HomeMy WebLinkAbout11 - Approval of Amendment to PSA for 2022 Newport Harbor Shallow-Water and Deep -Water Eelgrass SurveyQ �EwPpRT
CITY OF
s NEWPORT BEACH
`q44:09 City Council Staff Report
November 15, 2022
Agenda Item No. 11
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 Amendment No. One to Professional Services
Agreement with Marine Taxonomic Services, LTD for 2022 Newport
Harbor Shallow -Water and Deep -Water Eelgrass Survey
/_1 16"t I:7_T91 6
The City of Newport Beach (City) utilizes a consultant to perform a comprehensive
eelgrass survey and a focused Caulerpa survey along the perimeter of Newport Harbor
every two years. The current contract with Marine Taxonomic Services, Inc. (MTS) for
this service was approved in July 2022, and the survey is currently underway. Staff is
requesting an amendment to the current agreement to satisfy the City's commitment to
provide a $50,000 matching grant to the State Regional Water Quality Control Board
(RWQCB) for high -intensity Caulerpa surveys in the China Cove area.
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;
b) Approve Amendment No. One to Professional Services Agreement with Marine
Taxonomic Services, LTD for 2022 Newport Harbor Shallow -Water & Deep -Water
Eelgrass Survey to increase the total not -to -exceed amount by $50,000 for a total
not -to -exceed amount of $203,093.20; and
c) Authorize the Mayor and City Clerk to execute the amendment.
DISCUSSION:
Every two years, the City performs a harbor -wide survey to document the presence and
variation in overall abundance of eelgrass along the shoreline areas of the harbor. This
survey satisfies the requirements of the City's Eelgrass Protection and Mitigation Plan for
Shallow Waters in Lower Newport Bay: An Ecosystem Based Management Plan. An
additional task associated with this effort is to perform a focused survey of the invasive
alga Caulerpa at strategic locations through the harbor. MTS was contracted by the City
for this work, and the harbor -wide survey is currently underway.
Approval of Amendment No. One to Professional Services Agreement with Marine
Taxonomic Services, LTD for 2022 Newport Harbor Shallow -Water and
Deep -Water Eelgrass Survey
November 15, 2022
Page 2
In early 2021, Caulerpa was discovered in the China Cove area, and it was largely
removed through the combined leadership efforts of the Southern California Caulerpa
Action Team (SCCAT) which is comprised of regulatory and resource agencies including
the City. However, lingering, small amounts of Caulerpa are still being found with each
subsequent survey, and resources to support these surveys have been exhausted.
In June 2022, the RWQCB asked the City for a matching grant of $50,000 to continue the
survey efforts within the China Cove area. Staff agreed to request the matching funds
from City Council and if approved, provide the grant by way of directly paying for $50,000
worth of underwater survey services, which was then approved by the State Water
Resources Control Board. The combined grant funds from the State and the City will allow
the SCCAT to continue to fund this important survey effort in the China Cove area.
(Three consecutive surveys without finding any Caulerpa are required before the next
stage of long-term, less frequent surveys may commence.)
Staff requests an amendment to the 2022 Newport Harbor Shallow -Water and
Deep -Water Eelgrass Survey contract with MTS to include an additional $50,000 for a
total not -to -exceed amount of $203,093.20.
FISCAL IMPACT:
The adopted budget includes sufficient funding for this amendment. It will be expensed
to the Tidelands Management Professional Services account in the Public Works
Department, 10080802-811008.
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 — Amendment No. One
11-2
ATTACHMENT A
AMENDMENT NO. ONE TO
PROFESSIONAL SERVICES AGREEMENT
WITH MARINE TAXONOMIC SERVICES, LTD. FOR
2022 NEWPORT HARBOR SHALLOW -WATER & DEEP -WATER EELGRASS
SURVEY
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 15th day of November, 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, CA 92069, and is made with reference to the following:
RECITALS
A. On July 7, 2022, City and Consultant entered into a Professional Services
Agreement ("Agreement") for the 2022 Newport Harbor Shallow -Water & Deep -
Water Eelgrass Survey ("Project").
B. The parties desire to enter into this Amendment No. One to reflect additional
Services not included in the Agreement, update the billing rates, amend the Hold
Harmless section, and to amend the Insurance requirements.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. SERVICES TO BE PERFORMED
Exhibit A to the Agreement shall be supplemented to include the Scope of
Services, attached hereto as Exhibit A and incorporated herein by reference ("Services"
or "Work"). Exhibit A to the Agreement, and Exhibit A to this Amendment No. One shall
collectively be known as "Exhibit A." The City may elect to delete certain Services within
the Scope of Services at its sole discretion.
