with Anchor QEA, LLC
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ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH ANCHOR QEA, LLC FOR
REGIONAL GENERAL PERMIT (RGP-54) SEDIMENT SUITABILITY
CHARACTERIZATION
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 28th day of June, 2022 ("Effective Date"), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and ANCHOR QEA, LLC, a Washington limited liability company
("Consultant"), whose address is 9700 Research Drive, Irvine, California 92618, 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 prepare a Regional General Permit ("RGP-
54") sediment suitability characterization ("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 July 1, 2023, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the services described in the Scope of
Services attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). City may elect to delete certain Services within the Scope of Services at its
sole discretion.
3. TIME OF PERFORMANCE
3.1 Time is of the essence in the performance of Services under this
Agreement and Consultant shall perform the Services in accordance with the schedule
included in Exhibit A. In the absence of a specific schedule, the Services shall be
performed to completion in a diligent and timely manner. The failure by Consultant to
strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a
diligent and timely manner may result in termination of this Agreement by City.
3.2 Notwithstanding the foregoing, Consultant shall not be responsible for
delays due to causes beyond Consultant's reasonable control. However, in the case of
any such delay in the Services to be provided for the Project, each party hereby agrees
to provide notice within two (2) calendar days of the occurrence causing the delay to the
other party so that all delays can be addressed.
3.3 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator as defined herein not later than ten (10) calendar
days after the start of the condition that purportedly causes a delay. The Project
Administrator shall review all such requests and may grant reasonable time extensions
for unforeseeable delays that are beyond Consultant's control.
3.4 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
hand -delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 City shall pay Consultant for the Services on a time and expense not -to -
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Three
Hundred Twenty Four Thousand Five Hundred Fifty Three Dollars and 00/100
($324,553.00), 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.
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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 Adam Gale 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
Director of Public Works 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
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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 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"), 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 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.
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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 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
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be construed as an assignment: The sale, assignment, transfer or other disposition of
any of the issued and outstanding capital stock of Consultant, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if Consultant is a
partnership or joint -venture or syndicate or co -tenancy, which shall result in changing
the control of Consultant. Control means fifty percent (50%) or more of the voting
power or twenty-five percent (25%) or more of the assets of the corporation, partnership
or joint -venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents"), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Additionally, all material posted in
cyberspace by Consultant, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, shall become the exclusive property of City,
and City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
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17.3 All written documents shall be transmitted to City in formats compatible
with Microsoft Office and/or viewable with Adobe Acrobat.
18. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
20. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate
of return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
22. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and/or restoration expense shall be
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borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
24. CONFLICTS OF INTEREST
24.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act") 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.
24.2 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.
25. NOTICES
25.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
25.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Director of Public Works
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
25.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Adam Gale
Anchor QEA, LLC
9700 Research Drive
Irvine, CA 92618
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26. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement. Consultant's
acceptance of the final payment shall constitute a waiver of all claims for compensation
under or arising out of this Agreement except those previously made in writing and
identified by Consultant in writing as unsettled at the time of its final request for
payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
27. TERMINATION
27.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
such default, and thereafter diligently take steps to cure the default, the non -defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
27.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information developed
or accumulated in the performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
28.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
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28.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
28.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
28.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
28.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
28.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
28.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
28.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
28.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
28.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
28.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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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: 6l2[4z°2-�2 -
By:
Aaron C. Harp
City Attorney
ATTEST:
Date:
By:
Leilani 1. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Kevin Muldoon
Mayor
CONSULTANT: Anchor QEA, LLC, a
Washington limited liability company
Date:
By:
Steve Cappellino
Member
Date:
By:
John Verduin
Member
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT A
SCOPE OF SERVICES
Consultant shall provide the City with a sediment suitability characterization
program that shall review proposed dredge material to determine suitability for ocean
disposal at the LA-3 Ocean Dredged Material Disposal Site, beach replenishment at
adjacent beaches, or nearshore placement at ocean beaches north of the City's harbor
entrance. The current Regional General Permit ("RGP 54") suitability determination
expires on October 1, 2022; therefore, a new investigation is required to support the
permit. The approach to obtain a new RPG 54 sediment suitability by January 1, 2023,
is described below. All sampling and testing shall be conducted in accordance with
regional and federal guidelines following the Southern California Dredged Material
Management Team ("DMMT") process.
