HomeMy WebLinkAbout06 - Preparation of Mitigated Negative DeclarationCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 6
May 10, 2005
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Planning Department
James Campbell, (949) 644 -3210
jcampbell@city.newport-beach.ca.us
SUBJECT: Professional Services Agreement for Merkel & Associates
RECOMMENDATION
Approve a Professional Services Agreement with Merkel & Associates of San Diego,
California, for professional environmental services to prepare a Mitigated Negative
Declaration and associated documents as a not -to- exceed cost of $33,033 and
authorize City Manager to sign the agreement.
DISCUSSION
The Irvine Company proposes to completely replace the Balboa Marina, which is
located at 201 East Coast Highway. The commercial marina is located between Linda
Isle and the commercial properties where the Newport Nautical Museum and Mama
Gina's are located.
Staff has conducted a preliminary evaluation of the proposed project and has concluded
that a Mitigated Negative Declaration, at a minimum, should be prepared for the project.
Council Policy K -3 allows the City to select a qualified consultant for environmental
services without a competitive bidding process. Staff selected Merkel & Associates due
to their expertise regarding marine environments and for their work for the City related
to the Local Coastal Program update process.
The consultant has provided a proposal to perform professional environmental services for
the City and it is attached to the draft professional services agreement attached to this
report. The proposal contains the scope of services through the completion of all
necessary documents, a budget, and a time schedule for preparation and processing of
the environmental documentation.
Merkel & Associates - PSA
May 10, 2005
Page 2
Staff has reviewed the scope of services and believes that it will be adequate to meet or
exceed the minimum requirements set forth by the California Environmental Quality Act.
The scope of services will include a noise study and the review of two biological
assessments prepared by other consultants. The environmental consulting fees for tasks
described in the scope of services including staff hours, technical studies, direct expenses,
and printing have been reviewed by staff and are considered appropriate and warranted.
Funding Availability
The cost of the contract, including staff time associated with its review and production,
will be the responsibility of The Irvine Company.
Prepared by:
Vv f
d mes W. Campbell, nior Planner
Submitted by:
P icia LOTemple, Plann g Director
Attachments: 1. Draft Professional Services Agreement with a proposal from
Merkel & Associates
PROFESSIONAL SERVICES AGREEMENT WITH
MERKEL & ASSOCIATES, INC.
FOR BALBOA MARINA DOCK REPLACEMENT PROJECT
THIS AGREEMENT is made and entered into as of this day of
200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation
( "City "), and Merkel & Associates, Inc., a corporation whose address is 5435 Rufin
Road, San Diego, California, 92123 ( "Consultant'), and is made with reference to the
following:
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 is planning to prepare an Initial Study and Mitigated Negative Declaration
and other environmental documents in accordance with the California
Environmental Quality Act for the Balboa marina dock replacement project
located seaward of 151, 201 & 251 E. Coast Highway and 333 & 341 Bayside
Drive, Newport Beach, California ( "Project ").
C. City desires to engage Consultant to prepare an Initial Study and Mitigated
Negative Declaration and other environmental documents in accordance with the
California Environmental Quality Act for the Balboa marina dock replacement
project.
D. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the services described in this Agreement.
E. The principal members of Consultant for purposes of Project shall be Rachel
Woodfield, Project Manager.
F. 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 above written date, and shall
terminate on the 31st day of December, 2005, unless terminated earlier as set forth
herein.
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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. All
work and documents shall be prepared in accordance with and shall contain all
items required by the California Environmental Quality Act (CEQA), CEQA
Implementing Guidelines and City of Newport Beach ordinances and policies.
Consultant shall furnish all environmental documents and forms to City in electronic
format, Microsoft Word 2000, or other format acceptable to City.
3. TIME OF PERFORMANCE
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. The failure by Consultant to strictly adhere to the schedule may
result in termination of this Agreement by City.
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 to the other party so that all delays can be addressed.
3.1 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator 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.
3.2 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the
circumstances, by telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of
this Section set forth in Exhibit A. No rate changes shall be made during the term
of this Agreement without prior written approval of the Project Administrator.
