HomeMy WebLinkAbout09 - Semeniuk Slough Dredging ProjectCITY OF
1 NEWPORT BEACH
City Council Staff Report
April 22, 2014
Agenda Item No. 9.
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director- (949) 644 -3330, dawebb @newportbeach.gov
PREPARED BY: Bob Stein, Assistant City Engineer
PHONE: 949 - 644 -3322
TITLE: Semeniuk Slough Dredging Project — Approval of a Professional Services Agreement
with Noble Consultants, Inc. (CAP15 -0036)
ABSTRACT:
The Public Works Department is proceeding with preparing construction and easement
documents for the dredging of Semeniuk Slough.
RECOMMENDATION:
Approve a Professional Services Agreement with Noble Consultants, Inc., (Noble Consultants)
of Irvine, California, to prepare a bathymetric survey, sediment toxicity analysis, feasibility plan,
entitlement documents and construction documents for the dredging of Semeniuk Slough at a
not to exceed cost of $243,296 and authorize the Mayor and City Clerk to execute the
Agreement.
FUNDING REQUIREMENTS:
Funds for this project are available with the adoption of the FY14 -15 CIP budget in the following
account:
Account Description Account Number Amount
Tide and Submerged Land 7231- C5100923 $243,296.00
DISCUSSION:
In 2004, a preliminary engineering study to dredge Semeniuk Slough was prepared for the City
by Noble Consultants. In 2011, the City discussed a possible joint dredging project with the
U.S. Army Corps of Engineers' (Corps) proposed Santa Ana Marsh restoration project. This
possible joint dredging project did not occur, in part because the Corps did not pursue a near-
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shore disposal methodology. The City is now considering a new project to remove
approximately 10,000 cubic yards of sediment from the slough for upland disposal. Staff
solicited proposals to provide engineering design services for the project and Request for
Proposals was sent to consultants in January 2014. Three proposals were received and
evaluated by staff. Based on the proposals received, staff selected Noble Consultants as the
most qualified firm and recommends entering into a Professional Services Agreement for Noble
Consultants to provide the following engineering services:
1. Prepare a bathymetric survey;
2. Complete the sediment sampling and toxicity assessment;
3. Determine a feasible dredging plan;
4. Prepare and process permit applications and CEQA clearance; and
5. Prepare contract documents.
As part of the California Coastal Commissions' permit application process, the City will need to
address how it will handle private encroachments on City property adjacent to Semeniuk
Slough. Noble Consultants will assist with the preparation of private encroachment exhibits and
other associated tasks.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this project exempt from the California Environmental
Quality Act ( "CEQA ") pursuant to Section 15304(g) (maintenance dredging where the spoil is
deposited in a spoil area authorized by all applicable state and federal regulatory agencies) of
the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3.
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:
Description
Attachment A - Location Map
Attachment B - Professional Services Agreement with Noble Consultants, Inc.
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CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
04/22/2014
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ATTACHMENT B
PROFESSIONAL SERVICES AGREEMENT
WITH NOBLE CONSULTANTS, INCORPORATED FOR
SEMENIUK SLOUGH DREDGING PROJECT
THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement') is made and
entered into as of this 23rd day of April, 2014 ( "Effective Date "), by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
( "City "), and NOBLE CONSULTANTS, INCORPORATED, a California corporation
( "Consultant'), whose address is 359 Bel Marin Keys Blvd, Suite 9, Novato, California
94949, 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 bathymetric survey, sediment
toxicity analysis, feasibility plan, entitlement documents and construction
documents for the dredging of Semeniuk Slough ( "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 September 30, 2016, 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
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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.
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4.1 City shall pay Consultant for the Services on a time and expense not -to-
exceed basis in accordance with the provisions of this Section and the Schedule of
Billing Rates attached hereto as Exhibit B and incorporated herein by reference.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Two Hundred
Forty Three Thousand Two Hundred Ninety Six Dollars and 00/100 ($243,296.00),
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.
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
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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 Jon T. Moore to be its
Project Manager. Consultant shall not remove or reassign the Project Manager or any
personnel listed in Exhibit A or assign any new or replacement personnel to the Project
without the prior written consent of City. City's approval shall not be unreasonably
withheld with respect to the removal or assignment of non -key personnel.
5.2 Consultant, at the sole discretion of City, shall remove from the Project
any of its personnel assigned to the performance of Services upon written request of
City. Consultant warrants that it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
5.3 If Consultant is performing inspection services for City, the Project
Manager and any other assigned staff shall be equipped with a cellular phone to
communicate with City staff. The Project Manager's cellular phone number shall be
provided to City.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. City's
Public Works Director or designee shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator shall represent
City in all matters pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
To assist Consultant in the execution of its responsibilities under this Agreement,
City agrees to provide access to and upon request of Consultant, one copy of all
existing relevant information on file at City. City will provide all such materials in a
timely manner so as not to cause delays in Consultant's Work schedule.
