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HomeMy WebLinkAbout07 - Seismic Retrofit of San Diego Creek Bridges & Goldenrod Pedestrian OvercrossingCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 October 12, 2010 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Tom Sandefur, Associate Civil Engineer 949 - 644 -3311 ortsandefur@newportbeachca.gov SUBJECT: SEISMIC RETROFIT OF SAN DIEGO CREEK BRIDGES AND GOLDENROD PEDESTRIAN OVERCROSSING — APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC. FOR ENVIRONMENTAL PERMIT MANAGEMENT ISSUE Staff requests City Council approval to approve a Professional Services Agreement with LSA Associates, Inc. in connection with the San Diego Creek and Goldenrod bridge retrofits. RECOMMENDATION Approve a Professional Services Agreement with LSA Associates, Inc. of Irvine, California, for the San Diego Creek Bridge and Goldenrod Pedestrian Overcrossing bridge retrofits at a not to exceed price of $55,060.00 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION This project involves seismically retrofitting three bridges within the City. Jamboree Road over San Diego Creek both Northbound and Southbound and Goldenrod Pedestrian Overcrossing have all been listed as a mandatory bridge retrofit by the State of California. The project plans have been finalized and approved. The plans have been bid and the award of contract is pending. The project design included extensive environmental studies and permitting. The CEQA review included the following technical studies: • Programmatic Section 4(f), March 2007 • Historic Property Report, July 2006 • Location Hydraulic Study, December 2006 Seismic Retrofit of San Diego Creek Bridges and Goldenrod Pedestrian Overcrossing — Approval of Professional Services Agreement with LSA Associates, Inc. October 12, 2010 Page 2 • Natural Environmental Study (Minimal Impacts), September 2006 • Hazardous Waste Initial Site Assessment, May 2006 • Water Quality Assessment Report, May 2006 All mitigation measures identified in the technical studies are incorporated in the Plans Specifications and Estimate package and the permits. The project received the following permits: • Coastal Development Permit (California Coastal Commision) • Section 1600 (California Department of Fish and Game) • Section 404 (Army Corp of Engineers) • Section 401 Certification of Water Quality (Regional Water Quality Control Board) • Section 402 (National Pollutant Discharge Elimination System Permits) In order to administer the five separate permits required for this project, the City individually selected LSA Associates as the most qualified consultant at a fair and reasonable cost to be an environmental permits manager for this project. The basis for the City's selection of LSA was contingent upon two factors. Most importantly, LSA generated the initial environmental reports that were compiled from 2004 to 2009 for the project and guided the project through the permitting process. During the design process LSA was a subconsultant to the design engineering firm, Dokken Engineering. The firm has intimate and complete knowledge of the entire environmental program related to these bridges. This is important because any work that runs afoul of the permits could result in expensive, inconvenient delays or possible fines. Secondly, the permits require a bat biologist with a Memorandum of Understanding with the State of California to conduct a bat study prior to work. LSA provides this specialty biologist. A summary of the consultant selection process: Statements of Qualification Reviewed: N/A (See above for details) Request for Proposals Requested: 1 Request for Proposals Received: 1 The proposed not to exceed environmental management services fee is $55,060.00. The scope of services include: Biological Surveys and Monitoring: a) Preconstruction Nest Surveys b) Preconstruction Bat Surveys c) Directing bat exclusion installations d) Monitoring vegetation protective material installation e) Monitoring construction initiation f) Monitoring biological resources during construction I Seismic Retrofit of San Diego Creek Bridges and Goldenrod Pedestrian Overcrossing — Approval of Professional. Services Agreement with LSA Associates, Inc. October 12, 2010 Page 3 g) Caulerpa taxifolia (an invasive seaweed) survey, letter, monitoring and report. Water Quality Monitoring: a) Monitoring plan development b) Monitoring contractor implementation of plan c) Water quality sampling d) Monitoring plan memorandum At the approval of this Professional Services Agreement and after the award of the retrofit contract, LSA will begin the tasks associated with the any preconstruction monitoring and survey. ENVIRONMENTAL REVIEW This project is exempt from the California Environmental Quality Act (CEQA) pursuant to