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HomeMy WebLinkAbout10 - American with Disabilities Act Transition PlanCITY OF NEWPORT BEACH C9C /F00.N�P City CouncH Staff Report Agenda Item No. 10 July 24, 2012 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Stephen G. Badum, Public Works Director 949 - 644 -3311, sbadum(c�newportbeachca.gov PREPARED BY: Fong Tse, Principal Civil Engineer APPROVED: (, 6--'LL, TITLE: Americans with Disabilities Act Transition Plan — Approval of Amended and Restated Professional Services Agreement with Disability Access Consultants for Transition Plan Update ABSTRACT: Additional field surveys and data compilation work are required to complete the Americans with Disabilities Act Transition Plan (Plan) Update. The approval of an amended and restated professional services agreement with Disability Access Consultants (DAC) is needed to complete the Update. RECOMMENDATIONS: 1. Approve the Amended and Restated Professional Services Agreement with Disability Access Consultants of Las Vegas - Nevada for completing the City's ADA Transition Plan Update for an additional $24,120.00, and raise the total not - to- exceed contract price to $139,020.00. Authorize the Mayor and the City Clerk to execute the Amended and Restated Agreement. 2. Approve Budget Amendment No. 13BA-005 transferring $24,120.00 from Account No. 7161- C2001009 (Sidewalk, Curb, and Gutter Replacement and ADA Improvements - Community Development Block Grant (CDBG) fund) to Account No. 7161- C8002030 (ADA Transition Plan) for the needed additional services. Americans with Disabilities Act Transition Plan — Approval of Amended and Restated Professional Services Agreement with Disability Access Consultants for Transition Plan Update July 24, 2012 Page 2 FUNDING REQUIREMENTS: Upon approval of the budget amendment, sufficient CDBG funds are available for these additional services. The proposed use of the transferred fund is as follows: Vendor Purpose Amount Disability Access Consultants Transition Plan Update $24,120.00 DISCUSSION: The federal Americans with Disabilities Act (ADA) was enacted in January 1990. Its passage mandated the City to develop and maintain a strategy plan as to how different obstructions identified by a citywide facilities ADA compliance review will be remedied. Accordingly, the City in the early 1990's developed an ADA Transition Plan and completed various physical improvements to its facilities and infrastructures through a number of capital improvement projects to comply with the federal requirements. Since then, staff has and will continue to examine every capital improvement project to identify and make ADA improvements to the extent possible. Along with the many changes that were made over the years to the original 1990 ADA scope, the United States Department of Justice on September 15, 2010 published in the Federal Register a set of substantial revised regulations for Titles II and III. These new Federal requirements along with the other rules last updated by the California State Architect in November 2011 made the tasks of defining, interpreting, and applying the often conflicting Federal and State requirements very challenging. In February 2012 staff entered into a Professional Services Agreement (PSA) with Disability Access Consultants (DAC) of Las Vegas — Nevada to review the City's existing Plan and identify the areas that need to be amended in accordance with the most current Federal and State Rules and Regulations. An amendment to the PSA was executed in May 2012 to include field surveys as well as City staff training that were not in the original scope of work. As an outcome of the training and review of City ADA compliance, staff determined that the remaining field survey work will be substantially more labor intensive than initially anticipated. Additionally, the regular work performed by staff will be interrupted for an extended period of time should in -house staff be used to conduct said field surveys. As such, staff approached DAC for their availability and cost to complete the remaining field review work. DAC submitted a proposal for $24,120.00 to perform the remaining work needed to complete the City Transition Plan's Update in a timely manner. Staff would like City Council approval to amend DCA's contract and have them complete the necessary field work. z Americans with Disabilities Act Transition Plan — Approval of Amended and Restated Professional Services Agreement with Disability Access Consultants for Transition Plan Update July 24, 2012 Page 3 When approved, a summary of DCA's PSA is as follows: A reement Scope Amount Original Review Existing ADA Transition Plan $ 25,000.00 Amendment 1 Survey City Facilities and Train Staff $ 89,900.00 Amended and Restated Survey Select High Pedestrian Traffic Public Rights Of-Way and Complete Transition Plan Update $ 24,120.00 Total Contract Value $139,020.00 ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to the California Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (Architectural and Engineering services is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Ciihmiffari h%r Attachments: A. Amended and Restated Professional Services Agreement B. Budget Amendment 3 AMENDED AND RESTATED PROFESSIONAL SERVICES AGREEMENT WITH DISABILITY ACCESS CONSULTANTS, INC. FOR ADA TRANSITION PLAN AND SURVEY THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this day of July, 2012 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City "), and DISABILITY ACCESS CONSULTANTS, INC., a California corporation ( "Consultant "), whose address is 720 W. Cheyenne Ave., Suite 220, North Las Vegas, NV 89030 and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to amend and restate the Professional Services Agreement entered February 2, 2012 and amended on May 10, 2012 with Consultant. C. City desires to to engage Consultant to conduct a survey of the City's current Americans with Disabilities Act ( "ADA ") Transition Plan, conduct an ADA Self - Evaluation of City programs, services and activities and seek public input for the ADA Transition Plan ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Barbara Thorpe. 