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HomeMy WebLinkAbout07 - Newport Boulevard & Hospital Road Modificationsis • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 7 January 27, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Steve Luy, Project Engineer 949 - 644 -3311 sluy@city.newport-beach.ca.us SUBJECT: NEWPORT BOULEVARD /HOSPITAL ROAD RIGHT -TURN MODIFICATIONS- AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH W. G. ZIMMERMAN ENGINEERING, INC. RECOMMENDATION: Approve Amendment No. 1 to Professional Services Agreement with W.G. Zimmerman Engineering, Inc., and authorize the Mayor and City Clerk to execute the Amendment. DISCUSSION: On September 2, 2003, the Public Works Director approved a Professional Services Agreement with W.G. Zimmerman Engineering, Inc. (Zimmerman) for $24,110.00 to provide engineering, geotechnical services, and Caltrans encroachment permit processing as outlined in the Agreement and scope of services attached hereto as Exhibit „A„ Zimmerman is presently completing final design, and has submitted a proposal to amend their scope of services to provide a biological and cultural assessment for the project. The additional services are needed to comply with Caltrans requirements, because Newport Boulevard is under State jurisdiction. Staff has negotiated Zimmerman's compensation, which will increase their fee from $24,110.00 to $31,474.00. Since the increase is more than 25% of the original contract amount, and causes the total to exceed $30,000.00, City Council approval is required per Council Policy F -3. Staff feels the additional $7,364.00 is appropriate for the additional scope of services that is needed, and recommends Council approval. Environmental Review: The design services for this project do not require an environmental review. Public Notice: Not applicable at this time. SUBJECT: Newport Boulevard/Hospital Road Right -Tum Modifications — Amendment No. 1 to Professional Services Agreement with W.G. Zimmerman Engineering, Inc. January 27, 2004 Page 2 Funding Availabilit : Adequate funds are available in the following account: Account Description Circulation and Transportation Prepared by: StepheryLuy Project Manager Attachments: Copy of Amendment No. 1 Copy of PSA Account Number Amount 7261- C5200737 $7,364.00 Submitted by: Works Director • 11 • AMENDMENT NO. 1 TO • PROFESSIONAL SERVICES AGREEMENT WITH W.G. ZIMMERMAN ENGINEERING INC. FOR NEWPORT BOULEVARD /HOSPITAL ROAD RIGHT TURN MODIFICATIONS THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this day of , 2004, by and between the City of Newport Beach, a municipal corporation, (hereinafter referred to as "CITY ") and W.G. Zimmerman Engineering Inc., whose address is 801 Pacific Coast Highway, Suite 200, Seal Beach, California 90740, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS: A. On September 2, 2003, CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT", for design services for the Newport Boulevard /Hospital Road Right Turn Modifications Project, hereinafter referred to as 'PROJECT." B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services to be provided that were not included in the original AGREEMENT, and to extend the term of the AGREEMENT to January 31, 2005. These additional services include performing a biological and cultural assessment of the project, as requested by Caltrans District 12, in the amount of $7,364.00. C. CITY desires to compensate CONSULTANT for these additional professional services needed for PROJECT. D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 1," as provided below. NOW, THEREFORE, the parties hereto agree as follows: • 1. CONSULTANT shall be compensated for services performed pursuant to this AMENDMENT NO. 1 according to "Exhibit A" dated December 23, 2003, and attached hereto. 2. Total additional compensation to CONSULTANT for services performed pursuant to this AMENDMENT NO. 1 shall not exceed Seven Thousand, Three Hundred Sixty Four and 00/100 Dollars ($7,364.00). 2005. 3. The term of the AGREEMENT shall be extended to January 31, . 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first above written. APPROVED AS TO FORM: City Attorney CITY OF NEWPORT BEACH, A municipal corporation G3'll Tod Ridgeway Mayor W.G. Zimmerman Engineering Inc. Print Name: f: \users \pbMshared \agreements \fy 03- 04\zimmerman- hospital- amend -1.doc • 0 `J EXHIBIT A Newport Boulevard Right Turn Lane • Biological and Cultural Assessment Proposal December 23, 2003 Rich Edmonston City of Newport Beach 3300 Newport Boulevard . Newport Beach, California 92663 Attention: Mr. Bob Stein Subject: Proposal for Biological and Cultural Assessment Services — Newport Boulevard Right Turn Lane Modifications Dear Mr. Edmonston: W. G. Zimmerman Engineering is forwarding our cost proposal to perform the biological and cultural assessment for Newport Boulevard Right Turn Modifications. This assessment was requested by Caltrans District 12 for the project since Newport Boulevard is under State jurisdiction. UltraSystems was selected because their firm is