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HomeMy WebLinkAboutC-7184-1 - PSA for Engineering Services for the Concrete Street Pavement Reconstruction ProjectT AMENDMENT NO. TWO TO CO PROFESSIONAL SERVICES AGREEMENT WITH CANNON CORPORATION FOR t ENGINEERING SERVICES FOR THE CONCRETE STREET PAVEMENT V RECONSTRUCTION PROJECT THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Two") is made and entered into as of this 28th day of June, 2020 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and CANNON CORPORATION, a California corporation ("Consultant'), whose address is 16842 Von Karman Avenue, Suite 150, Irvine, CA 93401, and is made with reference to the following: RECITALS A. On July 10, 2018, City and Penco Engineering, Inc., a California corporation ("Penco") entered into a Professional Services Agreement for engineering services and construction documents for Concrete Street Pavement Reconstruction Project, commencing on July 10, 2018, and terminating on June 30, 2020, unless terminated earlier ("the Agreement'). B. On May 12, 2019, City and Penco entered into Amendment No. One to the Agreement to reflect additional Services not included in the Agreement and to increase the total compensation ("Amendment No. One"). C. On September 14, 2019, Penco and Cannon Corporation ("Consultant') entered into an Assignment Agreement to assign the rights under the Agreement from Penco to Cannon. D. The parties desire to enter into this Amendment No. Two to reflect additional Services not included in the Agreement, as amended, to extend the term of the Agreement to January 31, 2021, to increase the total compensation, update the Hold Harmless language, and update Insurance Requirements. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: 'The term of this Agreement shall commence on the Effective Date, and shall terminate on January 31, 2021, unless terminated earlier as set forth herein." 2. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement, Exhibit A to Amendment No. One and Exhibit A to this Amendment No. Two shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Thirty Nine Thousand Three Hundred Thirty Dollars and 00/100 ($239,330.00), without prior written authorization from City. Additionally, the City has allocated a contingency amount of Thirteen Thousand Seven Hundred Dollars and 00/100 ($13,700.00) for unexpected costs, for a total not to exceed amount of Two Hundred Fifty Three Thousand Thirty Dollars and 00/100 ($253,030.00). No portion of the contingency shall be expended without prior written approval of City's Project Administrator. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Thirty Seven Thousand Three Hundred Thirty Dollars and 00/100 ($37,330.00). 4. HOLD HARMLESS Section 9.1 of the Agreement is amended in its entirety and replaced with the following: "9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), 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, reckless, 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)." Cannon Corporation Page 2 5. INSURANCE Exhibit C of the Agreement shall be deleted in its entirety and replaced with Exhibit C, attached hereto and incorporated herein by reference. Any reference to Exhibit C in the Agreement shall hereafter refer to Exhibit C attached hereto. 6. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Cannon Corporation Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: (�/ZSIZpZo For Aaron C. Harp City Attorney ATTEST: Date: 7-/-Z020 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Gr K. Leung Ci anager CONSULTANT: Cannon Corporation, a California corporation By: Signed in Counterpart Michael F. Cannon Chief Executive Officer Date: Signed in Coi_mterpnrt By: Bruce G. Ray Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit C — Insurance Requirements Cannon Corporation Page 4 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: bljZSIZ 202 ,,."Aaron C. Harp City Attorney c ATTEST: Date: By: Leilani I. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, a California municipal corporation Date: M Grace K. Leung City Manager CONSULTANT: Cannon Corporation, California corpor ti n r, Michael F. Cannon Chief Executive Officer Date: D Bruce G. Ray Chief Financial Officer [END OF SIGNATURES] Exhibit A — Scope of Services Exhibit C — Insurance Requirements Cannon Corporation Page 4 EXHIBIT A SCOPE OF SERVICES Cannon Corporation Page A-1 EXHIBIT A SCOPE OF SERVICES Task I: AMENDMENT #2—ADDITIONAL STREET AND DRAINAGE DESIGN Task 1.1: Prepared Under Sidewalk Drain Plan Sheets (includes preparing back of sidewalk profile for Anade). a. Prepared 1 plan and profile sheet for Anade, 1 plan -view only sheet for Montero with sidewalk drain details. b. Evaluation of various options to provide under sidewalk drainage, which consisted of: Looked at various trench drain options, such as steel grate top, rectangular parkway drains, circular curb drains. ii. Looked at creating stub out to storm drain laterals. 1st submittal had this as a preferred option; but deemed not feasible due to too many utility crossings. iii. Identifying private property frontage scenarios (color exhibit for Anade) for 1stCommunity meeting. iv. Increased complexity of road design as we had to detach sidewalk profile from flowline profile. Identify need to provide additional plan due to increase complexity of catching the sidewalk profile from the road flowline profile. c. We developed criteria for sidewalk design to modify road cross section. Criteria included: I. maintaining 5" min. and 7" max. step down at back of sidewalk. 