Loading...
HomeMy WebLinkAbout09 - Engineering On-Call ServicesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 July 28, 2009 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Michael J. Sinacori, Assistant City Engineer 949 - 644 -3342 or msinacod @city.newport- beach.ca.us SUBJECT: ENGINEERING ON -CALL SERVICES - APPROVAL OF AMENDMENT TO PROFESSIONAL SERVICES AGREEMENT WITH CIVIL WORKS ENGINEERS, INC.; PROFESSIONAL SERVICE AGREEMENT WITH SO CAL WALDEN, INC. DBA WALDEN & ASSOCIATES; AND PROFESSIONAL SERVICES AGREEMENT WITH C &C ENGINEERING, INC. DBA CNC RECOMMENDATIONS: 1. Approve Amendment No. 1 to Professional Services Agreement with Civil Works Engineers, Inc., for on -call engineering services and authorize the Mayor and City Clerk to execute Amendment No. 1. 2. Approve Professional Services Agreement with So Cal Walden, Inc. dba Walden & Associates ( "Walden & Associates') for on -call engineering and surveying services and authorize the Mayor and City Clerk to execute the Professional Services Agreement. 3. Approve Professional Services Agreement with C &C Engineering, Inc. dba CNC ( "CNC') for on -call engineering services and authorize the Mayor and City Clerk to execute the Professional Services Agreement. DISCUSSION: On -Call Professional Services Agreements (PSAs) were developed to avoid a large volume of small but time - consuming agreements between the City and consultants to accomplish on -going project tasks for implementation of the Capital Improvement Program (CIP). The On -Call PSA is similar to the standardized PSA used by the City with the exception of Section 2 (Services to be Provided) and Section 4 (Compensation to the Consultant). These sections have been modified to allow the consultant to provide services for multiple projects at fees that are set for a period of time. Engineering On -Call Services — Approval Professional Services Agreements July 28, 2009 Page 2 On -Call Professional Services Agreements allow the City to retain consultants in an amount not to exceed $50,000 per specific capital project. If cumulative amendments to an On -Call Project cause the total contract value to exceed the $50,000 limit, a separate Professional Services Agreement with Council approval is required pursuant to Council Policy F- 14(A)(B). In accordance with Council Policy F -14, staff requested statements of qualifications from local firms. Based on the qualifications received, staff recommends a continuation of the On -Call Agreement with Civil Works Engineers, Inc. which was entered into on June 26, 2007. Civil Works Engineers, Inc. provided on -call construction engineering services for the River Avenue Pedestrian Coastal Access Improvements Project. The City has since entered into a separate Professional Services Agreement with Civil Works Engineers, Inc. for the design of the final construction plans for River Avenue. As Civil Works Engineers, Inc. has and continues to provide quality service, the City would like to renew its on -call relationship with them. Walden & Associates is based in Irvine and has provided engineering and surveying services for numerous cities throughout Southern California, including Huntington Beach, Brea, Corona, Fountain Valley and Newport Beach. Walden & Associates has provided the City with excellent service on previous past projects and is knowledgeable of the City standards and requirements. CNC is a mid -sized engineering firm with strong qualifications. The firm has provided engineering design and construction management services for public agencies and private clients throughout Southern California for the past 23 years. The proposed On -Call Agreements would be effective through March 30, 2011. Rates included in the agreements are competitive and in line with industry standards. The new fees for various services are either unchanged or approximately 4 -10% higher than 2007. Please refer to the attached table for rate comparisons. Funding Availabilit Funds for these services are available in specific project accounts within the City Council approved Capital Improvement Program. Engineering On -Call Services — Approval Professional Services Agreements July 28, 2009 Page 3 Environmental Review: Environmental clearances will be completed for each Capital Improvement Project. Prepared by: MiklS Sinacori, Assistant City Engineer Submitted by: f "'.J , , , ephen 6.tadum Public Works Director Attachments: Amendment No. 1 to Agreement with Civil Works Engineers, Inc. Professional Services Agreement with Walden & Associates; Professional Services Agreement with CNC Rate Comparison Table RATE COMPARISON TABLE CIVIL WORKS ENGINEERS, INC. Position 2007 Hourly Rates 2009 Hourly Rates Hourly Rate Increase Principal $150 $165 $15 Project Manager $140 $ISO $10 Senior Engineer $125 $130 $ 5 Engineer $105 $115 $10 Sr. Designer $105 $110 $ 5 Jr. Designer $ 90 $ 95 $ 5 Designer $ 90 $ 90 $ 0 Jr. Designer N/A $ 80 N/A CADD Designer /Technician $ 80 $ 75 ($ 5) Clerical /Admin Support $ 55 $ 60 $ 5 Amount Expended 6/2007 - 6/2009 Pedestrian Coastal Access Improvements' $ 26,000.00 Total $ 26,000.00 *City entered into a Professional Services Agreement