familiar with Caltrans procedures and processes. UltraSystems Scope of Services and fees is attached for review. • FEE SUMMARY The total fees for the Biological and Cultural Assessment includes management time for W.G. Zimmerman Engineering to coordinate this effort with Caltrans. UltraSystems fees are direct costs. Task - Total Fee Biological Survey $ 3,940 Cultural/Historic Analysis S 2,864 Project Management/Coordination S 560 TOTAL S 7,364 If you have any questions or comments on our proposal, please contact me or Ron Brust at your earliest convenience. Sincerely, W. G. Zimmerman Engineering, Inc. Bill Zi e an, P.E President Cc: Steve Luy, City of Newport Beach . Ron Brust, Project Manager— WGZE Project File W. G.ZIMMERMAN Newport Boulevard Right Turn Lane Biological and Cultural Assessment Proposal SCHEDULE OF BILLING RATES • Billing Rate Schedule Classification Rate Principal $140.00/Hr Senior Project Manager (Registered) $140.00/Hr Project Manager (Registered) $120.00/Hr Senior Project Engineer (Registered) $110.00/Hr Project Engineer $ 95.00/Hr Senior Associate Engineer $ 85.00/Hr Associate Engineer $ 80.00/Hr CADD Manager /Senior Designer S 90.00/Hr CADD/Technician $ 75.00/IIr Administration/Office Support $ 55.00/Hr Non -Labor Expenses • Mileage (local) $0.36 per Mile Printing @ Cost Reproduction (Bluelines) @ Cost Other Expenses Costs plus 10% 0 PRO December 15, 2003 Bob A. Warren, Project Manager W.G. Zimmerman Engineering, Inc. 801 Pacific Coast Highway, Ste. 200 Seal Beach, CA 90740 Dear Mr. Warren: Thank you for inviting our work scope and cost proposal for completing the biological study and Section 106 review of Newport Boulevard Right -Turn Lane Addition at Hospital Road in Newport Beach, California. As we discussed, the biological and cultural/historic reviews will need to be prepared in compliance with the California Department of Transportation ( Caltrans) requirements. We propose the use of our biologist, Ms. Jennifer Weiland, to conduct the biological study. We also propose the use of Ms. Sheen Gust, Registered Professional Archaeologist, to serve as principal investigator for the Section 106. Project Description The proposed'project is located in the City of Newport Beach, California at the northwest comer of • Newport Boulevard and Hospital Road and involves an area approximately 20 meters wide by 240 meters long consisting of the area from the Newport Boulevard southbound traffic lane to the Caltrans west right - of -way line and from 5 meters north of the centerline of Hospital Road to 240 meters northerly. The project consists of widening Newport.Boulevard to provide for a 4.3 meter southbound right -turn lane (with curb and gutter) and a 5.9 meter graded parkway area which requires the deep drainage area on the west side of Newport Boulevard to be graded with a fill slope for most of the area along with a small amount of cut slope at the southerly end near Hospital Road and along the Caltrans right -of -way line. The existing concrete ditch and reinforced concrete pipe (RCP) drain pipe in the deep drainage area will be realigned and reconstructed to provide for drainage at the bottle of the new fill and cut slopes. The regarded area will be hydroseeded at the end of the project to provide for slope stability and erosion control. Additionally, the curb return and traffic signals at the northwest comer of Newport Boulevard and Hospital Road will be reconstructed to provide for the widened right -turn lane. The area to receive biological and cultural/historical analyses is approximately 700 feet x 90 feet in size on the west side of Newport Boulevard, adjacent to the existing roadway. Background — Biological U1traSystems Environmental Incorporated is a woman-owned business enterprise and a California corporation offering a wide range of environmental consulting services. The firm has been in business for over 8 years and is fully licensed to conduct business in the State of California. U1traSystems is a full - service, planning and environmental consulting firm, serving both public and private sector clients throughout southern California. U1traSystems utilizes a broad range of experience with residential, commercial, industrial, institutional, and infrastructure- related projects to prepare legally defensible studies in full compliance with the California Environmental Quality Act (CEQA), the National Environmental Policy Act (NEPA), and their implementing guidelines. U1traSystems has conducted numerous biological assessments within the project site area. As a result of that experience, 100 Pacifica, Suite 250, Irvine, CA 92618 949/788 -4900 Fax 949/788 -4901 ' ' %'ev%eultrasystems.'com - Bob A. Warren, Project Manager W.G. Zimmerman Engineering, Inc. December 15, 2003 Page 2 UltraSystems' biologists are aware of the unique resource diversity within the general project area, and can provide the City of Newport Beach with accredited biologists specialized in the requisite area of expertise. Scope of Services - Biological The scope of services follows the suggested procedures