8. STANDARD OF CARE
8.1 All of the Services shall be performed by Consultant or under Consultant's
supervision. Consultant represents that it possesses the professional and technical
personnel required to perform the Services required by this Agreement, and that it will
perform all Services in a manner commensurate with the highest professional
standards. For purposes of this Agreement, the phrase "highest professional
standards" shall mean those standards of practice recognized by one (1) or more first -
class firms performing similar work under similar circumstances.
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8.2 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 the highest professional standard.
8.3 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.
8.4 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 "), which may arise under this Agreement or in
any manner 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.
% 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
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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
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
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power or twenty -five percent (25 %) or more of the assets of the corporation, partnership
or joint- venture.
16. SUBCONTRACTING
The subcontractors authorized by City, if any, to perform Work on this Project are
identified in Exhibit A. Consultant shall be fully responsible to City for all acts and
omissions of any subcontractor. Nothing in this Agreement shall create any contractual
relationship between City and any subcontractor nor shall it create any obligation on the
part of City to pay or to see to the payment of any monies due to any such
subcontractor other than as otherwise required by law. City is an intended beneficiary
of any Work performed by the subcontractor for purposes of establishing a duty of care
between the subcontractor and City. Except as specifically authorized herein, the
Services to be provided under this Agreement shall not be otherwise assigned,
transferred, contracted or subcontracted out without the prior written approval of City.
17. OWNERSHIP OF DOCUMENTS
17.1 Each and every report, draft, map, record, plan, document and other
writing produced, including but not limited to, websites, blogs, social media accounts
and applications (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive. property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Additionally, all material posted in
cyberspace by Consultant, its officers, employees, agents and subcontractors, in the
course of implementing this Agreement, shall become the exclusive property of City,
and City shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents, including all logins and password information to City
upon prior written request.
17.2 Documents, including drawings and specifications, prepared by
Consultant pursuant to this Agreement are not intended or represented to be suitable
for reuse by City or others on any other project. Any use of completed Documents for
other projects and any use of incomplete Documents without specific written
authorization from Consultant will be at City's sole risk and without liability to
Consultant. Further, any and all liability arising out of changes made to Consultant's
deliverables under this Agreement by City or persons other than Consultant is waived
against Consultant, and City assumes full responsibility for such changes unless City
has given Consultant prior notice and has received from Consultant written consent for
such changes.
17.3 CADD data delivered to City shall include the professional stamp of the
engineer or architect in charge of or responsible for the Work. City agrees that
Consultant shall not be liable for claims, liabilities or losses arising out of, or connected
with (a) the modification or misuse by City, or anyone authorized by City, of CADD data;
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(b) the decline of accuracy or readability of CADD data due to inappropriate storage
conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD
data for additions to this Project, for the completion of this Project by others, or for any
other Project, excepting only such use as is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a
CD, and should comply with the City's digital submission requirements for improvement
plans available from the City's Public Works Department. The City will provide
Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written
documents shall be transmitted to City in formats compatible with Microsoft Office
and /or viewable with Adobe Acrobat.
17.4 All improvement and /or construction plans shall be prepared with indelible
waterproof ink or electrostatically plotted on standard twenty -four inch (24 ") by thirty -six
inch (36 ") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to
City 'As- Built' drawings and a copy of digital Computer Aided Design and Drafting
( "CADD ") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90)
days after finalization of the Project. For more detailed requirements, a copy of the City
of Newport Beach Standard Design Requirements is available from the City's Public
Works Department.
18. OPINION OF COST
Any opinion of the construction cost prepared by consultant represents the
consultant's judgment as a design professional and is supplied for the general guidance
of City. Since consultant has no control over the cost of labor and material, or over
competitive bidding or market conditions, consultant does not guarantee the accuracy of
such opinions as compared to consultant or contractor bids or actual cost to City.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City expressly authorizes in writing the release of information.
20. INTELLECTUAL PROPERTY INDEMNITY
Consultant shall defend and indemnify City, its agents, officers, representatives
and employees against any and all liability, including costs, for infringement or alleged
infringement of any United States' letters patent, trademark, or copyright, including
costs, contained in Consultant's Documents provided under this Agreement.