Task 1: Develop Samplinq and Analvsis Plan ("SAP") and Present to DMMT:
Consultant shall develop a Sampling and Analysis Plan ("SAP") for the City that details
the sampling and analysis strategy for the sediment characterization. Consultant shall
use the previous SAP developed in 2013 and 2017 as a template to expedite the
schedule. Consultant shall prepare the SAP in accordance with the regional
guidelines— the DMMT's Sampling and Analysis Plan/Results Guidelines, USEPA's
Ocean Disposal Testing Manual ("OTM"), and USEPA's Inland Testing Manual ("ITM").
Consultant shall summarize historical data from previous RGP 54 sediment
investigations in the SAP and use this data for development of the sampling and testing
approach, including the option for nearshore disposal. Consultant shall provide historical
sampling locations and sediment chemistry results as an appendix. The SAP will
present the project team and include procedures for sediment sample collection, sample
handling, physical and chemical analyses, biological testing, QA/QC, and data analysis.
Consultant shall include project maps with RGP 54 boundaries, composite areas, and
sampling locations. Prior to conducting field sampling activities, Consultant shall present
the SAP to the DMMT at one of their monthly meetings for approval.
As part of the development of the SAP, Consultant shall include a proposal to extend
the current sediment suitability past October 2022 to allow for flexibility in negotiating a
new sediment suitability and —more importantly —not have a lapse in the existing
authorized permitted activities. Consultant shall accomplish this by comparing
preliminary sediment chemistry concentrations to those previously measured in 2017 to
demonstrate that conditions have not changed within each area.
Task 2: Mobilize Equipment and Collect Samples:
Consultant shall conduct sediment core sampling at 54 stations within five (5) distinct
composite areas, consistent with the 2017 RGP 54 sampling program. Leviathan
Environmental Services shall provide the sampling barge and electric vibracore for the
collection of sediment cores.
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Consultant shall collect sediment cores to the maximum authorized dredge depth of -10
feet mean lower low water ("MLLW") plus two (2) feet of overdepth, except for Stations
1-5 and 4-12. At these two stations, Consultant shall collect cores to a reduced depth of
-7 feet MLLW plus one (1) foot of overdepth due to elevated mercury previously
measured in the bottom intervals. In addition, Consultant shall collect the Z-layer (the
0.5-foot interval below project depth plus overdepth) at each of the 54 stations to
characterize the new surface layer. Consultant shall archive individual cores and Z-layer
samples to allow for additional chemical analysis if requested by the DMMT. Multiple
cores may be required at each station to obtain a sufficient volume for analysis.
Consultant shall combine individual cores from each area to create composite samples
for physical and chemical analyses and biological testing.
Consultant's subcontractor, Seaventures, shall collect reference sediment using a pipe
dredge at the LA-3 reference site and use it for comparative purposes. Seaventures
shall collect site water and use it to create elutriate samples for bioassay testing.
Receiver site sediment sampling was previously conducted at the nearshore ocean
placement sites in 2018 and, therefore, is not proposed as part of this program.
Consultant previously developed a health and safety plan ("HASP") for RGP 54
sediment sampling in Newport Bay, therefore, only minimal HASP updates are
anticipated. Consultant shall distribute the HASP to the Project team for review and
acknowledgement prior to sampling activities.
To support the potential development of a new Z-layer threshold for DDTs (dichloro-
diphenyl-trichloroethane), Consultant shall collect and archive a subsample from the top
0.5-foot interval from each core. The California regional water quality control board
("RWQCB") previously noted that future revisions of the RGP 54 401 WQC certification
would consider the most recent set of sediment characterization data. The RGP 54
sampling program provides an opportunity to collect additional data from throughout
Newport Bay to lower the Z-layer threshold for DDTs. Recalculating the Zdayer
threshold (based on the 95% upper confidence limit of DDTs in surface sediment from
Newport Bay) will allow more projects to qualify for coverage under RGP 54 and still
ensure adherence to the federal anti -degradation rule. Surface sediment archive
samples shall only be submitted for analysis if requested by the City.
Task 3: Conduct Laboratory Analysis:
Consultant shall submit five (5) composite samples and the LA-3 reference sample for
sediment chemistry and biological testing. In addition, based on previous testing results
from 2017, it is anticipated that the DMMT will request that individual cores from Areas 1
and 5 be analyzed for mercury and/or PCBs (polychlorinated biphenyls) to further
delineate the extent of contamination. All testing will be performed according to Ocean
Testing Manual ("OTM") and Inland Testing Manual ("ITM") guidelines.