found in Caltrans Local Assistance Procedures Manual and consists of: 1. Conducting a biological survey to determine the existence or potential existence of rare, threatened, and endangered species (i.e., plants); 2. Recommend mitigation measures (if necessary) and; 3. Preparing a biological assessment of the project site per Caltrans standards and requirements. Biological Survev and Report Preparation for Project Site Task 1: Review of Existing Information Available, potentially relevant biological resource information will be reviewed before the field work is conducted. This will include the following as provided by the City of Newport Beach: the project description, project design and project footprint maps, previously prepared site reports, information on site history, and local planning documents. We will provide and review relevant resource references and databases (e.g., available soils maps, the California Natural Diversity Data Base data; California Native Plant Society Electronic Inventory data, our own library and files, etc.), as well as applicable information on laws and regulations and background information on biological resources. Task 2: General Field Evaluation for Biological Assessment After reviewing relevant information, the site will be evaluated (one time), with a thorough walk -over covering all portions relevant to potential biological constraints. The visit will consist of a general biological survey to determine the existence or potential existence of rare, threatened, and endangered species. Detailed field notes will be compiled including conditions, visible disturbance factors, species, habitats, and more general biological resource issues observed or detected. The site will be evaluated regarding the presence, absence, or likelihood of occurrence for all special status species, habitats, or more general biological resource issues potentially posing a constraint to the project through applicable laws and regulations. Our field biologist will also briefly examine adjacent areas. Task 3: Biological Assessment Report The report will be a single document with mapping of the general location and site vegetation communities for the site. The project site area will be addressed sequentially within the various headings of the report. Methods and results for each task will be provided. Observations of the physical setting, conditions and disturbance factors, as well as plant, and habitat resources will be summarized. The regulatory context of the project will be evaluated with regard to all existing biological resource laws, regulations and court precedent, including the California Environmental Quality Act (CEQA). Direct, indirect, and within- project cumulative effects will be evaluated. All plant species with special legal or management status along with more general biological resource issues, which have any reasonable potential to constrain the project, will be briefly addressed, including conclusions regarding such Bob A. Warren, Project Manager W.G. Zimmerman Engineering, Inc. December 15, 2003 Page 3 constraint. Listing of special status species which include the site in their general range, but which have no reasonable potential to occur or otherwise constrain the project, will be included but not further discussed. We will provide recommendations (if necessary) for mitigation measures or further work to clarify relevant issues. For example, any additional focused species - specific surveys that may be required to document the actual presence (or absence) of those select species whose presence could not be definitively concluded in the absence of full compliance with established survey protocols. Exhaustive details of mitigation measure design, implementation and monitoring programs will not be provided. We will provide comprehensive floral lists covering all species expected to occur on the project site. Any constraints to the project posed by biological resource laws and regulations will be summarized, and brief general conclusions and recommendations will be provided. Recommendations will include bulleted lists for any further actions and mitigation measures. We will provide up to two copies of the final reports, including any maps (as rendered). The Cost Estimate includes budget sufficient for one thorough revision to a draft of the report. We have also included one project update by telephone, fax or a -mail, which will normally be provided shortly after the field evaluation. Conclusions and interpretations cannot normally be provided while the analysis is ongoing; the draft report will be provided as soon as such work is finished. Required Materials The following materials (if available) must be provided to us in order that we can fulfill the scope of work: • An accurate, detailed written description of the project, including location and boundaries; the greater the detail, the more specific and clear the analysis can be, decreasing the likelihood that the report will be inaccurate or delayed due to repeated revisions. • Two copies are required of accurate