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HomeMy WebLinkAbout07 - Bayview Heights Drainage Project – Approval of a PSA (CAP15-0033)CTY OF F NEWPORT BEACH " City Council Staff Report May 12, 2015 Agenda Item No. 7 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director- (949) 644 -3330, dawebb @newportbeachca.gov PREPARED BY: John Kappeler, Senior Engineer PHONE: (949) 644 -3218 TITLE: Bayview Heights Drainage Project — Approval of a Professional Services Agreement with RBF Consulting (CAP 15-0033) ABSTRACT: Public Works staff has been working for many years with the Newport Bay Conservancy, the County of Orange and two property owners to address a storm water quality and erosion issue in the Santa Ana Heights Neighborhood. Necessary funding and agreements are now in place. Staff now wishes to proceed with preparing design, environmental and permitting documents for the Bayview Heights Drainage Project. RECOMMENDATION: a) Approve a Professional Services Agreement with RBF Consulting (RBF) of Irvine, California, to prepare a field survey, geotechnical testing and construction documents for the Bayview Heights Drainage Project at a not to exceed cost of $163,186, and authorize the Mayor and City Clerk to execute the Agreement; and b) Approve Budget Amendment No. 15BA -045 appropriating $50,000 from the un- appropriated General Fund balance to Account No. 7014- C5002022, as directed by City Council at its November 12, 2014 meeting. FUNDING REQUIREMENTS: The total cost of this project is estimated at about $440,000 ($163K for design, $275K for construction). Funding for the design portion of this Project is as follows: Account Description Private Property Owners' Contributions County of Orange Contribution Orange County Transportation Authority City General Fund Account Number Amount 7251- C5002022 $ 50,000.00 7251- C5002022 $ 50,000.00 7284- C5002022 $ 30,000.00 7014- C5002022 $ 33,186.00 Total: $ 163,186.00 7 -1 Funding contributions from the County of Orange and the two property owners are included in the "Mesa Drive Drainage Improvements Project Cooperative Agreement" (Attachment C). The agreement has now been signed by the two private property owners, and was approved by the County of Orange Board of Supervisors at their April 21, 2015 meeting. This agreement will come to City Council for its consideration at the May 26th Council Meeting for final City approval. With the $163,186 for design covered as shown above, the remainder of the OCTA grant (total grant was $305,000, with $30,000 for design) leaves $275,000 for construction. These funds are being re- budgeted to Fiscal Year 2015 -2016 with the adoption of the proposed Capital Improvement Program budget. DISCUSSION: The Bayview Heights Drainage Project (see Attachment A for location) will improve a site that has experienced significant erosion (Attachment B) that began in the early 1950s with the construction of the Bayview Heights — Unit 4 development on unincorporated land. Drainage from a portion of the new tract was directed onto the new streets and collected in a storm drain catch basin on Mesa Drive. This flow was then piped under Mesa Drive and released into an open swale continuing on and through two private properties now owned by Mr. and Mrs. Buck Johns (2600 Mesa Drive) and Mr. and Mrs. John Manly (2612 Mesa Drive), down a bluff in a non - engineered and erodible water course before draining into Upper Newport Bay. Over the many years, storm flows have eroded a broad channel between the two private properties that in some areas reaches a depth of 15 feet. Such drainage flows over the bluff face in an erodible channel would not be permitted today under current land development codes and regulations. Understanding the on -going erosion concern and the need to prevent sediment from entering the bay, staff worked with the Newport Bay Conservancy, the County of Orange and the private property owners to develop a mitigation plan. The proposed project would install a storm drain pipe from the Mesa Drive catch basin to a treatment wetland located just upstream of the County's asphalt pathway so as to now convey drainage flows through a non - erodible engineered system. The current eroded areas will then be filled in and planted to stabilize the slope. The new treatment wetland will be maintained by volunteers from the Newport Bay Conservancy. The proposed project as outlined was submitted to OCTA for a Measure M Environmental Cleanup Program grant funding that was subsequently approved and awarded to the City in the amount of $305,000. The grant allocates $30,000 towards the project's design effort and $275,000 for project construction. Staff then requested consultant proposals to prepare construction documents, including preparation of resource agency permits. Two proposals were received and evaluated by staff. RBF Consulting was selected as the most qualified firm based on its technical approach and experience. For this proposed project, RBF would provide the following engineering services: 1. Prepare a topologic field survey; 2. Complete geotechnical testing; 3. Prepare design drawings and specifications for the storm drain and the water quality treatment wetland; and 4. Prepare and process permit applications and CEQA clearance. Given the sensitivity and the high visibility of the project area, the RBF budget anticipates a significant effort for obtaining permits from all the resource agencies. ENVIRONMENTAL REVIEW: Given the sensitive location of the project site, staff anticipates that a Negative Declaration or a Mitigated 7 -2 Negative Declaration will be required in accordance with the implementing guidelines of the California Environmental Quality Act (CEQA), the State CEQA Guidelines, and City Council Policy K -3. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENTS: Description Attachment A - Location Map Attachment B - Photo of Erosion Attachment C - Mesa Drive Drainage Improvement Project Cooperative Agreement Attachment D - Professional Services Agreement with RBF Consulting Attachment E - Excerpt of City Council Minutes, November 12, 2014 Attachment F - Budget Amendment 7 -3 ATTACHMENT A A, l� -"` ;, r i ms's•. �>` S' �� ' 1I. � V 1._ � ♦ /. �, Illytvp7�,I�a I"�, /, r i Yark Sa, , 0 0 0 Ud1.�J L.:ib •. '' � .. Bayview'Heights Drainage M1 Improvement Projects Bayview Heights Drainage Improvement Project 5 ?FW�4� U City of Newport Beach GIS Di s April 22, 2015 7 -4 ig i M�! • TCitl - l�4Lt•r• ,r I ATTACHMENT B 7 -5 ATTACHMENT C COOPERATIVE AGREEMENT AMONG THE CITY OF NEWPORT BEACH, THE COUNTY OF ORANGE, THE JOHNS LIVING TRUST, THE MANLY FAMILY TRUST, AND THE MESA IRREVOCABLE TRUST FOR MESA DRIVE DRAINAGE IMPROVEMENTS PROJECT This Cooperative Agreement ( "Agreement") is entered into the day of 2015, by and among the City of Newport Beach, a California municipal corporation and charter City ( "City "), the County of Orange, a political subdivision of the State of California ( "County'), William Buck Johns and Elizabeth Colleen Johns, as Co- Trustees of the Johns Living Trust established August 13, 2007, and John Clinton Manly, IV and Jill Apperson Manly as Co- Trustees of the Manly Family Trust established May 12, 2008, (collectively, "Owners "), which are sometimes individually referred to as 'Party" or collectively referred to as 'Parties." RECITALS A. The City is a municipal corporation 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 the City. B. The County is a political subdivision of the State of California 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. C. The Owners are: 1) William Buck Johns and Elizabeth Colleen Johns, as Co- Trustees of the Johns Living Trust established August 13, 2007, as owners of the property located at 2600 Mesa Drive in the City of Newport Beach, Orange County Assessor's Parcel Number 439 - 051 -05, and 2) John Clinton Manly, IV and Jill Apperson Manly, as Co- Trustees of the Manly Family Trust established May 12, 2008, as owners of the property located at 2612 Mesa Drive in the City of Newport Beach, Orange County Assessor's Parcel Number 439 -051- 06, respectively. D. Some of the drainage on Mesa Drive and properties north of Mesa Drive have historically flowed across the properties of 2600 and 2612 Mesa Drive. E. The natural drainage course that runs along the privately -owned properties of 2600 and 2612 Mesa Drive have progressively eroded material over many decades. F. Erosion is progressively headcutting toward Mesa Drive and, if left uncontrolled, could eventually undercut the roadway. Page 1 of 12 7 -6 G. The eroded sediment has been carried into and deposited in Upper Newport Bay ('Bay "). H. If left uncontrolled, storm flows could begin to disturb native riparian plants growing along the Bay. I. The Parties wish to construct a storm drain and catch basins on Mesa Drive to safely convey drainage across the private properties, and construct a wetlands at the downstream end of the storm drain system as a good water quality management practice to buffer negative impacts of urban runoff to the Bay ('Project "). NOW, THEREFORE, in consideration of the mutual promises set forth herein, the Parties hereto agree as follows: ARTICLE 1. ELEMENTS OF AGREEMENT The Parties shall work cooperatively together to minimize costs and impacts to the public from the Project. The specific terms and conditions governing the elements of this Agreement are set forth below. ARTICLE 2. RESPONSIBILITIES OF OWNERS Owners agree to the following responsibilities: 2.1 Owners agree to pay the City the sum of Fifty Thousand Dollars and 00/100 ($50,000.00) after the City receives notification of Measure M funding for the Project and prior to initiation of the design phase of the Project. 