HomeMy WebLinkAbout04 - Lower Bay DredgingAgenda Item No. 4
May 8, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FRONT: Public Works Department
Stephen G. Badum, Public Works Director
949 - 644 -3311, sbadum @newportbeachca.gov
PREPARED BY: Chris Miller, Harbor Resources Manager
APPROVED: A
TITLE: Professional Services Agreement with Anchor, QEA, L.P., for Water
Quality and Field Management Services for the Lower Bay Federal
Dredging Program
ABSTRACT:
Anchor QEA is providing services for water quality monitoring during the upcoming
Lower Bay dredging project as a required by the Santa Ana Regional Water Quality
Board.
RECOMMENDATIONS:
1. Approve and execute the Professional Services Agreement with Anchor QEA for
water quality monitoring.
2. Approve a Budget Amendment 12BA- 036 transferring $388,017 from Account
No. 7231- C4402004 and $15,000 from Account No. 7231- C4402007 in project
savings to Account No. 7231- C4402003.
FUNDING REQUIREMENTS:
Anchor QEA is proposing to perform water quality monitoring for a not -to- exceed cost of
$403,017.00. Surplus savings are available from recently completed or recently
awarded projects including $388,017 from the Rhine Channel Contaminated Sediment
Cleanup project (Account No. 7231- C4402004) and $15,000 from the Bulkhead and
Seawall Repairs project (Account No. 7231- C4402007.)
DISCUSSION:
The federal government/Corps of Engineers ( "Corps ") is planning to dredge the Lower
Newport Bay in May 2012 after nearly ten years of planning. As a condition of the
Professional Services Agreement with Anchor, QEA, L.P., for Water Quality and Field
Management Services for the Lower Bay Federal Dredging Program
May 08, 2012
Page 2
Corps' permit to dredge, the Santa Ana Regional Water Quality Control Board ( "Water
Board ") requires a water quality monitoring program to be instituted throughout the
project. However, due to a budget shortfall within the Corps, the Corps was unable to
perform the required monitoring, and asked the City to intervene to prevent the project
from stalling via possible legal action from the Water Board. The City was therefore
forced to react quickly in order to prevent the project from any more delays especially
with the Port of Long Beach disposal deadline rapidly approaching. Because Anchor
QEA had previously assisted the City in negotiating this same type of program for the
recent Rhine Channel project, the Public Works Department decided to execute a sole
source agreement with Anchor QEA in order to capitalize on their previous, relevant
experience, and to save as much time as possible by avoiding any unnecessary delays.
In addition to developing and implementing a water quality and sediment monitoring
program, several technical studies are required to further refine the dredge design to
account for apparent high spots throughout the harbor.
Scope of Services
Task 1: Water Quality Monitoring Plan Negotiations
Because Newport Harbor is subject to the Water Board's sediment and water total
maximum daily load ( "TMDU) program, there is raised awareness with regards to
sediment residual layers and potential water quality impacts during dredging. To
address these elevated concerns, the Water Board required a much more rigorous
Monitoring and Reporting Plan ( "MRP ") than is typical for federal dredging projects.
Anchor QEA reviewed the Water Board's initial MRP requirements, then negotiated and
developed a more reasonable program through their recent experience on a similar
program for the Rhine Channel dredging project. This effort required several conference
calls and heavy negotiating.
The project costs for this task are $35,500.
Task 2: Water Quality and Sediment Sampling
The final negotiated MRP details specific requirements for the program as summarized
below:
• A total of 65 days of water quality monitoring for two people
• A total of 21 water chemistry samples.
• A total of 13 additional total suspended solid samples.
Professional Services Agreement with Anchor, QEA, L.P., for Water Quality and Field
Management Services for the Lower Bay Federal Dredging Program
May 08, 2012
Page 3
0 A total of 5 quality assurance and quality control water chemistry samples.
0 10% rush charges for 5 -day turnaround time and a 5% contingency for chemistry
samples.
