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HomeMy WebLinkAboutC-7547-1 - PSA for Engineering Services for Assessment District No. 113AMENDMENT NO. TWO TO r PROFESSIONAL SERVICES AGREEMENT 1 WITH NV5, INC. FOR ENGINEERING SERVICES FOR ASSESSMENT DISTRICT NO. 113 THIS AMENDMENT NO. TWO TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. Two") is made and entered into as of this 8th day of June, 2021 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NV5, INC., a California corporation ("Consultant'), whose address is 163 Technology Drive, Suite 100, Irvine, California 92618 and is made with reference to the following: RECITALS A. On October 8, 2018, City and Consultant entered into a Professional Services Agreement ("Agreement') for Consultant to provide assessment engineering services related to Assessment District No. 113 ("Project'). B. On December 17, 2018, City and Consultant entered into Amendment No. One to the Agreement ("Amendment No. One") to reflect additional services not included in the Agreement, extend the term of the Agreement and to increase the total compensation. C. 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 June 30, 2023, to increase the total compensation, amend the Hold Harmless, Claims, and Notices sections, include Prevailing Wage 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 June 30, 2023, 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 this Amendment No. One, and Exhibit A to 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 Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Exhibit B to the Agreement, Exhibit B to Amendment No. One, and Exhibit B to Amendment No. Two shall collectively be known as "Exhibit B." 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 Three Hundred Two Thousand Three Hundred Fifty Dollars and 00/100 ($302,350.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. Two, including all reimbursable items and subconsultant fees, in an amount not to exceed Two Hundred Thirty Three Thousand Two Hundred Ninety Five Dollars and 00/100 ($233,295.00). 4. HOLD HARMLESS Section 9 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, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement (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). NV5, Inc. Page 2 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of 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 not act as a limitation upon the amount of indemnification to be provided by Consultant." 5. CONFLICTS OF INTEREST Section 25 of the Agreement is amended in its entirety and replaced with the following: "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) 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 seq., 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." 6. NOTICES Section 26.3 of the Agreement is amended in its entirety and replaced with the following: "26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Jeffrey M. Cooper NV5, Inc. 163 Technology Drive, Suite 100 Irvine, CA 92618" 7. CLAIMS Section 27 of the Agreement is amended in its entirety and replaced with the following: "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 NV5, Inc. Page 3 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.). 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.)." 8. PREVAILING WAGES Section 30 shall be added into the Agreement as follows.- "30.1 ollows: "30.1 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 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. 30.2 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." NV5, Inc. Page 4 9. 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. 10. 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] NV5, Inc. Page 5 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: ZoZ By: O -v,- -/— �- Aaron C. Harp City Attorney ATTEST: Date: � By: 04114� r )rA- Leilani I.grow-n-- City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Br Av ry Mayor CONSULTANT: NV5, INC., a California corporation Date: By: Signed in Counterpart Jeffrey M. Cooper Vice President Date: By: Signed in Counterpart Mary Jo O'Brien Corporate Secretary [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Exhibit C - Insurance Requirements NV5, Inc. Page 6 IN WITNESS WHEREOF, the parties have caused this Amendment No. Two to be executed on the dates written below. APPROVED AS TO FORM: CITYARNEY'S OFFICE Date: OU02-1 Z Aaron C. Harp City Attorney ATTEST: Date: By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Brad Avery Mayor CONSULTANT: NV5, INC., a California corporation Dater- rr By: _ Jeffre . Coop r Vice resident Date: �oyl By- MAJOn Corporate [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements NV5, Inc. Page 6 EXHIBIT A SCOPE OF SERVICES NV5, Inc. Page A-1 EXHIBIT A SCOPE OF SERVICES Assessment District No. 113 — Additional Scope of Services (Construction Management and Inspection Services) Consultant shall complete the following work: CONSTRUCTION MANAGEMENT & INSPECTION 11. Coordinate and oversee all activities related to the construction of the Project including residential permit support services, and maintain close liaison with the City Project Administrator. 