2.2 Owners agree, at no cost to City, to provide temporary construction and right of entry easements to the City for the design and construction of the Project. Owners agree, at no cost to City, to convey permanent easements to the City for maintenance, repair, and replacement of the Project improvements. 2.3 Owners agree, at no cost to City, to provide a location on their properties for the temporary storage of equipment and material used for the Project. 2.4 Owners agree to remove any and all movable facilities from their properties that will interfere with the performance of the design or construction phase activities of the Project. 2.5 Owners agree to cooperate with the City in the preparation of all contract, application and environmental documents for the Project. ARTICLE 3. RESPONSIBILITIES OF COUNTY County agrees to the following responsibilities: Page 2 of 12 7 -7 3.1 The County shall pay to the City the sum of Fifty Thousand Dollars and 00/100 ($50,000.00) after the City receives notification of Measure M funding for the Project and prior to initiation of the design phase of the Project. 3.2 The County shall prepare an Operations and Maintenance ( "O &M ") manual during the design phase of the Project and provide the draft to the City for distribution to resource agencies for review and comment. The County will finalize the O &M manual to address comments, if any, submitted by the resource agencies. 3.3 The County shall review construction documents prepared by the City and sign the approved drawings within fifteen (15) working days of receipt. The construction documents shall include the construction drawings, contract specifications and engineer's construction cost estimate, prior to advertising the Project for construction. 3.4 The County shall provide construction easements to the City for construction of the Project. No fees for the easements will be charged by either Party. 3.5 After completion of the Project, the County agrees to maintain the constructed wetlands at its sole cost and expense. ARTICLE 4. RESPONSIBILITIES OF CITY City agrees to the following responsibilities: 4.1 The City shall manage the Project including the design, preparation of the construction documents, obtaining the environmental clearance, permits and approval, acquiring all necessary easements and administering the Measure M2 grant. 4.2 The City shall supervise the construction of the Project within the established budget and time frame, as required by the construction documents and permits. The City shall follow all public bid and contract procedures. The City shall conduct the construction activities to meet the stringent requirements normally conditioned on its contractors including any repairs of property damaged during construction. 4.3 The City shall require that all consultants and the construction contractors hired by the City for the Project shall provide the required insurance coverage for design and construction of the Project. The County and Owners shall be named as additionally insured parties in the Construction Special Provisions for the Project. 4.4 The City shall prepare and secure temporary entry and construction easements for work on County and private property. 4.5 The City shall maintain the storm drain system once the construction is completed. The City shall prepare permanent easement documents necessary for maintenance, repair, and replacement of the storm drain system for the Owners' Page 3 of 12 lam] approvals. The City will own the storm drain system following its installation. The City will record the easements from the Owners. 4.6 The City shall pay not less than the general prevailing rate of per diem wages including legal holidays and overtime work for each craft or type of workman needed to execute the work contemplated under this Agreement to all workmen employed on the work to be done according to this Agreement by City and any subcontractor. In accordance with Sections 1770, et seq. of the California Labor Code, the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the work is to be performed for each craft, classification, or type of workmen or mechanic needed to execute the Agreement. A copy of the said determination is available by calling the prevailing wage hotline number (415) 703 -4774, and requesting one from the Department of Industrial Relations. The City is required to obtain the wage determinations from the Department of Industrial Relations and post at the Project site the prevailing rate or per diem wages. It shall be the obligation of City and all of its subcontractors to comply with all State of California labor laws, rules and regulations. ARTICLE 5. TERM The term of this Agreement shall be in full force and effect until the specified responsibilities of the Parties have been fulfilled or rescinded by the Parties, or until July 1, 2018, whichever is sooner. ARTICLE 6. NOTICES Any notice or other written instrument required or permitted by this Agreement to be given to any Party shall be deemed received when personally served or transmitted by facsimile, or forty -eight (48) hours after being deposited in the U.S. Mail, postage prepaid, First Class or certified, and addressed as follows: To Owners: and John Clinton Manly, IV and Jill Apperson Manly Co- Trustees of the Manly Family Trust Established May 12, 2008 2612 Mesa Drive Newport Beach, CA 92660 William Buck Johns and Elizabeth Colleen Johns Co- Trustees of the Johns Living Trust Established August 13, 2007 2600 Mesa Drive Newport Beach, CA 92660 Page 4 of 12 7 -9 To County: OC Parks Attn: Stacy Blackwood 13042 Old Myford Road Irvine, CA 92602 To City: City of Newport Beach Attn: Bob Stein, Assistant City Engineer 100 Civic Center Drive Newport Beach, CA 92660 ARTICLE 7. ATTORNEYS' FEES In the event suit is brought by any Party to enforce the terms and provisions of this Agreement, or to secure the performance hereof, each Party shall bear its own attorneys' fees. ARTICLE 8. FORCE MAJEURE Except for the payment of money, no Party shall be liable for any delays or other non - performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, fire or other casualty, Act of God, strike or labor dispute, war or other violence, acts of third parties not within City's or County's reasonable control or any law, order or requirement of any governmental agency or authority. ARTICLE 9. GOVERNING LAW & VENUE This Agreement shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties hereto agree to and do hereby submit to the jurisdiction of such court, notwithstanding the provisions of Code of Civil Procedure Section 394. The Parties agree to waive any and all rights to request that an action be transferred for trial to another County. ARTICLE 10. ENTIRE AGREEMENT & RESOLUTION OF CLAIMS This Agreement constitutes the entire understanding and agreement between the Parties and supersedes all previous negotiations between them pertaining to the subject matter thereof. The Parties hereby agree, on their own behalf, and on behalf of their heirs and assigns to release and discharge each Party from any and all liability, claims and causes of action, obligations, liabilities, losses, debts, contracts, covenants, duties, damages, expenses, costs, costs on appeal and charges of whatever kind, whether known or unknown, suspected or unsuspected, which exists or may exists as of the effective date of this Agreement regarding and /or arising out of or in any manner related to the natural drainage Page 5 of 12 7 -10 course that runs along the privately -owned properties of 2600 and 2612 Mesa Drive and empties into the Bay and /or the items covered in this Agreement. ARTICLE 11. WAIVER A waiver of a breach of the covenants, conditions or obligations under this Agreement by either Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. ARTICLE 12. MODIFICATION Alteration, change or modification of this Agreement shall be in the form of a written amendment, which shall be signed by each Party. ARTICLE 13. ASSIGNMENT No Party shall assign its performance of this Agreement, nor any part thereof, without the prior written consent of the non - assigning parties. Any assignment made in violation of this section shall be null and void. ARTICLE 14. INDEMNIFICATION City shall indemnify, defend and hold the Owners and County, its officers, agents and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by the Owners or County, its officers, agents, or employees, with respect to the Project, save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any negligence of the Owners or County, its officers, agents or employees, or by any act or omission for which the Owners or County, its officers, agents or employees are liable without fault. Owners shall indemnify, defend and hold the City and County, its officers, agents and employees, harmless from any expense; liability or claim for death; injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by the City or County, its officers, agents, or employees, with respect to the Project, save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any negligence of the City, its officers, agents or employees, or by any act or omission for which the City, its officers, agents or employees or County, its officers, agents or employees are liable without fault. County shall indemnify, defend and hold the Owners and City, its officers, agents and employees, harmless from any expense, liability or claim for death, injury, loss, damage or expense to persons or property which may arise or is claimed to have arisen as a result of any acts performed by the Owners or City, its officers, agents, or employees, with respect to the Project, save and except to the extent such expense, liability or claim is proximately caused in whole or in part by any negligence of the Owners or City, its officers, agents or employees, or by any Page 6 of 12 7 -11 act or omission for which the Owners or City, its officers, agents or employees are liable without fault. ARTICLE 15. TERMINATION Any Party may at any time prior to the commencement of the design phase of the Project, and without cause, terminate this Agreement, upon not less than thirty (30) calendar days' written notice to the other Parties. The design phase commences once contracts are entered into by the City with consultants for the design work. Such termination shall be effected by delivery to the other Parties of a notice of termination specifying the effective date of the termination and the extent of the work to be terminated. ARTICLE 16. COUNTERPARTS This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one (1) and the same instrument. ARTICLE 17. AVAILABILITY OF FUNDS This Agreement is subject to the availability of funds appropriated for this purpose, and nothing herein shall be construed as obligating the Parties to expend or as involving the Parties in any contract or other obligation for future payment of money in excess of appropriations authorized by law. IN WITNESS WHEREOF, the Parties hereto have caused this Agreement be executed on the dates written below. CITY OF NEWPORT BEACH, a California Municipal Corporation Bv: Dave Kiff, City Manager Date: ATTEST: Leilani I. Brown, City Clerk Date: Page 7 of 12 7 -12 APPROVED AS TO FORM: City AttV e` r 1 CCdr l By: Aaron C. Harp, ity Attorney SAM rjllo %i COUNTY OF ORANGE, A political subdivision of the State of California Chairman, Board of Supervisors Signed and certified that a copy of this document has been delivered to the Chairman of the Board of Supervisors Susan Novak Clerk of the Board of Supervisors of Orange County CA APPROVED AS TO FORM: COUNTY COUNSEL ORANGE COUNTY, CALIFORNIA Date: an Page 8 of 12 7 -13 OWNERS: 2600 Mesa Drive, Newport Beach: Date By: �c William Buck Johns, Co- rustee of the Johns Living Trust establ� ed August 13, 2007 Date: O'k 12 ZO /5' Elizabethc olleen Johns, Co- Trustee of the Johns Living Trust established August 13, 2007 2612 Mesa Drive, Newport Beach: Date: �; - S — /-) John Clintoh-Manly— IV -Co- Trustee of the Manly Family Trust stgblished May 12, 2008 Date: By: Jill App rson Manly, Co- Trustee of the Manly Family Trust establi hed May 12, 2008 [END OF SIGNATURES] Page 9 of 12 7 -14 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of aw e_ ss. On 2015 before me, 7'{ww &S c, Notary Public, personally appeared W; iaw.. 9, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.. I certify under PENALTY OF PERJURY under the foregoing paragraph is true and correct. WITNESS my hand and official seal. ignature aws-af-theL o f if r 'a hat the THOMAS CHARLES BOZARTH ... Commisslon N 2045766 a ; °� Notary Public • California z Orange County My Comm. Expires Oct 17, 2017 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California (seal) County of tf7r are 9 e; ss. On 20 /S before me, 77�on.4r C. Qoza,.- Notary Public, personally appeared C , .7� 14 k s proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. THOMAS CHARLES SOZARTH Commission # 2045766 WITNESS my hand and official seal. Z `, ®< Notary Public - California a z t" Orange County My Comm. Expires Oct 11, 2017 Signature (seal) Page 10 of 12 7 -15 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of C County of 20 [S- before me, Notary Public, personally appeared ,_who proved to me on the basis of satisfactory evidence to be the erson(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. MATHLEEN A.FREDERIKSEN WIT SS m hand and official seal. a •m NommlPubli 2048451 a y Notary Public • California z ' Orange County M Comm. Empires Des 6 2017 Sig ture (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of C County of 20 K— before me, Notary Public, personally appeared lei IOtOZ 41M. ln�gn'JV proved to me on the basis of satisfactory evid n e to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. KATHLEEN A.FREDERMSEN Commission M 2048481 TNESS my hand and official seal. 'a g Notary Public • California n $ Orange County M Comm. Ex Tres Dec 6, 2017! igrtature (seal) Page 11 of 12 7 -16 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of ) ss. On 1 20 before me, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (seal) ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of } ss. On 1 20 before me, Notary Public, personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signatures(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature Page 12 of 12 (seal) 7 -17 ATTACHMENT D PROFESSIONAL SERVICES AGREEMENT WITH RBF CONSULTING FOR BAYVIEW HEIGHTS DRAINAGE RESTORATION PROJECT THIS PROFESSIONAL SERVICES AGREEMENT ( "Agreement') is made and entered into as of this 12th day of May, 2015 ( "Effective Date "), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ( "City'), and RBF CONSULTING, a California corporation ( "Consultant'), whose address is 14725 Alton Parkway, Irvine, California 92618, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide design and permitting services for the Bayview Heights Restoration Project ( "Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2018, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work'). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be 7 -18 performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand - delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Sixty Three Thousand One Hundred Eighty Six Dollars and 00/100 ($163,186.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. RBF Consulting Page 2 7 -19 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated John McCarthy, P.E. to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first - class firms performing similar work under similar circumstances. RBF Consulting Page 3 7 -20 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 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. No RBF Consulting Page 4 7 -21 civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting RBF Consulting Page 5 7 -22 power or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; RBF Consulting Page 6 7 -23 (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and /or viewable with Adobe Acrobat. 17.4 All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24 ") by thirty -six inch (36 ") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As- Built' drawings and a copy of digital Computer Aided Design and Drafting ( "CADD ") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by consultant represents the consultant's judgment as a design professional and is supplied for the general guidance of City. Since consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, consultant does not guarantee the accuracy of such opinions as compared to consultant or contractor bids or actual cost to City. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, RBF Consulting Page 7 7 -24 expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be bome by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. RBF Consulting Page 8 7 -25 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first - class mail, addressed as hereinafter provided. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David A. Webb, Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: John McCarthy, P.E. RBF Consulting 14725 Alton Parkway Irvine, CA 92618 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure RBF Consulting Page 9 7 -26 such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Consultant and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703 -4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him /her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 30.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent RBF Consulting Page 10 7 -27 breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 30.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 30.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 30.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 30.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 30.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 30.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] RBF Consulting Page 11 7 -28 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: O Aaron C. Harp otmc"1o%ht' City Attorney ATTEST: Date: M Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Bv: Edward D. Selich Mayor CONSULTANT: RBF Consulting, a California co poration Date: WIf -S S. Robert Kallenbaugh Vice i�R�s/rJt v3 Dater By: Assistant becretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing RateE Exhibit C — Insurance Requirements RBF Consulting Page 12 7 -29 EXHIBIT A SCOPE OF SERVICES RBF Consulting Page A -1 7 -30 Bayview Heights Drainage Restoration Project "Exhibit A" Scope of Services March 18, 2015 The Client and RBF Consulting (Consultant) for mutual consideration hereinafter set forth, and agree as follows: Task 1. Field Surveys 1.1: RESEARCH AND FIELD INVESTIGATION. RBF will review available data, plans, studies and information prepared to date for the Mesa Drive storm drain and tributary watershed, and the Upper Newport Bay in the project vicinity. The following information will be consulted: • Preliminary concepts and sections • City Hydrology Study • Existing restoration plans • Biological mapping • Previous watershed hydrology studies • Existing floodplain mapping • Property Ownership / Assessor Parcel Maps / Utility Maps • Existing geotechnical studies • Other available data The purpose of the review is to identify opportunities and constraints related to the proposed restoration project and compile available information for the study. 1.2: FIELD SURVEY. RBF will collect field survey data to prepare base mapping of the existing site topography for the purpose of preparing final design plans of proposed improvements. A minimum of three (3) control points will be established as the basis for topographic mapping and for future construction. Unless otherwise directed by the City, the basis of horizontal control will be California Coordinate System of 1983 (CCS 83), Zone 6, Epoch 2007. Coordinates will be expressed as grid values in terms of the U.S. survey foot. Vertical control will be in terms of the North American Vertical Datum of 1988 (NAVD 88). Coordinates and elevations will be based on the published values from the Orange County Surveyor. All topography shall be electronically field data collected and detailed on a hardcopy backup and field notes. 1.3: DELINEATION OF JURISDICTIONAL WATERS. RBF will conduct a site reconnaissance to perform a delineation that will determine jurisdictional "waters of the United States" and "waters of the State" (including potential wetlands), located within the boundaries of the project site. RBF's delineation methodology is in compliance with the most recent U.S. Supreme Court decision, Roponos v. United States Scope of Services 03/1812015 A -1 7 -31 Bayview Heights Drainage Restoration Project and Carobell v. United States, which resulted in changes to U.S. Army Corps of Engineers (Corps) jurisdictional authority after June 2007.' The delineation will result in: • A determination of the Corps' ordinary high water mark (OHWM) and indicate the existence of any three (3) parameter wetlands on -site. The actual presence or absence of wetlands on -site will be verified through the determination of the presence of hydrologic conditions, hydrophytic vegetation, and hydric soils pursuant to the September 2008 Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Arid West Region (Version 2.0); • The California Department of Fish and Wildlife's (CDFW) jurisdiction being identified via the top of bank of the on -site streambed or to the outer drip line of riparian vegetation (if present) pursuant to the 1994 CDFG Field Guide to Lake and Streambed Alteration Agreements; and • The California Coastal Commission's (CCC) jurisdiction, identified as coastal streams and /or coastal one - parameter wetlands pursuant to the California Coastal Act. Prior to visiting the project site, RBF regulatory staff will conduct a thorough literature review of relevant information that supports the site reconnaissance and report preparation. Sources reviewed are anticipated to include topographic maps, soil surveys, historic and current aerial photography, flood maps, hydrology /climate information, and watershed data. RBF will prepare a comprehensive written report discussing on -site jurisdictional areas. RBF will submit two (2) copies of the final delineation to the client. Findings will document existing jurisdictional resources and regulatory approvals that may be required. Additional copies can be provided under separate addendum. The duration of this task is approximately four (4) weeks from notice to proceed and upon approved site access. 1.4: BIOLOGICAL HABITAT ASSESSMENT. RBF will review all technical reports previously prepared for the project and other vicinity data for the general area to determine which sensitive biological resources are likely to occur onsite or within the adjacent areas. A database search of the California Natural Diversity Database (CNDDB) and California Native Plant Society (CNPS) Electronic Inventory of Rare and Endangered Vascular Plants of California listings regarding sensitive biological resources known to occur in the region and vicinity of the site will also be conducted. Additional information sources will be consulted including the California Department of Fish and Wildlife (CDFW), United States Fish and Wildlife Service (USFWS), and historic /current aerial photographs, as appropriate, to define the habitat requirements for sensitive species potentially occurring onsite. This will allow RBF to focus its field visit on those sensitive biological resources present or likely to be present onsite. RBF will survey the entire project site to document baseline conditions from which to evaluate the site's suitability for supporting state and federal listed species. The survey will also document the extent of riparian habitats potentially occurring within the project footprint. Notes will be taken on all plant and wildlife species observed. This survey will provide an understanding of the overall project setting and biological resources occurring in the area. This data will be used to devise an appropriate clearance /conservation strategy for developing the project site. A biological technical report and NCCP /HCP consistency analysis will be prepared with the results from the habitat assessment that will document all plant and wildlife species and habitats occurring on the project site, the site's potential to support federal and state listed species, and whether the site supports jurisdictional features. The report will include a detailed map of the plant communities occurring onsite and their respective acreages. The report will include a brief analysis of the project I It should be noted that changes to the U.S. Army Corps of Engineers delineation guidance are expected In spring 2015. The delineation will reflect the most recent and current changes pdor to the field visit. Should changes occur after the field visit, RBF can redellneate (as needed) to ensure that the delineation follows the latest Corps guidance. Scope of Services 03/18/2015 A -2 7 -32 Bayview Heights Drainage Restoration Project impacts to biological resources, suggestions for further studies that may be needed prior to development, and suggested mitigation measures, if necessary. Task 2: Construction Documents 2.1: CONCEPT DESIGN PLAN AND REPORT. RBF will prepare a preliminary design study to refine the conceptual design previously prepared for the project. The facility will be designed based on a flow rate to be provided by the City. The updated design will consider the field survey data and other constraints identified in the project vicinity. The study will review alternatives for the design features and evaluate the constructability and long -term maintenance and operations of the facility. Design recommendation will be provided to the City and an updated conceptual plan will be prepared for the recommended improvements. The conceptual plans will clearly delineate and define the project improvements to develop a project description necessary for the preparation of the environmental documents and regulatory permits. 