aerial photographs or maps of the project site which show the project footprint and legible elevation contours free of project detail, and at a scale of from 1 " =200' to V=400'. • Copies of all relevant prior environmental documents including any general or specific plans, which must be considered, and any previously prepared biology reports for the site. • If necessary, keys, lock combinations, letters of permission, and any other materials necessary to allow us full, efficient and reasonable access to the site. We cannot take responsibility for any cost and/or schedule overruns due to problems arising from our inability to access the site. • Written authorization by the City of Newport Beach to proceed under the terms of this proposal. U1traSvstems Assigned Kev Personnel Based on the importance of the project and the technical nature of this work effort, UltraSystems has assembled a team of professionals who will participate in the successful completion of this work program. Presented below is an overview of U1traSystems' biological team: Bob A. Warren, Project Manager W.G. Zimmerman Engineering, Inc. December 15, 2003 Page 4 Kendall Jue - will serve as Project Manager and will oversee all aspects of this work effort. Mr. Jue brings to the City of Newport Beach an extensive background in environmental analysis and project management, including numerous environmental documents prepared in compliance with Caltrans environmental requirements. Jennifer Weiland - will serve as the Lead Biologist. Ms. Weiland possesses years of experience in the fields of field surveys of animal and plant populations, sampling, data acquisition, management, analysis and report writing. Ms. Weiland is experienced with CEQA and NEPA regulatory permitting and environmental documentation. Proiect Schedule All literature research will be completed upon commencement of the project, and a draft report will be submitted within 30 days following completion of the project site inspection. Should a more accelerated schedule be required, U1traSystems' assigned biologist can inspect the project site within two weeks of our receipt of the City of Newport Beach's final Notice to Proceed. Resource Estimate Based on that scope of services outlined in this technical proposal, the total estimated not -to- exceed fee to conduct the biological assessment is $3,940. Table 1 ITEMIZED COST PROPOSAL MATRIX ' BIOLOGICAL SURVEY Biological Assessment Cost Task 1: Review of existing information (8 hrs x S75/ per hour) $600 Task 2: General Field Evaluation for Biological Assessment (4 hrs x $75/ per hr.) $300 Task 3: Preparation of Biological Assessment Report (24 hrs x $75/ per hr.) $1,800 Task 4: Project Management (8 hrs x S115/per hr.) $920 Direct Costs Mileage (2 trip x 25 miles @ .40/ per mile ) $20 Office costs (report materials, map preparation, photocopying, faxing, materials, etc.) $300 TOTAL PROJECT COST $3,940 Note: This fee includes review of the CNDDB and other relevant project documentation, site inspection, report preparation, and all mileage and incidental expenditures associated with this assignment. 11 For the purpose of this proposal, we have assumed that the City of Newport Beach will provide all necessary base maps, any informational reports within the possession of the City relative to the project . site, and any information (e.g., previous environmental studies) conducted within the general project area. Bob A. Warren, Project Manager W.G. Zimmerman Engineering, Inc. • December 15, 2003 Page 5 Background — Cultural and Historical Resources For this important task, U1traSystems has selected Cogstone Resource Management Inc. to complete the Phase I Resource Assessment Survey and prepare the Section 106 documentation. Cogstone is a small, women -owned business specializing in archaeological and paleontological resource consulting. The two principals own and operate the company. They personally manage all company projects. With a combined total of 35 years of experience in local/CEQA/NEPA mitigation of effects on archaeological and paleontological resources, the principals are well qualified to address a wide variety of field situations with practical solutions. Cogstone provides highly qualified personnel to perform reconnaissance, assessment, monitoring, analysis and reporting on archaeological and paleontological resources. It has strong connections to the local museum and university communities giving it the flexibility to augment its staff with specialists when required. Scope of Services — Preparation of Section 106 Documentation Analysis of the Section 106 of the National Historic Preservation Act and its implementing regulations at 36 CFR Part 800, will also consider the most recent revisions to CEQA and the CEQA Guidelines, and any updated legislation and policies regarding Native American coordination. Section 106 requires the • evaluation of built environment structures, including roadways. The evaluation would consist of a surface examination and review of any documents relating to the structure. This proposal