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HomeMy WebLinkAbout09 - Concrete Alley and Street Replacement (65802 & 20R07) — Approval of AgreementQ �EwPpRT CITY OF O � z NEWPORT BEACH <,FORN'P City Council Staff Report February 25, 2020 Agenda Item No. 9 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: David A. Webb, Public Works Director - 949-644-3311, dawebb@newportbeachca.gov PREPARED BY: Andy Tran, Senior Civil Engineer, atran@newportbeachca.gov PHONE: 949-644-3315 TITLE: Concrete Alley and Street Replacement (65802 & 20R07) — Approval of Professional Services Agreement with DMS Consultants Civil Engineers, Inc., Contract No. 7753-1 ABSTRACT: Staff issued a Request for Proposal (RFP) for engineering services to prepare construction documents for the replacement of concrete alleys and streets at portions of West Newport, Corona del Mar and Balboa Peninsula that have been impacted by recent utility related projects. Staff is requesting City Council's approval to enter into a Professional Services Agreement with DMS Consultants Civil Engineers, Inc. to prepare the necessary construction documents. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; b) Approve a Professional Services Agreement with DMS Consultants Civil Engineers, Inc. of Garden Grove, CA, for the Concrete Alley and Street Replacement project at a not -to -exceed price of $177,630.00, and authorize the Mayor and City Clerk to execute the Agreement; and c) Approve Budget Amendment No. 20-035 appropriating $100,000 from the Water Capital Reserve Fund Balance to Water Capital Distribution and Piping Account No. 70201931-980000-20R07. FUNDING REQUIREMENTS: The current Capital Improvement Program budget includes $77,630 in the Utilities Undergrounding Assessment District No. 117 (Corona del Mar) Account No. 65802- 941003 for the award of this contract. The Budget Amendment appropriates an additional $100,000 from the Water Capital Reserve Fund Balance to Water Capital Distribution and Piping Account No. 70201931-980000-20R07. 9-1 Concrete Alley and Street Replacement (65802 & 20R07) — Approval of Professional Services Agreement with DMS Consultants Civil Engineers, Inc., Contract No. 7753-1 February 25, 2020 Page 2 Upon approval of the proposed budget amendment, sufficient funding is available for the award of this contract. The consultant's proposed not -to -exceed fee for this service is $177,630.00. DISCUSSION: On February 28, 2017, City Council awarded a construction contract to Paulus Engineering, Inc. for the Lido Village and West Newport Water Main Replacement project. This project included trenching and replacement of older cast iron water mains as identified in the Water Master Plan in and around Lido Village and West Newport. City Council accepted the completed work and authorized the City Clerk to file a Notice of Completion on May 28, 2019. On June 26, 2018, City Council awarded a construction contract to Asplundh Construction Corp. for the Utilities Undergrounding Assessment District No. 117 (AD 117) project. AD 117 is the area bounded by Bayside Drive, Avocado Avenue, East Coast Highway, and Carnation Avenue in Corona del Mar. This project included trenching, installing conduit, vaults, hand holes, and pull boxes, temporary repaving and other incidental items of work to complete the utility undergrounding. City staff anticipates seeking City Council approval for completion of this contract in early 2020. Now that both of the above projects have been completed, the impacted concrete alleys and streets need to be restored. Concrete pavement contractors require a different skill set and expertise as compared to water pipeline and utility undergrounding contractors. In order to assure a high quality of workmanship, efficient and cost effective concrete pavement reconstruction, staff has planned to administer a separate contract to complete this final restoration effort. Upon approval of the Professional Services Agreement with DMS Consultants Civil Engineers, construction documents for the pavement reconstruction efforts will be completed and a separate construction contract will then be administered. Funding for construction will be included in the proposed FY 2020-21 Capital Improvement Program budget. Staff recently requested proposals from four consulting firms to provide professional engineering services for the Concrete Alley and Street Replacement project. Two proposals were received and reviewed by a three-person technical panel. The scoring for the proposals is as follows: PROPOSER TOTAL SCORE OVERALL RANK DMS Consultants Civil Engineers, Inc. 