2.2: NATURAL TREATMENT SYSTEM LANDSCAPE CONCEPT PLAN. RBF will prepare one presentation quality landscape concept plan for the natural treatment and landscape elements of the project. The plan will be prepared based on site opportunities and constraints, and the requirements of the City of Newport Beach. The goals of the plan will be to incorporate a natural treatment system into the restoration design, and include the drawings within the final construction documents. The plan will be prepared at an appropriate scale in AutoCAD on a base map of the project site prepared by RBF. The plan will depict areas of exotic plant removal, areas to be re- vegetated and planting concepts. The plan and a preliminary estimate of construction costs will be submitted to the City for review, comment, and approval. 2.3: FINAL PLANS. The proposed scope and fee included is based upon the conceptual "Storm Drain Outlet and Riparian Corridor" plan previously developed for the project. Deviations from the configuration outlined in this document during the final design may result in adjustments to the fee. Improvement plans will be prepared at an appropriate scale and to City Standards in a digital format utilizing AutoCAD in English units. The improvement plans will include storm drain plan and profile, natural treatment system grading, structure locations and details, sections, miscellaneous details, and landscape plans. 2.4: FINAL PROJECT DESIGN REPORT. RBF will prepare a final hydrology, hydraulic and scour analysis of the proposed improvements indicated on the construction drawings. The final design water surface generated shall also be indicated on the drawings. All studies shall be completed in conformance with the City, State, and Federal requirements. This Final Design Report will serve as documentation of the final engineering design and associated technical analysis to support the project. The report will update the preliminary report including the backup data regarding final hydraulics, hydrology, existing facility data, design criteria, specific design requirements, design constraints, assumptions, quantity and cost estimate support, and all engineering calculations or analysis. 2.5: FINAL SPECIFICATIONS AND COST ESTIMATES. RBF will prepare the technical provisions section of the construction documents in accordance with the format requested by the City. A schedule of bid items will be developed with associated quantities and cost estimate. 2.6: OPERATIONS AND MAINTENANCE PLAN. RBF will prepare an Operations and Maintenance Plan that details the proper operations and maintenance to assure the success of the wetland. The key topics included will be guidance for vegetation management, sediment removal, and resource agency requirements. Scope of Services 03/18/2015 A -3 7 -33 Bayview Heights Drainage Restoration Project Task 3: Storm Drain Easements RBF will prepare two (2) legal descriptions and accompanying plats over private property for purposes of conveying storm drain easements for the project. RBF will prepare one (1) legal description and accompanying plat over the County of Orange for the Natural Treatment System component of the project. The existing property lines will be assembled from record land base geo- database field and reviewed for compatibility with project control and assessor's parcel maps. Three (3) legal descriptions will be processed through the County of Orange. Task 4: Geotechnical Assessments 4.1: GEOTECHNICAL FIELD INVESTIGATION. EMI will excavate one exploratory borehole for the purpose of collecting soil samples for characterization. The borehole will be drilled to a maximum depth of 20 feet below existing grade. Also, four shallow (5- ft deep) boreholes will be excavated along the storm drain alignment using a 3 -inch diameter hand auger. The boreholes are for the purpose of characterizing the subsurface soils and conditions. Bulk soil samples from the near - surface and small disturbed and small relatively undisturbed samples of soils will be collected for laboratory testing. Small disturbed and relatively undisturbed soil samples will be collected using the Standard Penetration Test (SPT) split - spoon sampler and the Modified California Drive (MCD) sampler, respectively. Spoils generated from the borehole excavations will be mixed with cement and water and the mixture will be used to backfrll the boreholes. Spoils will not be tested for contaminants and will not be disposed of off -site. Boring locations and ground surface elevations at those locations will be surveyed by others (if necessary) and the information provided to EMI. 4.2: LABORATORY SOIL TESTING. Various laboratory tests will be performed on soil samples to determine or derive their physical and engineering characteristics. The following laboratory tests are anticipated for the project: in -place moisture content and density; maximum density and optimum moisture; grain size distribution; direct shear; consolidation, and, soil corrosivity. 4.3: GEOTECHNICAL ENGINEERING ANALYSIS. EMI will review the project plans including the grading plans. Geotechnical engineering analyses is expected to include stability and settlement of proposed basin slopes, and grading assessment of the gully including temporary construction slopes. 4.4: REPORT. EMI will prepare a letter report summarizing results of the field investigation, laboratory soil tests, and analyses. The borehole logs will be presented on 8.5' x 11" pages. Four (4) copies of a draft letter report will be provided to RBF for review and distribution. After responding to review comments on the draft letter report, EMI will prepare a final report and provide four (4) hard copies to RBF for distribution. Task 5: California Environmental Quality Act RBF will prepare an Initial Study /Mitigated Negative Declaration (IS /MND) under the California Environmental Quality Act (CEQA). Based on a preliminary review of the proposed project, a scope of work for environmental services is provided below. 5.1: TECHNICAL STUDIES. In addition to the Jurisdictional Delineation, and Biological Habitat Assessment described above, RBF will prepare the following technical studies to support the analysis within the IS /MND: 5.1.1: Air Quality. RBF will prepare a quantified Air Quality and Greenhouse Gas analysis for the proposed project in accordance with South Coast Air Quality Management District (SCAQMD) requirements. The Scope of Services A-4 7 -34 Bayview Heights Drainage Restoration Project analysis will summarize existing conditions in the project area, and provide quantified estimates of short- term regional and localized construction emissions. The estimates will be compared against the adopted SCAQMD thresholds. This scope assumes that operational emissions would not occur; thus, a long -term operational air quality analysis will not be conducted. 5.1.1: Greenhouse Gas Emissions. RBF will prepare an inventory of GHG emissions (i.e., nitrous oxide, methane, and carbon dioxide) from construction of the proposed project. The analysis will determine the project's impact by determining if it is consistent with the Assembly Bill 32 mandate of reducing GHG's beyond 'Business as Usual" conditions. The GHG reduction associated with the project's design features will be quantified utilizing the California Air Pollution Control Officers Association (CAPCOA) methodology (Quantifying Greenhouse Gas Mitigation Measures — A Resource for Local Government to Assess Emission Reductions from Greenhouse Gas Mitigation Measures [September 2010)). This scope assumes that operational emissions would not occur; thus, a long -term operational GHG analysis will not be conducted. 