12. Serve as contact point for coordination with the Contractor designated by City to perform the construction of the Project ("Contractor"), other agencies and utility companies. 13. Provide Project status updates to City Project Administrator. 14. Review and monitor the Contractor's schedule through weekly construction progress meetings. 15. Prepare daily inspection records and bi-weekly status reports. 16. Maintain an awareness of safety and health requirements and enforce applicable contract provisions for the protection of the public and project personnel. 17. Maintain binders of job records, including photos 18. Evaluate cost reduction incentive proposals and provide recommendations to City Project Administrator SPECIAL INSPECTION & LABORATORY TESTING 19. Provide qualified field technicians and inspectors on an as -needed basis to observe, sample and test construction materials including but not limited to soil, aggregate, base, Portland cement concrete, and asphalt concrete 20. Coordinate inspection visits at the request of the City's Construction Manager or authorized representative (Engineer). 21. Perform laboratory testing to evaluate material conformance to project requirements. Tests are anticipated to include Modified Proctor (Maximum Density and Optimum Moisture), Sand Equivalent, Grain Size Analysis, Asphalt maximum theoretical density, and unit weight. 22. Prepare and provide daily reports detailing observations, results of testing, and photographs. 23. Notify the Engineer and Contractor of any failures or non -conforming items. 24. Document and track retesting. 25. Provide written laboratory test reports of materials tested. 26. Field technicians and Inspectors will be equipped with appropriate PPE and industry standard sampling and testing equipment. Specialty equipment may be provided upon request at additional cost in accordance with attached Fee Schedule. 27. Registered engineer in the State of California will review all test data for conformance with project requirements. EXHIBIT B SCHEDULE OF BILLING RATES NV5, Inc. Page B-1 EXHIBIT B SCHEDULE OF BILLING RATES Assessment District No. 113 - Additional Scope of Services (Construction Management and Inspection Services) Tasks 11 through 27: $233,295 N V 5 TASK NO. WORKDESCRIPTION Project Manager Senior Inspector $235 $155 Admin Field Technician Senior Engineer $105 $115 $170 TOTAL FEE HOURS $ HOURS $ HOURS $ HOURS $ HOURS $ CONSTRUCTION MANAGEMENT & INSPECTION 11.0 Oversight of at Construction Related Activities including Residential Perri Support 50 $11,750 225 $34,875 100 $10,500 $57,125 120 Point of Cardec: for Contractor, City, Utility Companies, etc. 20 $4,700 125 $19,375 $24,075 13.0 Project Status Updates 100 $15,500 16 $1,680 $17,180 14.0 Schedule Review 100 $15,500 16 $1,680 $17,180 15.0 Project Inspection (documented through daily reports and bi-weeldy status reports) 30 $7,050 120 $18,600 $25,650 16.0 Enforce contract Provisions/Manage health and safely requirements 10 $2,350 100 $15,500 $17,850 17.0 Detailed project records, including photos 10 $2,350 120 $18,600 18 $1,890 $22,840 18.0 Evaluate cost reduction incentives 10 $2,350 100 j $15,5D0 $17,850 Construction Management & Inspection Subtotal 130 $30,550 990 $153,450 150 $15,750 1 0 $0 0 $0 $199,750 SPECIAL INSPECTION 19.0 Field Observation and Testing 192 $22,080 $22,080 20.0 Coordinate Inspection Visits 7 $735 6 $1,020 $1,755 21.0-26.0 Laboratory Testing See Detail Below 27.0 EngineedngReview 6 $1,020 $1,020 LABORATORY TESTING Untis Rate Modified Proctor (Max Density & Optimum Moisture) 3 $200 $600 Sieve Analysis 3 $130 $390 Sand Equivalent 3 $95 $285 Maximum Theoretical Density (ASTM D2041) 2 $130 � $260 Asphalt Core Unit Weight & Thickness 6 $60 $360 Special Inspection& Laboratory Testing Subtotal $1,895 0 $0 7 $735 192 $22,080 12 $2,040 $26,750 Miscetarreous Expenses at 3% FEE $6,795 1TOTAL The City anticipates construction to begin August L 202L Services will be provided overthe course oftwo hundred and sixty (260) working days construction contract 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, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement. 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 NV5, Inc. Page C-1 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. 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, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement 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, employees and any person or entity owning or otherwise in legal control of the property upon which Consultant performs the Project and/or Services contemplated by this Agreement 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: NV5, Inc. Page C-2 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 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. Right to Review Subcontracts. Consultant agrees that upon request, all agreements with subcontractors or others with whom Consultant enters into contracts with on behalf of City will be submitted to City for review. Failure of City to request copies of such agreements will not impose any liability on City, or its employees. Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a format at least as broad as CG 20 38 04 13. D. 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. E. 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 NV5, Inc. Page C-3 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. F. 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. G. 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. H. 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. 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. NV5, Inc. Page C-4 Reyes, Raymund To: Julie Bloom Subject: RE: City of Newport Beach - FV00000570 Nv5 for AD 113 From: Julie Bloom <julie.bloom@Ebix.com> Sent: Wednesday, June 23, 20211:32 PM To: Reyes, Raymund <rreyes@newportbeachca.gov> Subject: RE: City of Newport Beach - FV00000570 Nv5 for AD 113 [EXTERNAL EMAIL] DO NOT CLICK links or attachments unless you recognize the sender and know the content is safe. Hi Raymund, Account # FV00000570 is now compliant. Thanks. Client Service Analyst 1 770 524-2700 Ext. 2510 Email julie,bloom@ebix.com I Web www.ebix.com " FASTEST ;- GRGIViG B XO�FbNIES From: Reyes, Raymund [mailtp;,_rrey_es a ne_omortbeachca,ciov] Sent: Wednesday, June 23, 20212:00 PM To: Julie Bloom Subject: City of Newport Beach - FV00000570 Nv5 for AD 113 r CITY CLIEN LAr AMENDMENT NO. ONE TO r PROFESSIONAL SERVICES AGREEMENT CJ WITH NV5, INC. FOR ENGINEERING SERVICES FOR ASSESSMENT DISTRICT NO. 113 THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 17th day of December, 2018 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NV5, INC., a California corporation ("Consultant"), whose address is 9890 Irvine Center Drive, Irvine, California 92618, and is made with reference to the following: RECITALS A. On October 8, 2018, City and Consultant entered into a Professional Services Agreement ("Agreement") for assessment engineering services related to Assessment District No. 113 ("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 Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Exhibit B to the Agreement and Exhibit B to Amendment No. One shall collectively be known as "Exhibit B." 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 Sixty Nine Thousand Fifty Five Dollars and 00/100 ($69,055.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." 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 Forty Thousand Eight Hundred Fifty Dollars and 00/100 ($40,850.00). 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] NV5, 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 ATTORN Y'S OFFICE Date: I7/-zn $ By:� W -'Aaron C. Harp ILK 11•tL•tg City Attorney ATTEST: Date: V By: k&J-- . Leilani I. Brown City Clerk Attachments: CITY OF NEWPORT BEACH, a California municipal corporation Date:I -'�J-IP-' Bv� D60 A. Webb Public Works Director CONSULTANT: NV5, Inc., a California corporation Date: 12/21 /12F B. T George Vice Presrcf t Date: t Z/ Z7'/ r By: Jeffreyooper Director. of Municipal Services [END OF SIGNATURES] Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates NV5, Inc. Page 3 State of California L S Secretary of State Statement of Information FS90870 (Domestic Stock and Agricultural Cooperative Corporations) FEES (Filing and Disclosure): $25.00. I LE D If this is an amendment, see instructions. IMPORTANT — READ INSTRUCTIONS BEFORE COMPLETING THIS FORM In the office of the Secretary of State of the State of California 1. CORPORATE NAME NV5, INC. DEC -13 2017 2. CALIFORNIA CORPORATE NUMBER C1015797 This Space for Filing Use Only No Change Statement (Not applicable if agent address of record is a P.O. Box address. See instructions.) 3. If there have been any c anges to the Information contained in the last Statement of Information filed with the California Secretary of State, or no statement of information has been previously filed, this form must be completed in its entirety. If there has been no change in any of the information contained in the last Statement of Information filed with the California Secretary of State, check the box and proceed to Item 17. Complete Addresses for the Following (Do not abbreviate the name of the city. Items 4 and 5 cannot be P.O. Boxes.) 4. STREET ADDRESS OF PRINCIPAL EXECUTIVE OFFICE CITY STATE ZIP CODE 200 SOUTH PARK ROAD SUITE 350, HOLLYWOOD, FL 33021 5. STREET ADDRESS OF PRINCIPAL BUSINESS OFFICE IN CALIFORNIA, IF ANY CITY STATE ZIP CODE fi. MAILING ADDRESS OF CORPORATION, IF DIFFERENT THAN ITEM 4 CITY STATE ZIP CODE Names and Complete Addresses of the Following Officers (The corporation must list these three officers. A comparable title for the specific officer may be added; however, the preprinted titles on this form must not be altered.) 7. CHIEF EXECUTIVE OFFICER/ ADDRESS CITY STATE ZIP CODE DICKERSON WRIGHT 200 SOUTH PARK ROAD SUITE 350, HOLLYWOOD, FL 33021 8. SECRETARY ADDRESS CITY STATE ZIP CODE MARYJO O'BRIEN 200 SOUTH PARK ROAD SUITE 350, HOLLYWOOD, FL 33021 9. CHIEF FINANCIAL OFFICER/ ADDRESS CITY STATE ZIP CODE STEPHANIE STRONG 200 SOUTH PARK ROAD SUITE 350, HOLLYWOOD, FL 33021 Names and Complete Addresses of All Directors, Including Directors Who are Also Officers (The corporation must have at least one director. Attach additional pages, if necessary.) 