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HomeMy WebLinkAbout08 - Eelgrass Planting & SurveyCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 8 July 11, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office / Harbor Resources Division Dave Kiff, Assistant City Manager, (949) 644 -3002 dkiffO- citv.newoort- beach.ca. us Harbor Resources Division (City Manager's Office) Chris Miller, (949) 644 -3043 cmillerOcitv.newoort- beach.ca. us SUBJECT: Contract for Eelgrass Planting and Survey ISSUE: Should the City enter into a contract with Coastal Resources Management to conduct eelgrass surveys and to transplant eelgrass into mitigation sites in Newport Harbor? RECOMMENDATION: Authorize the City Manager and City Clerk to execute a contract with Coastal Resources Management in a substantially similar format to the attached contract. DISCUSSION: Underwater Eelarass Survevs Coastal Resources Management (CRM) is proposing to conduct underwater eelgrass habitat surveys in Newport Harbor for the City of Newport Beach Harbor Resources Department. The purpose of the investigation is to provide updated, detailed maps of eelgrass resources within Newport Harbor that can be used as a baseline of eelgrass conditions in the Newport Bay ecosystem, identify potential eelgrass transplant sites, and conduct eelgrass transplants into Newport Harbor Eelgrass Mitigation Bank areas. The mapping project will update the results of surveys conducted by CRM for the City of Newport Beach in 2003 and 2004, which produced the first bay -wide maps of eelgrass. The results of the 2003 -2004 surveys in report and publicly accessible interactive map form, can be found on the City's web site. These maps have provided City resources management personnel and the public with important information relative to dock and dredging projects. Because of the extreme rainfall and runoff into Newport Bay during the storms of 2004 -1005, these maps are now outdated. Eelgrass Planting and Survey July 11, 2006 Page 2 Consequently, there is a need to update these maps for use by both City resource managers and the public who may have to apply for local and state permits to conduct dredging or dock renovation projects. The location and distribution of eelgrass is important to document since the City is in the process of preparing the Harbor Area Management Plan (HAMP) which will be used in the long term management of Newport Harbor. Eelgrass Mitigation Bank Transplants CRM also proposes to conduct up to two prospective eelgrass transplant mitigation banking sites in Lower Newport Bay for the Harbor Resources Department. This program will: 1) Identify two potential eelgrass mitigation sites in Lower Newport Bay, and 2) Conduct eelgrass transplants at each site. The selection of each mitigation site will be made based upon (1) site selection dive surveys at potential locations in Lower Newport Bay, and (2) recommendations from both the California Department of Fish and Game and the National Marine Fisheries Service. Some of the sites that were initially transplanted during the 2003 Army Corps and City of Newport Beach Experiment Eelgrass Transplants will be also be given consideration, since the extremely heavy winter of 2004 and 2005 likely resulted in high mortality of eelgrass that was transplanted at each of the six experimental sites. Proposal CRM proposes to conduct the eelgrass surveys and the eelgrass mitigation bank transplants for a not -to- exceed cost estimate of $50,000.00. The CRM team will work directly with the City of Newport Beach GIS Department in producing the maps. The City Council has already approved the Capital Improvement Project funding for this project in FY 2005 -06. The funding has been carried over to FY 2006 -07. Consultant Selection CRM was selected based on their extensive history of providing eelgrass surveys, management plans and policy development for Newport Harbor. CRM has worked closely with Harbor Resources on previous surveys and transplant projects and is also regarded as an authority on eelgrass by the local state and federal resource agencies. ENVIRONMENTAL REVIEW: The proposed project is categorically exempt from environmental review pursuant to CEQA Guidelines, Section 15304, Class 4, (d): "Minor Alterations in land, water and vegetation on existing officially designated wildlife management areas or fish production facilities which result in improvement of habitat for fish and wildlife resources or greater fish production." PUBLIC NOTICE: This agenda item has been noticed according to the Ralph M Brown Act (72 hours in advance of the public meetings at which the City Council