assumes the City of Newport Beach would share any documentation they have on the previous use, dates of construction, or materials and methods used for construction. The literature review and record searches will determine the existence of previously recorded cultural and paleontological resources within the project boundaries plus a quarter mile to each side. Records will be searched at California State University, Fullerton. The Central Coastal Information Center holds the records for historic structures and archaeology. - The surface examination will locate all visible cultural resources, as well as locate exposed paleontological resources. If any previously unrecorded archaeological sites is encountered, we would submit a detailed and specific proposal for recording those sites. The report will include the results of the record search and literature review, the surface examination and an evaluation of the significance of the proposed project area. In addition, management recommendations and any necessary mitigation measures will be provided. Maps and other pertinent documentation will be appended. Cogstone Assigned Key Personnel Sherri Gust, Registered Professional Archaeologist and Qualified Paleontologist will serve as the Principal Investigator for this project. Ms. Gust is the managing principal of Cogstone Resource Management Inc. and supervises all paleontology /archaeology projects. Ms. Gust conducts the • assessments and analysis, oversees writing of the proposals and reports, and handles all bone identification. In addition, Ms. Gust manages all daily operations, budgeting and business development at Cogstone RMI. Bob A. Warren, Project Manager W.G. Zimmerman Engineering, Inc. . December 15, 2003 Page 6 Resource Estimate Based on the scope of services outlined in this technical proposal, the estimated total not -to- exceeded fee for the cultural resource assessment and preparation of the Section 106 documentation is $2,864. Tahle 2 ITEMIZED COST PROPOSAL MATRIX CULTURAI /HISTORICAL ANALYSIS Section 106 Documentation Cost Task 1: Record Search/Literature Review (4 hrs x $75 /per hr.) - Information Center fees (estimated) $300 $200 Task 2: Surface Examination incl. travel time (4 hrs x $75 /per hr.) $300 Task 3: Report Preparation (16 hrs x $751 per hr.) $1,200 Maps and Graphics (4 hrs x $50/ per hr.) $200 Clerical (4 hrs x $40/ per hr.) $160 Task 4: UEI Project Management (4 hrs x $115/per hr.) $460 Direct Costs Mileage (60 miles .40/ per mile) $24 Miscellaneous Expenses — Photo a h ,Copies $20 TOTAL PROJECT COST $2,864 Contingencies: 1. Meetings and response to comments, if any, will be billed at S75 /per hour. 2. Recording sites if any are located. Total Fee The total fee for this project is: $3,940 + $2,864 = $6,804. Should you have any questions concerning this proposal, feel free to contact me at your earliest opportunity. Sincerely, epA 4.6� Betsy A. Lindsay President/CEO • • El PROFESSIONAL SERVICES AGREEMENT WITH W. G. ZIMMERMAN ENGINEERING, INC., FOR NEWPORT BOULEVARD /HOSPITAL ROAD RIGHT TURN MODIFICATIONS THIS AGREEMENT, entered into this 2nd day of September, 2003, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City "), and W.G. Zimmerman Engineering, Inc., whose address is 801 Pacific Coast Highway, Suite 200, Seal Beach, California, 90740, (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 modifications to the Newport Boulevard /Hospital Road Right Turn Lane Modifications Project ( "Project") C. City desires to engage Consultant to provide engineering, geotechnical services, and Caltrans encroachment permit processing as outlined in the Scope of Services attached hereto as Exhibit "A" and upon the terms and conditions contained in this Agreement. D. The principal member of Consultant firm for purpose of this Project will be Bill Zimmerman, P.E. 0 -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 2nd day of September, 2003, and shall terminate on the 31't day of December, 2004, 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. Consultants compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall be on a time and expenses basis, not exceed contract price of twenty-four thousand, one hundred ten and 001100 Dollars ($24,110.00). 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. 0 3.2 Consultant shall submit monthly progress 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. 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. C. Approved reproduction charges. 