91.3 1 Walden & Associates 86.3 2 9-2 Concrete Alley and Street Replacement (65802 & 20R07) — Approval of Professional Services Agreement with DMS Consultants Civil Engineers, Inc., Contract No. 7753-1 February 25, 2020 Page 3 DMS Consultants Civil Engineers, Inc. demonstrated that they have the expertise and experience needed to complete construction documents for alley and street pavement reconstruction projects. In addition, DMS Consultants Civil Engineers, Inc. has successfully completed similar projects for other local agencies as well as for the City of Newport Beach. Therefore, staff recommends approving a Professional Services Agreement with DMS Consultants Civil Engineers, Inc. to complete the final design efforts for the Concrete Alley and Street Replacement project. In accordance with Council Policy F-14, City Council must approve professional services contracts with any company that employs former city employees who have left the City within the last five years. DMS Consultants Civil Engineers currently employs Mr. Fong Tse, who served as an Assistant City Engineer in the Public Works Department up until May 9, 2019. Mr. Tse was not identified on the project team and will not be involved with this project. The proposed Scope of Work includes removing the existing alley and street pavement, constructing new concrete alleys and streets, reconstructing deteriorated concrete alley approaches, adjusting utilities to grade, installing street signs and pavement striping, and performing other appurtenant and incidental items of work. Construction is tentatively planned for fall of 2020. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California 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). ATTACHMENTS: Attachment A — Location Map Attachment B — Professional Services Agreement Attachment C — Budget Amendment 9-3 WEST NEWPORT WATER MAIN AREA NOT TO SCALE ASSESSMENT DISTRICT 117 ALLEYS NOT TO SCALE CONCRETE ALLEY AND STREET REPLACEMENT LOCATION MAP Attachment A EAST OCEANFRONT ALLEY NOT TO SCALE LIMITS OF WORK CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT C-7753-1 2/25/2020 ATTACHMENT B PROFESSIONAL SERVICES AGREEMENT WITH DMS CONSULTANTS CIVIL ENGINEERS, INC. FOR CONCRETE ALLEY AND STREET REPLACEMENT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 25th day of February, 2020 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and DMS CONSULTANTS CIVIL ENGINEERS, INC., a California corporation ("Consultant"), whose address is 12371 Lewis Street, Suite 203, Garden Grove, CA 92840, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B, City desires to engage Consultant to provide engineering services to prepare the design, plans, specifications and construction documents for the replacement of concrete alleys and streets affected by the Lido Village and West Newport Water Main Replacement project and the Underground Utility Assessment District No. 117 project ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on December 30, 2022, unless terminated earlier as set forth herein. Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 9-5 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Seventy Seven Thousand Six Hundred Thirty Dollars and 00/100 ($177,630.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. DMS Consultants Civil Engineers, Inc. Page 2 9-6 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 Surender Dewan, P.E. to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably DMS Consultants Civil Engineers, Inc. Page 3 9-7 competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), and which relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are DMS Consultants Civil Engineers, Inc. Page 4 =1 limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. DMS Consultants Civil Engineers, Inc. Page 5 9-9 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (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 DMS Consultants Civil Engineers, Inc. Page 6 9.10 resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 17.4 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to Consultant or contractor bids or actual cost to City. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, 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 DMS Consultants Civil Engineers, Inc. Page 7 9-11 inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant shall conform to all requirements therein. 