2% cross slope of entire parkway/sidewalk area. 9" max curb height and 4" min. curb height. iv. Keeping smooth longitudinal profile of proposed sidewalk. V. To provide clearance for under sidewalk drains where needed and to allow for surface drainage where private property was already high enough, thus under sidewalk drains were not needed. We didn't want to put under sidewalk drains at every property, only wanted to put them where private property couldn't surface drain. Task 1.2: Prepared Private Property Impact Exhibits for Anade and Montero. a) 2 additional site visits: Measurements taken to determine that 10" CF height was not feasible and ultimately determined max CF height to be 9". ii) Identifying improvements within private property (i.e. specific items such as gates, steps, walls, side yards, pavement surface, etc.). b) Preparation of quantity takeoffs to calculate area of disturbance within private property c) Addressed City's comments from original submittal of exhibits. Task 1.3: Revised Street Design of Anade after receipt of City's 90% comments. a) Revision to back of sidewalk profile design to avoid undulating sidewalk profile (including incorporating criteria from Item lb above). b) Revision to TC profiles and crown profile to maintain constant 2% cross slope. c) Adjust flowline profile to meet criteria for back of sidewalk step down plus under- sidewalk drain (5" min) and 9" max CF height to avoid potential damage to car doors. d) Multiple updates to 21 design cross sections. Task 1.4: Multiple Changes to Parkway for Anade, Alvarado and Montero. a) Original was 4' sidewalk+ 4' planter, then changed to full 8' wide concrete sidewalk at some locations based on resident feedback. b) Received resident feedback on changing tree type and planting type. c) Multiple iterations of adding concrete walkways between planting. Task 1.5: Prepared Alternative Storm Drain Design for Alvarado. a) Concept storm drain design to route drainage from Alvarado to Coronado. Prepared two- page storm drain exhibit to determine feasibility. We analyzed this option upon request by the City and as a value engineering alternative to reduce the quantity of catch basins and manholes required in Alvarado. Task 1.6: Prepared Alternative Storm Drain Design for Montero. a) Alternative flowline design to evaluate impacts associated with removing 1 SDMH and 2 catch basins. Task 1.7: Extensive Drainage and Street Design for Anade, Alvarado and Montero. a) The design had its challenges due to flat (e.g. 0.2%) longitudinal slopes and cross slopes, private property constraints, achieve flood protection goals for each street, maintaining drainage from private property towards the street and minimizing impacts to private property improvements. Such precise constraints had to be accommodated for this design. The hours proposed from Amendment #1 to perform the street and drainage design was underestimated. b) Converted standard MHs to cleanouts due to vertical clearance issues. Task 1.8: Prepared 2 Separate Signing and Striping Plan Sheets. a) City requested upgrades to signs and signposts (such as adding no parking signs) and was not part of original scope of work. Task 1.9: Prepared Custom Curb Ramp Details for 6th Street a) Utilizing a standard plan was considered insufficient due to site constraints, such as maintaining access to a private gate at frontage of 2016th Street and providing ramp long 6 Street and Balboa. Additionally, at the onset of the project, it was assumed the 2 ramps at 6th Street and Bay Avenue were ADA compliant since they appeared to be recently upgraded. Upon further review, the ramps were deemed non -ADA compliant and preparation of custom curb ramp details were necessary to provide the Contractor adequate information to construct the ramps. Details provided for each ramp consisted of proposed curb ramp grades, elevations and horizontal control (i.e. station and offset from centerline and dimensions). Task 1.10: Prepared Exhibits for use in PowerPoint Presentation for Community Meetings. a) Upon request from City, Cannon provided exhibits (e.g. photos with cross sections and color -coded plan view exhibit depicting the different private impact scenarios, i.e. impacts to walls, step down at back of sidewalk, rebuild step, etc.) depicting the impacts within private property. Task 1.11: Prepared Custom Driveway Detail Design for 311 Anade c) Upon request from City, Cannon prepared a redline markup exhibit depicting proposed elevations and grades for the driveway at 311 Anade and included coordination / discussions with City on the impacts to private property. FEES Amendment #2 Total Fee = $37,330 Total Not to Exceed: $253,030.00 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Cannon Corporation Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. At least Cannon Corporation Page C-2 fifteen (15) days prior to the expiration of any such policy, evidence of insurance showing that such insurance coverage has been renewed or extended shall be filed with the City. If such coverage is cancelled or reduced, Consultant shall, within ten (10) days after receipt of written notice of such cancellation or reduction of coverage, file with the City evidence of insurance showing that the required insurance has been reinstated or has been provided through another insurance company or companies. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. Cannon Corporation Page C-3 G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Cannon Corporation Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 7/1/2020 Dept./Contact Received From: Raymund Reyes Department: Public Works Sent to: Marissa By. Raymund Company/Person required to have certificate: Cannon Corp Type of contract: Professional Services Agreement L GENERAL LIABILITY - EFFECTIVE/EXPIRATION DATE: 9/1/2019-9/1/2020 A. INSURANCE COMPANY: Valley Forge Insurance Company NAIC#20508 B. AM BEST RATING (A-: VII or greater): A:XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑✓ Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $1M/$2M E. ADDITIONAL INSURED ENDORSEMENT — please attach Q Yes ❑ No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City PRIMARY & NON-CONTRIBUTORY WORDING its officers, officials, employees and volunteers): Is it ENDORSEMENT - please attach ❑✓ Yes ❑ No included? ❑d Yes ❑ No G. PRIMARY & NON-CONTRIBUTORY WORDING (Must be ADDITIONAL INSURED ENDORSEMENT — please attach Yes ❑ No included): Is it included? 