5.1.3: Noise. RBF will review applicable noise and land use compatibility criteria for the project area. A summary of existing conditions in the project area will be provided. Noise impacts from construction sources will be analyzed based on the equipment, length of a specific construction task, equipment power type (gasoline or diesel engine), horsepower, load factor, and percentage of time in use. The construction noise impacts will be evaluated in terms of maximum levels (Lmax) and hourly equivalent continuous noise levels (Leq) and the frequency of occurrence at adjacent sensitive locations. This scope assumes that operational noise would not occur, thus, a long -term operational noise analysis will not be conducted. 5.1.3: Cultural Resources. RBF has retained Cogstone Resource Management to prepare a Cultural Resources Report for the proposed project. All cultural resources work would be completed by Cogstone in compliance with CEQA and will provide a detailed description of existing conditions, potential project impacts, and mitigation (if deemed necessary). The primary tasks associated with the Cultural Resources Report are as follows: records search, Native American consultation, field survey, and technical report. 5.2: RESEARCH AND INVESTIGATION. RBF will initiate the CEQA process by attaining and evaluating necessary information with respect to the proposed project. Project research will include coordination with the City to acquire relevant environmental data, previous studies for the area and other available files, exhibits, maps, and reference documents. The investigation will include a site visit to review existing land uses and environmental conditions, as well as a photographic inventory of on -site and surrounding uses. Based upon the detailed information obtained during project initiation, RBF will draft a preliminary project description for incorporation into the Initial Study. This task will also include cultural resources services, provided by Cogstone. 5.3: PREPARATION OF THE IS /MND. RBF will prepare an Initial Study in accordance with the CEQA guidelines. The Initial Study will include detailed explanations of all checklist determinations and discussions of potential environmental impacts. The analysis will be in accordance with Public Resources Code Section 21080 (c) and CEQA Guidelines Section 15070. The Initial Study /Mitigated Negative Declaration (IS /MND) will provide vital supporting information for the conclusions rendered for the Environmental Checklist. Each topical impact area will be analyzed in detail based upon existing information or technical analyses described above. The existing environmental setting related to each impact topic will be provided, and a Scope of Services 03/1812015 A -5 7 -35 Bayview Heights Drainage Restoration Project summary of the project's potential impacts will be discussed. Where necessary, project design features or mitigation measures will be provided to minimize impacts to a level below significance. RBF will submit five (5) copies of the Administrative Draft Initial Study for review and comment by the City. Should additional copies be required, additional copies will be provided by RBF at an additional fee. This scope of work assumes two (2) rounds of review by City staff prior to the 30 -day CEQA public review process. Correspondingly, this scope is limited to two (2) rounds of revisions by RBF in response to City comments. With the anticipated conclusion in the Initial Study that no significant environmental effects will occur, a Mitigated Negative Declaration (MND) will be prepared. Following this determination, RBF will prepare the Notice of Intent to Adopt (NOI) and the MND for City review. The NOI and MND will be attached to the Initial Study to fully explain the proposed project and its effects. Twenty five (25) copies, one (1) camera -ready original, and an electronic file of the IS /MND will be provided to the City, with all technical appendices provided electronically on CD. RBF will submit the IS /MND to the State Clearinghouse and additional agencies /interested parties as directed by the City. This task assumes that the City would be responsible for any radius mailing or newspaper noticing required for public review. The IS /MND would be subject to a mandatory 30 -day public review period. 5.4: FINAL IS /MND. RBF will prepare a draft Final IS /MND for City review and approval. RBF will respond to City comments on the draft final document. The final document will include a purpose subsection, reference the review process, comments letters received, responses to comments, and any required edits /updates to the Public Review document. Also included within this task is the Mitigation Monitoring and Reporting Program (MMRP) in accordance with Public Resources Code Section 21081.6 (AB 3180). Fifteen copies (15), one (1) camera -ready original, and an electronic file of the Final IS /MND will be provided to the City, with all technical appendices provided electronically on CD. RBF will provide the document to each agency /interested party who submitted a comment letter during the 30 -day public review period. Upon adoption of the IS /MND by the City, RBF will prepare a Notice of Determination (NOD) and will file the notices at the Orange County Clerk's Office. This scope of work excludes any applicable CEQA filing fees required by the CDFW. Task 6: Regulatory Permit Preparation and Processing 6.1: PRE- APPLICATION FIELD MEETING. RBF shall coordinate an on -site meeting with the CCC, Corps, Regional Board, and CDFW at the appropriate time to review the delineation and discuss potential permitting strategies. It is crucial to obtain agency concurrence and /or feedback from the regulatory agencies prior to the application process. RBF has found these Pre - Application Field Meetings to be extremely beneficial with regard to avoiding problems, or streamlining the permitting process. 6.2: PREPARATION OF REGULATORY AGENCY APPLICATIONS. RBF will concurrently prepare application packages for the Corps Section 404 Nationwide Permit /Section 10 Letter of Permission, Regional Board Section 401 Water Quality Certification, CDFW Section 1602 Streambed Alteration Agreement, and CCC Coastal Development Permit. At this time, a Corps Nationwide Permit is anticipated given the minimal footprint of the proposed project. Should a Corps Individual Permit be required, the client shall be notified and work would proceed under an approved contract augmentation. Each submittal package will generally include the following key items: application cover letter, project exhibits, environmental documentation, and applications fees. This task includes one round of internal revisions. The deliverable for this task includes a draft (one (1) copy of each application) and final (one (1) copy of each application) to the Client for file. One (1) copy of each application will also be formally submitted to the regulatory agencies. Scope of Services 03/18/2015 A -6 7 -36 Bayview Heights Drainage Restoration Project 6.3: HABITAT MITIGATION AND MONITORING PLAN. Once impacts to jurisdictional areas are defined and habitats known, RBF will identify a location of the mitigation site. The goal is to identify one location that will mitigate all impacts. A reference site will also be identified. The reference site would be in the watershed and would provide an "example" of what the mitigation site would become. The focus is on functions and services of the mitigation site, rather than just aesthetics and vegetation. RBF will prepare a Habitat Mitigation and Monitoring Plan (HMMP) for the project site. The HMMP is designed to document the compensatory mitigation to jurisdictional impacts. The HMMP shall be prepared in accordance with the Corps' Los Angeles District Mitigation guidelines and Monitoring Requirements, dated April 19, 2004 and the Mitigation Rule (33 C.F.R. Part 332; 73 FR 19670 -19687 (April 10, 2008)). 