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, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third DMS Consultants Civil Engineers, Inc. Page 8 9-12 business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at- Attn: Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Surender Dewan DMS Consultants Civil Engineers, Inc. 12371 Lewis Street, Suite 203 Garden Grove, CA 92840 27. CLAIMS 27.1 Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27.2 To the extent that Consultant's claim is a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, the Parties agree to follow the dispute resolution process set forth therein. Any part of such "Claim" remaining in dispute after completion of the dispute resolution process provided for in Public Contract Code section 9204 or any successor statute thereto shall be subject to the Government Claims Act requirements requiring Consultant to file a claim in strict conformance with the Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, Consultant shall be required to file such claim with the City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). DMS Consultants Civil Engineers, Inc. Page 9 9-13 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 and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. PREVAILING WAGES 29.1 Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Consultant and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Consultant is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Consultant or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 29.2 Unless otherwise exempt by law, Consultant warrants that no contractor or subcontractor was listed on the bid proposal for the Services that it is not currently registered and qualified to perform public work. Consultant further warrants that it is currently registered and qualified to perform "public work" pursuant to California Labor Code section 1725.5 or any successor statute thereto and that no contractor or subcontractor will engage in the performance of the Services unless currently registered and qualified to perform public work. DMS Consultants Civil Engineers, Inc. Page 10 9-14 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 30.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 30.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 30.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 30.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 30.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 30.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, DMS Consultants Civil Engineers, Inc. Page 11 9-15 ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 30.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] DMS Consultants Civil Engineers, Inc. Page 12 9-16 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORN Y'S YFFICE Date: Z f 2 By: F.o�: Aaron C. Harp � City Attorney aa` ATTEST: Date: Is Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Will O'Neill Mayor CONSULTANT: Engineers, Inc., a Date: By: DMS Consultants Civil California corporation Surender Dewan Chief Executive Officer/Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements DMS Consultants Civil Engineers, Inc. Page 13 9.17 EXHIBIT SCOPE OF SERVICES DMS Consultants Civil Engineers, Inc. Page A-1 9.18 EXHIBIT A SCOPE OF SERVICES ENGINEERING SERVICES FOR CONCRETE ALLEY AND STREET REPLACEMENT PROJECT PROJECT DESCRIPTION Consultant shall provide civil engineering design services for the development of construction documents for roadway improvements for the Concrete Alley and Street Replacement project. The proposed project is located on the Balboa Peninsula and in Corona Del Mar, south of East Coast Highway, in the City of Newport Beach. The project limits are: Balboa Peninsula ■ Intersection of Lake Avenue with 38th Street Alley between 35th Street and 36th Street, from Lake Avenue to Balboa Boulevard ■ Alley between 33rd Street and 34th Street, from Lake Avenue to Balboa Boulevard 32nd Street from Seashore Drive to Balboa Boulevard 30th Street from Balboa Boulevard to Newport Boulevard ■ Alley between 31 st Street and 32nd Street, from Newport Boulevard to Villa Way Alley between 28th Street and 29th Street, from Newport Boulevard to Villa Way East Oceanfront Alley from A Street to B Street Corona Del Mar Alley bound by East Coast Highway, Avocado Avenue, Fourth Avenue, and Acacia Avenue ■ Alley bound by Waterfront Drive, Avocado Avenue, Pacific Drive, and Acacia Avenue Alley bound by East Coast Highway, Acacia Avenue, Fourth Avenue, and Begonia Avenue ■ Alley bound by Fourth Avenue, Acacia Avenue, Third Avenue, and Begonia Avenue Alley bound by Third Avenue, Acacia Avenue, Second Avenue, and Begonia Avenue Alley bound by Second Avenue, Acacia Avenue, First Avenue, and Begonia Avenue Alley bound by First Avenue, Acacia