HomeMy WebLinkAbout08 - Approval of PSA for Newport Harbor Shallow and Deep Water Eelgrass SurveysCITY OF
NEWPORT BEACH
City Council Staff Report
TO:
FROM:
PREPARED BY:
PHONE:
TITLE
ABSTRACT:
July 12, 2022
Agenda Item No. 8
HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
Chris Miller, Administrative Manager, cmiller@newportbeachca.gov,
949-644-3043
Approval of Professional Services Agreement with Marine
Taxonomic Services, LTD for Newport Harbor Shallow and Deep
Water Eelgrass Surveys
An important component of the City of Newport Beach's (City) RGP-54 dredging permit
is the 2015 inclusion of the Eelgrass Protection and Mitigation Plan for Shallow Waters in
Lower Newport Bay: An Ecosystem Based Management Plan (Eelgrass Plan), which
allows for calculated impacts to eelgrass from dredging and therefore relieves the harbor
residents from the standard eelgrass mitigation requirements. A critical condition of this
Eelgrass Plan is a harbor -wide survey to be conducted every two years to reflect the most
current conditions and quantities. 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 Marine Taxonomic Services, LTD for a total
contracting authority amount of $153,093.20.
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 a Professional Services Agreement with Marine Taxonomic Services, LTD
for Newport Harbor Shallow Water and Deep Water Eelgrass Surveys for a total
not -to -exceed amount of $153,093.20, and authorize the Mayor and City Clerk to
execute the agreement.
DISCUSSION:
The Eelgrass Plan requires tracking shallow water eelgrass distribution in the harbor
every two years, and deep water tracking every four years. Eelgrass is surveyed within
three zones (stable, transitional and unvegetated) based on eelgrass presence and
variation in overall abundance. Each zone is subject to different allowable annual eelgrass
impacts caused only by routine maintenance dredging activities.
IM
Approval of Professional Services Agreement with Marine Taxonomic Services, LTD for
Newport Harbor Shallow and Deep Water Eelgrass Surveys
July 12, 2022
Page 2
Every two years, a shallow water eelgrass survey along the perimeter of the harbor tracks
eelgrass distribution in relation to these established zones, and to assess long-term
eelgrass trends within the harbor. Detailed information on the distribution and abundance
of eelgrass (acreage) is documented in a comprehensive report that is published on the
City's website.
Every four years, a deep water eelgrass survey within the main navigation channel is
conducted to gauge the overall health and distribution of the entire eelgrass population in
Newport Harbor. The current survey cycle would typically not include the deep water
survey, but because of the upcoming harborwide dredging project later this year, the deep
water survey is necessary to establish an accurate baseline condition — a critical metric
when conducting the next post -dredge eelgrass survey.
For historical context, the current survey cycle will be the City's eighth survey with the
total eelgrass acreage ranging from 43 acres in 2006 to 112 acres in 2020 — a significant
improvement that partially reflects the harbor's improved water quality and eelgrass
management efforts.
The City issued an RFP in May 2022. Services requested in the RFP included surveying
for shallow water eelgrass consisting of a diver and a surface support biologist in a kayak;
augmenting the diver survey with a down -looking sonar in larger or hazardous areas;
conducting focused eelgrass turion counts (plant shoots and blades); documenting and
measuring general health and physical eelgrass characteristics as well as soil conditions,
water visibility, temperature, depth, and fauna and flora; conducting a deep water survey
using sidescan and down -looking sonar linked with high -resolution underwater video;
conducting focused "surveillance level" Caulerpa surveys; identifying underwater debris
to support subsequent harbor clean-up efforts; evaluating the relative effectiveness of a
recent City eelgrass study that compared traditional and new transplant methods;
generating detailed eelgrass maps; coordinating survey data with the City's GIS Division
for website posting; and generating a final report.
The RFP was advertised on the City's PlanetBids portal, and staff confirmed that at least
three local consultants specializing in aquatic surveys (eelgrass, Caulerpa or otherwise)
viewed the RFP.
The City received one response to the RFP. Staff believes that due to the complexity,
project detail, and diver -based survey requirement, many local qualified consultants opted
to pass on bidding. (One qualified firm partnered with the winning bidder for the deep
water survey component.) Marine Taxonomic Services, LTD is qualified in the field of
eelgrass and Caulerpa surveys and is familiar with the City's program after having
completed the previous two harborwide surveys.
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 Services. The sealed fee schedule was reviewed
and confirmed to be reasonable with most of the costs associated with the diver -based
shallow water surveys.
FIN
Approval of Professional Services Agreement with Marine Taxonomic Services, LTD for
Newport Harbor Shallow and Deep Water Eelgrass Surveys
July 12, 2022
Page 3
Staff now requests City Council approval of a Professional Services Agreement with
Marine Taxonomic Services, LTD for an amount of $153,093.20.