0 Yes ❑ No H. PRODUCTS AND COMPLETED OPERATIONS (Must officers, officials, employees and volunteers): Is it included? ✓❑Yes ❑ No include): Is it included? (completed Operations status does SIGNED AUTOMOBILE INSURANCE EXEMPTION FORM: [Z] N/A F1 Yes ❑ No not apply to Waste Haulers or Recreation) ❑ N/A ❑✓ Yes ❑ No 11. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 9/1/2019-9/1/2020 A. INSURANCE COMPANY: Transportation Insurance Company NAIC#20494 B. AM BEST RATING (A.: VII or greater) A:XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? 0 Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1M E. PRIMARY & NON-CONTRIBUTORY WORDING ENDORSEMENT - please attach ❑✓ Yes ❑ No F. HIRED AND NON -OWNED AUTO ONLY: ❑✓ N/A ❑ Yes ❑ No G. ADDITIONAL INSURED ENDORSEMENT — please attach Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ✓❑Yes ❑ No I. SIGNED AUTOMOBILE INSURANCE EXEMPTION FORM: [Z] N/A F1 Yes ❑ No 111. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 9/1/2019-911/2020 A. INSURANCE COMPANY: Continental Insurance Company NAIC#35289 B. AM BEST RATING (A-: VII or greater): A:XV C. ADMITTED Company (Must be California Admitted): RV Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory R]Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $1M F. WAIVER OF SUBROGATION (To include): Is it included? Q Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ❑✓ N/A ❑ Yes ❑ No ADDITIONAL COVERAGES THAT MAYBE REQUIRED PROFESSIONAL LIABILITY 6/811019-s/111020 EFFECTIVE/EXPIRATION DATE: A. INSURANCE COMPANY: Beazley Insurance Company NAIC#37540; admitted; A:XIV; $2M/$2M ❑ POLLUTION LIABILITY EFFECTIVE/EXPIRATION DATE: A. INSURANCE COMPANY: ❑ BUILDER'S RISK EFFECTIVE/EXPIRATION DATE: A. INSURANCE COMPANY: EFFECTIVE/EXPIRATION DATE: A. INSURANCE COMPANY: Approved: 7/1/2020 Risk Management Date 00 AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH PENCO ENGINEERING, INC. FOR V ENGINEERING SERVICES FOR THE CONCRETE STREET PAVEMENT RECONSTRUCTION PROJECT THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 12th day of March, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and PENCO ENGINEERING, INC., a California corporation ("Consultant"), whose address is 16842 Von Karman Avenue, Suite 150, Irvine, California 92606, and is made with reference to the following: RECITALS A. On July 10, 2018, City and Consultant entered into a Professional Services Agreement ("Agreement") for engineering services and construction documents for the Concrete Street Pavement Reconstruction Project ("Project"). B. The parties desire to enter into this Amendment No. One to reflect additional Services not included in the Agreement, and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement, and Exhibit A to this Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Two Thousand Dollars and 00/100 ($202,000.00), without prior written authorization from City. Additionally, the City has allocated a contingency amount of Thirteen Thousand Seven Hundred Dollars and 00/100 ($13,700.00) for unexpected costs, for a total not to exceed amount of Two Hundred Fifteen Thousand Seven Hundred Dollars and 00/100 ($215,700.00). No portion of the contingency shall be expended without prior written approval of City's Project Administrator. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Sixty Five Thousand Dollars and 00/100 ($65,000.00). 3. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE iFI�IMINiYk - YIM�YII - - - Penco Engineering, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: CITY OF NEWPORT BEACH, a California municipal cor oration Date: - 13 BY: � By. g-toc-'r- AarC. Hap z •�9 Diane B. Dixon City ttorney Mayor ATTEST: CONSULTANT: Penco Engineering, Inc., Date.- 3 /3-l9 a California corporation Date: M J'C-A_4/t__ A'� LeAni I . rown Attachments Signed in Counterpart George Jurica Chief Executive Financial Officer [END OF SIGNATURES] Exhibit A - Scope of Services Officer and Chief Penco Engineering, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: CITY OF NEWPORT BEACH, a California municipal corporation Date: B4'aron � By: arp � z zs -(9 Diane B. Dixon City Mayor ATTEST: Date: Leilani I. Brown City Clerk Attachments CONSULTANT: Penco Engineering, Inc., a Califorgia gorporation Date: 3 /?// e -`7 WWRP'Jol `' a ' mergeJVc Chief Exe ive Officer and Chief Financial fficer [END OF SIGNATURES] Exhibit A — Scope of Services Penco Engineering, Inc. Page 3 EXHIBIT SCOPE OF SERVICES Penco Engineering, Inc. Page A-1 Task Description Deliverables H AMENDMENT #1— ADDITIONAL LANDSCAPE & DRAINAGE DESIGN H.1 PREPARE LANDSCAPE RENDERING FOR ANADE AVENUE PENCO's subconsultant, David Volz Design (DVD), will prepare one (1) color rendered graphic ✓ Draft (PDF) and Final board illustrating the proposed planting and landscape treatment along Anade Avenue only. The (hard copy on mounted graphic board will include, a plan -view, a street cross section and one (1) photo realistic graphic board) Landscape and identify proposed plant materials (i.e. proposed trees, shrubs and ground cover) for City staff Rendering Graphic for and the public's consideration. PENCO's primary role will be administrative, with DVD taking the Anade Ave lead on most aspects for this