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 February 1, 2012, and shall terminate on June 30, 2013 unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Consultant shall diligently perform all the services described in the Scope of Services and Billing a Schedule attached hereto as Exhibit A and the Additional Services and Billing Schedule attached hereto as Exhibit B and incorporated herein by reference ( "Services" or "Work "). The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A and B. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.1.1 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.2 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator (as defined in Section 6 below) 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. 3.3 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and Scope of Services and Billing Schedule attached hereto as Exhibit A and the Additional Services and Billing Schedule attached hereto as Exhibit B. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Thirty Nine Thousand Twenty Dollars and 001100 ($139,020.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and /or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. Disability Access Consultants, Inc. Page 2 43 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit A and B to this Agreement, or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which Is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit A and B. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Barbara Thorpe to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to the City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Dave Web, Deputy Public Works Director, or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays In Consultant's Work schedule. Disability Access Consultants, Inc. Page 3 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 the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first - class firms performing similar work under similar circumstances, 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnifled 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 breach of the terms and conditions of this Agreement, 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). 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence 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 Disability Access Consultants, Inc. Page 4 —7 ' on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Contractor or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City s designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. Disability Access Consultants, Inc. Page 5 8 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint-venture or syndicate or 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 subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced (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 prior written request. 17.2 Documents., including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Disability Access Consultants, Inc. Page 6 9 18. COMPUTER DELIVERABLES All written documents shall be transmitted to City in formats compatible with Microsoft Office and /or viewable with Adobe Acrobat. 19, CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result In expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be Disability Access Consultants, Inc. Page 7 10 1 borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 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 persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 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 immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third 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: Attn: Dave Webb, Deputy Public Works Director Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: (949) 644 -3328 Fax: (949) 644 -3318 26.2 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Barbara Thorpe, President (Consultant Firm Name] 720 W. Cheyenne Ave., Suite 220 North Las Vegas, NV 89030 Phone: (702) 649 -7411 Fax: (702) 649 -7417 Disability Access Consultants, Inc. Page 8 E 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of Its final request for payment. The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29, STANDARD PROVISIONS 29.1 Compliance with all Laws. Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29.2 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. Disability Access Consultants, Inc. Page 9 2 29.3 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. 29.4 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. 29.5 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. 29.6 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. 29.7 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. 29.8 Controllina Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 29.9 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, age or any other impermissible basis under law. 29.10 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorney's fees. 29.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Disability Access Consultants, Inc. Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTOR EY,'P OFFICE A California municipal corporation By: / �� ,,. ��; By. Aaron arp Nancy Gardner City Attorney Mayor ATTEST: CONSULTANT: Disability Access Date: Consultants, Inc., a California corporation By: Leilani I. Brown Barbara Thorpe City Clerk President Date: By: Jennie Grover Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services and Billing Schedule Exhibit B — Additional Services and Billing Schedule Exhibit C — Insurance Requirements A11- 013581 \apps\ cat\ cycom \wpdoos \d02g\p005\00011397.doc Disability Access Consultants, Inc. Page 11 EXHIBIT A SCOPE OF SERVICES AND BILLING SCHEDULE Disability Access Consultants, Inc. Page A -1 City of Newport Beach Analvsisof Current Plan, Surveyof Sample Sites for ADA/ itle24Con + otinnceandABASelf- evaluation Scope of Work The City can select one or more of the four (4) scopes of work provided below. Each deliverable is priced separately in the cost section of this proposal. Options 1, 2, 3 and 4 include; 1. Disability Access Consultants, Inc. (DAC) will conduct a review of the current City of Newport Beach ADA Transition Plan and ADA Self - Evaluation and provide input to the City if the current plan appears to contain all ofthe required components. 