FISCAL IMPACT:
The adopted Capital Improvement Program (CIP) budget includes funding for this
agreement. It will be expensed to the Tidelands Fund in the Public Works Department,
10001-980000-231-112. Tidelands revenue is generated from the operation of the City of
Newport Beach's tidelands including rents from moorings, piers, and leases, as well as
income from parking lots.
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 Marine Taxonomic Services, LTD
FIN
ATTACHMENT A
PROFESSIONAL SERVICES AGREEMENT
WITH MARINE TAXONOMIC SERVICES, LTD. FOR
2022 NEWPORT HARBOR SHALLOW -WATER AND DEEP -WATER EELGRASS
SURVEY
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 7th day of July, 2022 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
MARINE TAXONOMIC SERVICES, LTD., an Oregon corporation ("Consultant"), whose
address is 920 Rancheros Drive, Suite F-1, San Marcos, California 92069, 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 for the 2022 Newport Harbor shallow -water and
deep -water eelgrass survey ("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, 2024, 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 One Hundred Fifty Three
Thousand Ninety Three Dollars and 20/100 ($153,093.20), 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 Robert Mooney 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
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
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competent practitioners of the same discipline under similar circumstances. All Services
shall be performed by qualified and experienced personnel who are not employed by City.
By delivery of completed Work, Consultant certifies that the Work conforms to the
requirements of this Agreement, all applicable federal, state and local laws, and legally
recognized professional standards.
8.2 Consultant represents and warrants to City that it has, shall obtain, and shall
keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Consultant to practice its profession. Consultant shall maintain a City
of Newport Beach business license during the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Consultant's Work promptly, or delay or faulty performance by
City, contractors, or governmental agencies.
9. HOLD HARMLESS
9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend
and hold harmless City, its City Council, boards and commissions, officers, agents,
volunteers and employees (collectively, the "Indemnified Parties"), from and against any
and all claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without limitation,
attorneys' fees, disbursements and court costs) of every kind and nature whatsoever
(individually, a Claim; collectively, "Claims"), 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.
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
Marine Taxonomic Services, Ltd. Page 4
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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.
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.
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16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such subcontractor
other than as otherwise required by law. City is an intended beneficiary of any Work
performed by the subcontractor for purposes of establishing a duty of care between the
subcontractor and City. Except as specifically authorized herein, the Services to be
provided under this Agreement shall not be otherwise assigned, transferred, contracted
or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other writing
produced, including but not limited to, websites, blogs, social media accounts and
applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant,
its officers, employees, agents and subcontractors, in the course of implementing this
Agreement, shall become the exclusive property of City, and City shall have the sole right
to use such materials in its discretion without further compensation to Consultant or any
other party. Additionally, all material posted in cyberspace by Consultant, its officers,
employees, agents and subcontractors, in the course of implementing this Agreement,
shall become the exclusive property of City, and City shall have the sole right to use such
materials in its discretion without further compensation to Consultant or any other party.
Consultant shall, at Consultant's expense, provide such Documents, including all logins
and password information to City upon prior written request.
17.2 Documents, including drawings and specifications, prepared by Consultant
pursuant to this Agreement are not intended or represented to be suitable for reuse by
City or others on any other project. Any use of completed Documents for other projects
and any use of incomplete Documents without specific written authorization from
Consultant will be at City's sole risk and without liability to Consultant. Further, any and
all liability arising out of changes made to Consultant's deliverables under this Agreement
by City or persons other than Consultant is waived against Consultant, and City assumes
full responsibility for such changes unless City has given Consultant prior notice and has
received from Consultant written consent for such changes.
17.3 All written documents shall be transmitted to City in formats compatible with
Microsoft Office and/or viewable with Adobe Acrobat.
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.
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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 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.
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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 sea., 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: Robert Mooney
Marine Taxonomic Services, Ltd.
920 Rancheros Drive, Suite F-1
San Marcos, CA 92069
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
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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 seg.).
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.
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.
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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 ATTOR EY'S OFFICE
Date.
By: 4
Aar C. H
Ci y Attorn y
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Kevin Muldoon
Mayor
CONSULTANT: Marine Taxonomic
Services, Ltd., an Oregon corporation
Date:
By:_
Robert Mooney
Vice President
[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
Implementation of Shallow Water Surveys
Three methods are proposed to map eelgrass. The methods follow those of prior survey
are consistent with guidelines within the California Eelgrass Mitigation Policy (CEMP) and
the Eelgrass Protection and Mitigation Plan for Shallow Waters in Newport Bay (EPMP).
