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HomeMy WebLinkAboutC-5244-1 - PSA for Old Newport Boulevard and West Coast Highway ModificationsAMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH RAK DEVELOPMENT, INC. DBA KREUZER CONSULTING GROUP FOR OLD NEWPORT BOULEVARD AND WEST COAST HIGHWAY MODIFICATIONS THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 9th day of September, 2025 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and RAK DEVELOPMENT, INC., a California corporation doing business as ("DBA") KREUZER CONSULTING GROUP ("Consultant"), whose address is 18872 MacArthur Blvd, Suite 210, Irvine, CA 92612, and is made with reference to the following: RECITALS A. On October 17, 2024, City and Consultant entered into a Professional Services Agreement (Contract No. C-5244-1) ("Agreement") for engineering support services for the Old Newport Boulevard and West Coast Highway Intersection Improvement ("Project"). B. The parties desire to enter into this Amendment No. One to reflect additional Services not included in the Agreement, to extend the term of the Agreement to October 16, 2029 and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 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 October 16, 2029, 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 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. 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. 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 Three Hundred Six Thousand Six Hundred Fifty Five Dollars and 00/100 ($306,655.00), 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 Two Hundred Eighty Six Thousand Fifty Nine Dollars and 00/100 ($286,059.00). 4. 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] Rak Development, Inc. DBA Kreuzer Consulting Group 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 OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a California municipal corporation Date: Date: 2 S' By: I/ Im By: Aar n C. Harp �v ti� Joe Sta leto City Attorney c Mayor ATTEST: Date: 9 / By: -r-" Molly/P61rry Interim City Clerk .aEW P CONSULTANT: Rak Development, Inc a California corporation DBA Kreuzer Consulting Group Date: Signed in Counterpart By: Richard Andrew Kreuzer Chief Executive Officer, Chief Financial Officer It n Date: Signed in Counterpart By: Kelsey A Jaap Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Rak Development, Inc. DBA Kreuzer Consulting Group 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:- <5%.1 2<; By: C U •- Aai n C. Harp I City Attorney ATTEST: Date: A -- Molly Perry Interim City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Joe Stapleton Mayor CONSULTANT: Rak Development, Inc., a California/�corporationD A Kreuzer DateConsu / yz:\ By:-- R a A rew Kreuzer Chief Executive Officer, Chief Financial Officer Date: By: IQ, � � Kelse aap Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Rak Development, Inc. DBA Kreuzer Consulting Group Page 3 EXHIBIT SCOPE OF SERVICES Rak Development, Inc. DBA Kreuzer Consulting Group Page A-1 Task 1.0 — Project Management, Administration and Meetings Under this task, Consultant will manage the subconsultant team and coordinate project activities and tasks with the City of Newport Beach. Consultant will attend all project related meetings for the duration of the Project. Task 2.0 — Field Reviews Under this task, Consultant will conduct field reviews, as required, to ensure base map accuracy and to evaluate and resolve design issues in the field. Task 3.0 — Utility Coordination Due to the Project being on hold for over 2 years, Consultant will need to reestablish and maintain utility coordination activities which will consist of the following efforts: • Review plans showing location and size of all utility lines and appurtenances within the Project area. • Cross check plotted locations above with detailed topographic survey information to ensure that existing lines are shown in proper location. Field checks will be performed as necessary. • Based on the proposed improvements, determine where potential utility conflicts exist and where utility relocation is warranted. • Coordinate with affected utility companies regarding conflicts, relocations and improvements. This coordination effort will require providing updated plans to the utility agencies for the proposed improvements and also meeting with the various utility service planners on the Project site, as necessary, to discuss conflicts and/or relocations. Task 4.0 —Additional Field Surve Consultant has assumed that there will likely be a need to pick up additional field survey points to support the detailed design of the wall and on -site improvements on the back side of A's as well as some points on the Pacific Imaging site. Consultant has included provisions for 3 days of additional surveying, as needed. Task 5.0 — Updated Base Plan Based on the results of tasks 2.0, 3.0 and 4.0, Consultant will modify the Project base plan. Task 6.0 — Utility Potholing As reflected on Exhibit A on the following page, Consultant has identified the need for 4 utility potholes for the Project. Bess Test Labs (BST) will conduct these potholes per their proposal which is included herein as Attachment 1. Task 7.0 — Wall Geotechnical Report A geotechnical investigation and report are required to support the design of the soldier pile retaining wall along Santa Ana