2. COMPENSATION TO CONSULTANT
Exhibit B to the Agreement shall be supplemented to include the Schedule of
Billing Rates, attached hereto as Exhibit B and incorporated herein by reference. Exhibit
B to the Agreement, and Exhibit B to Amendment No. One shall collectively be known as
"Exhibit B."
Section 4.1 of the Agreement is amended in its entirety and replaced with the
following: "City shall pay Consultant for the Services on a time and expense not -to -exceed
basis in accordance with the provisions of this Section and the Schedule of Billing Rates
attached hereto as Exhibit B and incorporated herein by reference. Consultant's
compensation for all Work performed in accordance with this Agreement, including all
reimbursable items and subconsultant fees, shall not exceed Two Hundred Three
Thousand Ninety Three Dollars and 201100 ($203,093.20), without prior written
11-3
authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City."
The total amended compensation reflects Consultant's additional compensation
for additional Services to be performed in accordance with this Amendment No. One,
including all reimbursable items and subconsultant fees, in an amount not to exceed Fifty
Thousand Dollars and 001100 ($50,000.00).
3. HOLD HARMLESS
Section 9 of the Agreement shall be amended in its entirety and replaced with the
following:
"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."
4. INSURANCE
Exhibit C of the Agreement shall be deleted in its entirety and replaced with Exhibit
C, attached hereto and incorporated herein by reference. Any reference to Exhibit C in
the Agreement shall hereafter refer to Exhibit C attached hereto.
Marine Taxonomic Services, Ltd. Page 2
11-4
5. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants
set forth in the Agreement shall remain unchanged and shall be in full force and effect.
[SIGNATURES ON NEXT PAGE]
Marine Taxonomic Services, Ltd. Page 3
11-5
IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be
executed on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S. OFFICE
Date: loll Sl2 0 2 2-
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By: By -
Aaron C. Harp ��� Kevin Muldoon
City Attorney 'o Mayor
ATTEST:
Date:
in
Leilani I. Brown
City Clerk
CONSULTANT: MARINE TAXONOMIC
SERVICES, LTD., an Oregon corporation
Date:
By:
Dr. Robert Mooney
Vice President &
Scientist
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Principal Marine
Marine Taxonomic Services, Ltd. Page 4
11-6
*:1:11=11r_l
SCOPE OF SERVICES
Marine Taxonomic Services, Ltd. Page A-1 11-7
EXHIBIT A
SCOPE OF SERVICES
This amendment shall supplement the Caulerpa-related survey work described within the original scope of
work, and will include ongoing Caulerpa survey efforts in the China Cove area. Consultant's survey team
will utilize divers to systematically search the seafloor in the China Cove and adjacent area where Caulerpa
was previously removed. When fragments of Caulerpa are located by the dive team, the material will be
removed from the seafloor. Ultimately, three consecutive Caulerpa-free surveys are required.
11-8
EXHIBIT B
SCHEDULE OF BILLING RATES
Marine Taxonomic Services, Ltd. Page B-1 11-9
EXHIBIT B
BILLING RATES
This Amendment No. One shall add the following Billing Rates to the original schedule.
Item
Hourly Rate
Project Managing Scientist
$129.00
Survey Diver
$95.00
Marine Technician
$68.00
Deckhand
Tending Vessel
$249.00
Dive Gear (Incl. 4 tanks per
$55.00
diver per da
11-10
EXHIBIT C
INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES
Provision of Insurance. Without limiting Consultant's indemnification of City, and
prior to commencement of Work, Consultant shall obtain, provide and maintain at
its own expense during the term of this Agreement, policies of insurance of the
type and amounts described below and in a form satisfactory to City. Consultant
agrees to provide insurance in accordance with requirements set forth here. If
Consultant uses existing coverage to comply and that coverage does not meet
these requirements, Consultant agrees to amend, supplement or endorse the
existing coverage.
2. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned policyholders'
Rating of A- (or higher) and Financial Size Category Class VII (or larger) in
accordance with the latest edition of Best's Key Rating Guide, unless otherwise
approved by the City's Risk Manager.
3. 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
Marine Taxonomic Services, Ltd. Page C-1 11-11
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:
Marine Taxonomic Services, Ltd. Page C-2 11-12
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 CG
20380413.
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
Marine Taxonomic Services, Ltd. Page C-3 11-13
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.
Marine Taxonomic Services, Ltd. Page C-4 11-14