For the shallow -water eelgrass habitat, the primary method will utilize biologist -divers
using SCUBA and a surface support vessel (generally a kayak) equipped with a
differential global positioning system (dGPS) to outline eelgrass bed areas. Each diver
will be supported by a support vessel. The support vessel will follow their diver and
maintain communication with the diver. When the diver encounters an eelgrass bed, the
diver will notify the topside person via underwater communications equipment. The diver
will then swim the eelgrass boundary while the topside person follows and logs positions
with a dGPS.
In most regions, diver surveys will include the bayfloor from the low intertidal zone to
about 30 feet past the end of docks and piers except where the pierhead lines are irregular
such as along Carnation and China Cove where shallow -water eelgrass beds extend
toward the navigational channel.
Where conditions are not safe to dive or where eelgrass beds are extensive or extend
well beyond the pierhead line, remote sensing techniques (down -looking and side -scan
sonar) will be used to survey for eelgrass. These methods are consistent with previous
surveys and the sonar work performed by this team will be performed by Coastal
Resources Management (CRM). Sonar data will be validated through the use of
underwater video. These methods are provided in more detail below relative to the deep -
water surveys.
Additional survey elements will include documenting any large debris items observed in
sonar records or noted by divers. A table of coordinates and brief description will be
provided in the report. Eelgrass density will be monitored by randomly placing quadrats
in eelgrass beds and counting leaf shoots (turions) within each quadrat. Data will also be
collected on eelgrass canopy height, water temperature, other species present, and other
environmental variables consistent with previous surveys.
During the surveys, divers will perform an anticipated 20% coverage Caulerpa survey in
accordance with NMFS protocols. The primary means to observe for Caulerpa will be
using Caulerpa certified divers performing the eelgrass surveys in the shallow -water
areas. While searching for and surveying around eelgrass beds, divers will survey a
significant amount of seafloor. Based on the current understanding of Caulerpa presence
in Newport Harbor, Consultant plans to perform some additional survey efforts specifically
for Caulerpa. The diver tracks will be recorded regardless of whether the diver encounters
eelgrass. This information along with data on other Caulerpa survey efforts will be
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reviewed. Consultant will then choose areas for additional surveys to fill any gaps in the
Caulerpa search. In addition, divers will swim through eelgrass beds in those areas where
eelgrass density assessments are to occur. Training and intercalibration among divers
will occur prior to commencement of data collection.
The report template will be updated with the information from the current shallow -water
and deep -water eelgrass survey using all the same parameters and methods as the prior
efforts with some minor additions within the current effort. The consistency in data
collection and reporting will ensure that any existing and future eelgrass mitigation
programs have data with confidence to protect the resource. If confidence is lost in the
data, mitigation programs can be faced with costly implementation of additional data
collection.
II. Implementation of Eelgrass Study Site Surveys
The goal of this task is to inform upon the success of the experimental eelgrass transplant
effort completed in 2019. Survey of the eelgrass study sites would inform the City as to
the success of various transplant methods three years after the transplant methods were
deployed.
Consultant will map eelgrass within the eelgrass study sites during the shallow water
eelgrass surveys. Consultant will follow data collection methods utilized in the year 1
follow up survey of the eelgrass study sites performed in 2020. Consultant will lay
transects across the study sites in the location of the experimental eelgrass transplant
area and collect information related to coverage and density.
Results from the evaluation of the eelgrass study sites will be summarized and included
within the report deliverable provided for the harbor wide survey effort.
III. Implementation of Deep -Water Surveys
The purpose of this task is to update the database of eelgrass distribution in Newport Bay
Deep Water Habitat (DWEH) in July 2022 using remote survey methods rather than diver
survey, since large-scale diver surveys conducted within active navigational channels in
Newport Harbor can present significant diver safety issues and can be extremely labor-
intensive. Remote sensing techniques (sidescan sonar/downlooking sonar and remote
underwater video) eliminate these issues.
Deep Water Eelgrass surveys are necessary so that the City has a detailed and complete
knowledge of eelgrass bed resources within Newport Bay, as required for the
implementation of the City of Newport Beach "Eelgrass Protection and Mitigation Plan for
Shallow Waters in Lower Newport Bay: An Ecosystem Based Management Program".
The Deepwater Habitat survey will update CRM Deepwater Habitat Surveys conducted
in 2008, 2012, 2016, and 2020 (CRM 2009, 2014, 2016, and MTS and CRM 2020) that
mapped 45.86 acres of eelgrass in the navigation channels in 2008, 45.92 acres of
eelgrass in 2012, 51.5 acres in 2016, and 37.94 acres in 2020. The 2020 map is shown
in Figure 1.