21. RECORDS
Consultant shall keep records and invoices in connection with the Services to be
performed under this Agreement. Consultant shall maintain complete and accurate
records with respect to the costs incurred under this Agreement and any Services,
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expenditures and disbursements charged to City, for a minimum period of three (3)
years, or for any longer period required by law, from the date of final payment to
Consultant under this Agreement. All such records and invoices shall be clearly
identifiable. Consultant shall allow a representative of City to examine, audit and make
transcripts or copies of such records and invoices during regular. business hours.
Consultant shall allow inspection of all Work, data, Documents, proceedings and
activities related to the Agreement for a period of three (3) years from the date of final
payment to Consultant under this Agreement.
22. WITHHOLDINGS
City may withhold payment to Consultant of any disputed sums until satisfaction
of the dispute with respect to such payment. Such withholding shall not be deemed to
constitute a failure to pay according to the terms of this Agreement. Consultant shall
not discontinue Work as a result of such withholding. Consultant shall have an
immediate right to appeal to the City Manager or designee with respect to such disputed
sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of
return that City earned on its investments during the time period, from the date of
withholding of any amounts found to have been improperly withheld.
23. ERRORS AND OMISSIONS
In the event of errors or omissions that are due to the negligence or professional
inexperience of Consultant which result.in expense to City greater than what would
have resulted if there were not errors or omissions in the Work accomplished by
Consultant, the additional design, construction and /or restoration expense shall be
borne by Consultant. Nothing in this Section is intended to limit City's rights under the
law or any other sections of this Agreement.
24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
25. CONFLICTS OF INTEREST
25.1 Consultant or its employees may be subject to the provisions of the
California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to
disclose any financial interest that may foreseeably be materially affected by the Work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such interest.
25.2 If subject to the Act, Consultant shall conform to all requirements of the
Act. Failure to do so constitutes a material breach and is grounds for immediate
termination 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.
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26. NOTICES
26.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first -
class mail, addressed as hereinafter provided.
26.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: Robert Stein, Assistant City Engineer
Public Works Department
City of Newport Beach
100 Civic Center Drive
PO Box 1768
Newport Beach, CA 92658
26.3 All notices, demands, requests or approvals from City to Consultant shall
be addressed to Consultant at:
Attn: Jon T. Moore
Noble Consultants, Incorporated
359 Bel Marin Keys Blvd, Suite 9
Novato. CA 94949
27. CLAIMS
Unless a shorter time is specified elsewhere in this Agreement, before making its
final request for payment under this Agreement, Consultant shall submit to City, in
writing, all claims for compensation under or arising out of this Agreement.
Consultant's acceptance of the final payment shall constitute a waiver of all claims for
compensation under or arising out of this Agreement except those previously made in
writing and identified by Consultant in writing as unsettled at the time of its final request
for payment. Consultant and City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, Consultant shall be required to file any claim
Consultant may have against City in strict conformance with the Government Claims Act
(Government Code sections 900 et seq.).
28. TERMINATION
28.1 In the event that either party fails or refuses to perform any of the
provisions of this Agreement at the time and in the manner required, that party shall be
deemed in default in the performance of this Agreement. If such default is not cured
within a period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give adequate
assurance of due performance within two (2) calendar days after receipt of written
notice of default, specifying the nature of such default and the steps necessary to cure
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such default, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
28.2 Notwithstanding the above provisions, City shall have the right, at its sole
and absolute discretion and without cause, of terminating this Agreement at any time by
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for
which Consultant has not been previously paid. On the effective date of termination,
Consultant shall deliver to City all reports, Documents and other information. developed
or accumulated in the performance of this Agreement, whether in draft or final form.
29. STANDARD PROVISIONS
29.1 Recitals. City and Consultant acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
29.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be
subject to approval of the Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
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29.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
29.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to
this Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because of race, religion, color, national origin, handicap,
ancestry, sex, age or any other impermissible basis under law.
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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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
Date ATT?(4 1 � L'i OFFICE
won C. Harp
City Attorney
ATTEST:
Date:
A
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
Bv:
Rush N. Hill II
Mayor
CONSULTANT:
Incorporated, a
Date:
Noble Consultants,
California corporation
By:
Ronald M. Noble
President and Chief Executive Officer
BV:
Scott M. Noble
Senior Vice President and Chief
Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
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EXHIBIT
SCOPE OF SERVICES
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NOBLE CONSULTANTS, INC. SEMENIUK SLOUGH DREDGING PROJECT
A. Task Related
A.1 Project Understanding
Semeniuk Slough is a narrow tidal channel that drains into the Lower Santa Ana River Marsh near the
mouth of the Santa Ana River. The 1,700 -foot long slough separates the Newport Banning Ranch parcel
on the east and the community of West Newport Beach on the west. Tides are muted within the channel
as they are controlled by the federal tide gates at the Santa Ana River levee. Semeniuk Slough is
relatively shallow with no recent record of maintenance dredging. Sediments that have deposited in the
channel over the years are predominantly fine grained material that likely originated from runoff from the
Banning Ranch property, discharge from the Pacific Coast Highway storm drain, and fine sediment
plumes that may have propagated upstream from the marsh area or the Santa Ana River itself.
