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HomeMy WebLinkAbout07 - BA-069 - Newport Bay Consultant ServicesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 May 27, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Manager's Office Dave Kiff, Assistant City Manager 949/644 -3002 or dkiff @dty.newport- beach.ca.us SUBJECT: Professional Services -- Budget Amendment ISSUE: Should the City Council authorize a Budget Amendment for several projects and the hiring of a specific consultant for Harbor Projects? RECOMMENDATION: 1 -- Authorize the City Manager to enter into a $66,557 contract with Mr. Larry Paul of Tetra -Tech, Inc. for consultant services relating to Newport Bay. 2 -- Adopt Budget Amendment # — in the amount of $128,600 transferring revenue from unencumbered reserves to the City Manager's Professional and Technical Services (8080) Account. DISCUSSION: Background: As the Fiscal Year closes, I believe that several important items must be addressed to effectively address the following issues in Newport Beach. Several of these issues require the services of consultants. The issues -- and the likely costs associated with each -- are as follows: 1. Newport Bay and Newport Harbor. The Harbor Resources Division has suggested the retention of Larry Paul, formerly of the County of Orange and currently with Tetra -Tech, Inc. to assist the Division with: Consultant Services & Budget Amendment May 27, 2003 Page 2 • A strategic response and advocacy relating to the increasing growth of eelgrass in the Harbor, especially as eelgrass relates to important dredging and sand replenishment projects; • Sand Replenishment in West Newport and sand removal from the Santa Ana River (a US Army Corps Project); • Upper and Lower Bay Dredging, including federal funding for both Corps projects and the retention of LA -3 as a permanently- designated sediment disposal site; • Other activities as directed by the Harbor Resources Manager, especially as they may relate to the Harbor Commission's Task List Mr. Paul has direct and unique experience in these multi - million dollar issues. As a result, this Agenda Item also includes a request that the Council authorize the City Manager to enter into a sole- source contract with Mr. Paul's firm (Tetra - Tech, Inc.) for Mr. Paul's services. Tom Rossmiller, Harbor Resources Manager, will manage the Professional Services Agreement with Mr. Paul. 2. Santa Ana Heights Pre - Zoning. If the City is to consider annexing West Santa Ana Heights, it must begin pre - zoning the area and adding the region to the City's General Plan. Mr. Larry Lawrence, a private consultant with zoning experience, has assisted us in the past with similar pre- zoning efforts in East Santa Ana Heights. Mr. Lawrence's contract, if we were to hire him, is likely to fall below the $30,000 threshold requiring Council approval. 3. Seashore Drive Water Quality Plan. The California Regional Water Quality Control Board, Santa Ana Region, has accepted the City's proposal to extensively (and more inexpensively) use monitoring, education, and enforcement to clean up contaminated runoff from a Seashore Drive storm drain. The City will use Clean Beaches Initiative funds to address the lion's share of these expenses (especially the retrofitting of several catch basis with filters and screens), but about $12,000 in expenses are ineligible for CBI reimbursement. 4. Finalization of our LIP. Since March, we have had a consultant, Mr. John Kappeler, preparing Newport Beach's Local Implementation Plan (LIP) as required by our National Pollutant Discharge Elimination System (NPDES) permit to operate a storm drain system. The LIP is an extensive document that has never been done before -- as such, it has taken longer that I expected to complete it. I wish to retain Mr. Kappeler for a longer period of time. 5. Newport Coast Community Center. The Newport Coast Advisory Committee is charged with making recommendations to the City regarding the development of a community center in the Newport Coast. After soliciting input from at least three architects or designers, the Committee has asked that the City retain Betsey Dougherty of Dougherty and Dougherty to perform a "Needs Assessment" for the Center. This contract -- estimated to be about $10,000 -- does not require Council approval. The $10,000 will be deducted from the Consultant Services & Budget Amendment May 27, 2003 Page 3 $7,000,000 set aside by the Council for the Community Center's construction via the Pre - Annexation Agreement with the Newport Coast for this purpose. 6. Water Quality Educational Material. For the past several weeks, I have planned on developing an informational kiosk or wall display for the Building-Planning- Public Works area that would help educate builders and homeowners about water quality - friendly design. I have also sought to upgrade the useability of the City's water quality web site (www.CleanWaterNewport.com). About $12,000 in funds will accomplish both actions. Each of these are one -time actions that are attainable using current year revenues. Here is a summary of the items that make up the proposed Budget Amendment included with this Agenda Item: Harbor Resources assistance = $ 66,600 West SAH /Area 7 Pre - Zoning = 20,000 Seashore Drive WQ Improvement Plan = 12,000 Completing the NPDES LIP = 8,000 Newport Coast Community Center Needs Assessment: 10,000 Water Quality Educational Material = 12,000 Total added to 0310 -8080 = 128.600 Environmental Review: The City Council's approval of this Agenda Item does not require environmental review. Public Notice: This agenda item may be noticed according to the Ralph M. Brown Act (72 hours in advance of the public meeting at which the City Council considers the item). Fundinq Availability: This Item suggests funding using the current fiscal year's unencumbered reserves. Submitted by: _h_�PN Dave4 h Assistant City Manager Attachments: Professional Services Agreement with Tetra -Tech Budget Amendment # PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of May 2003, by and between the City of Newport Beach (City), a municipal corporation, and Tetra Tech, Inc., 17770 Cartwright Road, Suite 500, Irvine, California ( "CONSULTANT "), is made with reference to the following: follows: 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. C. City desires to engage Consultant to provide project management, sub - consultant contracting, and any other work relating to Harbor Resources project and programs. D. The principal members of Consultant, are for purpose of this Project, Mr. Larry Paul. E. City has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as TERM The term of this Agreement shall commence on the _ day of May 2003 and shall be fore a term of 6 months upon execution by all parties of this Agreement. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" attached hereto and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT The total estimated costs for services described in Exhibit A are not to exceed $66,557. shall pay Consultant for the services in accordance with the provisions of this Section and the budget, attached hereto as Exhibit "B" and incorporated herein by reference. No changes shall be made during the term of this Agreement without prior written approval of City. City's obligation to compensate Consultant for all work performed in accordance with this Agreement shall not exceed the total contract price of sixty -six thousand five hundred and fifty seven dollars ($66,557.00). Harbor Resources Consulting Agreement April , 2003 Page 2 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage, airfare, travel expenses and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with Exhibit V and incorporated herein by reference. City shall reimburse Consultant only for those costs or expenses, which have been specifically approved in this Agreement, or specifically approved in advance by City. 4. STANDARD OF CARE 4.1 Except to the extent provided in paragraph 19 below, 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 community professional standards. Consultant shall use only qualified and experienced personnel who are not employed by City to perform all services as set forth in Exhibit A (Scope of Work). Consultant represents and warrants to City that it has or shall obtain all applicable licenses and permits, if any, required of its profession, including registration, if applicable, as a person or entity authorized to advocate before state and local officials or departments. Consultant further represents and warrants that it shall keep in effect all such licenses and permits during the term of this Agreement. 4.2 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, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an 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 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 details and means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only with respect to the results of the services. Harbor Resources Consulting Agreement April , 2003 Page 3 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies, which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 7. PROJECT MANAGER Consultant shall assign the Project to 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 Project term. Consultant has designated Larry Paul as its Project Manager. Consultant may designate other personnel as necessary to fulfill project management obligations. 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. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and Consultant shall perform the services in accordance with the schedule specified in the Scope of Work (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, which are due to causes beyond Consultant's reasonable control as set forth further in paragraph 4.2 above. 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. 8.1 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, which purportedly causes a delay, and not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 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. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. G Harbor Resources Consulting Agreement April , 2003 Page 4 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City. 11. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, officers, and employees (collectively "Indemnitees ") from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services conducted or performed or products provided pursuant to this Agreement, excepting only the sole negligence, active negligence, or willful misconduct of Indemnitees, and shall include attorneys' fees and all other costs incurred in good faith and in the exercise of reasonable discretion in defending any such claim. Nothing in this hold harmless agreement shall be construed as authorizing any award of attorneys' fees or other costs in any action on or to enforce the terms of this Agreement. 12. INSURANCE Without limiting Consultant's indemnification of Indemnitees, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement, the following policies of insurance: A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California; and B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project or the general aggregate limit shall be twice the occurrence limit. City shall be added as an additional insured to Consultant's general liability insurance policy. Certificates of Insurance for the above - required policies shall be signed by a person authorized by the applicable insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact the 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 Bests Key Rating Guide, unless otherwise approved by the City Risk Manager. Said policy or policies shall be endorsed to state that either party shall not cancel coverage, except after thirty (30) days prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of a claim made or a suit instituted arising out of n Harbor Resources Consulting Agreement April , 2003 Page 5 Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its sole discretion may be necessary for its proper protection and prosecution of the work. Consultant agrees that, in the event of loss due to any of the perils for which it has agreed to provide comprehensive general liability insurance, Consultant shall look solely to its insurance for recovery excepting only perils arising out of the sole negligence, active negligence, or willful misconduct of indemnities. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general liability insurance to Consultant with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant might acquire against City by virtue of the payment of any loss under such insurance. 13. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any for the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so without consent of City shall be null and void. 14. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless City authorizes the release of information. 15. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to cooperate with Consultant in the development and production of display materials, advocacy letters, background information, maps and related GIS data, and research data, and to provide assistance in contacting and meeting with public agencies, elected officials and other individuals or entities where requested by Consultant, and to install display and public information materials on site if deemed appropriate. City agrees to provide all necessary review of the project's legal requirements. 