2. DAC proposes to conduct an audit of the accesslblllty surveys of five (5) sites that were previously inspected by the City of Newport Beach (city) to determine if the required accessibility components of the Americans with Disabilities Act (ADA) Standards and'Ptle.24 of the California Building Code were included in the previously conducted City reports. The audit of the five sites by DAC will be conducted at the site using actual site measurements. It is understood that accessibility code requirements may have changed since the City conducted the accessibility inspections. Current findings by DAC will be compared with requirements at the time of the original inspections In order to prepare a valid sample of the findings and recommendations. By conducting comprehensive surveys of the five sites, the City will have made progress towards and updated ADA Transition Plan forfve (5) sites, thus documenting current compliance activities. 3. Comparison of the previous City conducted surveys and the recently completed DAC surveys. 4. DAC will conduct an AOA Self - evaluation of City programs, services and activities and will note any discriminatory or potentially discriminatory practice;. DAC will also conduct the public Input process using the flndfngs from the previous site inspections and the site inspections conducted by DAC. If the previous inspections conducted by the City are deterritlned to be inappropriate for public comment, DAC tails nottfy, the My contact. The ADA requires opportunities for public input regarding the ADA plan. Results and Findings of the Audit of Sites IP.fhe evaluation of the previous accessibility surveys completed by the City are found to include the majority of the required noncompliant Items and elements, then the previous surveys will be considered sufficlent'forinclusion intd,an AAA transition plan for the City of Newport Beach and no further surveys willte'needed bythe Cty. DAC will issue a statement of compliance'to the City of Newport Beach stating thatthe previous Inspections Include the requirements. If the new surveys conducted by DAC reveal that noncompliant items were not identified In the previous surveys conducted by the Cltyor thatother tequlrerhants-of a Transltlon Plan were not included; then the City will have the data to determine if additional surveys are needed in order to prepare a valid ADA Transition Plan as required bV ntle II of the ADA. Proposal for the City of Newport Beach — ADA Compliance I (o In either case, the new surveys of the five (5) selected sites will provide the City with a comprehensive, updated Inspection and DACTrak accessibility management software for the five sites. Site Selection Rve (5) representative sites will be inspected by DAC and the findings compared with prior accessibility reports completed by the City. The selection ofthe representative sites for the sample audit will be made from the list of sixty (60) sites from the list of facilities for the City of Newport Beach that was provided to DAC. it is recommended that the following type of sites be utilized for the sample to get a representative sample of different types of facilities. It is recommended that the sites include: 1. Community center 2. Library 3. Park 4. Fire station 5. Parking lot The City can select which Ilbrary, community center, park, fire station and parking lot they would like to include in the sample audit, Proposal for the City of Newport Beaoh'-ADACompifahce {' proposal for Services (or the City of Newport Beach ADA Transition Plan Option De script ion Price Option 1 DAC completes accessibility surveys in phases, prioritizing the facility Inspections $29,000 for sites that have high public use or high use by Individuals with disabilities. This option would not include use of any City Staff Phase 1: High use facilities 1. Police Department - 2. Newport Center Library 3. Mariners Branch Library (Completed by DAC) 4. Corona del Mar Branch Library S. Balboa Branch Library 6. City Hal( (not included due to relocation) 7. Utilities Department B. West Newport Community Center 9, Newport ThealerArtsCenter 10, Oasis Senior Center 11, Carroll Beek Community Center 12, Bonita Creek Community Center 13, VinclntlorgensenCommunityCenter 14. Lincoln Athletic Center Gym 15. Community Youth Center (Completed by DAC Phase 7, Parks and similar areas $46,500 1. 15" Street Park 2. west Newport Park $. West Jetty View Park 4. Westcllff Park S. Spyglass Hill Park 6. San Miguel Park 7. Peninsula Park $. Old School Park 9. Newport Island Park 10, Lookout Point u. Lido Park 12. Las Arenas Park 13. Jasmine View Park 14, lrJlne Terrace Park 15. Inspiration Point 16. Harbor View Nature Park 17. Galaxy View Park 18, Eastbluff Park 19, Channel Place Park 20. Buffalo Hills Park -Phase 1 21. Buffalo Hills Park -Phase U 22. Begonla Park 23. Batview Park 24, Bayside Drive Park 25, Cliff Drive Park 2,6. 38u' Street Park d Proposal for the Clty:of Newport Beach )r Phase 3: Fire Stations p $8,900 1. Fire Station # 1 2. Fire Station #2 3. Rre Station #3 4. Fire Station 94 5. Fire Station #5 G. Fire Station #B 7. Fire Station # 7 (Completed by DAC) Phase 4: Remaining City Facilities $11,500 1. West Newport Storage Facility 2. Marine Department H4 3. Lifeguard Headquarters 4. McFadden Square S. Doryman's Fish Area 6. Balboa Pier 7. Balboa Pier Parking Lot 8, Balboa Yacht Basin 9. Corona del Mar Parking Lot Booth 10. Junior Lifeguard Office 11. "A" Street Parking Lot 12, "B" Street Parking Lot Total Cost without Public Rights of Way $95,900 Phase V: Public Rights of Way (sidewalks, signalized intersections) $19,000 A cost saving option is for the City of Newport Beach license DACTrak and use Clty staff to Inspect sldewalks and signalized intersections and other public rights -of- way that come under the jurisdiction of the City. Following training by DAC, the City of Newport Beach employees can conduct their own Inspections using the DACTrak tablet. Costs include a five day training course that utilizes classroom and on -site