task. This scope of work includes addressing one (1) round of City's comments on the landscape rendering graphic board. H.2 I ATTEND 2 COMMUNITY MEETINGS PENCO and subconsultant DVD will attend up to two (2) community meetings to present the ✓ Meeting minutes graphic board and proposed concept landscape improvements along Anade Avenue to the community. Additionally, we will provide assistance to the City to facilitate communications during the community meeting, educate the community about the technical aspects of the project and summarize community input during the Q&A portion of the meeting. Preparation of a PowerPoint presentation is excluded from the scope of work. H.3 I REVISED PRELIMINARY ENGINEERING AND DESIGN Revised Hydrology and Hvdraulic Study, PENCO will revise the current hydrology and hydraulics ✓ Revised Draft study report (which was originally prepared for the drainage improvements on Anade Avenue Hydrology & Hydraulics only) to evaluate the existing drainage conditions along Montero Avenue and Alvarado Place and Study Report provide recommendations to mitigate flooding issues in Montero Avenue and Alvarado Place. The ✓ Final Hydrology & study report will be prepared in accordance with the City's and the Orange County Hydrology Hydraulics Study Manual and Local Drainage Manual. This scope includes a site visit to verify the tributary Report drainage areas for Montero Avenue and Alvarado Place. Revised 50% Design of Street, Curb Flowline Profile and Storm Drain Improvements; PENCO will identify feasible alternatives to mitigate street flooding by modifying the street and curb flowline profiles of Montero Avenue and Alvarado Place. Options we will consider include an "accordion fold" curb profile design or superelevating the street. Design constraints consist of 0.2% minimum longitudinal grades and 4 -inch minimum curb face height. This revised design will be reflected on the revised 50% plans and design cross sections. Additionally, this scope includes an additional field review of Montero Avenue and Alvarado Place to verify design constraints due to the revised street and drainage improvements, H.4 I PREPARE LANDSCAPE RENDERING FOR MONTERO AVE AND ALVARADO PL PENCO's subconsultant, David Volz Design (DVD), will prepare two (2) total color rendered ✓ Draft (PDF) and Final graphic boards (1 for Montero Avenue and 1 for Alvarado Place) illustrating the proposed planting (hard copy on mounted and landscape treatment for each street. The graphic board will include, a plan -view, a street board) Landscape cross section and one (1) photo realistic graphic and identify proposed plant materials (i.e. Rendering Graphic proposed trees, shrubs and ground cover) for City staff and the public's consideration. This scope (PDF copy) for Montero of work includes addressing one (1) round of City's comments on the landscape rendering Avenue & Alvarado graphic board and participating/presenting the material to the public at the two (2) community Place meetings. H.5 I REVISED PS&E CONSTRUCTION DOCUMENTS Revisions to the Plans consist of: • Revise Typical Sections and Detail Sheets (Montero Avenue and Alvarado Place only) • Revise Street Improvement Plan and Profile Sheets (1 sheet for Montero Avenue and 1 sheet for Alvarado Place) due to revisions to proposed street and curb flowline profiles (as discussed herein Task 1) • Add Two (2) Storm Drain Improvement Plan and Profile Sheets (1 sheet for Montero Avenue and 1 sheet for Alvarado Place, at 1 "=20' scale horizontal and 1 "=4' vertical) • Revise Design Cross Sections for Montero Avenue and Alvarado Place only (as discussed herein Task 1) • Revise Landscaping Irrigation & Planting Plans & Detail Sheets The Special Provisions and Cost Estimate (including quantity takeoffs) will also be updated to reflect the additional proposed street, drainage and landscaping improvements. ✓ Revised 50% Plans and Estimate Submittal Package (PDF and up to 10 hard copies) ✓ 90% & 100% Final PS&E Submittal Package (PDF and up to 10 hard copies) ✓ Approved, Signed reproducible plans on Mylar, Bid PS&E ✓ Written review comments from QA/QC reviews FEES PENCO proposes to provide the additional scope of services for the total "not to exceed" fee presented below: • Total Not to Exceed Fee with the additional scope of services (including $9,650 previously approved by the City on 11/16/18 for Tasks 1 & 2) = $215,700 • Minus $150,700 Original Council -Approved Amount of the Professional Services Agreement AMENDMENT #1 TOTAL FEE = $ 65,000 The amendment #1 fee above includes $5,000 in reimbursables (consisting of reproductions, deliveries, travel, renderings and photos, mylars and mileage). All reimbursable costs shall be billed at cost plus 15%. PROFESSIONAL SERVICES AGREEMENT WITH PENCO ENGINEERING, INC. FOR ENGINEERING SERVICES FOR THE CONCRETE STREET PAVEMENT RECONSTRUCTION PROJECT THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 10th day of July, 2018 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and PENCO ENGINEERING, INC., a California corporation ("Consultant"), whose address is 16842 Von Karman Avenue, Suite 150, Irvine, Caifornia 92606, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide engineering services and construction documents for the Concrete Street Pavement Reconstruction Project ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2020, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Hundred Thirty Seven Thousand Dollars and 00/100 ($137,000.00), without prior written authorization from City. Additionally, the City has allocated a contingency amount of Thirteen Thousand Seven Hundred Dollars and 00/100 ($13,700.00) for unexpected costs, for a total not to exceed amount of One Hundred Fifty Thousand Seven Hundred Dollars and 00/100 ($150,700.00). No portion of the contingency shall be expended without prior written approval of City's Project Administrator. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. Penco Engineering, Inc. Page 2 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Gary Solsona to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. Penco Engineering, 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 community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), and which relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do Penco Engineering, Inc. Page 4 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 Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. Penco Engineering, Inc. Page 5 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes Penco Engineering, Inc. Page 6 full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 17.4 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to Consultant or contractor bids or actual cost to City. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged Penco Engineering, Inc. Page 7 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 designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act") and/or Government Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) Penco Engineering, Inc. Page 8 prohibit such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 25.2 If subject to the Act and/or Government Code §§ 1090 et seg., Consultant shall conform to all requirements therein. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at- Attn.- Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Gary Solsona Penco Engineering, Inc. 16842 Von Karman Avenue, Suite 150 Irvine, CA 92606 27. CLAIMS 27.1 Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). Penco Engineering, Inc. Page 9 27.2 To the extent that Consultant's claim is a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, the Parties agree to follow the dispute resolution process set forth therein. Any part of such "Claim" remaining in dispute after completion of the dispute resolution process provided for in Public Contract Code section 9204 or any successor statute thereto shall be subject to the Government Claims Act requirements requiring Consultant to file a claim in strict conformance with the Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim" as defined in Public Contract Code section 9204 or any successor statute thereto, Consultant shall be required to file such claim with the City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. PREVAILING WAGES 29.1 Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Consultant and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Consultant is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Consultant or any Penco Engineering, Inc. Page 10 subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 29.2 Unless otherwise exempt by law, Consultant warrants that no contractor or subcontractor was listed on the bid proposal for the Services that it is not currently registered and qualified to perform public work. Consultant further warrants that it is currently registered and qualified to perform "public work" pursuant to California Labor Code section 1725.5 or any successor statute thereto and that no contractor or subcontractor will engage in the performance of the Services unless currently registered and qualified to perform public work. 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 30.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 30.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 30.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. Penco Engineering, Inc. Page 11 30.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 30.9 Controllinq Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 30.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 30.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Penco Engineering, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date:�j UWi 26, Zo(S By. Aaron C arp $ City Attirr Ay ATTEST: -1, Date: By: _d4Nj,ht,�_ Leilani I. Brown City Cler ,F,W %, CITY OF NEWPORT BEACH, a California municipal corporation Date: By: � rshall "D4^Duffield Mayor CONSULTANT: Penco Engineering, Inc., a California corporation Date, T//.QA- ;. G _ 2 o / A2 By: George a Chief Executive Officer and Chief Financial Officer [END OF SIGNATURES] Attachments: —Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Exhibit C - Insurance Requirements Penco Engineering, Inc. Page 13 EXHIBIT SCOPE OF SERVICES Penco Engineering, Inc. Page A-1 EXHIBIT A SCOPE OF SERVICES CONCRETE STREET PAVEMENT RECONSTRUCTION DESIGN Task Description Deliverables A IMMMUND DATA COLLECTION Immediately upon receipt of Notice to Proceed, PENCO will research and obtain readily available ✓ Compiled Existing record drawings and other data pertinent to the scope of work (to facilitate the preliminary Records (design files) design). PENCO already has in hand the previous Labelle Marvin pavement recommendations report prepared for the four (4) project streets and has already thoroughly reviewed the coring results (generally 4' to 5" PCC of existing pavement thickness), R -value (70), subgrade moisture and pavement recommendations for PCC thickness (including 4° AB under the PCC section for uniform grading purposes_ B UTILITY COORDINATION Preliminary research of utilities has shown existing water, gas, sewer, electrical and ✓ Utility Coordination Log telecommunication lines are located within the four (4) project streets_ PENCO has also obtained & Correspondence a certified list of all utilities and agencies within the project limits from Underground Service Alert. ✓ 2m Utility Notices The precise location of all impacted utilities will be established. PENCO