Avenue, Pacific Drive, and Begonia Avenue ■ Alley bound by East Coast Highway, Begonia Avenue, Fourth Avenue, and Carnation Avenue Alley bound by Fourth Avenue, Begonia Avenue, Third Avenue, and Carnation Avenue Alley bound by Third Avenue, Begonia Avenue, Second Avenue, and Carnation Avenue Alley bound by Second Avenue, Begonia Avenue, First Avenue, and Carnation Avenue 9-19 Consultant shall provide the following services: • Design survey • Utility coordination • Street improvement plans Water and sewer improvement plans for East Oceanfront Alley • Signage and striping plans • Project specifications (special provisions only) • Estimate of probable cost • Construction support services • As -built drawings PROJECT APPROACH DESIGN REVIEW MEETING • In a consultation meeting with the City, the scope of work, procedure and precise limits of the project improvements will be reviewed. Obtain from City existing improvement plans and record maps of the project area. • Meet with City staff on a continuous, as needed basis throughout the design and construction phases to ensure that work is expeditiously carried out in keeping with City requirements. UTILITY COORDINATION • City to send out initial utility requests to utility agencies and/or companies. City to notify utility agencies and/or companies at 50% and 90% design. • Plot utility information from utility maps/atlas obtained by City from utility companies. DESIGN SURVEY • Locate beginning, intermediate, and final benchmarks. Locate and identify horizontal controls used. Tie down the project to State Plane Coordinate System. • Mark limits of broken alley gutter. • Conduct topographic survey at 5 -foot intervals and obtain street cross sections at 25 - foot intervals. Street cross sections to show elevations at right-of-way, alley, and gutter flowline. Design survey will include 1 -foot contours and shall include, but not be limited to, finished surface adjacent to building faces, carports, steps, curbs, gutters, crown lines, flow lines, swales, alley approaches, grade breaks, trees, light poles, utility poles, signs, gates, catch basins, drains, all visible surface utilities, vaults, covers, manholes, valves, sewer cleanouts, pull boxes, etc. 9-20 DESIGN PHASE - 50% SUBMITTAL ALLEY RECONSTRUCTION Prepare base maps and plot alley and street centerlines, right-of-way lines, building footprints, sidewalks, curb and gutter, pavement striping, street lights, signs and trees, 0.5 -foot contour lines, and all existing utility lines. Plot existing and proposed cross sections at 25 -foot intervals. Prepare preliminary alley improvement plans at 1 "=10' and 1 "=2' vertical scale. , Prepare preliminary estimate of probable cost. WATER AND SEWER MAIN RECONSTRUCTION - EAST OCEANFRONT ALLEY Prepare preliminary water improvement plans to include removal and replacement of water main within alley segment. Prepare preliminary sewer improvement plans including sewer spot repairs and sewer lateral repairs within alley segment. It is assumed that the City will provide the desired list of sags, offset joints, and broken pipe segments. DESIGN PHASE - 90% SUBMITTAL , Prepare project specifications including water and sewer specifications for East Oceanfront alley from A Street to B Street, provided by TAIT & Associates. • Prepare estimate of probable cost. ALLEY RECONSTRUCTION Prepare final alley improvement plans. Final plans to include: Title sheet will include: • Project title, vicinity and location map, plan sheet index and scale. • Utility and plan legends, utility notes, contact names and telephone numbers. • Bench marks, basis of bearings, general and master construction notes. • Standard signature and title blocks. Plan and profile sheets will include: • Topography between right-of-way and beyond as necessary. • Right-of-way limit lines. • Utility location plot. • Construction notes and quantity estimates. • Typical sections and details • Edge of pavement and alley gutter flow line and profile. WATER AND SEWER MAIN RECONSTRUCTION - EAST OCEANFRONT ALLEY Prepare final water and sewer improvement plans at 1" =10' scale. FINAL DESIGN - 100% SUBMITTAL After approval of project design, the plans will be plotted on mylar and delivered to the City. 9-21 CONSTRUCTION SUPPORT SERVICES • Attend pre -construction meeting. • Revisions to final construction drawings, project specifications, and any addendum during bidding process. • Review of shop drawings and/or material submitted. • Provide coordination during bidding process including answering bidders' questions during the bidding phase. • Provide assistance during