with Civil Works Engineers, Inc. on November 20, 2008 for final design and construction plans. WALDEN & ASSOCIATES Position 2009 Hourly Rates Principal $160 Project Manager $140 Project Engineer /Land Surveyor $125 Design Engineer /Land Surveyor $110 Engineer /Land Surveyor $ 95 Assistant Engineer /Designer/ Land Surveyor $ 85 Senior Draftsman $ 80 Expert Witness Deposition/ Trial Testimony $300 CNC Position 2009 Hourly Rates Principal -in- Charge $175 Senior Project Manager $150 Project Manager $125 Project Engineer $110 Design Engineer $ 90 AutoCAD Designer $ 75 Administration $ 60 Technician $ 50 Survey Manager $125 Project Surveyor $ 85 One Man Crew $110 Two Man Crew $165 Three Man Crew $220 Four Man Crew $300 Survey Technician $ 70 Senior Construction Inspector $ 95 Construction Inspector $ 85 AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH CIVIL WORKS ENGINEERS, INC. FOR ON -CALL ENGINEERING SERVICES THIS AGREEMENT is made and entered into as of this day of , 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and CIVIL WORKS ENGINEERS, INC., a California corporation whose address is 3151 Airway Avenue, Suite S -2, Costa Mesa, California 92626 ( "Consultant "), and is made with reference to the following: RECITALS A. On June 26, 2007, City and Consultant entered into an On -Call Professional Services Agreement, hereinafter referred to as "AGREEMENT" for engineering services to assist the City in executing its fiscal year 07/08 and 08/09 Capital Improvement Program. B. City desires to enter into this AMENDMENT NO. ONE to reflect additional engineering services for the fiscal year 09/10 and 10/11 Capital Improvement Program, extend the term of the Agreement, amend the billing rates and increase the maximum fees allowable per Letter Proposal. C. City and Consultant mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. ONE," as provided here below. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of the AGREEMENT shall be extended to March 31, 2011. 2. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section, the Agreement dated and approved by City Council on June 26, 2007, attached hereto as Exhibit A and incorporated herein, the provisions of AMENDMENT NO. ONE, and the amended billing rates, attached hereto as Exhibit B and incorporated herein. No rate changes shall be made during the term of AMENDMENT NO. ONE without the prior written approval of the City. Consultant's compensation for services performed, in accordance with AMENDMENT NO. ONE, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Contract Administrator. Any Letter Proposal that sets forth fees in excess of Fifty Thousand Dollars and 00 /100 ($50,000.00), per on -call project, shall require a separate Professional Services Agreement approved per Council Policy F -14. 3. ADMINISTRATION AMENDMENT NO. ONE shall be administered by the Public Works Department. Dave Webb shall be the Project Administrator and shall have the authority to act for the City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 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. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: nette auc a p, Assistant City Att rtey for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH A Municipal Corporation By: Edward D. Selich, Mayor for the City of Newport Beach CIVIL WORKS ENGINEERS, INC.: BY: By: Leilani Brown, Marie Marston, P.E. City Clerk President and Treasurer for the City of Newport Beach Attachments: Exhibit A — Professional Services Agreement Exhibit B — Amended Schedule of Billing Rates 2 PROFESSIONAL SERVICES AGREEMENT WITH CIVIL WORKS ENGINEERS FOR ON -CALL ENGINEERING SERVICES - THIS AGREEMENT is made and entered into as of this � day of 200_1 by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City'), and CIVIL WORKS ENGINEERS, Inc., a California corporation, whose address is 3151 Airway Avenue, Suite S -2, Costa Mesa, CA 92626 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has a need for on -call assistance for engineering services related to the proposed Fiscal Year 07/08 and 08109 Capital Improvement Programs. C. City desires to engage Consultant to perform on -call engineering services throughout the City on an as need basis. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Agreement, shall be Marie Marston, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 30th- day of June, 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" engineering services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Contract Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The�Letter Proposal shall include the following: A. A detailed description of the services to be provided, B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Contract Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TWE OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for a specific project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Contract Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Contract Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit `B" and incorporated herein by. reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Contract Administrator, Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and/or classification of employee who performed the work, a brief description of the services performed and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. . Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of a specific project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. CONTRACT MANAGER Consultant shall designate a Contract Manager, who shall coordinate all phases of the Agreement. This Contract Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Marie Marston, P.E. to be its Contract Manager. Consultant shall not remove or reassign the Contract Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to a specific project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from a specific 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 a specific project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Contract Administrator and shall have the authority to act for City under this Agreement. The Contract Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faujty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without (imitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or the acts or omissions of its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on 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. Nothing in this Agreement shalt be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Contract 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 Contract. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Contract Administrator in advance of all critical decision points in order to ensure the Contract proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is_ responsible for keeping the Contract Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance 6 coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Gass VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain .Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount, not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1.000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and votunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided lo.City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. C F. Timety Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other contract. Any use of completed documents for other contracts 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. 18. COMPUTER DELIVERABLES 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 a specific project, for the completion of a specific project by others, or for any other Contract, 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 City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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 contractor bids or actual cost to City. 21. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date n of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection -of ~all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 22. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 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 paragraph is intended to limit City's rights under 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 a specific project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 11 26. NOTICES All notices,. demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served ` when delivered personally, or on the third business day after the deposit thereof in the United Slates mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Michael J. Sinaeori Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3342 Fax: 949- 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: CIVIL WORKS ENGINEERS 3151 Airway Avenue, Suite S -2 Costa Mesa, CA 92626 Phone: (714) 966 -9060 Fax: (714) 966 -9085 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non- defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 1 7 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Contract Administrator and City. 29. 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 tern, covenant or condition contained herein, whether of the same or a different character. 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. 31. 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. 32. 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. 33. 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. 34. INTERPRETATION The terns 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. 114 35. 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. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST G By: rr- 0 r�ir( LaVonne {ark s, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Y Mayor for the City of NeOp& Beach CIVIL WORKS ENGINEERS: By Marie Marston, P.E. Title: President Print Name: HCLO' L By: k'ZR (Financial Officer) Title: T(2Q 5oa-r Print Name: W4 %✓1rA&M Attachments: Exhibit A – Statement of Qualifications Exhibit B – Schedule of Billing Rates F au sers\cal\sh ared\Con tractTemplatesPubli shedon IntranetlFO RMOnC allAgreement, doc Statement of 1 Qualifications Prepared for: City of Newport Beach Public Works Cavil WO& Engineers 3151 Airway Avenue Suite S -2 Costa Mesa, CA 92626 (714) 966 -906o June 2007 Civil Works Engineers June 12, 2007 City of Newport Beach Michael Sinacon, P.E. Principal Civil Engineer 3300 Newport Boulevard Newport Beach, CA 92658 Dear Mr. Sinacon: Thank you for considering Civil Works Engineers for the City's on -call civil engineering contract. We are happy to provide our attached Statement of Qualifications (SOQ) for further consideration: Civil Works Engineers has planned and designed a wide variety of public works infrastructure projects including streets and freeways, drainage and storm water quality, as well as utilities and grading for site improvements. We provide civil engineering services over this range of disciplines at all levels of project development including initial planning, preliminary design development, final design / construction documents, and construction engineering assistance. Our SOQ contains representative information about our firm for your review. Please call if you have any questions or if you would like additional information. Sincerely, Marie Marston, P.E. President 3151 Airway Avenue, Suite S -2 • Costa Mesa, CA 92626 Exhibit A Description of Services Civil Works Engineers Description of Services Provided Civil Works Engineers, Inc. is a professional civil engineering consulting firm providing a broad range of planning and design services for transportation, drainage, and site civil projects. Tra vksportatiovti Our transportation engineers are specialized in both freeway system facilities working with Caltrans and on local street improvement projects working with municipalities and developers. Our staff has worked on privately- funded Caltrans facilities improvements since 1983. Our projects range from simple road rehabilitations to complex reconstruction of interchanges. We maintain proficiency in the always evolving 4 phase Caltrans project development process including Project Study Reports, Project Reports, Plans Specifications and Estimates, and construction engineering services. We also have considerable experience processing smaller state facility projects through the Caltrans encroachment permit process. In addition to the more typical planning and design for transportation projects, we have assisted numerous clients with funding assistance through research and preparation of funding applications at the local, state, and federal levels including the HBRR program. Project and program management, cost estimating, and scheduling are fundamental to these projects. site Our site planning and design experience involves both public and private facilities including parks, office buildings, hotels, parking structures, schools from K -12 and beyond, child care centers, retail centers, libraries,. and fire stations. We prepare the precise site grading and drainage design along with the appropriate utility modifications and /or coordination for tie-ins from the offsite utility facility to the onsite new facility. This includes water and sewer connections and coordination with electrical, phone, and gas systems. Our work Includes schematic design, design development, construction documents, and engineering assistance during construction. AYA%I�.GiAe Our drainage experience includes complete project preparation from the project concept evaluation of drainage impacts and local parameters to the development of drainage plans followed by construction. Most projects involve an increase in impervious area resulting in an increase In storm water flows. Subsequently, the additional quantity, direction, and quality of flow must be evaluated to determine the appropriate means of discharge and the most suitable best management practices (BMPsi. We prepare hydrology and hydraulic studies and reports, followed by implementation of the recommendations into final plans whether it consists of modifications to existing systems or entirely new drainage systems. We also have extensive experience in storm water handling including the preparation of Storm Water Data Reports as required by Caltrans, water quality management plans for permanent BMPs after construction, and Storm Water Pollution Prevention Plans (SWPPP) for temporary 8MPs during construction. Civil Works Engineers provides continuous client interaction to meet the project needs for schedule, funding, and quality_ We have maintained long -term clients over numerous years, demonstrating their satisfaction with Civil Works Engineers' services. Civil Works Engineers is a certified DBE/WBE/SBE Section 2 - Local Staffing List Marie Marston,.P,E. - Principal Engineer Francois Zugmeyer, P.E. - Senior Engineer I Drainage Engineer David Grantham, P.E. - Civil Engineer/ Utility Engineer Alvaro Perez - Junior Engineer Happi Loeb - Administrative Assistant Section 3 - Advance Notice Requirements Time commitments ultimately depend on the scope assigned to us and our current backlog. Fluctuations in workload are dependent on the timing of staff involvement, the current ongoing activity of staff, the type and duration of proposed work assignment, and correspondingly the personnel assigned (whether technical design or agency review /assistance), etc. Although all of our proposed staff members are currently committed to other