will submit Preliminary ✓ 3rd & 4"h Utility Notices and Final design plans to affected utility companies. The final design plans will be compatible with (as -needed) all utilities in the project areas to be relocated, adjusted to grade or otherwise modified. C I DESIGN SURVEYING PENCO shall obtain ground specific field locations and elevations within the defined project limits. ✓ AutoCAD Civil 3D Said areas shall include the existing concrete roadways, concrete walkways, ADA ramps, curbs, 2015 files for gutters, visible utilities, and finish pavement Limits of field topography are from 10 feet beyond Topographic Survey existing westerly Right of Way to 10 feet beyond existing easterly Right of Way to facilitate the ✓ DTM of existing design of any abnormal join conditions. surface features PENCO shall prepare a detailed Topographic Survey Map based upon on the ground locations and elevations within the defined mapping limits in accordance with the American Congress of Surveying & Mapping (AGSM) 2016 mapping requirements for the project specified area, which includes: 1'=20' scale, 0.5 -foot contours, 25 -foot spot elevations, surface utilities, plotted cross sections at 25 -foot intervals. D BASE MAPPING AND FIELD REVIEW Utilizing the topographic survey (per Task C above), PENCO will prepare base maps at a scale of ✓ 20 scale Roadway, 1'=2U in AutoCAD, which will include dimensions, street names, north arrow, scale, match lines, RNV and Utility street centerline, existing R/W, stationing, location of surface topographic features and location of Basemap (.dwg) surface and subsurface utilities_ ✓ Field Notes & Photos Upon completion of base map preparation, PENCO will perform a comprehensive field review to confirm completeness I accuracy of the topographic survey from the base maps, note existing conditions that may affect the design, note access concerns 1 traffic control concerns, note potential utility issues and other construction challenges and collect a photo -document log of the project sites. From the data collected during our field review, the project's existing CAD base mapping will be updated. Task Description Delliverables DA HYDROLOGY AND HYDRAULICS STUDY A hydrology and hydraulic analysis will be performed for Anade Avenue within the limits of the ✓ Draft & Final Hydrology proposed street improvements to address the drainage challenges associated with the existing & Hydraulics Study sidewalk being below the top of curb elevation and the generally flat longitudinal street slope. A Report hydrology and hydraulics study report will be drafted to summarize the drainage impacts of the proposed street improvements and serve as the basis of the design for storm drain improvements. The hydrology and hydraulics study report will be prepared in accordance with the City's and Orange County Hydrology Manual and Local Drainage Manual. E PREPARATION OF CONSTRUCTION DOCUMENTS EA PLANS Based on review of the project limits and scope of work, the following is the anticipated plan sheet ✓ 50% Plans and count: Estimate Submittal • One (1) Title Sheet Package (PDF • Two (2) Typical Sections and Detail Sheets submittals) • Four (4) Street Improvement Plan and Profile Sheets (at 1"=20' scale horizontal and ✓ 90% PS&E Submittal 1'=2' or 4` vertical) Package (PDF • One (1) Storm Drain Improvement Plan and Profile (at 1"=20' scale horizontal and 1"=2' submittals) or 4' vertical) ✓ 100% Final PS&E • Seven (7) Design Cross Section Sheets (at 25' intervals) Submittal Package • Eleven (11) Landscaping Irrigation & Planting Plans & Details (at 1'=20' scale) (PDF submittals) Total = Twenty-six (26) sheets ✓ Approved, Signed A brief description of each plan and submittal component is as follows: reproducible plans on Mylar, Bid PS&E Title Sheet ✓ Written review Will be prepared on the City's standard title block and will include a vicinity map, legend, sheet comments from QA/QC index, general notes and signature blocks for all applicable agencies and project management reviews staff_ Utilfij contact info, and other City requested items will be added as needed Typical Sections and Detail Sheets General project notes, a master list of construction notes and roadway typical sections will be included that depict the proposed improvements_ Construction details will be prepared for all work items that cannot be built by a standard plan or do not have adequate space on the plan and profile sheet for the necessary elevation callouts_ Additional typical details will be included for pavement transitions, pavement reconstruction sections, and other miscellaneous construction items that require further detailing. Street Improvement Plan and Profile Sheets Street improvement plan and profile sheets will be prepared for the entire project limits of each street. Finish surface of the street centerline and top of curb profiles will be shown in the profile grid. Re-installation of pavement legends, raised pavement markers and curb painting that are impacted by the proposed street improvements will be depicted on the plan view improvements. As part of the design process, Civil 3D corridors will be setup and designed to calculate and depict the proposed design cross falls and elevations. Design sections will be plotted and submitted to the City for review during the 50% submittal phase_ Design sections are intended only for design review, and will not be formatted for construction documents 1 final production. Task Description Delliverables Storm Drain Plan and Profile Sheet (See previous page for Storm drain plan and profile sheet will be prepared for Anade Avenue showing the proposed deliverables) alignment and profile of the storm drain mainline and laterals, hydraulic information, pipe