considers the item). Prepared by: I.r cj, • awN,.. Chris Miller Harbor Resources Supervisor Attachments: Eelgrass Pictures Eelgrass Areas to be Mapped Draft Contract with CRM Eelgrass Planfing and Survey July 11, 2006 Page 3 Submitted by: Da 'Kiff Assistant City Manager in All Eelgrass Areas to be Mapped Eelgrass Planting and Survey July 11, 2006 Page 5 PROFESSIONAL SERVICES AGREEMENT WITH PRINTED :" COASTAL RESOURCES MANAGEMENT FOR EELGRASS SURVEYS AND EELGRASS MITIGATION BANK DEVELOPMENT THIS AGREEMENT is made and entered into as of this _ day of July 2006, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and COASTAL RESOURCES MANAGEMENT a company whose address is PMB 327, 3334 E. Coast Highway, California, 92625 ( "Consultant "), 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 is planning to develop a map of the eelgrass beds and patches in Newport Harbor for the public to view on the City's website. These maps will provide the City and the public with important information relative to dock and dredging projects. The City also plans to develop eelgrass mitigation banks to assist those property owners who will impact eelgrass during dock or dredging projects. C. City desires to engage Consultant to conduct underwater eelgrass habitat surveys in Newport Harbor. The Consultant also proposes to conduct eelgrass transplants at up to two prospective eelgrass mitigation banking sites in Lower Newport Bay. ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project, shall be Mr. Rick Ware. 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 30 day of June 2007, 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. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultants 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 Consultants control. 31 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT 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 Fifty Thousand Dollars and no /100 ($50,000.00) 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. 4.1 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 reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 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 performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 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 MR. RICK WARE 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. 6. ADMINISTRATION This Agreement will be administered by the Harbor Resources Department. TOM ROSSMILLER 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. 3 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, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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 [OPTION A: For Use In All Contracts Except Those With Architects, Engineers And Surveyors] 4 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, 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 breach of the terms and conditions of this Agreement, any work 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 Consultants 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 sole 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 Consultants 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. 5 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. D. Coverage Requirements. 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 M E. 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). 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 insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 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 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. 7 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 venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING [OPTION A: No Subcontractors] The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. I 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 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 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 E 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. 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 the law or 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 10 All notices, demands, requests or approvals 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Harbor Resources Department City of Newport Beach 829 Harbor Island Drive Newport Beach, CA, 92660 Phone: 949 - 644 -3041 Fax: 949 - 723 -0589 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: Coastal Resources Management Mr. Rick Ware PMB 327 3334 E. Coast Highway Newport Beach, CA 92625 Phone: (949) 412 -9446 Fax: (949) 675 -2970 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, 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. 