NEWPORT BEACH HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL. City Manager's Office Dave Kitt, City Manager ,

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1 = CITY OF =========== NEWPORT BEACH City Council Staff Report Agenda Item No. ~~ 12 October 11, 2011 TO: FROM: PREPARED BY: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL City Manager's Office Dave Kitt, City Manager , Dave Kitt, City Manager APPROVED: TITLE: Approval of Professional Services Agreement Amendment No. 3 with Van Scoyoc Associates for U.S. Army Corps-Related Projects and Approval of a Budget Amendment ABSTRACT: Should the City maintain its Washington DC-based firm to assist us in advocacy for dredging of the Lower Newport Bay? RECOMMENDATION: a) Authorize the City Manager to enter into Professional Services Agreement Amendment No.3 for up to $48,000 with Van Scoyoc Associates to advocate for U.S. Army Corps-related projects, including Lower Newport Bay and the Seminouk Slough; and b) Approve Budget Amendment No. 12BA-014 relating to appropriating $48,000 for this effort. FUNDING REQUIREMENTS: The Budget Amendment records and appropriates $48,000 in increased expenditure appropriations from Tidelands Fund Balance to Harbor Resources - Services ProffTech DISCUSSION: Since 2008, the City has worked with Van Scoyoc Associates to assist us in securing Federal funds to complete the Upper Newport Bay dredging project and to start the Lower Newport Bay dredging project. The $48.5 million Upper Newport Bay Project will

2 Approval of Professional Services Agreement Amendment NO.3 with Van Scoyoc Associates for U.S. Army Corps-Related Projects and Approval of a Budget Amendment October 11, 2011 Page 2 be done this fall thanks to an influx of more than $18 million in federal Stimulus funding, if all goes according to schedule. Lower Newport Bay. Lower Newport Bay is a commercial and recreational harbor serving about 10,000 vessels, a US Coast Guard faciiity, an Orange County Sheriffs Harbor Patrol facility that covers two other harbors (Dana Point and Huntington), small shipbuilding, and more. The Harbor includes a Federal Navigational Channel that runs from the Newport Harbor entrance jetties to the area near where Pacific Coast Highway and SR-55 (Newport Boulevard) meet the Harbor. The channel and nearby waterways receive sediment from a 154-square mile upstream watershed that includes the communities of Irvine, Lake Forest, Tustin, Orange, Santa Ana, Costa Mesa, and Newport Beach. The City of Newport Beach and our upstream partners, which include the cities listed along with the County of Orange, the Irvine Ranch Water District, and others, continue to expend, on an annual basis, hundreds of thousands of dollars in sediment management projects to keep the sediment where ij should be. More than $145,000,000 has been spent in this watershed over the last 30 years to control sediment. However, some sediment continues to reach the Upper and Lower Newport Bays. Sedimentation in the Lower Bay is a significant problem for navigation and water quality, but primarily for navigation. Portions of Lower Bay have not been dredged to design depth in years (since the Harbor's creation). Other portions have been dredged in small Ms and pieces, in amounts of $2-4 million per job. As a result, large portions of the Bay cannot accommodate normal boats wijh normal drafts except at higher tides. Dock damage is prevalent, too (see photo below). Larger boats with more significant drafts are almost entirely unable to use the Harbor. Lower Newport Bay, March 4, 2008 The Lower Bay's navigational channels have been an ongoing - yet unfunded obiigation of the Federal government via the Corps. Except for brief emergency

3 Approval of Professional SelVices Agreement Amendment NO.3 with Van Scoyoc Associates for U.S. Army Corps-Related Projects and Approval of a Budget Amendment October 11, 2011 Page 3 dredging episodes, in past years (through Federal FY 2009), the President's Office of Management and Budget (OMB) has not allocated any funding for this Federal obligation. However, for the first time ever, President Obama allocated $1.78 million in his FY '10 budget for the Corps to start work in Lower Newport Bay. We believe that, to properly restore the Harbor to its design depth with an overdredge of about 2', about 1.4 million cubic yards of material needs to be removed. As the Council is aware, disposal methods greatly affect cost. The more material that can be used on local beaches and disposed of at LA-3, the lower the cost. The more material that has contamination levels too high for offshore disposal, the higher the cost. We hope to place most if not all of this material at the Port of Long Beach as the POLB expands later this year and into next. The Corps believes that the cost estimate for the Lower Bay project is about $29,500, Removal of 1.4 million cubic yards should provide extensive and long-term relief to the Lower Bay's recreational and commercial boating activities, provided that this is coupled with a long-term effort to: Continue the City's commitment to cooperatively funding (with our watershed partners) the maintenance of sediment catch basins in the Santa Ana Mountain foothills and in San Diego Creek; Maintain and add to the Robinson-Skinner Annuity (currently containing $3.8 million for the "next" Upper Newport Bay dredging effort); and Establish and maintain a good sediment management program for the Lower Bay, estimated to be one that removes about 60,000 cubic yards of material a year (possibly multiples of that every 3, 5, or 7 years), estimated now at $1,080,000 per year. This is a Corps obligation today. As noted, about $1.78 million was in the President's Budget for Federal FY 2010, with about the same in the President's FY 2011 budget. These allocations are welcome, but fall well short of the Corps' capacity. As such, we continue to work with our members of Congress and with the California Marine Affairs and Navigation Conference (CMANC) to add funding to the Project as appropriations bills move through Congress this summer and fall. Santa Ana River Marsh/Newport Slough. The Santa Ana River Marsh is an ongoing maintenance obligation of the Corps and one that is associated with the Santa Ana River Mainstem Flood Control Project. This Corps construction project has been delayed or suspended because of limited funding. $1.9 Million is needed to complete the project.