10. NAME ADDRESS CITY STATE ZIP CODE RICHARD TONG 200 SOUTH PARK ROAD SUITE 350, HOLLYWOOD, FL 33021 11. NAME ADDRESS CITY STATE ZIP CODE DONALD ALFORD 200 SOUTH PARK ROAD SUITE 350, HOLLYWOOD, FL 33021 12. NAME ADDRESS CITY STATE ZIPCODE DICKERSON WRIGHT 200 SOUTH PARK ROAD SUITE 350, HOLLYWOOD, FL 33021 13. NUMBER OF VACANCIES ON THE BOARD OF DIRECTORS, IF ANY: Agent for Service of Process If the agent is an individual, the agent must reside in California and Item 15 must be completed with a California street address, a P.O. Box address is not acceptable. If the agent is another corporation, the agent must have on file with the California Secretary of State a certificate pursuant to California Corporations Code section 1505 and Item 15 must be left blank. 14. NAME OF AGENT FOR SERVICE OF PROCESS CORPORATION SERVICE COMPANY WHICH WILL DO BUSINESS IN CALIFORNIA AS CSC -LAWYERS INCORPORATING SERVICE 15. STREET ADDRESS OF AGENT FOR SERVICE OF PROCESS IN CALIFORNIA, IF AN INDIVIDUAL CITY STATE ZIP CODE Type of Business 16. DESCRIBE THE TYPE OF BUSINESS OF THE CORPORATION CONSULTING 17. BY SUBMITTING THIS STATEMENT OF INFORMATION TO THE CALIFORNIA SECRETARY OF STATE, THE CORPORATION CERTIFIES THE INFORMATION CONTAINED HEREIN, INCLUDING ANY ATTACHMENTS, IS TRUE AND CORRECT. 12/13/2017 RICHARD TONG EVP DATE TYPE/PRINT NAME OF PERSON COMPLETING FORM TITLE SIGNATURE SI -200 (REV 01/2013) Page 1 of 1 APPROVED BY SECRETARY OF STATE EXHIBIT A SCOPE OF SERVICES Assessment District No. 113 - Additional Scope of Services Consultant shall complete the following Work: 8. Prepare first and second notice of assessment for two cash collection periods. File notice(s) of assessment with the county twice. 9. Answer phone calls and questions during the first cash collection period from property owners. 10. Answer phone calls and questions during the second cash collection period from property owners. NV5, Inc. Page A-1 EXHIBIT B SCHEDULE OF BILLING RATES Assessment District No. 113 - Additional Fees Tasks 8 through 10: $40,850.00 New Total Not to Exceed Amount: $69,055.00 NV5, Inc. Page B-1 i J PROFESSIONAL SERVICES AGREEMENT (� WITH NV5, INC. FOR U ENGINEERING SERVICES FOR ASSESSMENT DISTRICT NO. 113 THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 8th day of October, 2018 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and NV5, INC., a California corporation ("Consultant'), whose address is 9890 Irvine Center Drive, Irvine, California 92618, 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 assessment engineering services related to Assessment District No. 113 ("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 December 31, 2021, 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 Twenty Eight Thousand Two Hundred Five Dollars and 00/100 ($28,205.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 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. NV5, Inc. Page 2 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 Jeffrey M. Cooper, PE 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. 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. 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. NV5, Inc. Page 3 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 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 NV5, Inc. Page 4 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. 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 NV5, Inc. Page 5 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 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 NV5, Inc. Page 6 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 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. NV5, Inc. Page 7 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) 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 seq., 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. NV5, Inc. Page 8 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: Jeffrey M. Cooper, PE NV5, Inc. 9890 Irvine Center Drive Irvine, CA 92618 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. 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.). 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 NV5, Inc. Page 9 Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. STANDARD PROVISIONS 29.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 29.2 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. 29.3 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. 29.4 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. 29.5 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. 29.6 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. 29.7 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. 29.8 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. 29.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. NV5, Inc. Page 10 29.10 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. 29.11 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. 