0 Water column toxicity test for 8 samples.
0 A total of 9 surface water interface toxicity tests.
0 A total of 9 sediment chemistry grab samples.
0 A total of 2 field days for sediment sampling.
0 A maximum of 4 monthly water quality monitoring reports.
0 No more than one Water Quality and Sediment Monitoring Plan prior to dredging.
0 One final Water Quality and Sediment Report
0 A total of 80 hours for project management/meetings and field observations of
construction activities not associated with general water quality monitoring.
The project costs for this task are $350,334.
Task 3: Lower Newport Bay Bathymetry Survey
Several potential high spots in the harbor, not previously identified by the Corps, have
been reported to Harbor Resources. Anchor QEA investigated these high spots using a
multi -beam sonar as a way to verify these claims so the data could be incorporated into
the current dredge plan if possible. This effort required one field day with one field
survey crew with subsequent data analysis.
The project costs for this task are $11,500.
Task 4: Marina Park/Lido Isle North Sampling and Analysis
Sediment core sampling and analysis is required at two target dredge areas adjacent to
the Marina Park and Lido Isle North dredge areas to better assess the required dredge
depths relative to existing site conditions and chemical concentrations. Previous
investigations relied on composite samples over the entire dredge profile to determine
material disposal suitability. Changes to the planned dredge depths necessitate an
additional investigation to verify contaminant depths.
The project costs for this task are $5,683
Professional Services Agreement with Anchor, QEA, L.P., for Water Quality and Field
Management Services for the Lower Bay Federal Dredging Program
May 08, 2012
Page 4
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This federal project has been evaluated by the Army Corps of Engineers, South Pacific
Division, Los Angeles District under the National Environmental Policy Act as an
Environmental Assessment which concluded that the project will not have a significant
adverse impact upon the existing environment or the quality of the human environment.
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).
Submitted by:
Badum
s Director
Attachments: A. Vicinity Map of Lower Newport Bay — Current Project Areas
B. Professional Services Agreement
C. Budget Amendment
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ATTACHMENT B
PROFESSIONAL SERVICES AGREEMENT WITH
ANCHOR QEA, L.P.
FOR WATER QUALITY AND FIELD MANAGEMENT SERVICES FOR THE LOWER
NEWPORT BAY DREDGING
THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made
and entered into as of this day of 2012 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and, ANCHOR QEA,
L.P., a California Limited Partnership ( "Consultant'), whose address is 26300 La
Alameda, Suite 420, Mission Viejo, California 92691 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 assist the Army Corps of Engineering with the Lower Newport Bay
Federal Dredging Program by performing water quality monitoring for the project.
C. City desires to engage Consultant to assist with Water Quality and Field
Management Services for the Lower Newport Bay Dredging ( "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 Steve
Cappellino.
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 June 30, 2013 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Consultant acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. 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 "Services "). The City may elect to delete certain tasks of
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 the Services shall be performed to completion in a diligent and timely
manner. The failure by Consultant to perform the Services in a diligent and timely
manner may result in termination of this Agreement by City.
3.1.1 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.
3.2 Consultant shall submit all requests for extensions of time for performance
in writing to the Project Administrator (as defined in Section 6 below) 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.
3.3 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
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 Four
Hundred Three Thousand, Seventeen Dollars and no /100 ($403,017.00) 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) days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing in advance
by City. Unless otherwise approved, such costs shall be limited and include nothing
more than the following costs incurred by Consultant:
4.3.1 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.
ANCHOR QEA, L.P. Page 2
4.3.2 Approved reproduction charges.
4.3.3 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.
4.4 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.
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 Steve Cappellino 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.
6. ADMINISTRATION
This Agreement will be administered by the Public Works Department. Chris Miller,
Harbor Resources Manager 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
authorized representative shall represent City in all matters pertaining to the Services to
be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
7.1.1 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.
7.1.2 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.
ANCHOR QEA, L.P. Page 3
7.1.3 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
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,
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.