Consultant's compensation for all work performed in accordance with this
Agreement shall not exceed the total contract price of Thirty -three thousand, thirty
three dollars ($33,033).
4.1 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
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reimbursable expenditures. City shall pay Consultant no later than thirty
(30) days after approval of the monthly invoice by City staff.
4.2 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in
advance by City. Unless otherwise approved, such costs shall be limited
and include nothing more than the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of
the services that Consultant agrees to render pursuant to this
Agreement, which have been approved in advance by City and
awarded in accordance with this Agreement.
B. Approved reproduction charges.
C. Actual costs and /or other costs and /or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work 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 such approval.
4.4 Notwithstanding any other provision of this Agreement, when payments
made by City equal 90% of the maximum fee provided for in this
Agreement, no further payments shall be made until City has accepted the
final work under this Agreement.
5. PROJECT MANAGER
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 Rachel Woodfield 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.
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.
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6. ADMINISTRATION
This Agreement will be administered by the Planning Department. Patricia L.
Temple, Planning Director shall be the Project Administrator and shall have the
authority to act for City under this Agreement. The Project Administrator or
his /her authorized representative shall represent City in all matters pertaining to
the services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of its responsibilities under this
Agreement, City agrees to, where applicable:
A. 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.
B. Provide blueprinting and other services through City's reproduction
company for bid documents. Consultant will be required to coordinate the
required bid documents with City's reproduction company. All other
reproduction will be the responsibility of Consultant and as defined above.
C. Provide usable life of facilities criteria and information with regards
to new facilities or facilities to be rehabilitated.
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. All services shall be performed
by qualified and experienced personnel who are not employed by City, nor
have any contractual relationship with City.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the
term of this Agreement, any and all licenses, permits, insurance and other
approvals that are 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, or 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
To the fullest extent permitted by law, Consultant shall indemnify, defend and
hold harmless City, its City Council, boards and commissions, officers, agents
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, attorney's fees, disbursements and court costs) of every kind
and nature whatsoever (individually, a Claim; collectively, "Claims "), which may
arise from or in any manner relate (directly or indirectly) to any work negligently
performed or services provided under this Agreement (including, without
limitation, defects in workmanship or materials and /or design defects [if the
design originated with Consultant]) or Consultant's presence or activities
conducted on the Project (including the negligent and /or willful acts, errors and /or
omissions of Consultant, its principals, officers, agents, employees, vendors,
suppliers, consultants, subcontractors, anyone employed directly or indirectly by
any of them or for whose acts they may be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
active negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are
applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent
they are limited by statute, rule or regulation and the expressed terms of this
Agreement. 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 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 and /or his /her
duly authorized designee 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, a policy or policies of liability insurance of the type
and amounts described below and in a form satisfactory to City.
A. Certificates of Insurance. Consultant shall provide certificates of
insurance with original endorsements to City as evidence of the insurance
coverage required herein. Insurance certificates must be approved by
City's Risk Manager prior to commencement of performance or issuance
of any permit. Current certification of insurance shall be kept on file with
City's at all times during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its
behalf shall sign certification of all required policies.
C. 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.
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D. Coverage Requirements.
i. Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance and Employer's Liability Insurance for
his or her employees in accordance with the laws of the State of
California. In addition, Consultant shall require each subcontractor to
similarly maintain Workers' Compensation Insurance and Employer's
Liability Insurance in accordance with the laws of the State of California for
all of the subcontractor's employees. Any notice of cancellation or non -
renewal of all Workers' Compensation policies must be received by City at
least thirty (30) calendar days (10 calendar days written notice of non-
payment of premium) prior to such change. The insurer shall agree to
waive all rights of subrogation against City, its officers, agents, employees
and volunteers for losses arising from work performed by Consultant for
City.
ii. General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million dollars
($1,000,000) per occurrence for bodily injury, personal injury, and property
damage, including without limitation, contractual liability. If commercial
general liability insurance or other form with a general aggregate limit is
used, either the general aggregate limit shall apply separately to the work
to be performed under this Agreement, or the general aggregate limit shall
be at least twice the required occurrence limit.