the California Environmental Quality Act (CEQA) Implementing Guidelines. Construction management services are not projects as defined in CEQA. PUBLIC NOTICE Not Applicable FUNDING AVAILABILITY This work will be paid from federal and state sources with 88.53% of the cost funded from Federal Highway Bridge Rehabilitation Funds and 11.47% funded from Proposition 1B funds. Both programs are administered by Caltrans and reimbursement will be sought through Caltrans. Sufficient funds are available in the following account for the project: Account Description Contributions Prepared by: Tom Sandefur, P. . Associate Civil Engineer Attachment: Location Map Account Number Amount 7251- C5100695 55,060.00 Total $ 55,060.00 Submitted by: Director i LOCATION MAP JAMBOREE ROAD OVER SAN DIEGO CREEK BRIDGE RETROFIT CONTRACT NO. 3531 B YVIEW WAY O SP' PROJECT LOCATION - 0 m J� 9 J BACK BAY °� I PROFESSIONAL SERVICES AGREEMENT WITH LSA ASSOCIATES, INC. FOR BRIDGE SEISMIC RETROFIT PROJECT ENVIRONMENTAL PERMIT MANAGEMENT THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement') is made and entered into as of this day of 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and LSA ASSOCIATES, INC. a California Corporation whose address is 20 Executive Park, Irvine, California, 92614 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City plans to perform seismic retrofits on three bridges: Goldenrod Pedestrian Overcrossing, Jamboree Road over San Diego Creek (Northbound) and Jamboree Road over San Diego Creek (Southbound). C. City desires to engage Consultant to provide environmental permit management, including biological surveying and monitoring, and water quality monitoring services for the Jamboree Road Bridges Seismic Retrofit Project ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of .Project, shall be King Thomas. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31St day of December, 2011, 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 ( "Work" or 5 "Services "). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Fifty -Five Thousand, Sixty Dollars and no /100 ($55,060.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be Professional Services Agreement Page 2 limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated KING THOMAS to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. TOM SANDEFUR, or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. Professional Services Agreement Page 3 7 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. B. Provide blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards. All Services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers Professional Services Agreement Page 4 7 ' and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to 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. 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 attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. Professional Services Agreement Page 5 0 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof 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- 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 contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant's employees. Professional Services Agreement Page 6 /o Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (ten (10) calendar days written notice of non- payment of premium) prior to such change. 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. ii. Generaf Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, blanket contractual liability. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. 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) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements The policies are to contain, or be endorsed to contain, the following provisions: i. 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 and insurance clauses from each of its subconsultants. ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. Professional Services Agreement Page 7 iii. 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. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the Work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its Professional Services Agreement Page 8 t. € officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. 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 Professional Services Agreement Page 9 13 1 immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Tom Sandefur Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 - 644 -3312 Fax: 949 - 644 -3318 Professional Services Agreement Page 10 14 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: King Thomas LSA Associates, Inc. 20 Executive Park, Suite 200 Irvine, CA 92614 Phone: 949 - 553 -0666 Fax: 949- 553 -8076 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. 