projects as would be expected for any active consulting business, at this time, many of our projects are in construction or are winding down affording us the ability to take on additional work. If the City selects us for this on -call work, when the City contacts us with a specific project, we will assess our workload and staffing capability at that time along with the City's project and schedule requirements. We will inform the City if we can take on the project within our current workload. We have performed work for clients with design fees of a few thousand dollars to well over $500,000. The expected effort for the City's proposed project and the desired schedule will ultimately play the role in determining if we can take the project on. For our small firm, our reputation is highly dependent upon delivery of a quality product within the expected time frame. As such, we will be honest with the City of our ability to perform. MARIE MARSTON, P.E. PRINCIPAL ENGINEER civil Wain e,ya;.n EDUCATION B.S., 1980, Civil Engineering, Oregon State University M.B.A., 1988, University of California, Irvine PROFESSIONAL DATA Registered Professional Engineer in California ( #38798, 1984) PROFESSIONAL AFFILIATIONS Women's Transportation Seminar - OC President 2004 -05, OC Treasurer 2001 -03, Member American Society of Civil Engineers - Member, 1998 Chair of OC Transportation Tech Group American Public Works Association - Member Newport Beach Arts Foundation - President, Past Treasurer EXPERIENCE OVERVIEW Marie Marston, P.E., principal of Civil Works Engineers, Inc., has 27 years of professional civil engineering experience. Her experience includes general infrastructure and public works improvement projects such as transportation including streets and freeways, site Improvements for commercial and public facilities, hydrology and storm drains, right -of -way engineering, utility modifications, grading, retaining walls, as well as providing funding applications assistance. Her experience covers projects from inception to completion including project and program management, planning, design, and construction. She has experience in working with both the public and private sector including cities, counties, state agencies, federal agencies, school districts. universities, developers, and architects /engineers. PROJECT EXPERIENCE 21st Street Improvements, City of Newport Beach. Project Manager for design for the widening of 21 s' Street between Balboa Boulevard and Court Street. The purpose of the project was to provide two -way traffic (to an existing one -way street). The project also involved traffic signal modification, landscaping, and reconfiguration to the McFadden Place parking lot. Modifications included reconfiguration of the parking stalls, relocation of the entrance and exit, and drainage. 'Although the size of the parking lot decreased due to the street widening, the project was required to maintain the same number of parking stalls. Project site is under the jurisdiction of both the City of Newport Beach and the California Coastal Commission. A permit was required from the Coastal Commission prior to starting constriction. The project completed construction prior to the busy summer season of 2004 for a cost of $300,000. Mesa Drive / Irvine Avenue Intersection, City of Newport Beach, County of Orange. Project Manager. Prepared alignment study, several conceptual alternatives, and the final design for intersection improvements to provide dual westbound left turn lanes from westbound Mesa Drive to southbound Irvine Avenue. Project involved reslriping Mesa Drive east of Irvine Avenue and widening Mesa Drive west of Irvine Avenue. Street widening required retaining walls and the acquisition of right -of -way. Project will be included with County of Orange Irvine Avenue Widening Project. Mariners Village Improvements, City of Newport Beach, Caltrans District 12. Project Manager. City previously developed an overall four -phase concept plan for Mariners Village improvements consisting of landscaping, hardscape aesthetics, and traffic calming. Phase 1 included the proposed landscaping amenities along Coast Highway. This project involved the planting of 22 - 30 foot high Washingtonia Robusta palm trees along the north side of Coast Highway from Riverside Drive to south of Tustin Avenue. Due to the limited public right of way, some of the trees were planted within private property. Project involved replacement of sidewalk to provide space for the trees and to place the irrigation line, relocation of traffic signal conduit, planting of trees and shrub, permanent easements from 9 property owners, and thorough utility investigation. Construction was completed in February 2004 at a cost of $250,000. Corona del Mar State Beach, RobbinsJorgensenChdstopher, City of Newport Beach. Proiect Manager. The project included demolition of existing bathroom facilities and concession buildings, reconstruction of the entrance, ticket booth and associated landscaped islands, curb and sidewalk, two new bathroom facilities, a new concession building with lifeguard facilities, and hardscape between the existing back of curb and