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 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
ANCHOR QEA, L.P. Page 4
policy limits do not act as a limitation upon the amount of indemnification to be provided
by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the Work
to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project direction
with City's Project Administrator in advance of all critical decision points in order to
ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
14.1 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.
14.2 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 Agreement. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
ANCHOR QEA, L.P. Page 5
14.2.1 Consultant shall procure and maintain for the duration of the
Agreement 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 subcontractors. The cost of such
insurance shall be included in Consultant's bid.
14.3 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.
14.4 Coverage Requirements.
14.4.1 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 subcontractor's employees.
14.4.1.1 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.
14.4.1.2 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.
14.5 General Liability Coverage. Consultant shall maintain commercial general
liability insurance in an amount not less than one million dollars ($1,000,000) per
occurrence for bodily injury, personal injury, and property damage, including without
limitation, blanket contractual liability.
14.6 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.
14.7 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.
14.8 Other Insurance Provisions or Requirements.
ANCHOR QEA, L.P. Page 6
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions
14.8.1.1 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 subcontractors.
14.8.1.2 Enforcement of Agreement 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.
14.8.1.3 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.
14.8.1.4 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.
14.9 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.
14.10 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.
ANCHOR QEA, L.P. Page 7
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
17.1 Each and every report, draft, map, record, plan, document and other
writing produced (hereinafter "Documents "), prepared or caused to be prepared by
Consultant, its officers, employees, agents and subcontractors, in the course of
implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Consultant or any other party. Consultant shall, at Consultant's
expense, provide such Documents to City upon prior written request.
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 All improvement and /or construction plans shall be prepared with indelible
waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a
minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings,
and a copy of digital ACAD and tiff image 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. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer or
architect in charge of or responsible for the Work. City agrees that Consultant shall not
be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage conditions
or duration; or (c) any use by City, or anyone authorized by City, of CADD data for
additions to this Project, for the completion of this Project by others, or for any other
Project, excepting only such use as is authorized, in writing, by Consultant. By
acceptance of CADD data, City agrees to indemnify Consultant for damages and liability
resulting from the modification or misuse of such CADD data. All original drawings shall
be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a
CD, and should comply with the City's digital submission requirements for Improvement
Plans. The City will provide AutoCAD file of City Title Sheets. All written documents
shall be transmitted to City in the City's latest adopted version of Microsoft Word and
Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the Services in this Agreement, shall be kept
confidential unless City authorizes in writing the release of information.
20. 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.
21. 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.
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 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.
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
ANCHOR QEA, L.P. Page 9
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.
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 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.
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.
26. NOTICES
26.1 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: Chris Miller
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: (949) 644 -3043
Fax: (949) 723 -0589
ANCHOR QEA, L.P. Page 10
26.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Steve Cappellino
ANCHOR QEA, L.P.
26300 La Alameda, Suite 240
Mission Viejo, CA 92691
Phone: (949) 347 -2780
Fax: (949) 334 -9646
27. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Agreement, 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.).
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
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
discretion and without cause, of terminating this Agreement at any time by giving seven
(7) calendar days prior written notice to Consultant. In the event of termination under
this Section, City shall pay Consultant for Services satisfactorily performed and costs
incurred up to the effective date of termination for which Consultant has not been
previously paid. On the effective date of termination, Consultant shall deliver to City all
reports, Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
29. STANDARD PROVISIONS
29.1 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.
29.2 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
ANCHOR QEA, L.P. Page 11
breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29.3 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.
29.4 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.
29.5 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.
29.6 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.
29.7 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.
29.8 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.
29.9 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.
29.10 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
29.11 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 and the same instrument.
