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HomeMy WebLinkAbout11 - Newport Terrace Landfill Gas CollectionCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 11 July 10, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Lloyd Dalton, PE 949 - 644 -3328 or Idalton @city.newport - beach.ca.us SUBJECT: NEWPORT TERRACE LANDFILL GAS COLLECTION AND CONTROL SYSTEM - AWARD CONTRACT NO. 3651 RECOMMENDATIONS: 1. Approve the plans and specifications. 2. Award Contract No. 3651 to Innovative Construction Solutions, Inc., for the Total Bid Price of $818,800, and authorize the Mayor and the City Clerk to execute the contract after the Newport Condominium Association and the City have deposited funds into an escrow account as required by their settlement agreement. 3. Establish an amount of $80,000 to cover the cost of unforeseen construction expenses. 4. Approve Amendment No. 1 to SCS Engineer's current agreement to provide for construction support services in the not -to- exceed amount of $83,162 and authorize the Mayor and City Clerk to execute the Amendment. 5. Approve an On -Call Professional Services Agreement for Capital Improvement Program Consultant Services with Gail P. Pickart, P.E. and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: On October 13, 2004, the Newport Condominium Association (NCA), an association of owners of real property within Newport Terrace Tract (see attached vicinity map- Exhibit A), filed a lawsuit entitled Newport Condominium Assn v. City of Newport Beach in United States District Court, Central District of California, Orange County Division. The action arose out of a dispute over who is responsible for post - closure maintenance of the former Newport Terrace landfill, which was owned and operated by the City from approximately 1953 to 1965. The settlement of the dispute required that the NCA and the City jointly remediate the landfill gas collection system, with the NCA paying half of all costs actually incurred in regards to the work, up to a maximum of $500,000, and the City paying the Newport Terrace Landfill Gas Collection and Control System - Award of Contract No. 3651 July 10, 2007 Page remainder. Pursuant to the settlement, the NCA and the City are required to deposit $500,000 into an escrow account. Subsequently, City staff retained a design consultant to prepare plans and specifications for the remediation work. At 11:00 a.m, on June 27, 2007, the City Clerk opened and read the following Total Bid Prices for the project: Bidder Total Bid Price Low Innovative Construction Solutions, Inc. $818,800 2 LFG Control Corporation $871,000 3 NRC Environmental Services, Inc. $956,000 The low Total Bid Price is 18% below the Engineer's estimate of $1,000,000 (see attached bid summary- Exhibit B). The low bidder, Innovative Construction Solutions, Inc. (ICS), possesses a State of California General Engineering Contractor A License as specified in the contract documents. ICS has experience in landfill collection systems and has satisfactorily completed landfill collection projects for other public agencies. Because of the specialized nature of the work and the financial partnership between the City and the NCA, City staff and its design consultant determined to prequalify experienced landfill contracting firms to perform the remediation work. Qualifications were solicited from four firms, and each of those who submitted bids for the project were deemed prequalified. The NCA concurs in awarding Contract No. 3651 to ICS; however, staff recommends making the award to ICS contingent upon the City and NCA funding the escrow account as required by the settlement, which should occur during the week of July 9, 2007. The scope of work for this project includes removing curbs, walkways, asphalt pavement, irrigation systems, plant materials, turf and other obstructions along the new landfill gas collection alignment; drilling and installing gas extraction wells, condensate pumps and sumps; installing a manhole in 19th Street to receive the condensate; trenching and installing new gas collection mains; remodeling the blower building; removing and replacing gas treatment equipment in the blower building; installing new electrical service in the blower building; reconstructing curbs, walkways, asphalt pavement, etc.; replacing irrigation systems, plant materials and turf; and cleaning up the site. The Contractor is to complete all work within 100 working days after the Notice to Proceed is issued, which should occur on or about August 15. Work should then be substantially completed by January 11, 2008. Liquidated damages will be $1000 per calendar day. Plans and specifications were prepared by SCS Engineers of Long Beach, a firm that specializes in landfill- related projects. SCS was also contracted by the City to assist in prequalifying firms to bid the remediation work. Newport Terrace Landfill Gas Collection and Control System - Award of Contract No. 3651 July 10, 2007 Page 3 At staffs request, SCS has proposed to provide construction support for the project, including meetings; review and approve submittals; respond to requests for information; prepare change orders; provide construction inspection to assure compliance with their plans and specifications; prepare as -built