application regarding the current ADA Standards, the 2010 Standards, Title 24 of the CBC and related accessibility requirements in addition to the use of the tablet and licensing of DACTrak for data collection and processing. The cost also includes the cost of the license to use DACTrak for 3 years. The City would purchase one or more pc tablets to complete the Inspections, Five sites would be, inspected by DAC and City staff during the training. If the City would like DAC to conduct the inspections, a price can be determined based on the intersections and sidewalks to be inspected. Proposal for the Clty:of Newport Beach )r EXHIBIT B ADDITIONAL SERVICES AND BILLING SCHEDULE [Consultant Firm Name] Page B -1 �n I Exhibit B - Additional Services and Billing Schedule Disability Access Consultants (DAC) will provide the following services to the City of Newport Beach to enhance their compliance with the ADA 2010 Standards, Title 24 of the California Building Code, California MUTCD and PROWAG: 1. Inspection of 44 miles of sidewalks at d cost of $330 per mile (discounted volume price) for a total of $14,520. The 44 miles of sidewalks were calculated considering both sides of 22 miles of streets. 2. Inspection of approximately 48 intersections at a cost of $200 per intersection (includes all four comers) for a cost of $9,600. 3. inclusion of sidewalk and Intersection Inspection reports to the current City of Newport Beach DACTrak Accessibility Management software. DACTrak allows the City to manage and update reports, produce progress reports and produce a variety of other custom reports. (No additional charge) The total cost for Items 1, 2, and 3 Is $24,120. The cost includes all expenses. Since DACTrak Is a web based Interactive software program, City inspection data is backed up daily and housed in a secure site. Data collected and reports are the property of the City. Following the completion of Items 1 -3, the City will have accessibility reports with findings and recommendations, photographs integrated with each finding and recommendation, estimated cost, code references and management capabilities to implement the barrier removal /transition plan. Using DACTrak, the City can easily set priorities. and estimated dates for barrier removal, followed by actual dates and actual costs_ Results of the study will be incorporated Into the DACTrak accessibility management software and categories for streets and Intersections will be added to the current City DACTrak program. Submitted June 13, 2012 and authorized by: Barbara Thorpe, President Disability Access Consultants 2243 Feather River Blvd Oroville, CA 95965 (800) 743 -7067 bthorpe ndac- coro.com 2q EXHIBIT C 1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1.1 Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 1.2 Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 1.3 Coveraoe Requirements. 1.3.1 Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employers Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 1.11.1 Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. 1.3.2 General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products - completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.33 Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of 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 each accident. [Consultant Firm Name) Page C -1 "'7- 1.3.4 Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completlon of the services required by this agreement. 1.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 1.4.1 Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing Insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. 1.4.2 Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 1.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. 1.4.4 Notice of Cancellation. All policies shall provide City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 1.5 Additional Aqreements Between the Parties. The parties hereby agree to the following: 1.5.1 Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at anytime, 1.5.2 CC 's Right to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant sixty (60) days advance written notice of (Consultant Firm Name] Page C -2 P �, such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. 1,53 Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non - compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 1.5.4 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. 1.5.5 Self- insured Retentions. Any self- insured retentions must be declared to and approved by City. City reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. 1.5.6 City Remedies for Non Compliance If Consultant or any subconsultant falls to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. 1.5.7 Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. 1.5.8 Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which In its own judgment may be necessary for its proper protection and prosecution of the Work. [Consultant Firm Name] Page C -3 j- City of Newport Beach BUDGET AMENDMENT 2012 -13 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations AND PX Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: NO. BA- 13BA -005 AMOUNT: $24,120.00 Increase in Budgetary Fund Balance Decrease in Budgetary Fund Balance PX No effect on Budgetary Fund Balance To transfer expenditure appropriations from the Sidewalk, Curb Gutter Replacement and ADA Improvements account - Community Development Block Grant (CDBG) fund to the ADA Transition Plan account for additional services ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account REVENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Amount Description Debit Description Description Division Number 7161 Community Development Block Program Account Number C2001009 Sidewalk/Curb /Gutter & ADA Division Number 7161 Community Development Block Program Account Number C8002030 ADA Transition Plan Division Number Account Number Division Number Account Number Signed: I/ 6. lz- I�" �V" Financial Approv : Finance Director Signed: Administrativ pproval: City Manac Signed: City Council Approval: City Clerk $24,120.00 Credit $24,120.00 /.19-/2- Date '1 ti L Date Date