[SIGNATURES NEXT PAGE]
ANCHOR QEA, L.P. Page 12
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: '
Aaron Harp
City Attorney
ATTEST:
Date:
By:
CITY OF NEWPORT BEACH,
A California municipal corporation
Date:
By:
Nancy Gardner
Mayor
CONSULTANT: ANCHOR QEA, L.P., a
California Limited Partnership
Bv:
Leilani I. Brown Steve Cappellino
City Clerk Senior Partner
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
ANCHOR QEA, L.P. Page 13
EXHIBIT A
Mr. Chris Miller
April 3, 2012
TASKS
• Task 1: Water Quality Monitoring Plan Negotiations
• Task 2: Water Quality and Sediment Sampling
• Task 3: Lower Newport Bay Bathymetry Survey
• Task 4: Marina Park/Lido Isle North Sampling and Analysis
Task 1: Water Quality Monitoring Plan Negotiations
The U.S. Army Corps of Engineers (USACE) is responsible for dredging Lower Newport
Beach and, therefore, also for monitoring water quality during dredging operations. The
RWQCB Section 401 Water Quality Certification (WQQ provides Clean Water Act
authorization for the USACE to dredge. Specific monitoring requirements are detailed in an
associated Monitoring and Reporting Plan (MRP) that is appended to the Section 401 WQC.
Because Newport Harbor is subject to the RWQCB's sediment and water total maximum
daily load (TMDL) program, there is a raised awareness with regards to sediment residual
layers and potential water quality impacts during dredging. To address these elevated
concerns, the RWQCB requested the USACE implement a much more rigorous monitoring
program than is typical for federal dredging projects. An initial assessment of the proposed
program put its implementation cost estimate at slightly more than $500,000. The USACE
rejected the request and the entire project was in jeopardy of failure before the City assumed
the liability for negotiating and implementing a fair and reasonable program.
Because of our familiarity with regional water quality monitoring requirements and our
strong relationships with RWQCB technical staff, Anchor QEA was requested to assist in
developing and negotiating an alternate monitoring plan. This process required reviewing
the proposed program, comparing it to the previously conducted Rhine Channel
contaminated sediment cleanup project and other regional projects, and developing an
alternative monitoring plan. Several conference calls and meetings were required.
Mr. Chris Miller
Apri13, 2012
Task 2: Water Quality and Sediment Sampling
The final negotiated MRP for Lower Newport Bay details the specific requirements of the
program (Attachment A). The following summarizes the key aspects of the program used to
develop our cost estimate:
o A total of 65 days of water quality monitoring for two people (8 hour days plus one
extra person for the first week to establish the program)
a A total of 21 water chemistry samples (1 dredge location for one event plus 10
locations for two events)
a A total of 13 additional total suspended solid samples (five for first week, plus four
extra in Yacht Anchorage 1 and 2 [totaling 5 at each of these locations])
a A total of 5 quality assurance and quality control (QA /QC) water chemistry samples
(equipment blank, field blank, and field duplicate [5 percent of samples])
a Ten percent rush charge for 5 -day turnaround time and 5 percent contingency for
chemistry samples
a Water column toxicity test for eight samples (four dredge areas plus reference for
each dredge area) using bivalves
• A total of nine surface water interface toxicity tests
• A total of nine sediment chemistry grab samples
• A total of 2 field days for sediment sampling (assumed multiple grabs for sufficient
volume for toxicity testing and chemistry)
• A maximum of 4 monthly water quality monitoring reports
• No more than one Water Quality and Sediment Monitoring Plan prior to dredging
• One Final Water Quality and Sediment Report
• A total of 80 hours for project management/meetings and field observations of
construction activities not associated with general water quality monitoring
These assuanptions represent conservative (i.e., reasonable worst case) estimates based on
anticipated results. It is possible that less or more intensive monitoring may ultimately be
required once the program starts, which could result in additional expenses.
Mr. Chris Miller
April 3, 2012
Task 3: Lower Newport Bay Bathymetry Survey
Several potential high spots in Lower Newport Bay, not previously known by the USACE,
have been reported by boaters to the Harbor Resources Divison, The City plans to
investigate these high spots using multi -beam sonar as a way to verify the claims and, if
needed, work with the USACE to alter the planned dredge design to ensure any high spots
are removed during the upcoming dredging program. For scoping purposes, a total of 10
target areas are assumed and no more than 1 field day with a field survey crew. All raw data
will be processed and plotted using color depth contours for visual presentation and
compared to the most recent USACE survey to evaluate potential differences in sediment
elevation.