Avenue on the back side of the A's property. Albus Associates will complete this work in conformance with their proposal which is included herein as Attachment 2. Task 8.0 — Pacific Imaging Site Layout and Preliminary Design City staff are currently having discussions with the Pacific Imaging property owner. Based on these discussions, the parties anticipate the need to develop some options and alternatives for this Project site to facilitate further discussion and, ultimately, the owner's approval of improvements on his property. Consultant will develop preliminary plans and/or graphics, as requested, to facilitate this process. Task 9.0 — A's Site Layout and Preliminary Design Consultant has done a fair amount of preliminary design work to date on this site. This task will include refinements to this design and preparation of graphics, as required, to facilitate the City's further discussions with the property owner. Task 10.0 — Santa Ana Wall Design Under this task Consultant will set the wall horizontal alignment and will develop a profile for the wall. Consultant's design will also include the removal of the existing structure on the slope behind the Pacific Imaging site. Cross sections will be developed to depict the wall as well as the vertical location of Santa Ana Avenue and the proposed parking lots adjacent to the wall on the A's and Pacific Imaging sites. The structural details and supporting calculations for the retaining wall will be completed by Rende Consulting Group (RCG) in conformance with their proposal which is included herein as Attachment 3. Task 11.0 — Modify/Finalize Legal Descriptions and Plats Based on the final design plans, Consultant will modify the current legal descriptions and right of way plats for the acquisitions required from the A's site (AP #049-110-01) and the Pacific Imaging Site (AP #049-110-29) for the Project. These documents will cover all necessary takes, including permanent takes/easements as well as temporary construction easements. Task 12.0 — Right of Way Acquisition Dokken Engineering will provide right of way acquisition services for the Project in conformance with their proposal which is included herein as Attachment 4. Task 13.0 — Prepare 90% PS&E Under this task, the Consultant will prepare a 90% complete plan set consisting of the following sheets: Description Sheets Scale Title Sheet 1 NTS Typical Sections 1 NTS Construction Details 2 NTS Removal Plans 1 1 "=20' Roadway Plan & Profile 2 1 "=20' H; 1 "=2' V Off Site Plans 3 1 "=10' Utility Plan 1 1 "=20' Drainage Plan 1 1 "=20' Storm Drain Profiles 1 1 "=20' H; 1 "=2' V Retaining Wall Plan & Profile 1 1 "=20' H; 1 "=4' V Retaining Wall Details 2 Varies Planting Plan 2 1 "=10' Irrigation Plan 2 1 "=10' Planting & Irrigation Details 2 NTS Signing & Striping Plans 2 1 "=20' Construction Staging Plans 5 1 "=40' Cross Sections 9 1 "=10' H; 1 "=1' V Consultant will provide Construction Specifications for the Project as well as prepare and submit quantity calculations and a construction cost estimate. Consultant will utilize the services of Clark and Green Associates for the preparation of planting and irrigation plans and details. Their proposal is contained in Attachment 5 herein. Task 14.0 — Update/Finalize Water Quality Document Under this task, Consultant will update and finalize the Draft WQMP that was prepared for the Project in 2022. This document will be finalized in conformance with City format and content requirements. Task 15.0 — Respond to City Comments and Submit 100% PS&E Under this task, Consultant will address all City comments on the 90% submittal and will submit revised PS&E along with a response matrix which addresses all 90% comments. Task 16.0 — Respond to City Comments and Submit Final PS&E Under this task, Consultant will address all City comments on the 100% submittal and will submit revised PS&E along with a response matrix which addresses all 100% comments. Task 17.0 — Caltrans Encroachment Permit Under this task, Consultant will package the Project plans, including traffic control plans and required supporting documentation for submittal to Caltrans for an Encroachment Permit. This permit application will be processed through the CEPS portal. Consultant will address all Caltrans comments and/or requests for additional information until the permit is obtained. EXHIBIT B SCHEDULE OF BILLING RATES Rak Development, Inc. DBA Kreuzer Consulting Group Page B-1 p] N L L X U W W J O O O O O O M O C o O O O O O N V O o O O O O O O m O V V d' N V V O O N O O - w U O N M N M V N N N 00 H Ga fn Vj Efl EA EA ua v9 V3 EA 64 fA (fl 69 E9 Efl J Q) Fa- O O O io V O � M V (fl to O O cli M N V EA Efl d3 Vj 64 69 e2 EA N N N33i1J'8 NLIVI� O N fA Cn N 69 N3NN04 r s� r v� 1S9 0 o M ER 0 � M � Sne-Iv O O O CD N 30N3H O O O O �o O O M N J 0 O O d' O V O d' O N CD O O O O V O O 0 0 0 O O co O CDcoO O O O O O O O N O O O N V T O O V O O W N io to N (7 ER 6 V3 (o (f3 N Efl EA KT M H3 N EPr N V 69 V ER O ea nl CD 61i ff3 N" Efl 63 _ fA M U Y � WnS dWnl O 0 O 0 =:3 k .13A,dnS ainu L N N N N a33NIDN3 4 o V o N N V V N 00 oo v m o 0 o 0 CD .0 v coo v V `{ N 103rONd y� N n t» N39VNVW � O� N � N N N m O O V - M W 103rOHd C E O co V N N N IA L Y c � 0 rn N a 5 C m o o o m 00 O O m m � O O ~ .E n F- N O <n Cl) o Q) o W a O a @ @� �- m a ro y 12 `m V 7 C C J E O E E '2 {C I' @ a) a) p� N i>>s E O O (n N U (n C