proposed perimeter seating wall. Provided civil engineering services related to the above tasks including grading, drainage, curb & gutter, utilities and coordination with the architect. Crean Mariners Branch Library, Thirtieth Street Architects, City of Newport Beach. Project Manager. Project involved the preparation of preliminary data for use in a funding application, prepared by the architect, for library expansion. Prepared a site survey, an ALTA, utility investigation and composite plan, and a preliminary layout of the revised library with respect to the adjacent uses consisting of an elementary school, a park and softball field, a fire station, and tennis courts. Upon approval of the funding grant, we prepared the civil construction plans for the tennis courts relocation, library site and parking lot, and park improvements design including demolition, grading, drainage, horizontal control, utilities, and signage. Per the Library Bond Act Regulations, the project included three submittals, schematic design plans, design development plans and final construction documents. Also prepared the Water Quality Management Plan. Lido Island Entry, NUVIS. Project Manager. The Lido Isle Homeowners Association sponsored a Lido Isle Beautification Project. We supported the landscape architect responsible for the preparation of conceptual and final design plans for construction of new median islands, reconfiguration of the existing street parking layout, modification to the curb returns, and construction of new decorative roadway paving. Project also involved geolechnical investigation to determine extent of pavement rehabilitation. Coordination with the City of Newport Beach and the California Coastal Commission was required. Estimated construction cost is $385,000. State Route 62 —New Sidewalks and Raised Median Islands Project Report, Willdan, Town of Yucca Valley, Caltrans District 8. Proiect Manager. Preparation of a Project Report for construction of sidewalks and raised median on the SR -62, Twenty Nine Palms Highway. The scope specifically included the preparation of the text of the report, geometry exhibits, Right of Way Data Sheets, Storm Water Data Report and Location Hydraulic Study. Project was funded by TCRP program and as.a result was placed on hold during the state budget crisis. Hoag Hospital Lower Campus Project, Child Care Center, Bielski Ladowicz Architects, City of Newport Beach. Project Manager. Project involved the preparation of preliminary. layout and civil portion of the construction documents for the proposed Child Care Center. The scope included grading, drainage, horizontal control, and utilities coordination plans. Wilson Street Pavement Rehabilitation, City of Costa Mesa. Proiect Manager. Preparation of final design and construction documents for pavement rehabilitation from Fountain Way East to Harbor Boulevard. This two -lane street with a center turning lane is located in a busy commercial and residential area. For this 114 mile length, the pavement is in disrepair and reconstruction was recommended. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R1W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.05 million. Sakioka Drive Pavement Rehabilitation, City of Costa Mesa. Project Manager. Preparation of final design and construction documents for pavement rehabilitation from Sunflower Boulevard to Anton Boulevard. This four4ane divided street with a raised median is located in a residential area and developing area. For this 113 mile length, the pavement for three lanes is recommended to be overlaid and the pavement in one lane was recommended to be reconstructed. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R/W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $730,000. South Coast Drive Pavement Rehabilitation, City of Costa Mesa. Project Manager. Preparation of final design and construction documents for pavement rehabilitation from Carmel Drive to San Leandro Lane. This two -lane street with a center turning lane is located in a residential area. The project involved complete pavement reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R/W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.30 million. Superior Avenue Pavement Rehabilitation, City of Costa Mesa. Project Manager. Preparation of final design and construction documents for pavement rehabilitation from the City limits to Anaheim Avenue. This two -lane street with a center turning lane is located in a busy commercial area. The project involved both pavement overlay and complete reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R/W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.63 million. Kenneth Hahn Regional Park Expansion. Tatsumi and Partners, County of Los Angeles Department of Parks and Recreation. Project Engineer responsible for all aspects of design through final PS &E. Responsible for the coordination and preparation of the field survey, base mapping, site design and sub consultant coordination. Project involved construction of new park access road, parking stalls, pedestrian trails, reslroom building, tot lot and picnic areas. The site is an undeveloped portion