6.4: RESOURCE AGENCY PERMIT APPLICATION PROCESSING. RBF shall provide services for the processing of the regulatory applications through the Corps, Regional Board, CDFW, and CCC. The processing will include required correspondence or telephone calls between the reviewing staff related to the application. Typically agency comments are responded to via email; however, this task includes one (1) round of formal (written and hard copy submittal) response to comments per each application package. This task also includes time to attend the coastal hearing for the project, if necessary. This task also includes the preparation of permit tracking logs for the Client throughout the permit process. An electronic Permit Summary Report will be submitted to the client once the agency approvals are obtained. Should additional time for processing be required, the client will be notified and work will continue on an approved contract augmentation. This task includes attendance at the Coastal Commission Hearing. Task 7: Construction Services RBF will provide construction services to answer Requests for Information (RFIs), complete shop drawing review, and provide contractor submittal review. RBF will maintain a log to track all shop drawing and contractor submittals to assure timely review facilitating keeping construction on track. RBF will also attend field meetings as needed based on a time and materials not to exceed task. An optional construction service not included in this scope or fee is a Mitigation and Monitoring Program. Task 8: Project Meetings and Consultation RBF will attend monthly project meetings with City staff during the concept and design phase of the project. Based on the project's design schedule an estimated six (6) project meetings will be required for the project and are included in this scope and fee. Scope of Services 03/18/2015 A -7 7 -37 EXHIBIT B SCHEDULE OF BILLING RATES RBF Consulting Page B -1 7 -38 Bayview Heights Drainage Restoration Project "Exhibit B" Compensation March 18, 2015 Consultant agrees to perform the Scope of Services as described in Exhibit "A ". Client agrees to compensate Consultant for such services as follows: Task 1— Field Surveys $19,503 Task 2 — Construction Documents $37,491 Task 3 —Storm Drain Easements $5,940 Task 4 — Geotechnical Assessments $14,170 Task 5— California Environmental Quality Act $37,442 Task 6— Regulatory Permit Preparation and Processing $46,534 Task 7 — Construction Services $5,300 Task 8 — Project Meetings and Consultation 5 976 Subtotal $158,186 Reimbursable Expenses 151iim TOTAL PROFESSIONAL FEES $163,186 NOTES: Progress billings will be forwarded to Client on a monthly basis. These billings will include the fees earned for the billing period, plus all direct costs advanced by Consultant. Client shall make every reasonable effort to review invoices within (15) working days from the date of receipt of the invoices and notify Consultant in writing of any particular item that is alleged to be incorrect. Reliance on Documents or Reports Prepared by Others —In performing our services herein, it is anticipated that RBF will receive information prepared or compiled by others; therefore, RBF makes no claims as to the accuracy and /or completeness of information relied without independent evaluation or verification. Compensation 03/18/2015 B -1 7 -39 ■ am ad Fm CONSULTING A�'..�Company HOURLY RATE SCHEDULE OFFICE PERSONNEL $1 Hr. SeniorPrincipal .......................................................................................................... ............................... $275.00 Principal........................................................................................................................ ............................... 250.00 ProjectDirector .................................................................................... ............................... .........................225.00 ProgramManager ................................................................................ ............................... .........................215.00 SeniorProject Manager ....................................................................... ............................... .........................200.00 ProjectManager .................................................................................. ............................... .........................195.00 StructuralEngineer .............................................................................. ............................... .........................195.00 SURVEY PERSONNEL .......... .........................113.00 .......... .........................100.00 .......... .........................100.00 .......... .........................100.00 ...... ............................... 96.00 ...... ............................... 85.00 ....... .......................... 77.00 .. ............................... 65.00 2- Person Survey Crew ........................................................................ ............................... ........................$250.00 1- Person Survey Crew ......................................................................... ............................... .........................165.00 LicensedSurveyor ............................................................................... ............................... .........................185.00 FieldSupervisor ................................................................................... ............................... .........................175.00 CONSTRUCTION MANAGEMENT PERSONNEL Principal Construction Manager .................................................................................. ............................... $220.00 ConstructionManager ......................................................................... ............................... .........................195.00 ContractManager ................................................................................ ............................... .........................170.00 ResidentEngineer ............................................................................... ............................... .........................165.00 Construction Inspector (Prevailing Wage) ........................................... ............................... .........................140.00 Construction Inspector (Non - Prevailing Wage) .................................... ............................... .........................120.00 FieldOffice Engineer ........................................................................... ............................... .........................115.00 Construction Technician ....................................................................... ............................... ..........................97.00 Note: Blueprinting, reproduction, messenger service and other direct expenses will be charged as an additional cost. Vehicle mileage will be charged as an additional cost at the IRS approved rate. 7 -40 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employers Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. RBF Consulting Page C -1 7 -41 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self - insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. RBF Consulting Page C -2 7 -42 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non - compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self- insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self - insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non - Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own RBF Consulting Page C -3 7 -43 judgment may be necessary for its proper protection and prosecution of the Work. RBF Consulting Page C -4 7 -44 ATTACHMENT E City of Newport Beach Study Session and Regular Meeting November 12, 2014 Senior Planner Murillo provided a PowerPoint presentation, addressing compliance review, current locations of facilities, Code Enforcement inspections and results, complaints and citations, administrative operations, and recommendations. Motion by Council Member Gardner. seconded by Council Member Curry to a) find this review exempt from the California Environmental Quality Act ( "CEQA') pursuant to Section 15321 (Enforcement Actions by Regulatory Agencies) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because this review enforces an entitlement for use adopted by the City and has no potential to have a significant effect on the environment; b) find that Sober Living by the Sea has demonstrated good faith compliance with the terms of the Zoning Implementation and Benefit Agreement; and c) receive and file documents submitted by Sober Living by the Sea to demonstrate good faith compliance with the terms of the Zoning Implementation and Public Benefit Agreement. Council Member Curry noted that this is an example of a City Ordinance and a responsible business working together for the good of the community. Mayor Hill opened the public hearing. Hearing no testimony, he closed the public hearing. The motion carried by the following roll call vote Ayes: Council Member Gardner, Council Member Petros, Council Member Curry, Mayor Pro Tem Selich, Mayor Hill Recused: Council Member Henn Absent: Council Member Daigle XX. CURRENT BUSINESS 26. Proposed Bayview Heights Drainage Improvement Project (100 -20141 Council Member Gardner recused herself from this item since she is a Newport Beach Conservancy Board Member. Public Works Director Webb provided the project background, meetings with residents and the Newport Beach Conservancy, and development of a plan using contributions from the current property owners and use of grant money. He