In 2004, the City authorized NCI to study and document existing conditions, propose a maintenance
dredging plan, and pursue restoration of deeper channel depths. The potential cost of performing the
dredging work within the logistically confined space led to postponement of a City stand -alone project at
that tune. Efforts to restore the slough restarted when federal project plans to restore the lower Newport
Slough and adjacent areas of the Lower Santa Ana River Marsh initiated. The City vigorously pursued a
collaborative project plan with the U.S. Army Corps of Engineers in hopes of piggy - backing Semeniuk
Slough dredging with the proposed federal maintenance dredging scope. In support of that effort, the City
commissioned AMEC in 2011 to update the original 2004 sediment analysis report. The latest sediment
sampling and analysis results raised questions related to potential chemistry concerns. The findings
indicated that more detailed sediment analysis would be required before questions about beneficial reuse
compatibility could be fully answered. Because of timing and other issues, the City was ultimately unable
to partner with the Corps of Engineers' project, and the federal dredging project moved forward without a
Semeniuk Slough option. Newport Slough was dredged in early 2013.
We understand that the City has a renewed interest to pursue a stand -alone dredging project once again to
remove accumulated sediment from Semeniuk Slough and restore appropriate channel depths. Given the
uncertainties associated with Tier III bioassay analysis and no guarantees that more extensive sediment
study would permit local placement of sediments excavated from Semeniuk Slough, a preliminary project
plan that entails upland disposal of material appears to be the most viable project plan to pursue at this
time. Given this background history we have formulated a study plan that would most efficiently
complete the necessary CEQA and regulatory requirements and allow the City to dredge the Slough in the
most economic manner possible. Therefore the purpose of our services shall be to assist the City to design
an appropriate maintenance dredging scope of work, secure the necessary regulatory entitlements, and
prepare the construction contract documents that would enable the City to solicit formal construction bid
proposals.
As a stand -alone project, the keys to formulating and executing the most cost effective project plan will
include the following strategies:
Learn from the successes and failures of the Corp's Newport Slough dredging project.
2. Specify land disposal of sediment. Given the uncertainties associated with the chemical content of
some sediments in the Slough, more extensive and uncertain sediment testing protocol will be
required before nearshore disposal or local placement options can be considered. Obtaining
regulatory entitlements will proceed much quicker if inland disposal is specified. Portions of the
Corps of Engineer's recent Lower Santa Ana River Marsh dredging project were successfully
conducted in this manner.
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NOBLE CONSULTANTS, INC, SEMENIUK SLOUGH DREDGING PROTECT
3. Invoke Section 15304(g) of the California CEQA Guidelines that declares maintenance dredging
to be "categorically exempt" if all dredging material is deposited in a spoil area authorized by all
applicable state and federal agencies. Inland disposal of dredged material supports this
documentation strategy.
4. Prepare contract documents that maximize use of conventional earth moving equipment to the
maximum extent possible. Dewatering and use of excavators was successfully employed during
the Corps' Newport Slough project. Techniques that worked there can be reviewed and
referenced where appropriate to support a simplified dredging plan for the City project.
Given this general project approach, our specific scope of services is outline in the following section.
A.2 Scope of Services
Our proposed scope of services is intended to follow a progressive series of tasks to finalize the sediment
analysis approvals, review and confirm a preferred dredging plan and methodology, address CEQA
requirements, obtain regulatory entitlements, and prepare the final design and construction contract
documents. An outline of our proposed scope of services is listed below.
Task 1 Bathometric and Culture Survey
Our subconsultant, Nearshore and Wetland Surveys shall perform a precision, shallow water Survey of the
Semeniuk Slough channel to document existing depths. The survey shall be performed using single beam
equipment as follows:
Near - continuous digital sounding data will be collected along a minimum of three channel parallel
transects. Near - continuous digital sounding data will be collected along charnel perpendicular transects
with a nominal ten -foot spacing. The digital depth sounder will be calibrated by obtaining speed of sound
measurements each day prior to the onset and following the completion of data collection. The draft of the
depth sounder transducer will be determined by either bar or rod checks conducted each day prior to the
onset and following completion of the data collection.