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. Professional Services Agreement Page 11 15 29. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30. 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. 31. 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. 32. 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. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Professional Services Agreement Page 12 tk IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: OFFICE OF THE C TY ATTORNEY: By:_ j tk L onie Mulvihill, Assistant City Attorney lmvoo ATTEST: Leilani I. Brown, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Keith D. Curry, City Manager CONSULTANT: LSA ASSOCIATES, INC. By: Robert H. McCann, President By: James Baum, Chief Financial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 13 EXHIBIT A Ig s L ASSOCIATES, INC IV 20 20 CX [CUT n'f PnRrc, SUITE 200 959.553.0666 'I -el. IRVINr, CALIFORNIA 9461: 949.553.80)6 FAX August 30, 2010 Mr. Tom Sandefur, P.E. City of Newport Beach Public Works Department 3300 Newport Boulevard Newport Beach, California 92663 OERKFA -EY CARLSBAD PORT COLLINS RNI:RSIOL FRESNO ROCKLIN PALM SPRI NGS SAN LUIS OUISPO POINT RICHMOND S. SAN FRANCISCO Subject: Proposal for Biological Monitoring and Surveys for Construction of the Jamboree Road Bridges Seismic Retrofit Project, Newport Beach, California Dear Mr. Sandefur: LSA Associates, Inc. (LSA) is pleased to provide this proposal to conduct biological monitoring of the proposed area where construction activities would occur for the Jamboree Road Bridges Seismic Retrofit Project it) the City of Newport Beach (City), California. LSA proposes to ca nplefe the following scope of work as necessary to identify relevant biological resource issues (including any existing or potential special - interest species or habitats) associated with the proposed project area. SCOPE OF SERVICES Task 1: Project Management and Meetings LSA will coordinate closely with and maintain regular communication with the Construction Contractor and City staff in order to complete the tasks as quickly and efficiently as possible and to keep City staff informed regarding the work being conducted by LSA and progress relative to the project schedule. During intense or active periods of work, LSA will communicate periodically with City staff via telephone. LSA has allocated up to 20 hours for this task. Other that) the preconstructjon site meeting in Task 2 below, LSA does not anticipate the need to attend any meetings as part of the scope of work identified below. Task 2: Biological Surveys and Monitoring All surveys will be conducted by qualified biologists with appropriate resoulrce agency credentials (e.g., Memorandum of Understanding) and will follow all resource agency requirements as follows: • A qualified biologist will attend the preconst ruction conference. • A qualified biologist will conduct preconstruction nesting survey(s) within 24 hours prior to any construction or ground - disturbing activity -All observed nests will be mapped. • A qualified bat biologist will conduct surveys for bats prior to construction to assess the potential for maternity or night roosts. • In addition, if applicable, a qualified bat biologist will monitor and direct the placement of temporary exclusionary devices for the prevention of bat roosting. If these exclusionary devices are 08/30/10 aLa'RDPOSALV7_Z1850AI - lam6orzc t3ridgsU'roposal fnmhom nridgs Bia.darn PLANNING I EXVJR0NAQH1AL SCIENCES I DESICX I.SA ASSOCIATES, INC. necessary, they must be installed between October and November to avoid possible active breeding, maternity, and torpor seasons for the bats using the bridges. • A qualified biological monitor will be present during the placement of protective material to ensure that the material does not damage the vegetation. A surveyor or project engineer should also be present to ensure the placement is in the proper location. • A qualified biologist will monitor construction initiation activities and frequently visit the site to ensure that bats and migratory birds are not being impacted. • A qualified biologist will frequently visit the site to ensure that the biological components of the United States Army Corps of Engineers (Corps), the California Coastal Commission (CCC), California Department of Fish and Game (CDFG), and the California Regional Water Quality Control Board (RWQCB) permits are being complied with. Task 3: Water Quality Monitoring Per condition number 4 in the RWQCB certification, LSA will develop and implement a water quality monitoring plan in compliance with the Clean Water Act Section 401 Water Quality Standards Certification (Certification), dated September 17, 2009, as outlined below. • Monitoring Plan Development: LSA will develop a monitoring plan that