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. 11 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. 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. 34. 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. 35. 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. 12 36. 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. 37. 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: in CITY OF NEWPORT BEACH, A Municipal Corporation 0 Mayor for the City of Newport Beach CONSULTANT: By: LaVonne Harkless, Mr. Rick Ware City Clerk Coastal Resources Management Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates F:lusersl cat\.shared\ ContractTemplatesPublishedonlntranet \.PSA general use template 05- 19- 06.doc 13 1F� Rf cO, 4 n y�'3lJ3`JV�Z.. June 15th, 2006 Mr. Chris Miller Harbor Department City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 Proposal to Produce Eelgrass Habitat Maps and Conduct Eelgrass Transplanting for the City of Newport Beach, CA. Dear Mr. Miller: Coastal Resources Management is proposing to conduct underwater eelgrass habitat surveys in Newport Harbor for the City of Newport Beach Harbor Resources Department. The purpose of the investigation is to provide updated, detailed maps of eelgrass resources within Newport Harbor that can be used as a baseline of eelgrass conditions in the Newport Bay ecosystem, identify potential eelgrass transplant sites, and conduct eelgrass transplants into Newport Harbor Eelgrass Mitigation Bank areas. The mapping project will update the results of surveys conducted by CRM for the City of Newport Beach in 2003 and 2004, which produced the first bay -wide maps of eelgrass. We will also be mapping two additional areas of Newport Harbor not mapped during the 2003 -2004 survey -the Linda Isle embayment and the east side of Lido Peninsula. The results of the 2003 -2004 surveys in report form and in interactive, public - accessible map form can be found at: http• / /www6 city newport -beach ca us/ website /InteractiveMap /harbormap asp. These maps have provided City resource management personnel and the public with important information relative to dock and dredging projects. Because of the extreme rainfall and runoff into Newport Bay during the storms of 2004 -2005, these maps are now outdated. Consequently, there is a need to update these maps for use by both City resource managers, and the public who may have to apply for local and state pennits to conduct dredging or dock renovation projects. The location and distribution of eelgrass is important to document since the City is in the process of preparing the Harbor Area Management Plan (HAMP) which will be used in the long -term management of Newport Harbor. Coastal Resources Management PMB 327, 3334 E. Coast Highway, Corona del Mar, CA (949) 412 -9446 (949) 675 -2970 (fax) email rware.crm @earthlink.net \1� 9�A� 9fxoq u �~ �"W3J`�ad Our total - not -to- exceed cost estimate is $50,000.00. This cost assumes that final GIS maps will be produced by the City of Newport Beach GIS Department, similar to the project in 2003 -2004. The CRM team will work directly with the City of Newport Beach GIS department in producing the maps. CRM looks forward to working with the City again on this important project. Please give me a call if you have any questions. Sincerely, COASTAL RESOURCES MANAGEMENT f /f? i �'. j tj Rick Ware Principal /Senior Marine Biologist Coastal Resources Management PMB 327, 3334 E. Coast Highway, Corona del Mar, CA (949) 412 -9446 (949) 675 -2970 (fax) email rware.crm @earthlink.net 6 v uQ „U" 2 ���a3 VNS SCOPE OF WORK EELGRASS HABITAT MAPPING Coastal Resources Management will conduct a bay -wide eelgrass (Zostera marina) mapping project to document the extent and abundance of this seagrass within Newport Bay between the ocean entrance channel and the De Anza Marsh Peninsula in Upper Newport Bay. Field Surveys. Eelgrass vegetation will be mapped using a Global Position System (GPS) and a team of Coastal Resources Management biologists consisting of a diver and a surface support biologist. The biologist -diver first will locate the beginning of an eelgrass bed and mark it with a yellow buoy. The surface support biologist working from a kayak will then initiate tracking of the biologist diver using GPS technology as he swims the perimeter of the individual eelgrass bed. Once the diver returns to the beginning point, the GPS track will be terminated. Eelgrass patches too small to survey or that are located in difficult areas to obtain a GPS signal (i.e., behind docks /under piers) will be referenced as a GPS "point' and a