The data will be adjusted to the project datum based on water levels recorded at a tide gauge established
prior to the survey and tied to existing USACE benchmarks. The raw sounding data will be processed and
adjusted for tide, draft, and speed of sound variation. Position data will be obtained during the survey
with a differentially corrected GPS receiver. Position checks will be made to tie the survey to existing
USACE benchmarks.
A cultural survey (docks, guide piles, etc.) shall be performed in conjunction with the bathymetric survey.
We shall locate the position of man-made structures including but not limited to docks platforms, guide
piles, and culverts within the slough. A differentially corrected GPS receiver shall be used to perform this
portion of the survey.
Deliverable: Bathymetric chart showing soundings and one foot elevation contours; ASCII-formatted
file of the survey data in PNEZD format. Horizontal datum shall be NAD 83 California
State Plane Zone 6. Vertical datum shall be Mean Lower Low Water 83 -01 epoch to
match USACE vertical datum far their Lower Santa Ana River Marsh survey data.
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NOBLE CONSULTANTS, INC. SEMENIUK SLOUGH DREDGING PROJECT
Task 2. Sediment Sampling and Testing
Sediment sampling and testing has previously been performed for the City by AMEC Geomatrix, Inc.
Their draft data transmittal report was prepared in May 2011. We understand that the City presented
AMEC's proposed sediment sampling and analysis plan (SAP) to the Southern California Dredge
Material Management Team (SC -DMMT) at an earlier date and obtained their approval to proceed with
the SAP. For our Scope of Services, we shall retain AMEC as our subconsultant to finalize their earlier
draft report and present it before the Southern California Dredge Material Management Team (SC-
DMMT) for final approval. Specific services shall consist of the following tasks:
2.1 The draft data transmittal report shall be finalized for submittal to the SC -DMMT.
2.2 The report and its findings together with a brief description of the proposed project shall be
presented in person before the SC -DMMT at the Los Angeles District office of the USACE for
review and approval. We shall prepare a brief PowerPoint presentation to describe the proposed
dredging project and summarize the pertinent findings of AMEC's SAP study. In making the
presentation, it shall be assumed that all sediments dredged during the proposed Semeniuk Slough
Maintenance Dredging Project shall be disposed at an unknown and suitable inland site that will
ultimately be the responsibility of the dredging contractor to select and procure. Accordingly we do
not anticipate any significant review comments or issues from the SC -DMMT, and their
concurrence of the AMEC study findings and project proposal recommendations is assurned by this
Proposal.
2.3 Additional time to revise AMEC's report, furnish additional sediment collection data or analysis, or
respond to questions from regulatory agencies regarding the results and findings of the AMEC SAP
after the conclusion of the SC -DMMT presentation shall be at additional expense in accordance
with our Standard Schedule of Charges and as approval by the City.
Deliverable: 2a) Digital copy of the Final Data Transmittal Report in PDF format and four hard
copies.
Task 3. Determine Feasible Dredging Plan
Based upon the results of Task 1 and concurrent with Task 2, we shall develop the most feasible plan to
dredge the Semeniuk Slough. The following tasks shall be performed:
3.1 We shall obtain the post- dredge survey from the Corps of Engineers' Lower Santa Ana River
Marsh Dredging Project to confirm their project limits, dredged depths, and transition bathymetry
to the limits of the City project. We shall interview Corps of Engineer's staff to clarify what work
was done and determine any lessons learned from that effort that might be applicable and benefit to
the City's scope of work.
3.2 We shall review alternative means and methods to dredge and dispose of the dredged material.
Alternatives shall be limited to those that are relevant to inland disposal. This analysis shall be
driven by review of site access constraints, operational logistics, and available equipment located
within the Western United States construction market that is capable and potentially available to do
the proposed work. Site access for the project is limited and a critical factor. We shall identify,
review, and ultimately select the most appropriate area(s) that a contractor may utilize to support
the dredging work. We shall review City records to obtain property owner contact information and
contact the appropriate public and private parties to obtain permission to list their property on the
contract documents as available for temporarily use during construction. Our fee estimate includes
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NOBLE CONSULTANTS, INC.
SEMENIUK SLOUGH DREDGING PROJECT
a budget allowance to research property ownership, identify and review candidate sites, and obtain
consent to list private property for construction access in the City's contract documents. The
property search shall be limited to those parcel areas immediately adjacent to the Semeniuk Slough
project site. In the event that adjacent property owners do not wish to cooperate with the City
project and allow access, additional time to address alternative access strategies may be necessary.