construction consisting of plan interpretation and plan revisions resulting from changed conditions. • Prepare "As -Built" plans based on information provided by the City. 9-22 PROJECT TEAM Surender Dewan, PE, QSDIQSP President 1 Project Manager DMS Consultants, Inc. TAIT & Associates, Inc. .Subconsult2nt Nishant Chadha_ MS. MBA. EIT Project Engineer DMS Consultants, Inc_ Hoang Nguyen, BS Design Engineer DMS Consultants_ Inc. Bob Kelsoe, LS Survey Party Chief DWIS Consultants, Inc - 2 -Man Survey Crew 9-23 Task Description Records and Research Design Surrey Utility Coordination =.ivement Analysis - Subconsultant DESIGN PHASE 60% Base Maps Preliminary Alley Improvement Plans Preliminary Estimate City Review of Plans - 50% DESIGN PHASE 90% Final Alley Improvement Plans Final Specifications and Estimate City Revie-,v of Plans - 90% FINAL DESIGN PHASE 100% F-matize Plans, Spedficabons and Estmate City Review of Plans - 100% Des: --n Compete PROJECT SCHEDULE January February kla^�h APM1 May June 6x'. WK'Ax AK W<A'K NX. VA AK.WK ex'ax WK e.x '.tx '.Ax '.%x wt Ax %%K v[[ xx wK 'W I3C � 31 I: 21 S 5 U 20 23 IDI r w 5 15.22 2? 5 I 12 SA January14: 2020 Notice to Proceed Apiz2M MY Jme 25,2W ♦ July 16, 2020 Design Complete 9-24 EXHIBIT B SCHEDULE OF BILLING RATES DMS Consultants Civil Engineers, Inc. Page B-1 9.25 EXHIBIT B FEE SCHEDULE ENGINEERING SERVICES FOR CONCRETE ALLEY AND STREET REPLACEMENT PROJECT Concrete Alley and Street Replacement Project No. 65802 & 20W05 TOTAL NOT -TO -EXCEED FEE: $177,630.00 SCHEDULE OF BILLING RATES ProjectManager................................................................................................................................$160.00 ProjectEngineer...............................................................................................................................$140.00 DesignEngineer...............................................................................................................................$120.00 SeniorPlan Checker.........................................................................................................................$100.00 Two -Man Field Party............................•........._......_...........................................................................$205.00 Three -Man Field Party......................................................................................................................$245.00 SurveyManager................................................................................................................................$115.00 Clerical.............................................................................................................................................•.. $55.00 9-26 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. DMS Consultants Civil Engineers, Inc. Page C-1 9-27 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least DMS Consultants Civil Engineers, Inc. Page C-2 9.28 fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. DMS Consultants Civil Engineers, Inc. Page C-3 9-29 G. 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, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. DMS Consultants Civil Engineers, Inc. Page C-4 9-30 ATTACHMENT C agW PART City of Newport Beach u r BUDGET AMENDMENT 2019-20 BA#: 20-035 Department: Public Works ONE TIME: aes ❑No Requestor: Angela Crespi Approvals Prepared by: Walid Harding J ❑ CITY MANAGER'S APPROVAL ONLY Finance Director: Date 0 COUNCIL APPROVAL REQUIRED City Clerk: Date EXPLANATION FOR REQUEST: To increase expenditure appropriations from the unappropriated Water Capital Fund balance to be used toward a ❑from existing budget appropriations Professional Services Agreement with DMS Consultants Civil Engineers, Inc. for the Concrete Alley and Street ❑from additional estimated revenues Replacement Project. Qfrom unappropriated fund balance REVENUES Fund # Org__ _ Object ___Project_____ Description Increase orLDecrease) $ i Subtotal EXPENDITURES Fund # OOr -Object Project — Descri tion -.--_--__ .__ Increase or (Decreases $ 702 70201931 980000 120R07 Distribution & Piping - CIP Expenditures For GL $100,000.00 t 19 1- E_ - - - _ . .. L. ........ _. t __._....._ .._.._..__ i._.........._.._.......... _ ._.._ _._ . _.... __..._...... .......__.. _..._....._. ..... _.._... _.. _l. ... . _.......__.. ..-.......... .. Subtotal i$100,000.00 FUND BALANCE Fund # Object Description Increase or (Decrease) $ 702 300000 ,Water Capital Fund - Fund Balance Control ($100,000.00) ........ _... ... __ _._.. Subtotal ,000 00). � ($100_ Fund Balance Change Required 9-31