4 Approval of Professional SelVices Agreement Amendment No.3 with Van Scoyoc Associates for U.S. Army Corps-Related Projects and Approval of a Budget Amendment October 11, 2011 Page 4 The 1990 construction of the Santa Ana Marsh was a project feature of the larger Santa Ana River Mainstem Project. The Marsh is located at the mouth of the river within the city limits of Newport Beach. The purpose of the marsh construction was to mitigate impacts from the River project and to restore 92 acres of coastal wetlands. Due to limited Federal Operation and Maintenance funding over the past years, the marsh has not been appropriately maintained. The amount necessary to restore the Marsh to its authorized project conditions is approximately $1.9 million. The City has been willing to consider working with a iocal land conservancy group to maintain and operate this Marsh area in conformance with Corps policy guidelines and environmental maintenance requirements upon the Marsh being restored to original design conditions. Santa Ana River Marsh Arna To that end, this Agenda Item asks the City to continue our existing contract (with two years completed) with Van Scoyoc Associates (lisa) in Washington DC to work on these two efforts for us. Funding priority will be for the LNB followed by the Marsh.

5 Approval of Professional SelVices Agreement Amendment No.3 with Van Scoyoc Associates for U.S. Army Corps-Related Projects and Approval of a Budget Amendment October 11, 2011 Page 5 Three years ago at this time, the City informally spoke with a number of people for references, and staff was comfortable in recommending Mr. James Crum and Mr. Thane Young of VSA at the time. After three years of good success, we remain comfortable asking for another 12-month extension. VSA would operate under the same Professional Services Agreement at a reduced billing rate ($4,000 per month - down from $5KJmo) for up to twelve (12) months if Council authorizes this action. ENVIRONMENTAL REVIEW: Staff reccmmends the City Council find this action is not subject to the Califomia Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 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: Dave Kiff City Manager Attachments: A. Professional Services Agreement B. BUdget Amendment

6 AMENDMENTNO.3TO PROFESSIONAL SERVICES AGREEMENT WITH VAN SCOYOC ASSOCIATES FOR GOVERNMENTAL ADVOCACY THIS AMENDMENT NO.3 TO PROFESSIONAL SERVICES AGREEMENT. is entered into as of this 11 th day of October by and between the CITY OF NEWPORT BEACH. a Municipal Corporation ("CITY"), and VAN SCOYOC ASSOCIATES, a District of Coiumbia Corporation, whose address is 101 Constitution Ave., NW, Suite 600, Washington DC 20001, ("CONSULTANT"), and is made with reference to the foilowing: RECITALS: A. On March 26, 2008, City and Consultant entered into a Professional Services Agreement, hereinafter referred to as "Agreement," for governmental advocacy services related to Federai appropriations and interactions with the US Army Corps of Engineers for the dredging projects of the Lower Newport Bay, Upper Newport Bay and Seminouk-Newport Sloughs, hereinafter referred to as "Project." B. City and Consuitant have entered into two separate Amendments of the Agreement, the latest dated July 1, C. City desires to enter into this Amendment No. 3 to refiect additional services to extend the term of the Agreement to October 11, 2012, to increase the total compensation and update insurance requirements. D. City desires to compensate Consultant for additional professional services needed for the Project. E. City and Consultant mutuaily desire to amend Agreement, hereinafter referred to as "Amendment No.3," as provided here below. NOW, THEREFORE, it is mutuaily agreed by and between the undersigned parties as follows: 1. TERM The term of the Agreement shail be extended to October 11, 2012, unless terminated earlier as set forth in the Agreement. 2. ADDITIONAL SERVICES TO BE PERFORMED In addition to the services to be provided pursuant to the Agreement and Amendments No. 1 and 2, Consultant shail diligentiy perform all the services described in Amendment No.3 including, but not limited to, ail work set forth in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion.