Additional effort, if required, shall be at additional expense as authorized in consultation with City
staff.
3.3 We shall prepare a preliminary dredge template, dredge prism, and scope of work plan.
3.4 We shall prepare a preliminary opinion of the probable construction cost to complete the proposed
dredging work.
The City shall provide us with the following to expedite our services during this task:
a) Digital copy of standard City base sheet and title sheet formats
b) Digital copy of the City's most recent color aerial photography coverage of the project site. Digital
files shall be geoferenced TIFF or similar format that are capable of being imported into AutoCad
Civil 3D 2014 software.
Deliverables: 3a) 30% complete construction plans that illustrate existing conditions, proposed dredge
template, typical dredge cross sections, and estimated dredge volume; the plans shall be
prepared in Auto Cad Civil 3D 2014 cligital.format and delivered as 24 "x 36" size
drawings in PDF format;
3b) Memorandum to staff summarizing our preliminary opinion of'probable construction
cost.
Task 4 Regulatory Entitlements
Using the results of Task 3, we shall prepare the appropriate level of CEQA documentation, prepare and
submit permit applications, and coordinate permit processing. We shall be assisted during this task by our
subconsultant Chambers Group, Inc. The following tasks shall be performed.
4.1 In accordance with Section 15304 (g), Maintenance Dredging, of the CEQA Guidelines, the
proposed project should qualify as being Categorically Exempt as all dredged material shall be
"deposited in a spoil area authorized by all applicable state and federal regulatory agencies."
Chambers Group shall prepare a categorical exemption document. The City shall pay any required
filing fee(s). Should the resource agencies, interested stakeholder, or third party object to the
categorization during the CEQA review period indicating that a different document type will be
required, we shall prepare that documentation for additional fees in consultation with and as
approved by the City.
4.2 In support of the permit application effort, Chambers Group will obtain and review relevant
documents pertaining to environmental issues at the Project site. These documents will include
documents prepared by the USACE for the recent Corps dredging project in the Lower Santa Ana
River Marsh as well as other relevant materials, including the California Natural Diversity
Database. This task assumes that a cultural resources record search was completed by the USACE
an additional records search is not necessary.
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NOBLE CONSULTANTS, INC. SGMGNIUB SLOUGH DREDGING PROJECT
4.3 Chambers Group will prepare a report that discusses the biological resources that potentially could
be affected by the dredging work and identifies potential impacts to any identified sensitive habitat
and/or species. If necessary, the report will recommend measures to avoid impacts to sensitive
resources. This task assumes the report will contain no more than 15 pages of text, tables, graphics,
and appendices, and one round of comments by regulatory agency staffs.
4.4 We shall prepare and submit permit applications for the following regulatory entitlements:
a) Section 404 from the Department of the Army
b) Section 401 from the Santa Ana office of the California State Waterboards
C) Coastal Development Permit from the California Coastal Commission
d) California State Lands Commission (assumed to be not required since no State tidelands are
involved)
We shall prepare and compile all descriptive narrative and documents required for each application.
We shall visit the City to obtain copies and certifications of all land title documents, names and
addresses of adjacent property owners, or other legal or property ownership data or information that
may be requested by each agency. The City shall be responsible to pay for any and all permit
application fees.
4.5 We shall coordinate processing of all regulatory permits that we have submitted on behalf of the
City as its designated and authorized agent. This task shall be limited to response to Resources
Agency and USACE staffs to address questions and review comments. Our fee estimate includes
one round of response to comments to each agency. Additional time to address multiple rounds of
questions by regulatory staffs, attend public meetings, or respond to stakeholder or third party
concerns shall be at additional expense and in consultation with City staff.
Deliverables: 4a) Completed permit applications for Department of the Army, State Waterboards, and
California Coastal Commission. Applications shall be prepared in the various formats
required of each agency.
4b) Biological resources report in Word and PDF digital.formats.
Task 5. Final Design and Preparation of Contract Documents
We shall prepare the detailed engineering design, construction plans, and contract documents for the
Semeniuk Slough Maintenance Dredging Project. The following tasks shall be performed:
5.1 We shall perform the final engineering design to specify the dredge template, dredge volume prism,
and disposal plan for the Project.
5.2 We shall prepare the final constriction plans and contract documents to specify work requirements
and specifications. At this time we envision the documents to consist of the following items:
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NOBLE CONSULTANTS, INC.