size and material and connection to the existing catch basin at Edgewater Place. Landscape Irrigation and Planting Plans and Details PENCO's subconsultant David Volz Design (DVD) will prepare construction drawings that will only address repair and replacement of any damaged landscape as a result of the new street improvements- The scope of services for this task proposes the type of new plant materials shall match the existing and that the existing planter locations and size remain similar to the existing planter's location and size. Any evaluation of sight lines and distances and electrical design are excluded from this task scope of services. QAIQC Reviews Prior to all milestone submittals for City plan check review, an experience independent in-house team, led by PENCO's QA/QC Manager Joe Litchfield, will perform a thorough review of said documents to confirm their quality, clarity, constructability and that all the project's intents are being met. Deliverables are prepared in accordance with engineering practices that address required standards and guidelines. Documents submitted to the City are independently checked and back -checked. The review process will include a 2rd thorough "back check" review of all recommended corrections Construction Document Processing After receiving the City's plan check comments on the 90% and 100% PS&E submittals, PENCO will prepare Final PS&E ready for bidding. All comments from the 50%, 90% and 100% reviews will be addressed, and where required, will be incorporated into the Final PS&E. After receiving final approval of the 100% PS&E by the City, PENCO will provide the City with a project file of the final signed plans on Mylar for City's signature, specifications and construction cost estimate. E.2 SPECIAL PROVISIONS Prepare technical specifications based upon the boiler plate supplied by the City. Described bid ✓ Electronic and hard items required by the plans or otherwise needed to accomplish the project construction in the copy of Complete General Provisions and include them in the Contractor's bid list. Reference Special Provisions to Specifications included the SSPWC Greenbook (2015 Edition), Caltrans or other appropriate specifications. in the 90% and 100% Design submittals E.3 COST ESTIMATE A detailed Engineers Opinion of Probable Construction Costs will be developed, in accordance ✓ Electronic and hard with City's requirements, for the 50%, 90% and 100% Final submittals to the City- The estimates copy of Cost Estimate will incorporate recent relevant bid prices, price quotes from equipment vendors as necessary included in the 50%, and will reflect the most recent trends in construction pricing. 90% and 100% Design submittals F PROJECT MANAGEMENT AND PROGRESS MEETINGS Project Manager Gary Solsona will manage the project administration for the durafion of the ✓ Meeting agenda and contract and implement the following documentation tools: minutes • Written team meeting agenda and minutes with the City's Project Manager and other ✓ Updated project stakeholders schedule Task Description Deliverables 1:.s • All directions documents in writing with distribution to City and all team members • Detailed monthly invoices broken down by task, staff hours and hourly rates, in accordance with City's requirements (See previous page for • Written monthly status reports (included as a backup to the monthly invoices), indicating deliverables) progress achieved during the reporting period in relation to the progress schedule • Submittal of QAIQC documents and comments with each submittal, as requested Provide coordination with City staff and other stakeholders for the work stated herein. This encompasses conducting meetings, providing necessary meeting minutes, conference calls and email correspondence. All meetings will be held at City Hall and PENCO will prepare all meeting agendas and minutes. The project schedule will be reviewed and refined at each meeting (as needed). The following meetings are anticipated: • Kick-off Meeting • Up to five (5) design meetings • Project milestone submittal meetings G CONSTRUCTION SUPPORT SERVICES GA BID ASSISTANCE Provide services during the bid stage by responding in writing to Contractor's questions. It is ✓ Bid addenda, revised understood that the City will receive all questions and issue the responses to the Contractor in plans and specifications order to properly control the flow of information. Assist the City in the issuance of addenda to the (as -needed) bid package. This consists of making design changes determined necessary to address clarifications. Other design changes, such as those for the Contractor's preference, are not anticipated. Changes in the overall design concept are not anticipated. Attend pre-bid meeting (if requested). If requested, PENCO will review all bids for irregularities and conformance with the bid documents. If requested, PENCO will also check Contractor references to make recommendations for contract award. G.2 I PRE -CONSTRUCTION MEETING PENCO's Project Manager will attend the pre -construction meeting, as requested by City staff, ✓ Meeting Notes and will respond to any questions received during or after the meeting_ ✓ Correspondence Records Contractor and City's construction representative redline drawings will be used for preparation of electronic as -built drawings. G.3 I REVIEW OF SUBMITTALS The Contractors submittals / shop drawings will be received by the City and transmitted to ✓ Responses to PENCO for review. Shop drawing reviews will be completed within three (3) working days of submittals / shop receipt. A total of 12 hours has been assumed for this task_ drawings (memo format) GA RFI 1 FIELD VERIFICATIONS PENCO will provide responses to requests for