29.12 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] NV5, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOR EY'S OFFICE Date: b V201 By: A't r�r Aaron C. Harp PA 10.8.19 City Attorney ATTEST: /0 n� Date: , i( s 19 JAI Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California munici al corporation Date: By722,,L, David A. Webb Public Works Director CONSULTANT: NV5, Inc., a California corporation By: Signed in Counterpart Todd George Vice President Date: By: Signed in Counterpart Jeffrey M. Cooper Director of Municipal Services [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements NV5, 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: CITY OF NEWPORT BEACH, a California municipal corporation Date: BY L d� By: pp/:Aaron C. Harp tk""O•OAS David A. Webb City Attorney Public Works Director ATTEST: Date: 0 Leilani I. Brown City Clerk CONSULTANT corporation o Date: 10 — By: lncw - Todd George Vice President NV5, Inc., a California Date: 1 fl --!j " 1 By: Sk /�� Jeffrey .Coop r Direct of Municipal Services [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements NV5, Inc. Page 12 CORPORATE AUTHORIZATION RESOLUTION I, Richard Tong, Executive Vice President and Director of NVS, Inc. (The "Corporation') hereby certifies that: the Corporation is duly organized and existing under the laws of the State of California and the following is true, accurate and complete transcript of a resolution contained in the minute book of the Board of Directors of said Corporation duly held, at which meeting there was present and acting throughout a quorum authorized to transact business hereinafter described, and that the proceedings of said meeting were in accordance with the charter and by-laws of said Corporation and that said resolutions have not been amended or revoked and are in full force and effect: Resolved, that Todd George, Vice President, be and is hereby authorized and empowered to sign any and all contracts and documents on behalf of said Corporation, and to take such steps, and do such other acts and things, as in his or her judgment may be necessary, appropriate or desirable in connection with any proposal submitted to, or any contract entered into with the City of Newport Beach, Public Works Department, for Engineering Services for Assessment District No. 113; and, Resolved, that any and all transactions by and of the officers of representatives of the Corporation, in its name and for its account, with the City of Newport Beach, Public Works Department, for Engineering Services for Assessment District No. 113, prior to the adoption of these resolutions be, and they are hereby, ratified and approved for all purposes. Witness my hand and seal of the Corporation this October 9, 2018. Richard Tong, Exeoo he Vice President EXHIBIT A SCOPE OF SERVICES NV5, Inc. Page A-1 f�'i -- 9: SCOPE OF SERVICES ASSESSMENT DISTRICT NO. 113 — ENGINEER'S REPORT AND FORMATION PROCEEDINGS PROJECT DESCRIPTION The Consultant shall complete the following Scope of Work; commencing at the point at which sufficient petitions requesting the formation of Utility Undergrounding Assessment District No. 113 (boundary attached as Exhibit 1) have been received by the City, and concluding with the close of the public hearing and confirmation of the assessment district. This includes any required amendments to the Engineer's Report, plus a review of the Preliminary and Final Official Statements. The following tasks are required to complete the assessment district formation. SCOPE OF SERVICES 1. Print and mail Resolution of Intention, preliminary assessment amount, and time and place of Public Hearing to each assessed property owner of record, as required by 1913 Act proceedings (contents of notice will be provided by bond counsel). Prepare written declaration that this has been done. Prepare replacement ballots as needed. 2. Prepare Amended Engineer's Report in which the confirmed assessment spread is based on final approved estimate of fees to be financed, including incidental costs and financing costs. 3. File Amended/Confirmed Engineers Report with the Superintendent of Streets. 4. Attend Public Meeting and Public Hearing, at City Council meetings and make presentations as required. 5. Count ballots received and enter the results, by financial obligation, to determine the percentage protest, and replacement ballots needed during ballot period. The ballots are weighed by "financial obligation" or by the amount of the property's assessment. All ballots must be returned prior to the close of the public hearing. Result of tabulation may be continued to the next City Council Meeting. File the Assessment Diagram with the County as needed after public hearing. 6. Staff Meetings, project administration, and coordination with City staff, bond counsel, financial advisor, bond underwriter, appraiser, and other project consultants (assume 3 staff meeting in addition to the meetings described above). This item shall include answering questions and providing information to property owners, project proponents, community association representatives, etc. 7. Assist City Staff with inquiries from residents including but not limited to: phone calls, emails, web requests, letters and meetings regarding the status, and procedures of Assessment District proceedings. Exclusions The following items of work are not included within the above Scope of Services: 1. Right-of-way services. 