SEIVIENIUK SLOUGH DREDGING PROJECT
Construction Plans Contract Documents
1. Title Sheet 1. Notice Inviting Bids
2. Site Survey and Survey Control 2. Instructions to Bidders
3. Staging and Storage Area 3. General Conditions and Bonds
4. Construction Notes 4. Contract
5. Dredging Plan 5. Proposal
6. Dredging Sections 6. Special Provisions
7. Dredging Sections
8 Dredging Sections
5.3 We shall prepare the final opinion of probable construction cost.
Deliverable: 5a) 75% complete plans and technical specifications
5b) 90% complete plans and contract documents
5c) 100% complete plans and contract documents
Plans shall be prepared in AutoCad Civil 3D 2014 digital format and submitted as 24 "x 36" size drawings
in digital PDF format for subsequent reproduction by the City as required. Contract documents shall be
prepared in Microsoft Word 2007 digital format and submitted in digital PDF format for subsequent
reproduction by the City as required. We shall require digital Word files of the City's boiler plate in order
to prepare and assemble the complete contract documents package.
5d) Memorandum to staff that summarizes our opinion ofprobable construction cost at
the 75 %and 100% complete milestones.
Task 6. Consultation During Construction
We are prepared to assist the City throughout the construction phase by providing some or all of the
following services:
6.1 Support during bid solicitation including response to requests for information (RFIs),
recommendations of qualified dredging contractors, and review of bid proposals.
6.2 Support during construction including response to RFIs, response to unforeseen field issues, review
of pay requests, full time resident inspection, and other miscellaneous support.
6.3 Pre - dredge and post - dredge construction surveys to verify work compliance and pay quantities.
The scope of these services may be more accurately determined, better estimated, and submitted to the
City for review during execution of our Task 5 services when the complete nature and scope of the
Project will be understood and known in more detail.
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NOBLE CONSULTANTS, INC. SEMENIUK SLOUGH DREDGING PROJECT
A.3 Project Schedule
Our proposed project schedule is shown on the following page. We estimate that Task 1 through 5
services shall be complete within approximately 46 weeks from receipt of our Notice to Proceed as shown
on the attached project schedule chart. This duration includes an estimated minimum time of six months
to secure all regulatory entitlements. The actual duration of our services will depend upon the time it will
take each agency to complete its regulatory review and permitting process, internal City reviews, and
other factors.
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NOBLE CONSULTANTS, INC. SEMENIUR SLOUGH DREDING PROJECT
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239
EXHIBIT B
SCHEDULE OF BILLING RATES
Noble Consultants, Incorporated Page B -1 240
Semeniuk Slough Dredging Project
Fee Proposal Summary
Task Firm
NCI
N &WS
AMEC
I Chambers
Task Total
Task 1. Bathymetric Survey
$13,208
$12,042
$25,250
Task 2. Sediment Sampling & Testing
$7,248
$6,200
$13,448
Task 3. Determine Feasible Dredging Plan
$68,800
$68,800
Tasl<4. Regulatory Entitlements
$54,936
$12,600
$67,536
Task S. Final Design /Contract Documents
$66,712
$66,712
Task 6. Consultation During Construction (tbd)
Expenses
$1,550
$1,550
Totalsl
$212,454
1 $12,042
i $6,200
$12,600
$243,296
Noble Consultants, Inc. Page 1 of 3 March 17, 2014
241
Senneniuk Slough Dredging Project
Noose Consultants, Inc
NCI staff
SPE
PE
Pro) E2
CEst
WP
Hourly belling rate
$280
$234
1
I
$76
NCI Subtotal
1:
Condition survey
8
12
$3,624
Site culture survey (docks, piles, etc.)
8
12
$3,624
Prepare base map
8
28
$5,960
===W==
=
=
=
MW
Prepare final report
6
$1,404
Prepare for /meet with SC -DMMT
10
24
$5,844
mm�a�
/
Prepare dredge template
8
10
$3,332
Estimate dredge prism
8
10
$3,332
Means and methods review
48
16
24
$16,808
Locate construction staging area(s)
84
80
8
16
$33,632
Opinion of probable construction cost
16
$2,160
Prepare 30% complete plans
8
24
-
$5,376
Meeting with City
4
$936
Plan revisions
4
8
$2,104
QA /CsC review
4
$1,120
' Prepare Categorical Exemption
4
$584
Perform lit search for environ info
Biological resources survey /report
4
$936
Permit application and processing
Obtain ownership documents/ addresses
8
88
$8,560
Section 404
8
24
$5,376
Section 401
8
32
16
$7,760
CDP
8
32
16
$7,760
Permit processing /response to comments
40
100
$23,960
Final dredge plan
8
16
4
$4,748
Finaldredge volume prism
4
8
$2,104
Construction Plans
75% complete
8
80
$13,552
90% complete
16
60
$12,504
100% complete
16
40
$9,584
Contract Documents
73% complete
24
16
$6,832
90% complete
16
8
$4,352
100% complete
8
8
$2,480
Opinion of probable construction cost
75% complete
8
8
$2,952
100% complete
4
4
$1,476
Review meetings with City (3)
12
$2,808
Cll Review
8
1
$3,320
a
Respond to bidder RFIs
Attend Pre - Construction meeting (1)
Submittals review
Respond to Contractor RFIS
Respond to field issues
Site visits /inspection
1
Totals
12
1 404
620
72
168
1 $212,454
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Semeniuk Slough Dredging Project
Subconsultants
Nearshore and Wetlands Surveys
N and WS staff
Eng Tech CAD
Hourly billing rate
$86 $59 1 $59
Subtotal
Task 1. Bathymetric Survey
Mobilization
14
6
$1,558
Condition survey
24
24
$3,480
Site culture survey (docks, piles, etc.)