of the existing park. The project intent is to provide additional public use facilities while minimizing the impact to the existing native plants and site topography. Design involved site grading, drainage, new utility services, and erosion control plans. FRANC 01S ZUGMEYER, P.E. SENIOR ENGINEER Civil Wo&-EF gimme EDUCATION Civil Engineering Degree, 1972, E.N.S.A.I. Strasbourg, France PROFESSIONAL DATA Professional Engineer Registered in California (It31046, 1979) PROFESSIONAL AFFILIATIONS American Society of Civil Engineers - Member, Past Chair of Hydrology & Hydraulics Tech. Group EXPERIENCE OVERVIEW Mr. Zugmeyer has over 30 years of experience water resources, transportation, public works and site development. His experience in surface water and drainage projects includes hydrology, hydraulics, flood plain . analyses, flood control, reservoir operation, storm drain design, water quality (SWPPP & BMPs), and water resources planning. His experience in transportation projects includes geometric design, drainage, grading and reports prepared to City and Caltrans standards for all phases of project development. His site development experience includes survey basemapping and coordinate control, utility coordination, rough and precise grading, drainage and storm water quality mitigation, and preparation of construction plans. PROJECT EXPERIENCE Mesa Drive / Irvine Avenue Intersection, City of Newport Beach, County of Orange. Protect Engineer. Prepared improvement plans and drainage report for the Mesa Drive widening near its intersection to Irvine Avenue. Project involved restriping Mesa Drive east of Irvine Avenue and widening Mesa Drive west of Irvine Avenue. Street widening required retaining walls and the acquisition of right -of -way. Project will be included with County of Orange Irvine Avenue Widening Project. Construction Cost was $450,000. Corona del Mar State Beach, RobbinsJorgensenChristopher, City of Newport Beach. Project Engineer. The project included demolition of existing bathroom facilities and concession buildings, reconstruction of the entrance, ticket booth and associated landscaped islands, curb and sidewalk, two new bathroom facilities, a new concession building with lifeguard facilities, and hardscape between the existing back of curb and proposed perimeter seating wall. Provided civil engineering services related to the above tasks including grading, drainage, curb & gutter, utilities and coordination with the architect. Crean Mariners Branch Library, Thirtieth Street Architects, City of Newport Beach. Project Engineer. Project involved the preparation of preliminary data for use in a funding application, prepared by the architect, for library expansion. Prepared a site survey, an ALTA, a utility investigation and a composite plan. The scope included preparation of a preliminary layout of the revised library with respect to the adjacent uses consisting of an elementary school, a fire station, and tennis courts. Upon approval of the funding grant, civil construction plans were prepared for tennis courts relocation, library site and parking lot, and park improvements. The scope included demolition, grading, drainage, horizontal control, signage and utilities coordination plans. Per the Library Bond Act Regulations, the project included three submittals, schematic design plans, design development plans and final construction documents. 3 Drainage Improvement Projects, City of Yorba Linda. Proiect Engineer. Prepared final design and construction documents for a new 24" storm drain on Yorba Linda Boulevard, between Avocado Avenue and Ohio Street, to alleviate Flooding of the third westbound lane during a storm event. Estimated cost $182,000. Prepared final design and construction documents for construction of rip rap and protection barrier trash rack for existing 84" inlet near Hidden Hills Road and Mission Hills Lane - The existing rip rap is broken causing erosion problems and vegetative growth. Estimated cost $70,000. Prepared final design and construction documents for new 30" and 36" storm drain in Avenida Puesta Del Sal between Via Del Rancho and Avenida Rio Del Oro to provide upstream drainage improvement to eliminate localized flooding problems in a downstream residential neighborhood. Estimated cost $160,000. 1 -15 1 Palmdale Road Overcrossing, David Evans & Associates, Caltrans District 8. Project Engineer. Prepared a combined PSR -PR and final engineering PS &E for this Minor A project for Caltrans. Project involved the addition of new sidewalk on the southbound side of Palmdale Road throughout'the interchange limits. Access ramps were required across the two loop-ramps. Caltrans recently constructed sidewalk and access ramps for the northbound side. Project cost is estimated at $265,000. Atlantic Boulevard Bridge Widening, PBS &J, City of Vernon, Project Engineer. Provided engineering services for the Atlantic Boulevard Bridge widening in the City of Vernon. The project, included preparation of a Location Hydraulic Study required by Caltrans to evaluated potential impact to existing drainage, preparation of a Storm Water Data Report to review potential impacts