indicated that the City would administer the grant and obtain the necessary permits. He addressed contributions received for the design, receipt of the grant, and the possibility of lowering the property owners' contributions. Council Member Petros questioned why the property owners feel their contributions should be reduced. Mayor Hill commented on a picture in the staff report showing the severity of the drainage and he questioned why the City is not responsible. Justin Cox addressed the importance of water quality, thanked staff, and referenced a slide in the PowerPoint presentation showing where the storm drain ends. He noted that it destroys private property and commented on the original agreement. He believed that the City and/or County caused the problem and questioned why the property owners should be required to contribute to fix it. He reported that, as property owners, they are helping with the habitat restoration in the area and are trying to work with the City to resolve the issues. Volume 62 - Page 105 7 -45 City of Newport Beach Study Session and Regular Meeting November 12, 2014 In reply to Council Member Petros' question as to whether Mr. Cox and the other property owners agreed to contribute toward the design of the project, Mr. Cox responded affirmatively and added that they agreed to $50,000 in total. Public Works Director Webb reported that the original discussion pertained to the property owners' contributions of $60,000 each; however, there was a typographical error and the word "eacb" was omitted. He added that the County has agreed to pay $50,000 since this was inherited from the County. Mayor Hill commented on the photo of a woman standing in the drain and noted that it is a large drain going across private property. Council Member Petros noted that the issue is the agreement and that he would not have made the agreement to participate. Justin Cox reported that nothing was actually signed and that the property owners understood it to be a contribution of $25,000 each. He believed that the property owners should be commended for contributing any money toward a situation that has been created by the government. In response to Mayor Pro `fem Selich's question whether the area is a drainage easement, Public Works Director Webb reported that there was no drainage easement recorded when the tract map was filed. He added that normally a situation like this would not be permitted and the City would make the developer address the slope condition. City Attorney Harp suggested bringing the matter to Closed Session to discuss potential liabilities. In response to Council Member Henn's question, Public Works Director Webb reported that drainage has been flowing for over 60 years across both of the properties. He added that the County may want to renegotiate to contribute an additional $25,000. He noted that this project is not currently funded. Council Member Henn stated that he sympathizes with the property owners, but the City should not have to pay for the project as it was a County issue to begin with. In response to Mayor Hill's question, Public Works Director Webb reported that the concrete drainage was built when the tract was built and that the City recently replaced the drainage wall. City Attorney Harp indicated that he would need to check as to whether the County would have any liability. Tim Stoaks stated that the drainage was part of a Mesa Drive improvement project that was just completed last year. He believed that, since the City touched the project, it does have liability. Council Member Henn asked whether the grant is subject to change if the amount of the contribution by the property owners changes. Public Works Director Webb stated that he does not believe that it would need to change and that it has a matching fund portion. He noted that improvements done by the City were to the existing drain. Jack Keating, Newport Bay Conservancy, provided background and emphasized that the City went through a major effort to obtain the grant. He commented on his efforts to help with the agreement and reported receiving a comment from Mr. Cox relative to the amount of their contribution. He reported explaining it to Mr. Johns and he agreed that it was $50,000 while Mr. Cox insists that it was $25,000. He added that they have been working to mitigate the problem including the possibility by Mr. Cox of storing some of the drainage material on his property and stated that there may be some things that can be done during the course of the agreement to save money. Volume 62 - Page 106 rcry City of Newport Beach Study Session and Regular Meeting November 12, 2014 Alvin Cox stated that the entire storm drain on Mesa Drive was replaced, noting that he expressed concerns about it and communicated his concerns to the Public Works Department. He added that there have been no litigation threats and reported that this was not an existing trench and that the ditch has been filled twice. He added that the County should have taken care of the problem and stated that Assistant City Engineer Stein indicated accepting the responsibility when the property was taken over by the City. He read from the agreement relative to the property owners' responsibilities. Jim Mosher expressed support for Council Member Petros' comments, believing that the report states that the expected total contribution from the three property owners is $150,000. Justin Cox reported that the County agreed to pay $50,000 regardless of the property owners' contributions, Measure M funds are committed at $30,000, and property owners are committed at $50,000, which totals $1.30,000 of committed funding. He added that the project is estimated to cost about $160,000. Public Works Director Webb stated that it may cost $170,000, that staff is also committing time, and that, depending on the bids, there may be additional funds needed to construct the drain, In response to Mayor Pro Tem Selich's question, Public Works Director Webb reported that staff is working with the Conservancy and the County, and commented on possible additional costs related to Coastal mitigation. He referenced Exhibit C in the staff report which shows a tentative plan view. Motion by Moor Hilh seconded by Couneil Member Curry, to accept the terms as listed in the staff report, except specifying a $25,000 donation from each of the property owners; and pay the balance by the General Fund, Discussion followed regarding the possibility of bringing the matter back to Council if the funding exceeds City Manager Kiffs funding autbori,zation. Council 1\4ember Curry noted that the issue is the impact on the Bay and that now is the time to resolve the problem. Council Member Henn agreed, but stated that the City is backstopping this whole project in terms of funding shortages. He added that property owners will be regaining full use of the land that is filled in, He indicated that the original agreement, requiring $50,000 from each of the parties, is appropriate. In response to Mayor Hill's question regarding who paid for filling the ditch before, Alvin Cox stated that he has no specific knowledge of why it was filled in but that it was done in 1947. Mayor Pro Tem Selich stated that $50,000 is not a lot of money to clean up this situation and that Measure M funds will be used. He expressed support for the motion. Mayor Hill directed the City Manager to proceed within the established limits, Council Member Petros stated that, while be accepts this is for the benefit of the Bay, the fact is that private parties agreed to participate, so lie will not be supporting the motion. The motion carried by the following roll call vote: Ayes: Council Member Curry, Mayor Pro Tem Selich, Mayor Hill Nays: Council Member Petros, Council Member Henn Recused: Council Member Gardner Absent: Council Member Daigle Volume 62 - Page 107 �"A ATTACHMENT City of Newport Beach BUDGET AMENDMENT 2014 -15 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues PX from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: To increase expenditure appropriations from General Fund fund balance for the ACCOUNTING ENTRY: NO. BA- 15BA -045 AMOUNT: $50,000.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance BUDGETARY FUND BALANCE Amount Fund Account Description Debit Credit 010 3605 General Fund - Fund Balance $50,000.00 REVENUE ESTIMATES (3601) Fund /Division Account Description EXPENDITURE APPROPRIATIONS (3603) Description Division Number 7014 Misc & Studies Account Number C5002022 Bayview Heights Restoration Division Number Account Number Division Number Account Number Signed: Y O W" Fik^S.i9 Signed: Adminisl Signed: Approval: Finance Director Approval: City City Council Approval: City Clerk $50,000.00 'Date 5 1 to Date 7 -48