2. Post -public hearing services (except as noted) including debt service (amortization) schedules and placing assessment on tax roll. 3. Property valuation and tax delinquency information. 4. Advertising of notices in newspaper. 5. Preparation of improvement plans, specification and bid documents. Services, Information and/or Fees to be Provided by Others In preparing the above Scope of Work, it is understood that the following services, information and/or fees will be supplied by the City or other consultants. 1. Utilities construction cost estimates. 2. Data base, assessment spreads, Engineer's Report, boundary maps and assessment diagrams prepared by Penco Engineering under Jeff Cooper's supervision. 3. Postage and public agency letterhead and envelopes for property owner mailings. 4. Posting notices on property. 5. Right -of -entry onto private property, as required. 6. Other consultants (including property appraiser) whose services are required to complete the assessment district formations. 7. Preparation of Certificate of Sufficiency of Petition. 8. Preparation and execution of Notice of Exemption. M EXHIBIT "1" t i.e Rn Inn r✓ r IR•R J .1M -!.I v.. n 1 '9 V IS .I.l .aw, re II KI!S CITY OF NEWPORT BEACH ASSESSMENT DISTRICT - 113 'NEST RAW)A STAND EXHIBIT B SCHEDULE OF BILLING RATES NV5, Inc. Page B-1 FEE PROPOSAUSCHEDULE OF BILLING RATES ASSESSMENT DISTRICT NO. 113 — ENGINEER'S REPORT AND FORMATION PROCEEDINGS Tasks 1 through 7: $27,205.00 Reimbursables: $1,000.00 Total Not -to -Exceed Cost: $28,205.00 Schedule of Billing Rates: Assessment Engineer $235 Senior Inspector $160 Utility Plan Checker $140 Mapping + Database $115 Administration $95 Reimbursable Costs: Reproductions; deliveries; travel; facsimiles; models, renderings and photos; Mylars; and CDs, not included in scope of work. All reimbursable costs shall be billed at cost plus 15%. Mileage shall be billed at Current Federal Mileage Reimbursement Rate (office staff only). 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. NV5, 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. NV5, 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 NV5, Inc. Page C-3 judgment may be necessary for its proper protection and prosecution of the Work. NV5, 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: 10/8/18 Dept./Contact Received From: Raymund Date Completed: 10/8/18 Sent to: Raymund By: Jan Company/Person required to have certificate: NV5, Inc. Type of contract: Other L GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 5/1/18-5/1/19 A. INSURANCE COMPANY: Valley Forge Insurance Company B. AM BEST RATING (A-: VII or greater): A / XV INSURANCE COMPANY: Continental Insurance Company C. ADMITTED Company (Must be California Admitted): B. Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? $1M/$2M E. ADDITIONAL INSURED ENDORSEMENT — please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must Is Company admitted in California? include): Is it included? (completed Operations status does ❑ No D. not apply to Waste Haulers or Recreation) ❑ Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND UM, $2M min for Waste Haulers): What is limits provided? COMPLETED OPERATIONS ENDORSEMENT (completed E Operations status does not apply to Waste Haulers) ❑ Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City (What is limits provided?) its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be ❑ No G. included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured H. HIRED AND NON -OWNED AUTO ONLY: is not limited solely by their negligence) Does endorsement ❑ Yes ❑ No include "solely by negligence" wording? ❑ Yes ®No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 5/1/18 — 5/1/19 A. INSURANCE COMPANY: Continental Insurance Company 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 - If Employees (Must be $1M 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 ® Yes ❑ No G. PRIMARY & NON-CONTRIBUTORY WORDING: ❑ N/A ® Yes ❑ No H. HIRED AND NON -OWNED AUTO ONLY: ® N/A ❑ Yes ❑ No I. NOTICE OF CANCELLATION: 0 N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 5/1/18 — 5/1/19 A. INSURANCE COMPANY: National Fire Insurance Company of Hartford B. AM BEST RATING (A-: VII or greater): A / XV C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1 M 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 5/1/18-5/1/19 BERKLEY INSURANCE COMPANY Rated: A+ / XV, Admitted Limits: $10M/$20M ❑ N/A ®Yes ❑ No V POLLUTION LIABILITY VI BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? A 1 \�/ 1 10/8/18 Agent of Alliant Insurance Services Date Broker of record for the City of Newport Beach ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No 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 * Subject to the terms of the contract. Date