Consultant's subcontractor, Physis Environmental Laboratories, shall perform sediment
and tissue chemistry. Sediment chemistry of composite and reference samples will
include grain size, total organic carbon, total solids, metals, polycyclic aromatic
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hydrocarbons (PAHs), polychlorinated biphenyl (PCB) congeners, organochlorine
pesticides, organotins, and pyrethroids. Consultant's subcontractor, Enthalpy Analytical,
will perform bioassay testing. Consultant shallwork with Enthalpy to identify and mitigate
any potential confounding factors (e.g., ammonia and grain size) that may impact test
results. Biological testing shall include solid phase and suspended particulate phase
bioassays, as well as bioaccumulation tests. Upon completion of bioaccumulation
testing, Consultant shall submit tissue samples for chemical analysis. The final analyte
list for tissue samples shall be established based on sediment chemistry results and
negotiation with the DMMT. Based on previous RGP 54 data from 2013 and 2017,
tissue chemistry shall likely include lipids, mercury, PCBs, DDTs, and/or dibutyltin;
however, this is subject to DMMT approval. Consultant shall perform data management
and validation to ensure sediment and tissue chemistry meets the project data quality
objectives.
Task 4: Develop SAR and Present to DMMT:
Consultant shall prepare a sampling and analysis report ("SAR") documenting all
activities associated with collecting, processing, and analyzing sediment samples. The
SAR shall include field data, chemical and biological results, quality assurance/quality
control ("QA/QC") summaries, and suitability assessments. Consultant shall compare
sediment chemistry results to the reference and appropriate sediment quality guidelines.
Consultant shall compare biological results to reference sediment and appropriate
laboratory controls. If needed, Consultant will use a dilution model (i.e., short-term fate
"STFATE") to determine the concentration of dissolved plus suspended contaminants,
after allowance of mixing. Consultant shall statistically compare tissue chemistry results
to reference results and directly compare to FDA action levels and toxicity reference
values.
Consultant shall include project maps with RGP 54 boundaries, composite areas, and
proposed versus actual sampling locations. Consultant shall include sediment core logs,
chain -of -custody forms, laboratory reports, and data validation reports as appendices.
Consultant shall represent the project at the DMMT meeting to obtain final concurrence
on dredged material suitability.
Task 5: Perform Sampling and Testing of Additional Areas Within the Harbor Not
Covered by RGP 54:
The RGP includes four (4) additional areas within the harbor that the City is
contemplating dredging that are not covered by the RGP 54 program, including Bay
Island Channel, Coast Highway Bridge (southwest quadrant of channel), the north side
of Collins Isle, and the China Cove area.
Consultant shall demonstrate that sediment quality within these areas is consistent with
the adjacent RGP 54 project areas where full Tier III biological testing has demonstrated
sediment suitability for ocean disposal or beach/nearshore nourishment; therefore,
sediments are also suitable and no additional biological testing is required. Consultant
shall incorporate these four (4) project areas into the RGP 54 SAP and conduct one (1)
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additional field day to collect up to six (6) sediment cores. Consultant shall submit four
confirmatory chemistry samples, including one (1) from each area, to Physis for analysis
of the chemical parameters described in Task 3. Consultant shall also perform
additional data validation and management and reporting to incorporate results into the
RGP 54 SAR.
Data QA/QC:
Consultant has a team of analytical chemists with former laboratory experience and
database analysts who shall provide support to ensure project data quality objectives
are met. Consultant will perform a USEPA Stage 2A data validation that shall evaluate
the laboratory quality control ("QC") results in relation to the individual sample results.
Consultant shall work closely with the database analysts to compile field observations
and analytical data into a database, review the data for completeness and consistency,
append the database with qualifiers assigned by the data validator, and ensure that the
data are obtained in a format suitable for inclusion in the appropriate databases and for
delivery to the appropriate regulatory agencies.
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EXHIBIT B
SCHEDULE OF BILLING RATES
Labor...
Principal
$297.00
Senior Manager
$265.00
Manager
$248.00
Senior Staff
$219.00
Staff 3
$193.00
Staff 2
$173.00
Staff 1
$146.00
Senior CAD Designer
$152.00
Technical Editor
$129.00
Project Coordinator
$122.00
Total Not -to -Exceed: $324,553.00
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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
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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:
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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. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters
into contracts with on behalf of City will be submitted to City for review.
Failure of City to request copies of such agreements will not impose any
liability on City, or its employees. Consultant shall require and verify that
all subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as
CG20380413.
D. 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.
E. 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
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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.
F. 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.
G. 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.
H. 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.
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.
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