drawings; coordinate work with the NCA, regulatory agencies, etc. Staff feels that SCS's scope of work and their $83,162 not -to- exceed fee are appropriate for the project, and recommends that their current professional services agreement be amended (see attached draft Amendment and Proposal- Exhibit C) to provide for construction support to the City's contract administrator. On -Call Professional Services Agreements allow staff to retain specialized services that are regularly required for various projects at fees that are set for a two year period of time. Gail P. Pickart, P.E. will supplement Public Works' senior staff, which has been severely depleted due to the retirement of three senior engineers who would normally administer such contracts. Mr. Pickart has proposed to provide contract administration for the project and will oversee and assist SCS in its duties; issue progress payments and change orders, and manage the project until completion. Mr. Pickart is weii- qualified to perform these tasks in that he is the City's contract administrator for the soon- to -be- completed Back Bay Science Center project and he was the City's Subdivision Engineer during the period of time when Newport Terrace tract was subdivided and built. Staff feels that Mr. Pickart's scope of work and his $27,600 not - to- exceed fee are appropriate, and recommends approval of the on -call professional services agreement (see attached draft Professional Services Agreement and Proposal- Exhibit D) to provide for contract administration for the Newport Terrace Landfill project. ENVIRONMENTAL REVIEW: The project is Categorically Exempt from provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15301, Class 1 of the CEQA Implementing Guidelines. This exemption covers operation, repair, maintenance, minor alteration, etc., of existing structures, facilities, mechanical equipment, etc., involving no expansion of use of that existing at the time of the City's determination. A Notice of Determination has been filed with the Orange County Clerk's office. FUNDING: Sufficient funds are available for award, construction contingency, construction support and contract administration in the following accounts: Account Description Account Number Amount Newport Condominium Association's Contribution Escrow Account $500,000 City's Environmental Liability Fund Escrow Account 509,562 Total $1,009,562 Newport Terrace Landfill Gas Collection and Control System - Award of Contract No. 3651 July 10, 2007 Page 4 Proposed uses are as follows: Vendor Innovative Construction Solutions, Innovative Construction Solutions, SCS Engineers Gail P. Pickart, PE Prepared • • Vton, P.E. Design Purpose Amount Inc. Construction contract $818,800 Inc. Contingency 80,000 Construction support 83,162 Contract administration 27.600 Total $1,009,562 Submitted by: Y • , 'I Attachments: Exhibit A - Vicinity Map Exhibit B - Bid Summary Exhibit C — Draft Amendment No. 1 and SCS's Proposal Exhibit D — Draft Amendment No. 6 and Gail P. Pickart's Proposal VICINITY MAP NOT TO SCALE m r hy� `g i7 Arnorican P1 SrOV or t rt j�R ar s ICA bi.l o,.: > >Ff t" P ^ ... r . A. -.. n y„riUx t ..... , U13f3t14 "" Pa ti1xY je tCf4 Y'b Cr4kH %5Yv Y3F, Ridg "crest Ci! TM Sea Bluff m� ,,, lefaeaglesTet • (f Oak St { e ,. I in �C & C 1 P ,L�tnvt a � ��� �� i le, D is 1 1 W j by NS'i t efy, � Ufa `3 � � f `} 7e a`n`''" Evergreen Pi ,5fi yy��gq21I'ry{a�,1n a /�/. //r//�� lQ�iRr��I� ��Zll� { _ .. � p �'s"k� cedar F1 e'^ 4y} {'�`6',rt,� � s fin. tea♦ Z. tf Q'Yq x •. � V W IVUI a71.. x 1� %ltk+, py� d�a•�» r ... . PROJECT LOCATION��� _._. _ ... a- enter St dui Tonne St Catarn�ran`�t ?� �. n o 1 Bth st ; c -W @21D(W-NAVTEQ.. _ VICINITY MAP NOT TO SCALE U Q w m O a w Z LL O F- F- A H Z w a w 0 Y U J m a E uj m Q va 0 0 W U a E_ O � m o Y Y � U vow > N U U Z w O Q Q � U O J 0 m m 0 `c 0 U 0 R c J N `a H LLl H H Y m m o � O —O O —M O p o" v o r 0 0 h J W LLI Q d' Z W Q H K U L) LLI 2' W w _Z Z C7 O O Z 0� W d 0 0 0 0 0 M o N 0 w N m c L) U 0 C 1 L 16 w m �0 0 o 0 0 0 � N o YS t° o v � o a Q Q v as z N co J V) O_ 0 O g A c 0 V d y a v cc o Z ° ° O . `m O 0 N 0 M 00 O E 2 m m c Q rn 2 SS o Z Z 0 0 4 N S S z Z O O S p 0 O pSp m O O 2 n `0 Q m n 0 U pS pS °m `m N r N O O 0 Z °o °o m w° n O N m ° m o m m = Q N C U S S O � � m SS ° yZO o °o 0 o 0 0 'qE O � ° o w Q N d ° WZSS, oo w LO LO } J J H Q d Z 0 O_ m H y IL E of U U W 0 (� — C C 0 J � 3 0 0 � U W �N<nv mtDrmm° 0 0 0 0 0 M o N 0 w N m c L) U 0 C 1 L 16 w m �0 0 o 0 0 0 � N o YS t° o v � o a Q Q v as z N co J V) O_ 0 O g A c 0 V d y a v AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH SCS ENGINEERS FOR CONSULTING SERVICES IN CONNECTION WITH SELECTION OF CONSTRUCTION CONTRACTOR FOR NEWPORT TERRACE LANDFILL GAS SYSTEM MODIFICATIONS THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this day of 2007, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City ") and SCS ENGINEERS, an corporation whose principal place of business is 3900 Kilroy Airport Way, Suite 100, Long Beach, California, 90808 -6816 ( "Consultant'), is made with reference to the following: RECITALS A. On December 31, 2006, City and Consultant entered into a Professional Services Agreement, hereinafter referred to as "Agreement," for selection of qualified construction contractors to bid the Newport Terrace Landfill Gas System Modifications. B. City desires to have Consultant provide construction support services in connection with the construction of the gas system modifications at Newport Terrace Landfill. C. City desires to compensate Consultant for additional professional services to be rendered to City. D. City and Consultant mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 1 ", as provided herebelow. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall provide the services outlined in the July 2, 2007 proposal from Consultant attached hereto as "Exhibit A" and incorporated in full by this reference. 2. Total additional compensation for services performed pursuant to this Amendment No. 2 for all work performed, including all reimbursable items and subconsultant fees, shall not exceed Eighty Three Thousand One Hundred Sixty Two Dollars ($83,162) as outlined in Exhibit A. 3. The term of Agreement shall be extended to June 30, 2008. -4. Except as expressly modified herein, all other provisions, tefrms, 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: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: In LaVonne Harkless, City Clerk Attachment: Exhibit A — Proposal CITY OF NEWPORT BEACH A Municipal Corporation By: Steve Rosansky, Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: f: \users \pbmshared\agreements \fy 07- 08 \scs- newport terrace Ifg -1.doc 2 Environmental Consultants 3900 Kilroy Airport Way 562 426 -9544 Suite 100 FAX 562 427 -0805 Long Beach, CA 90806 -6816 http: / /www.scsengineers.com July 2, 2007 File No. 01201221.07 Mr. Aaron C. Harp Assistant City Attorney City of Newport Beach 3300 Newport Boulevard Newport Beach, California 92658 -8915 Subject: Proposal to Perform Construction Related Services for Newport Terrace Landfill Gas System Modifications Dear Mr. Harp: This letter constitutes a proposal for SCS Engineers (SCS) to perform a variety of construction related services supporting installation of the modifications to the Newport Terrace LFG System. As you know, the city recently received construction bids and is moving toward award of a contract. The city will require a number of services during and immediately after construction in order to assure that the system is installed properly, with minimum disruptions to the residents. This proposal describes a scope of work for the construction phase and our estimated cost of those services. Note that SCS will be working as an agent of the city. The intent of our work will be to provide assurance to the city that construction proceeds in conformance to the approved plans and specifications and applicable permits. SCS understands that at times our staff will be the only representative of the city at the jobsite. However, SCS will not be directing the contractor. If SCS observes work that is not in conformance to the plans, specifications and permits, SCS will advise the contractor and try to have the contractor correct the situation. If the contractor is not responsive or other problems arise, SCS will advise the city -- any action toward suspending work or mandating a change in the contractor's mode of operation would have to come directly from the city to the contractor. For this reason we understand that the city will identify a contract administrator who will work with SCS and who will enforce, as appropriate, the city's authority over the contractor. SCOPE OF WORK Task 1. Pre- Construction Activities • Conduct pre- construction meeting at site. • Coordinate with NCA representatives. • Review and approve contractor submittals (shop drawings, catalog cuts, etc.). • Review and approve contractor Health and Safety Plan. Offices Nationwide Mr. Aaron Harp - Assistant City Attorney July 2, 2007 Page 2 Task 2. Construction Inspection (Compliance with Plans and Specifications) • Full -time inspection of construction of buried elements (wells, buried header — we assume this will entail 35 working days for a staff professional, nine-hour-days). • Logging of well boreholes (to be performed by SCS inspector). • Sampling groundwater, if encountered (4 samples are assumed). This was required by the Regional Water Quality Control Board during its review of the plans. • Periodic inspections during construction of above - ground elements, including the blower facility (assume 6 weeks @ 2 days per week, 6 hours per day). • Periodic site visits by design engineer (8 assumed, 5 -hours per visit). • Issue clarifications; review change order requests, if any (assumed 24 hours for Sr. Tech. Mgr). Task 3. Final Inspection and Testing • Observe contractor testing of mechanical components. • Perform final inspection; issue punch list. • Issue certification of final construction. • Assume two full days for Sr. Tech Mgr. and inspector. Task 4. Prepare As -Built Drawings SCS will prepare a record set of as -built drawings based on the marked -up set maintained by the contractor at the site. Task 5, Project Coordination This task encompasses overall coordination between the city, the NCA, and the LEA and other regulatory agencies (SCAQMD, RWQCB). We anticipate there will be a regular need for reporting and communications between the parties, interaction with residents, updating project schedules, and