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HomeMy WebLinkAbout12 - BA-052 - Balboa Village Project Management ServicesMay 22, 2001 CITY COUNCIL AGENDA ITEM NO. 12 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH EMMET BERKERY FOR BALBOA VILLAGE PROJECT MANAGEMENT SERVICES RECOMMENDATIONS: Approve a Professional Services Agreement with Emmet Berkery, P.E., for a contract price of $29,500 and authorize the Mayor and the City Clerk to execute the agreement. Authorize a budget amendment transferring $25,000 from Account No. 5200 -7000 and $4,500 from Account No. 5100 -7000 to Account No. 7023- C5100543 Balboa Village Plan. DISCUSSION: The Balboa Village project is very complex and time - consuming. Various tasks and time - sensitive issues need to be addressed in a timely manner. Therefore, in order to provide supplemental assistance and keep the project on schedule, staff proposes to hire Emmet Berkery, a registered civil engineer, to assist the City's Project Manager on an array of tasks. A fee of $29,500 was negotiated with Emmet Berkery to provide approximately 375 hours of work between now and October 1, 2001. SCOPE OF SERVICES: Acting under the direction of the City Project Manager for the Balboa Village Improvement Project, Emmet Berkery, P.E., shall provide project management services for the Balboa Village Improvement Project through assistance to City staff in the following general areas: 1. Assist in preparing construction and access easement agreements. Meet with property owners to discuss the easement agreements. Help prepare arrangements for entry onto private property for construction of hardscape, landscape or utility improvements. 2. Review construction documents. Perform site visits to confirm accuracy of drawing and specifications. Assist in the review of specifications as directed by the City. Review project cost estimates. 3. Contact utility companies and agencies and obtain information about existing and proposed facilities. Document all communication and coordination activities. SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH EMMET BERKERY FOR BALBOA VILLAGE PROJECT MANAGEMENT SERVICES. May 22, 2001 Page 2 4. Coordinate with the Regional Water Quality Control Board and the Army Corps of Engineers for permits. 5. Assist City Staff with activities associated with forming the utility undergrounding district. 6. Attend meeting with representatives from the Balboa Inn, Balboa Theater, and business and community associations and take meeting notes. 7. Assist with activities to advertise the project. 8. Review shop- drawing submittals prepared by the selected contractor. 9. Perform miscellaneous tasks as may be requested by City Staff. There are sufficient funds available in Account No. 5100 -7000 and 5200 -7000 to fund this request. Respectfully submitted, LIC WORKS DEPARTMENT Don Webb, Director �'l/ - n By: � ? n Lois TLois T n, Administrative Coordinator Attachment: Professional Services Agreement PROFESSIONAL SERVICES AGREEMENT FOR PROJECT MANAGEMENT SERVICES FOR BALBOA VILLAGE IMPROVEMENTS THIS AGREEMENT, entered into this day of 2001, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City'), and Emmet Berkery, P.E., whose address is 1740 E. Garry Avenue, Ste. 112, Santa Ana California, 92705 (hereinafter referred to as "Consultant "), 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 is planning to implement the Balboa Village Improvement Project and is hereinafter referred to as "Project ". C. City desires to engage Consultant to provide project management services relative to Project's design and construction upon the terms and conditions contained in the Agreement. D. The principal member for the purpose of Project is Emmet Berkery, P.E. -1- E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the day of May 2001, and shall terminate on the 31st day of December 2001, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement shall not exceed the total contract price of twenty -nine thousand five hundred dollars ($29,500). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is -2- billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with the schedule of the billing rates as set forth in Exhibit "B ". 3.4 City shall reimburse Consultant only for those costs or expenses which have been specifically approved in this Agreement, or specifically approved in advance by City. Such cost shall be limited and shall include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services which Consultant agrees to render pursuant to this Agreement which have been approved in advance by City and awarded in accordance with the terms and conditions of this Agreement. B. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 3.5 Notwithstanding any other paragraph or provision of this Agreement, beginning on the effective date of this Agreement, City may withhold payment of ten percent (10 %) of each approved payment as approved retention until all services under -3- this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 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 the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with the City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation C! and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the rgsponsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only in the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies, which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with Consultant on Project. 7. PROJECT MANAGER Consultant shall assign Project to a Project Manager, who shall coordinate all phases of Project. This Project Manager shall be available to City at all reasonable times during term of Project. Consultant has designated Emmet Berkery, P.E. to be its Project Manager. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement and the services shall be performed by Consultant in accordance with the schedule established by the Project Administrator -5- 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. 11. PROGRESS Consultant is responsible to keep the Project Administrator and his duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, excepting only the active negligence or willful misconduct of City, its officers or employees, and shall include 6- attorneys' fees and all other costs incurred in defending any such claim. 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. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A- VI I or better rating: A. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $500,000 combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate -7- shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. B. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any of the services to be performed under this Agreement, directly or indirectly, by operation of law or otherwise without prior written consent of City. Any attempt to do so M without consent of City shall be null and void. 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 co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. 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. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. 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 as 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. Consultant shall, at such time and in such forms as City may require, furnish 93 reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by the City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. City will provide access to and upon request of Consultant, provide one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultants work schedule. B. Provide blueprinting, CADD plotting, copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. Bill Patapoff shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative -10- shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. 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 under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional -11- inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Project. 23. CONFLICTS OF INTEREST A. Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. B. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. SUBCONSULTANT AND ASSIGNMENT Except as specifically authorized under this Agreement, the services included in this Agreement shall not be assigned, transferred, contracted or subcontracted without -12- prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Bob Stein, P.E. City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3311 Fax (949) 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Emmet Berkery, P.E. 1740 E. Garry Avenue, Ste. 112 Santa Ana, CA 92705 Phone: (949) 752-5221 Fax: (949) 853-8849 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default -13- and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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. 29. 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 -14- implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 31. COMPUTER DELIVERABLES All written documents shall be transmitted to the City in Microsoft Word 97 and Microsoft Excel 97 and be consistent with Microsoft Office 97. 32. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney ATTEST: By: LaVonne Harkiess City Clerk -15- CITY OF NEWPORT BEACH A Municipal Corporation By: Garold B. Adams Mayor CONSULTANT Emmet Berkery, P.E. 0 EXHIBIT "A" SCOPE OF SERVICES Emmet Berkery, P.E. 1740 E. Garry Avenue, Ste. 112 Santa Ana, California 92705 (949) 752 -5221 (949) 852 -8849 Fax Acting under the direction of the City Project Manager for the Balboa Village Improvement Project, Consultant shall provide project management services for the Balboa Village Improvement Project through assistance to City staff in the following general areas: Assist in preparing construction and access easement agreements. Meet with property owners to discuss the easement agreements. Help prepare arrangements for entry onto private property for construction of hardscape, landscape or utility improvements. 2. Review construction documents. Perform site visits to confirm accuracy of drawing and specifications. Assist in the review of specifications as directed by the City. Review project cost estimates. 3. Contact utility companies and agencies and obtain information about existing and proposed facilities. Document all communication and coordination activities. 4. Coordinate with the RWQCB and the Army Corps of Engineers for permits. 5. Assist City staff with activities associated with forming the utility undergrounding district. 6. Attend meeting with representatives from the Balboa Inn, Balboa Theater and business and community associations and take meeting notes. 7. Assist with activities to advertise the project. 8. Review shop - drawing submittals prepared by the selected contractor. 9. Perform miscellaneous task as may be requested by City staff. Consultant proposes to provide the above described project management services on a "time and materials" basis as set forth on Exhibit "B" attached hereto. The estimated time to be available and to be spent during the period from May 8 to October 1, 2001 is 375 hours. -16- Emmet Berkery PE Consulting Civil Engineering and Project Management 1740 East Garry Avenue Suite 112 Santa Ana, California 92705 Telephone: (949) 752 -5221 Facsimile: (949) 852 -8849 FEE RATE SCHEDULE Effective January 1, 2001 Professional Services II. Reimbursable Expenses $80.00 per hour Travel and subsistence to locations outside Orange and Los Angeles Counties will be billed at cost. Reproduction, blueprinting, photocopying, and photographing will be billed at cost. III. Outside Services Invoice costs of services and expenses charged by independent contractors or consultants, specialists, and professional or technical firms in support of services provided by Emmet Berkery PE will be billed at 1.10 times cost. City of Newport Beach BUDGET AMENDMENT 2000 -01 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations AND X Transfer Budget Appropriations SOURCE I EXPLANATION: from existing budget appropriations from additional estimated revenues from unappropriated fund balance This budget amendment is requested to provide for the following: NO. BA- 052 AMOUNT: E2a,soo.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance X No effect on Budgetary Fund Balance To transfer salary savings to provide for a contract civil engineer to assist with the Balboa Village Project. Prior budget amendment: A City Manager budget amendment was processed on 5 -8 -01 transferring $29,975 in salary savings from 5100 -7000 to purchase office and computer equipment. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account Description 010 3605 Fund Balance REVENUE ESTIMATES (360 1) Fund/Division Account Description EXPENDITURE APPROPRIATIONS ;3603) Description Division Number 5100 Public Works - Engineering Account Number 7000 Salaries - Miscellaneous Division Account Division Account Division Account Signed Signed Signed Number 5200 Public Works - Transportation Devt Number 7000 Salaries - Miscellaneous Number 7023 Neighborhood Enhancement A Number C5100543 Balboa Village Plan Number Number Approval: Administrative Administrative Approval: City City Council Approval: City Clerk Amount Debit Credit $4,500.00 $25,000.00 $29,500.00 Date Da Date