iii. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage for all
activities of the 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 for each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which covers the
services to be performed in connection with this Agreement in the
minimum amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees,
agents and volunteers are to be covered as additional insurers with
respect to liability arising out of work performed by or on behalf of
the Consultant.
ii. This policy shall be considered primary insurance as respects to
City, its elected or appointed officers, officials, employees, agents
and volunteers as respects to all claims, losses, or liability arising
directly or indirectly from the Consultant's operations or services
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provided to City. Any insurance maintained by City, including any
self- insured retention City may have, shall be considered excess
insurance only and not contributory with the insurance provided
hereunder.
iii. This insurance shall act for each insured and additional insured as
though a separate policy had been written for each, except with
respect to the limits of liability of the insuring company.
iv. The insurer waives all rights of subrogation against City, its elected
or appointed officers, officials, employees, agents and volunteers.
V. Any failure to comply with reporting provisions of the policies shall
not affect coverage provided to City, its elected or appointed
officers, officials, employees, agents or volunteers.
vi. The insurance provided by this policy shall not be suspended,
voided, canceled, or reduced in coverage or in limits, by either party
except after thirty (30) calendar days (10 calendar days written
notice of non - payment of premium) written notice has been
received by City.
F. Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claim made or suit instituted arising out of or resulting from
Consultant's performance under this Agreement.
G. Additional 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.
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 venture 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 orjoint- venture.
16. SUBCONTRACTING
City and Consultant agree that subconsultants may be used to complete the work
outlined in the Scope of Services. The subconsultants authorized by City to
perform work on this Project are identified in Exhibit A. Consultant shall be fully
responsible to City for all acts and omissions of the subcontractor. Nothing in
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this Agreement shall create any contractual relationship between City and
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. 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
Each and every report, draft, map, record, plan, document and other writing
produced (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. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
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.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer
or architect in charge of or responsible for the work. City agrees that Consultant
shall not be liable for claims, liabilities or losses arising out of, or connected with
(a) the modification or misuse by City, or anyone authorized by City, of CADD
data; (b) the decline of accuracy or readability of CADD data due to inappropriate
storage conditions or duration; or (c) any use by City, or anyone authorized by
City, of CADD data for additions to this Project, for the completion of this Project
by others, or for any other Project, excepting only such use as is authorized, in
writing, by Consultant. By acceptance of CADD data, City agrees to indemnify
Consultant for damages and liability resulting from the modification or misuse of
such CADD data. All original drawings shall be submitted to City in the version of
AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the
City's digital submission requirements for Improvement Plans. The City will
provide AutoCAD file of City Title Sheets. All written documents shall be
transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
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 authorizes in writing the release of information.
20. OPINION OF COST
Any opinion of the construction cost prepared by Consultant represents his /her
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 contractor bids or actual cost to City.
21. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers,
representatives and employees against any and all liability, including costs, for
infringement of any United States' letters patent, trademark, or copyright
infringement, including costs, contained in Consultant's drawings and
specifications provided under this Agreement.
22. RECORDS
Consultant shall keep records and invoices in connection with the work 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.
23. 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 his /her 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.
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24. 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 paragraph is
intended to limit City's rights under any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the
Project.
26. CONFLICTS OF INTEREST
The 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.
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.
27. NOTICES
All notices, demands, requests or approvals to be given under the terms of this
Agreement shall be given in writing, to City by Consultant 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. All notices, demands, requests or approvals
from Consultant to City shall be addressed to City at:
Attention:
Patricia L. Temple, Planning Director
Planning Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949 - 644 -3200
Fax: 949- 644 -3229
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
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Attention:
Barbara Merkle, President
Merkel & Associates, Inc.
5435 Rufin Road
San Diego, California, 92123
Phone: (858) 560 -5466
Fax: (858) 560 -7779
28. TERMINATION
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, the non - defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above provisions, City shall have the right, at its sole
discretion and without cause, of terminating this Agreement at any time by giving
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. 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.
30. 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.
31. 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.
32. 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.
33. 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.
34. 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.
35. 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.
36. 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 or age.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on
the day and year first written above.