N �- >N > J 6> W O U O U U O t > N ¢ N •T• Uo w U0 C %.) CE 70 LL OA O Q m@ OQ C am o m o cQU i-Ci NN> o dv c p o o � � m a W o060 W i ao a- iL D -0a=@ Q � d o . CL 0U) K W m" U m N M v U� co r 00 rn o N M v n o m I T cv PROFESSIONAL SERVICES AGREEMENT WITH RAK DEVELOPMENT, INC. DBA KREUZER CONSULTING GROUP FOR v OLD NEWPORT BOULEVARD AND WEST COAST HIGHWAY MODIFICATIONS THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 17th day of October, 2024 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and RAK DEVELOPMENT, INC., a California corporation, doing business as ("DBA") KREUZER CONSULTING GROUP ("Consultant"), whose address is 18872 MacArthur Boulevard, Suite 210, Irvine, CA 92612, 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 support services for the Old Newport Boulevard and West Coast Highway Intersection Improvement ("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, 2026, 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 Thousand Five Hundred Ninety Six Dollars and 00/100 ($20,596.00), 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. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. Rak Development, Inc. DBA Kreuzer Consulting Group Page 2 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 Rick Kreuzer 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 Director of Public Works 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. 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 Rak Development, Inc. DBA Kreuzer Consulting Group Page 3 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 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. Rak Development, Inc. DBA Kreuzer Consulting Group Page 4 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 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. Rak Development, Inc. DBA Kreuzer Consulting Group Page 5 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 Computer Aided Design and Drafting ("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; or (b) 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, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. 17.4 All improvement and/or construction plans shall be plotted on standard twenty-four inch (24") by thirty-six inch (36") paper size. Consultant shall provide to City digital 'As -Built' drawings in both AutoCAD and Adobe PDF file format within thirty (30) days after finalization of the Project. 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. Rak Development, Inc. DBA Kreuzer Consulting Group Page 6 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. 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. Rak Development, Inc. DBA Kreuzer Consulting Group Page 7 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. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Director of Public Works Public Works Department City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Rick Kreuzer Rak Development, Inc. DBA Kreuzer Consulting Group 18872 MacArthur Blvd, Suite 210 Irvine, CA 92612 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 Rak Development, Inc. DBA Kreuzer Consulting Group Page 8 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 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. Rak Development, Inc. DBA Kreuzer Consulting Group Page 9 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. 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] Rak Development, Inc. DBA Kreuzer Consulting Group Page 10 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: By: Aar n C. Harp �S City Attorney y ATTEST: Date: I 1g. B a Y� 404 Leilani I. Brown City Clerk Z�IpoR CITY OF NEWPORT BEACH, a California municipal c rporation Date: 1 /) ?'l g 7 9LJ- -3 Director of Public Works CONSULTANT: RAK DEVELOPMENT, INC., a California corporation, doing business as ("DBA") KREUZER CONSULTING GROUP Date: Signed in Counterpart By: Richard Andrew Kreuzer Chief Executive Officer, Chief Financial Officer Date: Signed in Counterpart Bv: Kelsey A Jaap Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Rak Development, Inc. DBA Kreuzer Consulting Group Page 11 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: 1/ 1:5/la By: -� Aar n C. Harp City Attorney ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: David Webb Director of Public Works CONSULTANT: RAK DEVELOPMENT, INC., a California corporation, doing business as ("DBA") KREUZER CONSULTI l F o Date: �L By: Richard Andrew Kreuzer Chief Executive Officer, Chief Financial Officer Date: WIC 1i2y By: K*sJa Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Rak Development, Inc. DBA Kreuzer Consulting Group Page 11 EXHIBIT SCOPE OF SERVICES Rak Development, Inc. DBA Kreuzer Consulting Group Page A-1 Exhibit A -Scope of Services Engineering Support Services for Old Newport Boulevard and West Coast Highway Intersection Improvement Task 1.0 — Update LOS Calculations The traffic counts are over 10 years old. The City will be providing updated counts which will be utilized to prepare new Level of Service (LOS) calculations. KCG will utilize the services of Stantec Consulting to complete this task. Task 2.0 — Revise Conceptual Plan Under this task, KCG will revise the existing Conceptual Plan to include a retaining wall along Santa Ana Avenue behind the A's site. This wall will not continue behind the Medical Building property and no sidewalk will be constructed along Santa Ana