general troubleshooting (based on the history of the project). ESTIMATED COSTS Our total costs for construction oversight (Tasks 1 through 5) are estimated at $83,162. This is based on an assumed construction duration of 100 working days (approximately 4.5 months), of which the SCS inspector will be at the site for 47 days. We have indicated our assumptions for the labor effort for individual tasks in the narrative above. We have also attached a spreadsheet with our estimated labor hours and costs for the work. Mr. Aaron Harp - Assistant City Attorney July 2, 2007 Page 3 If this proposal is acceptable, we assume the City will process the appropriate contracting instrument. We look forward to our continuing relationship with the City of Newport Beach. If you have any questions about this proposal, please call the undersigned. Sincerely, Mark B. Beizer, Senior Vice President SCS ENGINEERS Enclosure PROPOSAL FEE ESTIMATE -- NEWPORT TERRACE LFG SYSTEM CONSTRUCTION RELATED SERVICES Principal 4 0 July 2 200' 0 24 }y{�y 225 6300 Project Director a 'Ef2S,ONN�i :'+ 1u = _ ,' _.= 3s" Sy Totat ,..(1Hr) Amount($ Principal 4 0 0 0 24 28 225 6300 Project Director 0 0 0 0 0 0 190 0 Sr. Technical Manager 24 64 16 10 0 114 170 19380 Project Manager 0 0 0 0 0 0 150 0 Sr. Pro'. Professional 0 0 0 0 0 0 130 0 Pro'. Professional 0 0 0 0 0 0 110 0 Staff Professional 12 387 16 0 0 415 90 37350 Project Adminstrator 0 0 0 0 0 0 80 0 Sr. Engineering Technician 0 16 0 0 0 16 75 1200 Desi ner /Detailer 0 32 0 16 0 48 75 3600 Adminstrative /Secretarial 0 0 0 0 8 8 65 520 Technician 0 0 0 0 0 0 65 0 Subtotals (Hrs) 40 499 32 26 32 629 $68,350 Labor Cost Per Task ($) 6060 49310 4160 2900 5920 0 Subcontractors- Consultants $ -- architect, E 1600 1000 2400 0 0 5000 1 5000 Laboratory 0 1200 0 0 1200 1 1200 Travel: Auto Mileage (half-days) 2 0 0 0 0 2 40 80 Auto Mileage >100 mi 0 0 0 0 0 0 0.25 0 Auto Mileage (full days ) 0 55 0 0 0 55 80 4400 Repro & Blueprints $ 0 0 0 200 0 200 1 200 Laborato $ 0 0 0 0 0 0 1 0 E ui ment $ 0 2000 0 0 0 2000 1 2000 Misc. Supplies ($ 0 0 0 0 0 0 1 0 Total ODC Per Task ($) Total Cost Per Task ($) Tasks: 1. Pre - construction 2. Construction Observation 3. Final Inspection 4. As -built drawings 5. Project Coordination 1680 8600 2400 200 0 7992 59200 6920 3130 5920 Total ODC 12880 Admin (15% ODC) 1932 TOTAL ESTIMATE $83,162 PROFESSIONAL SERVICES AGREEMENT WITH GAIL P. PICKART P.E. FOR ON -CALL CAPITAL IMPROVEMENT PROJECT CONSULTANT SERVICES THIS AGREEMENT is made and entered into as of this day of 2007, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and GAIL P. PICKART, P.E., an individual whose address is 3810 East Coast Highway, Suite 4, Corona del Mar, California 92625 ( "Consultant "), 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 has a need for on -call assistance for project consultant services in connection with the construction of various capital projects. C. City desires to engage Consultant to perform on -call engineering services throughout the City on an as need basis ( "Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Gail P. Pickart. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31 day of December, 2008, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Calf' consultant services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Project Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 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 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. 3.2 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. 4. COMPENSATION TO CONSULTANT 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. E No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed ir4- accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and /or classification of employee who performed the work, a brief description of the services performed and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved 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. 4.3 Consultant shall not receive any compensation for Extra Work 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 Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 193 5. PROJECT MANAGER 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 Gail P. Pickart 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. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Stephen G. Badum shall be 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. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. 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. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards- All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By S delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing -herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on onto enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are 5 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 limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees. to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, 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, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. 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. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant does not employ any employees and is exempt from Worker's Compensation insurance. coverage. 2. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. E. Timeiy Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. F. Additional insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following 7 shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. 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. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. ■ 20. RECORDS Consultant- shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative. of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 21. 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 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 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. 22. 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 paragraph is intended to limit City's rights under any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such O persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 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. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Stephen G. Badum Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3311 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Gail P. Pickart 3810 East Coast Highway, Suite 4 Corona del Mar, CA 92625 Phone: 949 - 872 -9053 Fax: 949 - 640 -1076 26. TERMINATION 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, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 10 Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the evertt 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. 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, regulations and permit requirements and be subject to approval of the Project Administrator and 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 implied covenant shall be held to vary the provisions herein. 30. 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. 31. 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. 11 32. 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. 33. 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. 34. 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. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 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: / l &I-- L , (I`ve Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH A Municipal Corporation Mayor for the City of Newport Beach CONSULTANT: By: By: LaVonne Harkless, Gail P. Plckart City Clerk Title: Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates flusem \pbMshared \agreements \fy 07 -081on -call semi slpickart-on call.doc IiK • Gail P. Pickart, P.E. Consulting Civil Engineer 3810 East Coast Highway, Suite 4 Corona del Mar, California 92625 (949) 872 -9053 (949) 640 -1076 (Fax) July 6, 2007 Mr. Steve Badum City of Newport Beach Public Works Department 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Subject: On -Call Consulting Civil Engineering Services Dear Steve: • I am pleased to submit this proposal to augment the City's Public Works Department staff by providing on -call professional civil engineering services for specific projects as may be identified from time -to -time on an as- needed basis. The actual costs for my services will be established when the scope of a project is determined and fees are computed in accordance with the attached Fee Rate Schedule. The type of services that I am prepared to provide fall within the general categories of project management and construction contract administration. I have been providing those types of services for the Back Bay Science Center on Shellmaker Island in the Upper Newport Bay Ecological Reserve since February 2002. Similarly, I provided project management services for the MacArthur Boulevard Widening (East Coast Highway to Ford Road) and the Arches Interchange Reconstruction projects from 1994 through 1999. I am a sole practitioner and have more than 40 years of experience in municipal and land development related civil engineering work. My career in municipal engineering began in October 1966 with my employment in the City of Newport Beach Public Works Department. It continued until my resignation in July 1976 when I accepted a position with a private consulting civil engineering company. After ten years with consulting civil engineering firms, I started my own company in March 1987 and have been self - employed ever since. My interests and experience are in the area of project management and I can handle projects from inception through budgeting, design and construction, culminating in completed • improvements and facilities. EXHIBIT A Exhibit "B" FEE RATE SCHEDULE Effective January 1, 2007 Gail P. Pickart, P.E. 3810 East Coast Highway, Suite 4 Corona del Mar, CA 92625 (949) 872 -9053 (949) 640-1076 (Fax) Professional Services Title Rate Per Hour Principal $150.00 Project Manager 115.00 Clerical/Word Processing 45.00 II. Reimbursable Expenses Travel involving airlines, trains, and overnight lodging will be billed at cost. 2. Reproduction, blueprinting, photocopying, and photographing will be billed at cost. III. Outside Services Invoice costs of services and expenses charged by independent contractors, consultants, specialists, and professional or technical firms in support of services provided by Gail P. Pickart, P.E., will be billed at 1.15 times cost.