size of the eelgrass patch will be estimated by the diver. The accuracy of the mapping will be approximately one meter using differential GPS post - processing software from Thales Navigation. This may decrease however, in back of docks, and in areas where obtaining a GPS signal. We will also collected information on eelgrass "turion" density, which provides an indication of habitat cover within the perimeter of the bed. Turions are eelgrass units consisting of the above - sediment portion of the eelgrass consisting of a single shoot and "blades" (leaves) that sprout from each shoot (Figure 1). Turion density will estimated by the SCUBA - diving biologist counting the number of live, green shoots at the sediment /shoot interface within replicated 0.07 square meter (sq m) quadrats set between the shallow and deep area of each sampling site. Initial standardization of counting methods will be conducted to ensure the accuracy of counts between different team members. Fourteen areas of Newport Bay will re- sampled for turion density counts. Sixty, replicate samples will be counted along a transect in shallow, mid, and deep areas of the eelgrass bed. The data will then summarized for each area using graphical and statistical methods. Other background information collected during the survey will include general eelgrass health, eelgrass blade length and width information„ sedimentary conditions (sand or silt), water visibility, water depth, and plants and animals observed in the eelgrass beds during the survey. Data Analysis. Field data will be downloaded into a laptop computer using Geographic Information Systems Software ( Thales Mobile Mapping Software, GPS PRO Tracker, and ARCVIEW. Data files will be transferred to the City of Newport Beach Coastal Resources Management PMB 327, 3334 E. Coast Highway, Corona del Mar, CA (949) 412 -9446 (949) 675 -2970 (fax) email rware.crm @earthlink.net "LO Ats, �' G9 A r a413`JM� GIS Division. The GIS Division will then enter this information into their GIS database for use by both resources managers, and the public through the Newport Beach public website. The horizontal survey datum to be used will be State Plane NAD 83 ft, Zone VI. CRM's team will work with the City of Newport Beach to ensure that all datums, formats, and procedures used during the mapping survey will be compatible with established protocols of the City of Newport Beach GIS mapping department. Report Preparation. CRM will produce a final eelgrass mapping study report. For presentation and area calculation purposes, eelgrass mapping "regions" will be developed, and based on the regions used for the 2003 -2004 CRM eelgrass surveys. Data obtained during the eelgrass survey will be available for harbor area resource managers and the public on the Harbor Resources Department website. This website allows the public to view an aerial photograph of Newport Bay and the mapped locations of eelgrass simultaneously. In addition, users can type in a street address to determine if eelgrass beds or smaller patches area are located near or in front of their property. The full report produced by CRM will be provided to the City of Newport Beach Harbor Resources Division, as well as the National Marine Fisheries Service and the California Department of Fish and Game. Coastal Resources Management PMB 327, 3334 E. Coast Highway, Corona del Mar, CA (949) 412 -9446 (949) 675 -2970 (fax) email rware.erm @earthlink.net E� pQy Gn Team Members. The primary survey team will include Mr. Rick Ware (B.S. Zoology, M.A., Biology, CSULB), Mr. Stephen Whitaker (BS. Marine Biology, College of Charleston, South Carolina, /currently in Masters Program at CSUF); and Mr. Lein Jenkins (B.S., Biology, James Cook University, Townsville, Queensland, Australia). These individuals conducted the prior eelgrass habitat mapping project for the City and have extensive experience conducting eelgrass bed resource surveys and eelgrass transplants throughout southern California. Mr. Ware will be the principal investigator /project manager. He has over 28 years of experience conducting marine biological studies throughout California, and has extensive experience within Newport Bay. City of Newport Beach GIS personnel (Mr. Scott Watson and Mr. Ryan Stadlman) will prepare the final GIS graphics and habitat area calculations based on CRM's field work similar to the 2003 -2004 eelgrass mapping project. Mr. Tom Rossmiller and Mr. Chris Miller will be CRM's Newport Beach Project Manager, and will provide logistical support. SCOPE OF WORK EELGRASS MITIGATION BANK TRANSPLANTS CRM also proposed to conduct eelgrass transplants at up to two