information submitted by the Contractor_ ✓ Responses to RFIs Clarification drawings will be prepared and distributed, as required. A total of 12 hours has been (memo format) assumed for this task. ✓ Field Walk Notes (as needed) G.5 I AS -BUILT DRAWINGS Contractor and City's construction representative redline drawings will be used for preparation of ✓ Draft and Final (Mylar) electronic as -built drawings. PENCO will draft revision clouds around all construction revisions, As -built drawings and will submit a bond and a PDF copy of the final As-builts for the City's records. City Responsibilities 'Ne acknowledge the City would assume the following responsibilities: • Make available and provide all existing data and information relevant to the proposed project • Provide all environmental documentation and clearances, if necessary • Provide construction management, administration, inspection and materials testing for the construction phase • Pay all outside agency permit fees, if any • Provide construction staking survey and oversee the Contractor's efforts to preservel perpetuate existing survey monuments and centerline ties Assumptions and Exclusions • Prevailing wages applies to survey and geotechnical work identified in the scope of services • Street centerline and right-of-way to be established by found record monuments and corresponding record maps • Preparation of Water Quality Management Plan and SWPPP for compliance with the NPDES permit during construction activities and permanent BMPs for post construction is excluded. SWPPP preparation will be made the Contractor's responsibility per strict requirements in the project specifications • Preparation of Temporary Construction Easements_ if required at driveways or sidewalk to be reconstructed requiring "matching work"fre-grading within private property, are excluded • Design of utility relocations is excluded • Utility potholing work is excluded EXHIBIT B SCHEDULE OF BILLING RATES Penco Engineering, Inc. Page B-1 EXHIBIT B FEE SCHEDULE CONCRETE STREET PAVEMENT RECONSTRUCTION DESIGN Based on Tasks per the below fee schedule: PERSONNEL HOURLY RATE Principal $ 230.00 Engineering Manager $ 210.00 Survey Manager $ 210.00 Senior Project Manager $ 195.00 Project Manager $ 185.00 Senior Project Engineer $ 165.00 Project Engineer $ 155.00 Supervising Sr. Design Engineer $ 150.00 Senior Design Engineer $ 140.00 Design Engineer $ 125.00 Associate Engineer $ 105.00 Engineering Technician $ 95.00 Project Assistant $ 100.00 Processor $ 100.00 Senior Project Surveyor $ 160.00 Project Surveyor $ 135.00 Senior Survey Technician $ 120.00 Survey Technician $ 95.00 2 -Man Survey Crew $ 230.00 2 -Man Survey Crew Prevailing Wage $ 280.00 1 -Man Survey Crew $ 175.00 TOTAL NOT -TO -EXCEED FEE (ALL TASKS AS SHOWN IN EXHIBIT A): $137,000 • Reproductions; deliveries; travel; meals and lodging; facsimiles; models, renderings and photos; Mylars; and CDs, not included in scope of work. • All reimbursable/Subconsultant costs shall be billed at cost plus 15% • Mileage shall be billed at the current IRS standard mileage rate • All accounts are due net 30 days from the date of invoice • Outstanding accounts shall be charged 1.0% per month All required overtime work shall be billed at 150% of the hourly rate EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Penco Engineering, Inc. Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Penco Engineering, Inc. Page C-2 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own Penco Engineering, Inc. Page C-3 judgment may be necessary for its proper protection and prosecution of the Work. Penco Engineering, Inc. Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 7/3/18 Dept./Contact Received From: Raymund Date Completed: 7/3/18 Sent to: Raymund By: Jan Company/Person required to have certificate: Penco Engineering, Ina.(concrete st pavement reconstruction) Type of contract: Other I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 7/21/17-7/21/18 A. INSURANCE COMPANY: RLI Insurance Company B. AM BEST RATING (A- : VII or greater): A+ / XI C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $1M/$2M E. ADDITIONAL INSURED ENDORSEMENT — please attach N Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers or Recreation) ❑ Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND COMPLETED OPERATIONS ENDORSEMENT (completed Operations status does not apply to Waste Haulers) ❑ Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? N Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? N Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes N No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): N N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A N Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 7/21/17-7/21/18 A. INSURANCE COMPANY: RLI Insurance Company B. AM BEST RATING (A-: VII or greater) A+ / XI C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. ADDITIONAL INSURED WORDING: ❑ N/A N Yes ❑ No G. PRIMARY & NON-CONTRIBUTORY WORDING: ❑ N/A N Yes ❑ No H. HIRED AND NON -OWNED AUTO ONLY: N N/A ❑ Yes ❑ No I. NOTICE OF CANCELLATION: ❑ N/A N Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 7/21/17-7/21/18 A. INSURANCE COMPANY: RLI Insurance Company B. AM BEST RATING (A-: VII or greater): A+ / XI C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY 7/21/17 — 7/21/18 ATLANTIC SPECIALTY INSURANCE CO. Rated: A/X, Admitted Limits: $2M/$3M ® N/A ❑ Yes ❑ No V POLLUTION LIABILITY ® N/A ❑ Yes ❑ No VI BUILDERS RISK ® N/A ❑ Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No IF NO, WHICH ITEMS NEED TO BE COMPLETED? Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 7/3/18 Date RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management Date * Subject to the terms of the contract.