as part of this project. Task 3.0 — Update Construction Cost Estimate KCG will prepare a construction cost estimate for the Conceptual Plan developed under Task 2.0. Task 4.0 — Right of Way Documents KCG will prepare legal descriptions and right of way plats for the acquisitions required from the Xs site (AP #049-110-01) and the Pacific Imaging Site (AP #049-110-29) for the subject project. Task 5.0 —Package Preliminary Plan Set Under this task KCG shall assemble a Preliminary Plan set for the Build Alternative, including the wall along Santa Ana Avenue. Task 6.0 — Draft Construction Specifications KCG will provide Draft Construction Specifications for the project. Task 7.0 —Additional Exhibits Under this task, KCG will prepare additional Exhibits as requested by the City. We have assumed up to three (3) Exhibits will be prepared under this task. EXHIBIT B SCHEDULE OF BILLING RATES Rak Development, Inc. DBA Kreuzer Consulting Group Page B-1 Exhibit 6 - Cost File Fee to complete this work is $20,596, broken down as follows: SUB • 1 LOS Calculations hr. $220 1 hr. $140 1 Sao i 7lly, $360 $5,456 $5,816 2 Revise Concept Plan 6 8 $2,440 $2,440 3 Construction Cost Estimate 4 8 $2,000 $2,000 4 Right of Way Documents 4 16 $3,120 $3,120 5 Package Preliminary Plan Set 4 6 $1,720 $1,720 6 Construction Specifications 10 $2,200 $2,200 7 Additional Graphics 3 3 16 $2,900 $2,900 Reimbursables $400 $400 $400 Total Hours Total Cost 32 $7,040 55 $7,700 $400 $15,140 $5,456 $20,596 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 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 Contract, 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 providing statutory benefits and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each employee for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California. 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 excess/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 two million dollars ($2,000,000) per occurrence, four million dollars ($4,000,000) general aggregate. The policy shall cover liability arising from bodily injury, property damage, 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 Rak Development, Inc. DBA Kreuzer Consulting Group Page C-1 arising out of or in connection with Work to be performed under this Contract, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each 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 two million dollars ($2,000,000) per claim and four million dollars ($4,000,000) 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. E. Excess/Umbrella Liability Insurance. If any Excess or Umbrella Liability policies are used to meet the limits of liability required by this contract, then said policies shall be "following form" of the underlying policy coverage, terms, conditions, and provisions and shall meet all of the insurance requirements stated in this contract, including, but not limited to, the additional insured and primary & non-contributory insurance requirements stated herein. No insurance policies maintained by the City, whether primary or excess, and which also apply to a loss covered hereunder, shall be called upon to contribute to a loss until the Consultant's primary and excess/umbrella liability policies are exhausted. 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 Contract 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. B. Additional Insured Status. All liability policies including general liability, products and completed operations, excess/umbrella liability, and automobile liability, if required, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as additional insureds under such policies. C. Primary and Non -Contributory. Consultant's insurance coverage shall be primary insurance and/or the primary source of recovery with respect Rak Development, Inc. DBA Kreuzer Consulting Group Page C-2 to the City, its City Council, boards and commissions, officers, agents, volunteers and employees. 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 or nonrenewal of coverage (except for nonpayment for which ten (10) calendar days' notice is required) 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. All of the executed documents referenced in this Contract must be returned to City within ten (10) regular City business days after the date on the "Notification of Award". Insurance certificates and endorsements 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 Contract. 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. The City reserves the right at any time during the term of the Contract to change the amounts and types of insurance required by giving Consultant ninety (90) 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. Rak Development, Inc. DBA Kreuzer Consulting Group Page C-3 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 proceeds in excess of 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 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 Contract, 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. Rak Development, Inc. DBA Kreuzer Consulting Group Page C-4 a Eri a r gm ¢ d arq a' W m ci m Cc: � 2 cu cn a a, m CS a fn �j wCL `a 0 U j � a No C L1 C: 7 a c � I 'p CJ � U L7 i I i M ©© a U7 ! i j U rn N N r n tt� i i j i i i I • f0 i z p U d Z7 <C!JByy 7 fL; in U, � S� Y d.' ! a i� D d 4 C I L <C 4 d Ci N I� p C 7 b C U C U 1 wtn p rJ o cuts , I O