6
6
$870
Data processing and mapping
26
14
$3,062
Expenses
Other direct costs
$1,272
In -house equipment
$1,800
Totals
70
36
14
$12,042
AMEC
AMECstaff
Princ Assoc Snr CAD Support
Hourly billing rate
$250 1 $185 $140 $85 $65
Subtotal
Task 2. Sediment Sampling & Testing
Prepare final report
1
8
10
2
2
$3,430
Prepare for /meet with SC -DMMT
6
8
$2,620
Expenses
$150
Totals
7
81
18
2
2
$6,200
Chambers Group, Inc.
Chambers Group staff
PgM Sr. PjM As Bio GIS TechEd
Hourly billing rate
$174 1 $145 $93 $89 1 $76
Subtotal
Task 4. Regulatory Entitlements
Prepare Categorical Exemption
1
10
1
1
$1,789
Perform lit search for environ info
3
8
12
2
$2,976
Biological resources survey /report
4
18
18
3
3
$5,437
Permit application and processing
$0
Section 404
$0
CDP
$O
Permit process support /response to comments
6
6
2
$2,092
Expenses
$306
Totals
14
421
30
8
4
$12,600
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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 officers, agents,
employees and volunteers.
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, one million dollars ($1,000,000) 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) with
no endorsement or modification limiting the scope of coverage for liability
assumed under a 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
Noble Consultants, Incorporated Page C -1 244
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 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 elected or appointed officers, agents, officials, employees
and volunteers 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 and its officers, officials, employees, and agents 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
Noble Consultants, Incorporated Page C -2 245
Agreement. City reserves the right to require complete, certified copies of
all required insurance policies, at anytime.
B. City's Right to Revise Requirements. City reserves the right at any time
during the term of the Agreement to change the amounts and types of
insurance required by giving Consultant sixty (60) calendar days advance
written notice of such change. If such change results in substantial
additional cost to Consultant, City and Consultant may renegotiate
Consultant's compensation.
C. Enforcement of Agreement Provisions. Consultant acknowledges and
agrees that any actual or alleged failure on the part of City to inform
Consultant of non - compliance with any requirement imposes no additional
obligations on City nor does it waive any rights hereunder.
D. Requirements not Limiting. Requirements of specific coverage features
or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage
normally provided by any insurance. Specific reference to a given
coverage feature is for purposes of clarification only as it pertains to a
given issue and is not intended by any party or insured to be all inclusive,
or to the exclusion of other coverage, or a waiver of any type.
E. Self- insured Retentions. Any self- insured retentions must be declared to
and approved by City. City reserves the right to require that self- insured
retentions be eliminated, lowered, or replaced by a deductible. Self -
insurance will not be considered to comply with these requirements unless
approved by City.
F. City Remedies for Non - Compliance. If Consultant or any subconsultant
fails to provide and maintain insurance as required herein, then City shall
have the right but not the obligation, to purchase such insurance, to
terminate this Agreement, or to suspend Consultant's right to proceed until
proper evidence of insurance is provided. Any amounts paid by City shall,
at City's sole option, be deducted from amounts payable to Consultant or
reimbursed by Consultant upon demand.
G. Timely Notice of Claims. Contractor shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from
Contractor's performance under this Contract, and that involve or may
involve coverage under any of the required liability policies. City assumes
no obligation or liability by such notice, but has the right (but not the duty)
to monitor the handling of any such claim or claims if they are likely to
involve City.
H. Consultant's Insurance. Consultant shall also procure and maintain, at its
own cost and expense, any additional kinds of insurance, which in its own
judgment may be necessary for its proper protection and prosecution of
the Work.
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