prospective eelgrass mitigation banking sites in Lower Newport Bay for the Harbor Resources Department. This program will (1) identify two potential eelgrass mitigation sites in Lower Newport Bay and (2) conduct eelgrass transplants at each site. The selection of each mitigation site will be made based upon (1) site selection dive surveys at potential locations in Lower Newport Bay, and (2) recommendations from both the California Department of Fish and Game and the National Marine Fisheries Service. Some of the sites that were initially transplanted during 2003 Army Corps and City of Newport Beach Experiment Eelgrass Transplants will also be given consideration, since the extremely heavy winter of 2004 and 2005 likely resulted in high mortality of eelgrass that was transplanted at each of the six experimental sites. Transplant Methodology and Techniques. An anchoribundle technique will be used for the transplant. The donor stock material will be assembled into eelgrass bundle units at a base location such as the 10(' Street Beach. Eelgrass bundles will then be transported by vessel and transplanted to the receiver area by divers. Eelgrass will be replanted at depths between -1 and -6 ft MLLW along a pre- determined planting grid. The amount of eelgrass to be transplanted, and the amount to be used as donor material will be determined once the transplant sites are identified, and once it is determined how much transplant area is available at each site. We estimate however, that the transplants will cover a minimum of 25 to 50 square meters of habitat at each site. Each bundle will consist of 10 shoots of eelgrass. Transplants will be conducted on 1 meter (3.28 ft) centers. Coastal Resources Management PMB 327, 3334 E. Coast Highway, Corona del Mar, CA (949) 412 -9446 (949) 675 -2970 (fax) email rware.crm @earthlink.net l� 0 Transplant Monitoring. Monitoring will be conducted at intervals of 3 months, 6 months, and one year following the transplants. A survey report and analysis of transplant success will be provided within 30 days of the completion of each field survey. The total estimated not -to- exceed cost for both the eelgrass habitat mapping and the eelgrass transplants is $50,000.00. CRM's rate schedule is provided in Appendix 1. PROJECT TIMING CRM will initiate the mapping surveys in early -mid summer 2006, and complete the surveys by November 2006. A final report will be presented to the Harbor Resources Division by 1 December, 2006. Eelgrass transplants will either be conducted in July /August 2006 or March /April 2007. Coastal Resources Management PMB 327, 3334 E. Coast Highway, Corona del Mar, CA (949) 412 -9446 (949) 675 -2970 (fax) email rware.crm @earthlink.net 6 6� 9ES� 5 0 n COASTAL RESOURCES MANAGEMENT FEESCHEDULE (Effective 1 January 2006) LABOR RATE PER HOUR SENIOR MARINE BIOLOGIST $105.00 MARINE BIOLOGIST $75.00 MARINE TECHNICIAN 11 $55.00 MARINE TECHNICIAN 1 $45.00 WORD PROCESSOR $45.00 EQUIPMENT RATE COST ($) Automobile mileage $0.40 per mile Computer charges 15.00 per hour Facsimile 2.00 per page SCUBA equipment 55.00 per day Dive Insurance Surcharge 100.00 per day Underwater 35 mm photographic equipment 55.00 per day Differential GPS Unit 100.00 per day Digital Cameras $50.00 per day Underwater 1/8 sq. meter photo jig $15.00 per day Underwater video equipment $85.00 per day Video editing services 25.00 per hour Video tape, 35 mm film and developing at cost Photocopy (in- house) 0.25 per page Vessel -13.5 ft inflatable w/ 25 hp engine 200.00 per day VHF radios 10.00 per day Transect tapes and quadrats 10.00 per day Diver - operated box corers (one liter capacity, set of 5 each) $25.00 per day Benthic sampling wash down screens /equipment $10.00 per day Refractometer 10.00 per day Soil salinity tester 10.00 per day LaMotte 2008 turbidity meter 25.00 per day pH and redox meter 25.00 per day 50 foot beach seine net 25.00 per day Containers, whirl packs, etc. at cost SUBSISTENCE COST ($) Lodging/overnight - at cost Per diem (half day) 40.00 Per diem (full day) 75.00 Note: Charges for outside rental of equipment or services will be re- billed at a cost plus 15% handling fee. This may include, but is not limited to travel costs, sampling equipment, vessels, aerial photographic services, reproduction, communications equipment, and outside contractors. Invoices are due and payable upon presentation. Accounts more than 30 days past due may be subject to interest charges at the rate of 1.5% per month on the unpaid balance. Coastal Resources Management PMB 327, 3334 E. Coast Highway, Corona del Mar, CA (949) 412 -9446 (949) 675 -2970 (fax) email rware.crm @earthlink.net �0