7 3. COMPENSATION 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 as Exhibit B to this Amendment NO.3. Consultant's compensation for all work performed in accordance with this Amendment No.3, including all reimbursable. items and subconsultant fees, shall not exceed Forty Eight Thousand Dollars and Noll00s ($48,000.00) without prior written authorization from City. The total compensation for all work perfomned pursuant to the Agreement, and the Amendments thereto including all reimbursable items and subconsultant fees, shall not exceed Two Hundred and Twenty-Eight Thousand Dollars and Noll00s ($228,000.00) without prior written authorization from City. 4. INSURANCE Section 14 of the Agreement shall be amended hereby and the following terms are substituted in their entirety: "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 temn of this Agreement, policies of insurance of the type and amounts described below and in a fomn 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 perfonnance. 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 Consuitant'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 Califomia, 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. 2

8 C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Empioyer's Liability Insurance (with limits of at least $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 subconsuitant to similariy maintain Workers' Compensation Insurance and Empioyer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for ali of the subconsultant's employees. Any notice of cancellation or non-renewal of ali Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non-payment of premium) prior to such change. Consultant shali 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. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than $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 perfonned under this Agreement, including coverage for any owned, hired, non-owned or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional iiability insurance that covers the services to be perfonned in connection with this Agreement, in the minimum amount of $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: L 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. 3

9 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. 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 nonmally 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 30 days notice of cancellation (except for nonpayment for which 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 jn its own judgment may be necessary for its proper protection and prosecution of the work." 5. INTEGRATED CONTRACT Except as expressiy modified herein, all other provisions, tenms, and covenants set forth in Agreement and the prior Amendments shall remain unchanged and shall be in full force and effect. 4

10 IN WITNESS WHEREOF, the parties hereto have executed this Amendment NO.3 on the date first above written. APPROVED AS TO FORM: CITY ATIORNEY'S ct0- OFFICE A~ By: Aaron C. Harp City Attorney CITY OF NEWPORT BEACH, A Municipal Corporation By:~_~~ Michael F. Henn Mayor _ ATTEST: CONSULTANT: By:. Leilani I. Brown, City Clerk _ By:,..,...,::c-_:-:-:-----:: H. Steward Van Scoyoc President _ By: ~~~-- (Financial Officer) Title:. Print Name: Attachments: Exhibit A - Scope ofservices Exhibit B-Scheduie of Billing Rates 5

11 Exhibit A Scope ofwork VSAwill: Continue to work with the City to develop and promote a multi-tiered strategy to position the City for an integrated effort over the course of the coming year for the following projects: Lower Newport Bay Dredging (Multi-year funding, Appropriations, Pres budget, Project coordination) Upper Newport Bay: political awareness for project completion Seminouk Slough - Newport Slough Dredging (Coordination w~h the Corps, Appropriatons) These efforts involve a combined federal agency and congressional strategy that support and complement each other - linking agency policies and congressional funding decisions. Work with each of the relevant members of the California delegation on filed appropriations. Assist in managing the funding proposal such that it will be scored as advantageously as possible against the appropriations outlays and federal budget, working with relevant Committee staff to discuss the City's approach to lower Newport Harbor and its history. Identify, evaluate, and assist the City in seeking any other federal grants or funding opportunities that may also apply to the key projects. Work with the City to identify any opportunities to secure additional funding. At this time, we see the approach for completely funding the dredging requirements for lower Newport harbor as a two-three year cycle. Provide timely reports so that the City knows of relevant legislative and political developments. Maintain a closely coordinated effort with the City by establishing regular contact through phone calls and s. Provide periodic updates on congressional activities and on the status of the C~y's priority issues. Routinely prepare for the City of Newport Beach the following work products: o o o Analyses of developments on legislation of interest; Summary reports and draft testimony as needed; Meetings with members, key congressional aides, and agency officials; 6

12 o A white paper(s) geared toward elected officials and their staffs justifying the project requests in simple and straightforward language. Provide Congress with the exact appropriations bill, agency, account, and program from which the City is requesting funding. Legislative or report language to correspond with your project requests. 7

13 Exhibit B Schedule of Billing Rates - $4,000 per month 8

14 EFFECT ON BUDGETARY FUND BALANCE: ~ SOURCE: EXPLANATION: Increase Increase Transfer City ofnewport Beach BUDGET AMENDMENT Revenue Estimates Expenditure Appropriations Budget Appropriations from existing budget appropriations from additional estimated revenues from unappropriated fund balance NO. BA- 12BA-014 AMOUNT:I $48, Increase in Budgetary Fund Balance 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 from the Tidelands Fund Balance for advocacy of U.S. Army Corps related projects, including Lower Newport Bay and the Seminouk Slough. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description Tidelands - Fund Balance Amount Debit $48, Credit REVENUE ESTIMATES (3601) FundlDivision Account Description EXPENDITURE APPROPRIATlONS (3603) Division Account Description Harbor Resources Services - Professional & Technical NOC $48, Division Account Division Account Division Account " Automatic System Entry. Signed: Signed: Date 10/S}'U>ll Date Signed: City Council Approval: City Clerk Date