Task 4: Marina Park /Lido Isle North Sampling and Analysis
Sediment core sampling and analysis is required at two target dredge areas adjacent to the
Marina Park and Lido Isle North dredge areas to better assess the required dredge depths
relative to existing site conditions and chemical concentrations. Previous investigations
relied on composite samples over the entire dredge profile to determine material disposal
suitability. Changes to the planned dredge depths necessitate an additional investigation to
verify contaminant depths. A total of 1 to 2 core samples are planned for each dredge area
for chemical (mercury) and physical analysis.
SCHEDULE
Work on these tasks would begin as soon as authorization is received from the City.
Dredging in Lower Newport Bay is scheduled to begin within the next 30 days and last for
approximately 4 to b months. Tasks 1, 3, and 4 would be completed within 2 weeks, and
Task 2 would last for the duration of the dredging program.
SUMMARY OF COSTS
Table 1 summarizes the costs for the above- mentioned tasks. A detailed cost breakdown is
provided as Attachment B to provide supporting information and assumptions. These costs
represent not -to- exceed time and materials estimates. Our standard rates are provided as
Attachment C. Actual costs may be lower if less effort is required.
EXHIBIT B
ANCHOR QEA, I
AQEA Lower Newport Bay Tasks 42- 12.xls
_ ICity of Newport Beach Number.
04/02/12 Lower Newport Bay Dredging- Various Tasks Prepared: Cappellino
Task I - Water Quality Monitoring Plan Negotiations -
Task 2- Water Quality and Sediment Sampling and Analysis -
Task 3- ll Newport Bay Bathymetry - -
Task 4 - Marina ParVJLido Isle North Sampling and Analysis
Labor Cate ones
Billing
Rate
Task
Task
Ta sk3
Task
-
-
-
-
-
Total
a
'Hours
Total
Dollars
Principal CM/EagrILAJPIaNSCi
Sr Managing AnalysVCM /Engr/WPIaNSci
Managing AnalysUCMlEngr /LP1PianlSci
Senior Analyst/CM /Engrll-A/PIal
Staff 3 AnaWCWEngr /LNPIaNSci
Staff 2 AnalysVCM /Engr /INPIaNBCi
Staff 1 AnalystnCM/EngrILAIPlal
Senior CAD Designer
CAD Designer
Project Coordinator (PC/PA)
Technician ( )
National Export Consultant
S 215
$ 195
$ 775
$ 155
$ 140
g 125
$ - 705
-$ 112
$ 95
S 89
8 89
5 350
60
80
0
0
12
0
-0
0
12
40
0
0
a2
54
18
78
800
gg
88
40
0
120
0
0
0
D
16
0
0
0
0
24
0
0
0
0
0
0
10
12
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0 it
1 10
0
01
10 1111
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1 60 1 1
1 1011 1111
1 1 01 1 1
1 d 416 1j11
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0
0
0
0
0
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0
142
134
822
110
804
40
36
160
0
0
$ 30,530
$ 26,130
$ 14, 0
$ 115,080
$ 13,750
$ 84,420
$ q,g8p
$ 3,420
$ 14;240
5
S _
S
Total Hours
Total Labor
Average Hour Rate
Subconsultants
$ 731
208
S 35,300
2,090
S 266,810
40
$ 4,760
22
$ 2,900
0
$ _
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$ 0
$ 0
-
2,360
$ 309,770
Chemical Analyses(Calscience)
TOXi lly Testing (Nautilus)
Gahaga & Bryant Surveying
TotalCost
Markup oa subconseltants
Reimbursables
5.0%
S -
$ -
3 -
S -
S -
S -
S 34,828
3 26,600
S -
S
S 61428
S 3077
$ -
$ -
$ 6000
$
$ 6000
$ 300
$ 2,100
S _
$ _
3 -
$ -
$ 2,100
$ 105
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$ 36,928
3 26,600
$ 6,000
$
$
S 69528
S 3,476
CADIComputer(Sfnr)
Mileage (Vir le)
Copies S/co
P ( PY)
Anchor boat ($ltlay)
Fazes ($lfa{)
Outside Expenses
510.00
80.500
$0.10
5300
$1.00
S -
S 200
S -
$ -
S -
S -
S -
5 -
S 8,000
S _
$ 440
$ -
3 _
$ -
$ -
$ -
$ _
$ -
$ -.