16. ADMINISTRATION This Agreement will be administered by the City Manager's Office. Dave Kiff shall be considered 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. 17. 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. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during normal business hours. Consultant shall allow inspection of all work, Harbor Resources Consulting Agreement April , 2003 Page 6 data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 18. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 19. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with the Project. City expressly acknowledges and agrees that Consultant shall have no liability whatsoever for the acts or omissions of any person or entity engaged directly by City. 20. CONFLICTS OF INTEREST A. 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 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. B. 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 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. 21. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without prior written approval of City, except for design production of graphic or visual materials necessary to the Project, which design and production by a subcontractor is hereby approved. 22. NOTICES All notices, demands, requests or approvals to be given under 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. re, Harbor Resources Consulting Agreement April , 2003 Page 7 All notices, demands, requests or approvals from Consultant to City shall be addressed to City, attention Dave Kiff at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA 92658 -8915 Phone — 949/644 -3002 and Fax — 949/644 -3020 E -Mail — dkiff @city.newport- beach.ca.us All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant, attention Esther Feldman at: Tetra Tech, Inc. 17770 Cartwright Road, Suite 500 Irvine, CA 92614 Phone - 949 - 250 -6788 Fax - 949 - 250 -6776 E -mail — larry.paul @ttisg.com 23. TERMINATION In the event either party hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to the Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 24. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 25. 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. Harbor Resources Consulting Agreement April , 2003 Page 8 26. 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. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 27. PATENT INDEMNITY The Consultant shall indemnify City, its agents, officers, representatives and employees against 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. 28. WORK PRODUCTS All materials and work products produced by Consultant as a result of this agreement are the property of the City. Consultant shall receive copies of all such materials and work products and shall have an irrevocable right to use all such materials and work products for any lawful and appropriate use in the normal course and scope of its activities. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation Robert H. Burnham, City Attorney 0 Homer Bludau, City Manager for the City of Newport Beach CONSULTANT By: Patti Sexton, Irvine Office Leader For Tetra Tech, Inc. Harbor Resources Consulting Agreement April , 2003 Page 9 Exhibit A Scope of Work: Harbor Resources Projects & Programs 1. Balboa Island Beach Replenishment - Review the economics and develop a feasibility study and recommend implementation method. 2. Work with Harbor Patrol to expedite the abandoned and derelict vessel program and utilize the $30k grant to fund this effort. 3. Work with the various Federal agencies to resolve the Eelgrass project mitigation and management plan. 4. Work with State, Federal, and County agencies on the Santa Ana River Sand replenishment for the West Newport Groin field. 5. Assist the COE in developing a Lower Bay Dredging plan and assist in obtaining full federal funding, 6. Work with the Corps and EPA to finalize the permanent designation of LA3. 7. Assist Harbor Resources Manager in developing Harbor Commission and City Council agenda items and the requisite staff reports. 8. Attend various Harbor Commission and City Council Meetings. 9. Provide monthly project updates to Harbor Resources Manager. 10. Meet Monthly with Corps Staff and Executives regarding the Newport Beach Federal Program. 11. Accompany and provide briefing for City Elected officials for Sacramento and Washington, D.C. visits if requested. 11 Harbor Resources Consulting Agreement April , 2003 Page 10 Exhibit B Budget Consultant Services - on an "as needed" basis not to exceed .................... ............................... 62,496 Administrative Support Services - Contract, timekeeping, repro & invoicing on an "as needed" basis not to exceed .................... ............................... 1,161 Travel Mileage to Corps of Engineers -LA District $ 400 Travel (If Requested - Optional) To Sacramento and Washington, D.C. $ 2,500 (if requested - optional) Total - including optional travel to Sacramento & Washington, D.C. $ 66,557 13 City of Newport Beach BUDGET AMENDMENT 2002 -03 E 'CT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: rx I EXPLANATION: from existing budget appropriations from additional estimated revenues from unappropriated fund balance NO. BA- 069 AMOUNT: $1zs,600.00 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To increase expenditure appropriations for a variety of projects to be overseen by the City Manager's Office. ACCOUNTING ENTRY: Description Division Number 0310 Amount BUDGETARY FUND BALANCE Number 8080 Debit Credit Fund Account Description Newport Coast Annex Bldg Cap Project 010 3605 General Fund Fund Balance $98,600.00 ' 500 3605 Water Fund Fund Balance $20,000.00 ' 298 3605 Newport Coast Annex Bldg Fund Balance $10,000.00 ' R VUE ESTIMATES (3601) Fund /Division Account Description EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Signed: zAilil2r/> _ 5--,?o - FiAancial Approval: Administrative Services Director Date S Administrative Approval: City Manager DA Signed: City Council Approval: City Clerk Date Description Division Number 0310 City Manager's Office Account Number 8080 Services - Professional & Technical $118,600.00 Division Number 7298 Newport Coast Annex Bldg Cap Project Account Number C5100705 Newport Coast Community Center $10,000.00 Division Number Account Number Division Number Account Number Division Number Account Number Signed: zAilil2r/> _ 5--,?o - FiAancial Approval: Administrative Services Director Date S Administrative Approval: City Manager DA Signed: City Council Approval: City Clerk Date