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 this Agreement have been substantially completed. -3- L 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 community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents 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, acts of God, failure of City to furnish timely information or to promptly approve or disapprove Consultant's work, delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute 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 • M • the details and means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to 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 Ron Brust to be its Project Manager. Consultant shall not bill any personnel to Project other than those personnel identified in Exhibit "B ", whether or not considered to be key personnel, without City's prior written approval by name and specific hourly billing rate. Consultant shall not remove or reassign any personnel designated in this Section or assign any new or replacement person to Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants it will continuously furnish the necessary personnel to complete Project on a timely basis as contemplated by this Agreement. -5- 8. TIME OF PERFORMANCE • Time is of the essence in the performance of the services under this Agreement and Consultant shall perform the services in accordance with the schedule specified in Schedule "C" attached hereto and incorporated herein by reference. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City and assessment of damages against Consultant for delay. Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant shall 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. 0 In 0 10. CONFORMANCE TO APPLICABLE LAW 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 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 sole negligence or willful, misconduct of City, its officers or employees, and shall include 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. -7- 13. INSURANCE Without limiting consultants 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 for workers compensation and errors and omissions insurance, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insureds for all liability arising from Consultant's services as described herein. 0 All insurance policies shall be issued by an insurance company currently authorized by the Insurance commissioner to transact the business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial size Category Class VII (or larger) in accordance with the latest edition of Bests Key Rating guide: unless otherwise approved by the City Risk Manager. The following policies are required: A. Worker's compensation insurance, including a 'Waiver of Subrogation" clause, covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance original certificate and endorsement (which includes additional insured and primary and non 0 In 11 contributory wording), covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance, including additional insured wording, 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. D. Professional errors and omissions insurance, which covers the services, to be performed in connection with this Agreement in the minimum amount of one million Dollars ($1,000,000.00). 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, Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf &s11 of any insurer providing workers compensation, 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 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 orjoint- 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. All imp rovementiconstruction drawings shall be electrostaticly plotted on standard 24 -inch by 36 -inch mylar with a minimum thickness of 3 mils per City Standards. (A copy Df the City Df Newport Beach Standard Design Requirements is available from the Public Works Department). • -10- 0 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 . 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 City authorizes the release of information. 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 Consultant's work 11- schedule. • B. City staff will provide usable life of facilities criteria and provide information with regards to deficient facilities. 18. ADMINISTRATION The Public Works Department will administer this Agreement. 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 /her authorized representative 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 as a result of such withholding. Consultant shall have an immediate right to appeal • -12- 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 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 a restoration expense shall be bome 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. S. 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 i -13- 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 to be provided under this Agreement shall not be assigned, transferred, contracted or subcontracted without priorwritten 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: Attention: Stephen J. Luy City of Newport Beach Public Works Department 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: (949) 644 -3311 Fax: (949) 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Bill Zimmerman W. G. Zimmerman Engineering, Inc. 801 Pacific Coast Highway, Suite 200 Seal Beach, CA 90740 Phone: 562 - 594 -8589 Fax: 562 - 594 -8549 BEE 0 26. TERMINATION In the event either party hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 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. 0 -15- 0 Ll 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 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. 