details the water quality sampling methodology and procedures for record retention and violation reporting. • Water Quality Sampling: LSA will conduct the water quality monitoring detailed in the monitoring plan. This scope of work assumes that water quality monitoring will be conducted during construction, during rain events when flow is present in the week, or when construction is occurring within the creek. It is estimated that monitoring would be conducted for tip to 10 days during rainfall and 10 days during construction activities within the creek, for a maximum of 20 days. On monitoring days, receiving waters will be tested for turbidity upstream and downstream of the construction activities prior to, during, and after construction activities. In addition, LSA will prepare field data sheets for recording water quality monitoring results. LSA will coordinate with City staff to report any violation of turbidity limits outlined in the Certification to the RWQCB within 24 hours of the violation. • Monitoring Memorandum: At the conclusion of the project, LSA will prepare a memorandum summarizing the sampling activities and data results. Optional Task. A qualified biologist will survey for Caulerpa taxifolia, an invasive marine seaweed, in accordance with Condition No. I of the Section 401 Clean Water Act (CWA) Certification from the RWQCB. This optional task would need to be authorized by the City as part of this proposal. The City will notify LSA at the time that this proposal is accepted if the optional task is to be preformed by the LSA biologist. If it is determined that no Caulerpa taxifolia is present at the project site based ou previous assessments, the LSA biologist will provide a letter to the RWQCB of the findings of the Caulerpa taxifolia survey, conducted for an estimated fee of $800. 08 /30/10 aL:V'ROPOSAUZZZ1850AI - latnbam BridgmViroposat lamboi= Bridga nio.dm* as LSA AS SO CIA7 ES, INC. If it is determined by the LSA biologist that Caulerpa taxifolia is present within the project area, or the RWQCB determines that previous studies are not adequate, monitoring would be conducted during construction activities in the creek, and a report would be submitted to RWQCB for an estimated cost of $5,000. COST ESTIMATE Based on the scope of services described above, LSA estimates that a maximum budget of $49,260 for Task I through Task 3 (not including the Optional Task for a Caulerpa taxifolia survey) will be necessary to complete all of the tasks in this proposal. Reimbursable expenses include mileage, reprographics, and mail /overnight deliveries. This scope of services and cost estimate is valid for tip to 6 months from the date of this letter. Any additional services (including direct expenses not specified in this proposal) requested by the City that are not specifically identified in this proposal will require a budget adjustment. Please confirm your authorization of this work by providing some form of written authorization. Upon receiving your authorization to proceed, LSA will continence work on an hourly not to exceed basis in accordance with the attached I.-HIC A els"hoatc 0 fees. AkhOugh individual task amounts in ay vary, the total budget will not be exceeded without prior authorization from the City. Sincerely, LSA ASSOCIATES, INC. f h King Thomas Associate Attachments: Table A: Biological Monitoring and Surveys for Construction Task/Labor Breakdown 08/30/10 cLAPROPOSAl.t777.1850AI - Janborm Bridgm\Pmposal Jamborm Bridges riio.da , a1 EXHIBIT B as LSA ASSOCIATES, INC. Jamboree Road Bridges Seismic Retrofit Project Table A: Biological Monitoring and Surveys for Construction Task/Labor Breakdown (Per Survey) Task Description Principal Project Maneaer Senior Biologist Biologist Assistant Biologist Sr. Env. Specialist GIS Specialist WOrtl Processor O.Fce Assistant Total ({ours Direct Casts Total Casts 5195 5150 5115 1 $95 $70 5120 $110 585 S60 Task 1: Project Management and Meetin -s 1 20 8 1 1 28 53,920 Task 2: Biological Surveys and Monitorine 0 $0 Preconstruction nest surveys 4 _ 4 S20 $480 Preconstruction bat surveys 4 4 $20 $400 Directing bat exclusion installation 10 10 $20 $970 Monitoring vegetation protective material installation 10 10 $20 5720 Monitoring construction initiation 4 4 $20 $400 Spot checking (4 firs/week) 120 120 $300 517,700 Task 3: Water Quality Monitoring 0 s0 Monitoring Plan Development 2 16 4 4 _ 2 28 $100 $3.310 Water Quality Sampling (10 hm/day) 2 200 202 $20D S24,S90 Monitoring Memorandum 2 16 4 2 24 $2,770 TOTALS 6 20 12 138 10 232 4 8 4 434 $700 549,260 Optional Task:Cav /erpa raxifolia survey, letter only 0 $800 5800 Caulerpa Jar /jolly urvey monitoring and report 0 $5,000 $5.000 Optional Task Total 0 0 0 0 0 0 0 0 0 0 55,800 55,800 L \PR0P0SAL=185OAl - Jamboree Bridges \Budget.xls