$ _
$ -
$ -
$ -
$. _
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$ _
$ -
$ _
$ 11 1r
$ 111 111`$
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$
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$ -
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$ -
$
$ -
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$ _
$ -
$ 440
S 200
8
5 8,000
$ -
Truck Rental"
ReprolPlottin9
Mail /FetlerJCourier
Office /Boat Slip Rental
Field Sampling Equipment
Miscellaneous
Total Cost
Markup on outside expenses
Field Equipment antl
5.0h
5 _
S -
$ _
S -
$ -
$ 200
$ -
$ 2,000
$ 1,500
$ -
$ 5 ,000
S 2000
S 78,500
$ 525
$ -
$. -
$
5 -
$. -
S 440
5 -
$ _
$ _
$ _
s 550
S 550
S 28
-
$ _
_
$ -
S -
5 -
S -
$ -
$ -
$
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$ -
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$ _
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$
$
$ _
5
S
5 2,000
$
3 7,500
$ '
$ 5,000
$ 2.550
$ 19,690
$ 553
Supplies Summary
$ -
$ -
S _
$
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$'
$ -`
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$
$
$
MaMUP Oa field supplies
$ -
$ -
$
$ _
$ -.S
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$
TOTAL COSTS
$ 35,500
$ 350,334
$ 11,500
[S5
$ -
$
S
$. -
$ -
$ _
S 401
ATTACHMENT C
City of Newport Beach
BUDGET AMENDMENT
2011 -12
EFFECT ON
BUDGETARY FUND BALANCE:
Description
Increase Revenue Estimates
PX
7231
Increase Expenditure Appropriations AND
Account
Number
Transfer Budget Appropriations
SOURCE:
Division
Number
7231
from existing budget appropriations
Account
Number
from additional estimated revenues
Lower Harbor Dredging
Division
from unappropriated fund balance
EXPLANATION:
NO. BA- 12BA -036
AMOUNT: $ao3,o17.00
Increase in Budgetary Fund Balance
Decrease in Budgetary Fund Balance
X No effect on Budgetary Fund Balance
This budget amendment is requested to provide for the following:
To transfer savings in expenditure appropriations from the Rhine Channel Contaminated Sediment
Cleanup project and the Bulkhead and Seawall Repairs project to the Lower Harbor Dredging project (Anchor contract)
for water quality monitoring required by the Santa Ana Regional Water Quality Board.
ACCOUNTING ENTRY:
BUDGETARY FUND BALANCE
Fund Account
REVENUE ESTIMATES (3601)
Fund /Division Account
EXPENDITURE APPROPRIATIONS (3603)
Description
Description
Signed: W6
Signed:
Signed:
Approval: City
City Council Approval: City Clerk
T
Amount
Debit Credit
$388,017.00
$15,000.00
$388,017.00
$15,000.00
`I -a7 -12
Date
0111
Date
Date
Description
Division
Number
7231
Tidelands - Capital
Account
Number
C4402004
Rhine Channel Dredging
Division
Number
7231
Tidelands - Capital
Account
Number
C4402003
Lower Harbor Dredging
Division
Number
7231
Tidelands - Capital
Account
Number
C4402007
Bulkhead Repairs /Sealing Rehab
Division
Number
7231
Tidelands - Capital
Account
Number
C4402003
Lower Harbor Dredging
Signed: W6
Signed:
Signed:
Approval: City
City Council Approval: City Clerk
T
Amount
Debit Credit
$388,017.00
$15,000.00
$388,017.00
$15,000.00
`I -a7 -12
Date
0111
Date
Date