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her 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 contractor bids or actual cost to City. 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of 0 -16- 0 such CADD data. All original drawings shall be submitted to the 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. The City will provide an AutoCad file of City Title Sheets. All written documents shall be transmitted to the City in the City's latest adopted version of Microsoft Word and Excel. 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. / City Attorney CITY OF NEWPORT BEACH A Municipal Corpojation G. Badum of Public Works W.G. Zimmerman Engineering f: \users\pb hared\agreements \fy 03- 04\zimmerman- hospital wcu.uu, -17- Newport Boulevard Right Turn Lane iviodification Proposal 1 of 3 August 11, 2003 EXHIBIT "A" SCOPE OF SERVICES August 11, 2003 Mr. Bob Stein City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92663 Subject: Proposal For Engineering Services — Newport Boulevard Right Turn Lane Modifications Dear Mr. Stein: W. G. Zimmerman Engineering is please to present our proposal to provide engineering and services for modifications to the Newport Boulevard Right Turn Lane project. We understand the proposed modifications will provide for a south bound right turn lane, future bike path/sidewalk area and will eliminate the uses of retaining walls, and will minimize the grading along Newport Boulevard. SCOPE OF SERVICES We have developed the following scope of services based upon our project understanding. Contract Documents • Design and modify cross sections on three plan sheets. • Design and modify plan and profiles on four plan sheets. • Eliminate storm drain PCC headwall and redesign to provide rock rip rap storm drain inlet pipe erosion protection. • Eliminate retaining wall plan sheets and details. • Update all contract title and plan sets as necessary to provide complete bid set. • Update engineer's estimate of probable construction cost. • Update the specifications to provide complete bid set. • Caltrans encroachment permit processing. • Preparation and processing of "Fact Sheet Exceptions To Mandatory Design Standards" through Caltrans. Additional Services • Engineering services requested by Caltrans to acquire an encroachment permit. • Traffic modeling for preparation of "Fact Sheet Exceptions To Mandatory Design Standards" • Geotechnical services to determine slope stability. Newport Boulevard Right Turn Lane .elodification Proposal 2 of 3 August 11, 2003 • FEES W.G. Zimmerman Engineering, Inc. has developed the following fees based upon our Scope of Services and our Billing Rate Schedule shown below. Labor effort and costs per task are shown in the attached table. Task Construction Documents TOTAL Total Fee $ 24,110 $ 24,110 Additional Services: Additional services will be performed on a time and materials basis per our Billing Rate Schedule. If you have any questions or comments on our proposal, please contact me or Ron Brust at your earliest convenience. Respectfully, W. G. Zimmerman Engineering, Inc. • Bill Zimmerman, RE President Cc: File, Ron Brust • Newport Boulevard Right Turn Lane Aodification Proposal 3 of 3 August 11, 2003 EXHIBIT "B" SCHEDULE OF BILLING RATES BillinE Rate Schedule Classification Rate Principal $140.00/Hr Senior Project Manager (Registered) $140.00/Hr Project Manager (Registered) $120.00/Hr Senior Project Engineer (Registered) $110.00/Hr Project Engineer $ 95.00/Hr Senior Associate Engineer $ 85.00/Hr Associate Engineer $ 80.00/Hr CADD Manager /Senior Designer $ 90.00/Hr CADD/Technician $ 75.00/Hr Administration/Office Support $ 55.00/Hr Non -Labor Expenses Mileage (local) $0.36 per Mile Printing @ Cost Reproduction (Bluelines) @ Cost Other Expenses Costs plus 10% • Schedule C da LL ----------- C _ W E E E c� V' 3 a ---- - - - ---- - -- --- oj .- '• = o N a r. y N a m y E o s E a` E d� E U o :.�:.� :.::. :: :•. — m .s N _ to d� Cc Ca CD .O Z y = O y m CL~ H N d N J_- 7 7 a Z o E d u m E O N 75 K K 'L Ca U a�i l O U O CL CD Z E . • d a d E y U 2 G N w a E y C of y y W W Z U E `c t z 50 L � ❑ - � d d + a0 I I- U W O w IL W Z Q J Z w D F F x C7 w 0 J to O IL w Z w O LL W W LL 0a y Q' D O x O Q J • • • 00 0000000 0 '7 w 0 N O V 't N C N N m n 3so0 �Ispl 1e3o1 ri h N N V N N N 64 64 64 64 64 64 64 69 69 69 64 64 69 64 64 64 64 64 64 64 64 64 64 64 sinoH msu InO.L rqi T co CO Cl) v N O o 0 0 0 0 0 0 0 O O O O O N uoddns am 0 / •ulwpy w v m co •yoallOCIVO 0 Z Jau61sa4 •is/•.I6w Qab'O w w v O w 0 ro O Q •5u3 'oossy ° N (D U LL N•6u3 •oossy -JS o J U '3'd o W la .3.d .Js 0 I� O x Wd 00 aO 07 N07N 0 N •Wd•IS000000000 0 VdIONINd N N 1cil V N _j N J v, F- O o U ~ U + C O 'N N U (] 2 c m E o 5 O U U f0 c l0 L L L u u V1 V1 V1 '- n U c7 V O C y F i C N N ptf uc y V c o �0 0 aa)i o m c m d y m m a) E = X 3 o v, v, w o a U y c °— y U— 0_ c o y O d N U U) 'v 'vv •m c m C w. c y -5 E E E d U d W A otf otf otf N a7 N ul N c cn m c (0 C a) 0 a6 0 6 a) m Z '�'�.E�"a a � oCc) ow»>o o 0 • • •