APPROVED AS TO FORM:
By:
Aaron Harp, Assistant City Attorney
for the City of Newport Beach
ATTEST:
By:
LaVonne Harkless
City Clerk
Attachments
Rev: 08- 30 -04 /da
CITY OF NEWPORT BEACH,
A Municipal Corporation
By:
Homer Bludau, City Manager
for the City of Newport Beach
CONSULTANT:
By:
Barbara Merkle,
President
Merkle & Associates, Inc.
Exhibit A — Scope of Services
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Merkel & Associates, Inc.
5434 Ruffin Road
San Diego, California 92123
Ph. (858) 560-5465 Fx. (858) 560-7779
Mr. James W. Campbell
Senior Planner
City of Newport Beach
3300 Newport Blvd.
P.O. Box 1768
Newport Beach, CA 92658 -8915
Re: Balboa Marina Reconstruction Project
Dear Mr. Campbell,
March 21, 2005
M &A #05- 049 -01
Thank you for contacting Merkel & Associates, Inc. (M &A) for assistance in preparation of
environmental documents to satisfy the requirements of the California Environmental Quality Act
(CEQA) for the Balboa Marina Reconstruction Project. In response to your request, M &A is
providing this cost proposal for staff assistance services. The purpose of these services would be to
prepare an Initial Study (IS) and Mitigated Negative Declaration (MND), attending meetings, and
processing the IS and MND. As you requested, we included the preparation of a noise and vibration
study in this scope of work, due to the pile driving activity associated with this project. A proposal
was solicited from the firm that you recommended, and their cost has been incorporated into the total
budget.
SCOPE OF WORK
Task I. Initial Project Review.
M &A staff will review all of the project related materials submitted by the applicant and the City
General Plan, and related plans and ordinances. The purpose of this task is to familiarize ourselves
with the project components, technical studies, and regulatory constraints.
Task 2. Initial Project Meeting and Site Visit.
M &A's project manager and biological analyst will schedule a meeting with City to clarify issues
identified in Task 1. M &A staff will also visit the site to familiarize themselves with the existing
conditions and physical characteristics of the site.
Task 3. Biological Study 3rd Party Review.
M &A biologists will review the technical adequacy of the Balboa Marina Biological Survey &
Assessment and the Balboa Marina Eelgrass Survey reports prepared by Tetra Tech, Inc. If
inadequacies are identified, a letter report will be sent to the City identifying and suggesting
approaches to correcting the inadequacies.
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Task 4. Geotechnical Study Yd Party Review.
Terracosta Consulting Group will review the technical adequacy of the Geotechnical Investigation
Report prepared by Geotechnical Professionals, Inc. If inadequacies are identified, a letter report will
be sent to the City identifying and suggesting approaches to correcting the inadequacies.
Task 5. Noise and Vibration Study
Wieland Associates will conduct a noise and vibration analysis and prepare a report documenting the
results of the analysis. The analysis will include an identification of nearby sensitive properties and
wildlife habitats, ambient noise and vibration measurements in the project area, and noise and
vibration measurements of representative pile driving and extraction activities. Impacts to nearby
sensitive properties and wildlife habitats resulting from the construction of the project will be
assessed. The determination of impact significance will be based on City, State, Federal, and
generally recognized standards and guidelines. Where significant impacts are identified, Wieland
Associates will identify methods by which the construction noise and vibration may be reduced to a
less than significant level. A draft report will be submitted to M &A and the City for review. A final
report will be prepared following the receipt of comments.
Task 6. Initial Study
M &A will prepare an Initial Study (IS) using the City's standard Environmental Checklist Form.
Information contained in the Environmental Information Form prepared by the applicant, and the
technical studies submitted by the applicant, will be incorporated into the Initial Study to the extent
feasible. This information will be supplemented by M &A's independent analysis of the project's
effects on the physical environment.
Task 7. Mitigated Negative Declaration
A Mitigated Negative Declaration (MND) will be prepared based on the analysis contained in the IS.
A Mitigation Monitoring and Reporting Report (MMRP) will be attached to the MND.
Task 8. MND & IS Review by City Staff
The MND & IS will be transmitted to the City for review and comment.
Task 9. City Staff Meeting
M &A's Project Manager and Director will meet with City staff to review and discuss the City's
comments.