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For the FY 2022 Deep -Water survey, Consultant's Team proposes to have CRM provide
eelgrass habitat surveys using sidescan sonar and downlooking sonar in the following
locations:
• Sidescan Sonar
o Deepwater Sidescan Area 260 acres
• Downlooking Sonar
o City Mitigation Area -3.5 acres
o Balboa Yacht Basin 2.5 acres
o Channels Surrounding Linda Isle (south and east) 11 acres
o Inner Linda Isle 8.5 acres
o Balboa Marina Channel/North Linda Isle Channel 4 acres
o Castaways 15 acres
o DeAnza West, to the Launch Ramp 30 acres
o DeAnza East 12 acres
o Dunes Marina
This work is consistent with the areal cover and the methods employed during previous
studies (Figure 1). The intent is to survey for eelgrass with sonar methods in expansive
areas and areas where navigational channels pose a hazard for diving. Within all of these
areas diver surveys will provide eelgrass detail inside the pierhead line and will be used
to validate sonar methods. Note that many of the areas described above are beyond the
boundaries shown in Figure 1 and will go beyond to survey the performance of eelgrass
surveys in areas north of the PCH Bridge.
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Region 23 /
Deep Water sidescan Sonar
Figure 1.
Eelgrass Study Areas
Q RGP54 Plan Area
+ F Eelgrass (2020)
1 C Eelgrass 5m suffer
I
IC
1 y i
0 250500 1,000 1.500 2,000
Feet
CRM will incorporate sidescan and downlooking sonar technology linked with high -
resolution underwater video. Methods to be employed will be the same as utilized during
the 2008, 2012, 2016, and 2020 sidescan sonar surveys (CRM 2009, 2014, 2016, and
MTS and CRM 2020). It is extremely important to utilize consistent methodology,
equipment, personnel, and data analysis techniques using remote survey methods, since
the use of different instrumentation, personnel, and data management systems, and
comparing previously collected data can result in varying results. Thus, our proposal to
provide these services allows the City to utilize direct comparisons over time when
submitting the results of the survey to the regulatory agencies.
The remote sensing methods to be employed are approved techniques to map eelgrass
as outlined in the California Eelgrass Mitigation Policy (National Marine Fisheries Service
2014). In addition, a proposed NOAA Southern California Eelgrass Regional -Wide
Monitoring Program will include a recommendation that eelgrass habitat mapping efforts
should be conducted using sidescan sonar methods and where possible, be
accompanied by the collection of bathymetric data.
The project deliverable will be an eelgrass habitat map of eelgrass along with a calculation
of eelgrass acreage found within Newport Harbor's Deep -Water Habitat. Consultant's
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Team will submit preliminary acreages and electronic data files (compatible with the City
of Newport Beach's GIS mapping system) associated with the deep -water eelgrass
survey to the City. If necessary, Consultant can provide results of the deep -water surveys
prior to finalization of the report; it will take longer to complete the dive efforts than the
sonar efforts. The results will also be incorporated in the final report and all electronic
files for both the shallow water and deep -water surveys shall be provided to the City by
November 30, 2022.
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EXHIBIT B
SCHEDULE OF BILLING RATES
Item
Senior Scientist
Hourly Rate
$123.00
Associate Scientist
$94.00
GIS Technician
$94.00
Field Technician
$63.00
SCUBA
$36.00
Small Vessel
$125.00
dGPS
$19.00
Mileage
$0.585 (Per Mile)
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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 and employees.
B. General Liability Insurance. Consultant shall maintain commercial general
liability insurance, and if necessary umbrella liability insurance, with
coverage at least as broad as provided by Insurance Services Office form
CG 00 01, in an amount not less than One Million Dollars ($1,000,000) per
occurrence, Two Million Dollars ($2,000,000) general aggregate. The
policy shall cover liability arising from premises, operations, personal and
advertising injury, and liability assumed under an insured contract (including
the tort liability of another assumed in a business contract).
C. Automobile Liability Insurance. Consultant shall maintain automobile
insurance at least as broad as Insurance Services Office form CA 00 01
covering bodily injury and property damage for all activities of Consultant
arising out of or in connection with Work to be performed under this
Agreement, including coverage for any owned, hired, non -owned or rented
vehicles, in an amount not less than One Million Dollars ($1,000,000)
combined single limit each accident.
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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
and employees 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
and employees shall be included as insureds under such policies.
C. Primary and Non Contributory. All liability coverage shall apply on a primary
basis and shall not require contribution from any insurance or self-insurance
maintained by City.
D. Notice of Cancellation. All policies shall provide City with thirty (30)
calendar days' notice of cancellation (except for nonpayment for which ten
(10) calendar days' notice is required) or nonrenewal of coverage for each
required coverage.
5. Additional Agreements Between the Parties. The parties hereby agree to the
following:
A. Evidence of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a
waiver of subrogation endorsement for workers' compensation and other
endorsements as specified herein for each coverage. Insurance certificates
and endorsement must be approved by City's Risk Manager prior to
commencement of performance. Current certification of insurance shall be
kept on file with City at all times during the term of this Agreement. 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
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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 CG
20 38 04 13.
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 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 -
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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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