Task 10. MND & IS Revision
The MND & IS will be revised as indicated in the City comments. This task assumes the City
comments are limited to the submitted material and do not include any new analysis or technical
study requirements.
Task 11. Preparation of Notices
M &A will prepare the following notices: (a) Notice of Completion (NOC) as required by the State
Clearinghouse; and (b) newspaper notice using the City's standard template.
Task 12. Submit Public Review Draft MND & IS
M &A will submit 25 copies of the Public Review Draft MND and IS to the City and 15 copies of the
MND and IS to the State Clearinghouse for distribution to responsible and trustee agencies.
l�
Task 13. Public Review
The City will distribute the MND for public review in accord with the normal distribution process.
The State Clearinghouse will distribute copies of the MND to responsible and trustee agencies.
Task 14. Review Comment Letters
M &A will review comment letters received on the MND and discuss the approach to preparing
responses with City staff, as needed.
Task 15. Revise MND and IS
M &A will revise the MND and IS as required to incorporate information contained in the comment
letter received during public review. This task assumes that revisions are limited to clarifying the
text of the MND /IS and inserting additional information contained in the comment letters. The cost
schedule includes a reasonable estimate of the amount of time anticipated to be required for this task;
however, responding to comments cannot be accurately predicted. Should the comments require any
new analysis to be performed, a reanalysis of completed studies, or exceed the estimated cost of this
task; a contract amendment will be submitted to the City.
Task 16. Submit Final MND & IS
M &A will submit 10 copies of the Final MND & IS to City.
Task 17. Harbor Commission Hearing
M &A's principal and/or Project Manager will attend the Harbor Commission hearing to assist City
staff in presenting the MND and responding to questions from the Commission.
Assumptions
This proposal includes the following assumptions:
1. The City will schedule all hearings associated with this project.
2. Staff reports will be prepared by City staff.
3. City staff will distribute copies of the MND.
4. M &A will transmit documents to the State Clearinghouse for distribution to responsible
agencies.
5. The applicant and/or City will provide M &A with reproducible masters and electronic copies of
studies and documents prepared by the applicant.
6. Reproduction and mailing costs will be billed at cost plus 15 %.
I
Costs
The following table outlines the costs for the scope of work describe above. Any additional tasks or
required meetings would be addressed through a separate scope of work.
If you have questions regarding this proposal or you need additional information, please do not
hesitate to contact Rachel Woodfield (rwoodfield @merkelinc.com) or me (bmerkel @merkelinc.com)
at (858) 560 -5465. We look forward to this opportunity to work with you.
Sincerely, ynA
for
Barbara L. Merkel
President
as
Tasks
Costs
Task 1.
Initial Project Review
$985
Task 2.
Initial Project Meeting and Site Visit
$1,760
Task 3.
Biological Stu y 3` Party Review
$1,365
Task 4.
Geotechnical Stud 3` Party Review
$1,000
Task 5.
Noise and Vibration Study
See below
Task 6.
Initial Stud (IS)
$2,990
Task 7.
Mitigated Negative Declaration (MND)
$1,215
Task 8.
MND & IS Review by City Staff
$150
Task 9.
City Staff Meeting
$1,320
Task 10.
MND & IS Revision
$1,050
Task 11.
Preparation of Notices
$570
Task 12.
Submit Public Review Draft MND & IS
$525
Task 13.
Public Review
$0
Task 14.
Review Comment Letters
$800
Task 15.
Revise MND & IS
$1,845
Task 16.
Submit Final MND & IS
$245
Task 17.
Harbor Commission Hearing
$1,320
Subtotal
$17,140
Expenses
(mileage/telephone/postage)
$343
Printing
(estimated cost)
$1,300
Noise and Vibration Stud (Wieland Associates)
1 $14,250
TOTAL
1 $ 33,033
If you have questions regarding this proposal or you need additional information, please do not
hesitate to contact Rachel Woodfield (rwoodfield @merkelinc.com) or me (bmerkel @merkelinc.com)
at (858) 560 -5465. We look forward to this opportunity to work with you.
Sincerely, ynA
for
Barbara L. Merkel
President
as