to water quality, and a HEC -RAS hydraulic analysis of the Los Angeles River to evaluate the impact of pier modification due to the structure widening. Project was processed through Caltrans Local Assistance Procedures since it was funded through the HBRR program. Hoag Hospital Lower Campus Project, Child Care Center, Bielski Ladowicz Architects, City of Newport Beach. Project Engineer. Project involved the preparation of preliminary layout and civil portion of the construction documents for the proposed Child Care Center. The scope included grading, drainage, horizontal control, and utilities coordination plans Wilson Street Pavement Rehabilitation, City of Costa Mesa. Protect Engineer. Preparation of final design and construction documents for pavement rehabilitation from Fountain Way East to Harbor Boulevard. This two -lane street with a center turning lane is located in a busy commercial and residential area. For this 1/4 mile length, the pavement is in disrepair and reconstruction was recommended. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the RAN Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.05 million. Sakloka Drive Pavement Rehabilitation, City of Costa Mesa. Project Engineer. Preparation of final design and construction documents for pavement rehabilitation from Sunflower Boulevard to Anton Boulevard. This four -lane divided street with a raised median is located in a residential area and developing area. For this 1/3 mile length, the pavement for three lanes is recommended to be overlaid and the pavement in one lane was recommended to be reconstructed. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the RAN Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $730,000. DAVID GRANTHAM, P.E. CIVIL ENGINEER GWI Works Engiricers - EDUCATION B.S., 1996, Civil Engineering, California State Polytechnic University, Pomona, CA PROFESSIONAL DATA Registered Professional Engineer in California ( #59999, 2000) Land Surveyor -in- Training ( #6401, 2002) EXPERIENCE OVERVIEW Mr. Grantham has over eleven years experience in public works improvement projects at all levels of planning, design, and construction, lie has performed as project engineer on numerous site improvement projects, street and intersection improvement projects, and major transportation projects. His street experience includes pavement rehabilitation /reconstruction, realignments, widenings, intersections, storm drainage, utility modifications and coordination, and survey control. He has also served as a design engineer on several transportation projects which included the preparation of project reports, plans, specifications and cost estimates meeting Caltrans requirements. PROJECT EXPERIENCE 21st Street Improvements, City of Newport Beach. Protect Engineer for widening 21s' Street between Balboa Boulevard and Court Street to convert the existing one -way street to two -way traffic, traffic signal modification, and landscaping. Due to the widening of 21" Street, modification of the McFadden Place parking lot was required. Modifications included reconfiguration of the parking stalls, relocation of the entrance and exit, and drainage. Although the size of the parking lot decreased due to the street widening, the project was required to maintain the same number of parking stalls. Project site is under the jurisdiction of both the City of Newport Beach and the California Coastal Commission. A permit was required from the Coastal Commission prior to starting construction. Costwas $285,000. Mariners Village, City of Newport Beach, Caltrans District 12. Proiect Engineer. City previously developed an overall four -phase concept plan for Mariners Village improvements consisting of landscaping, hardscape aesthetics, and traffic calming. Phase 1 included the proposed landscaping amenities along Coast Highway. This project involved the planting of 22 — 30 foot high Washingtonia Robusta palm trees along the north side of Coast Highway from Riverside Drive to south of Tustin Avenue. Due to the limited public right of way, some of the trees were planted within private property. Project involved replacement of sidewalk to provide space for the trees and to place the irrigation line, relocation of traffic signal conduit, planting of trees and shrub, permanent easements from 9 property owners, and thorough utility investigation. Construction was completed in February 2004 at a cost of $250,000. Lido Island Entry, NUVIS. Proiect Manager. The Lido Isle Homeowners Association sponsored a Lido Isle Beautification Project. We supported the landscape architect responsible for the preparation of conceptual and final design plans for construction of new median islands, reconfiguration of the existing street parking layout, modification to the curb returns, and construction of new decorative roadway paving, Project also involved geotechnical investigation to determine extent of pavement rehabilitation. Coordination with the City of Newport Beach and the California Coastal Commission was required. South Coast Drive Pavement Rehabilitation, City of Costa Mesa. Project Engineer. Preparation of final design and construction documents for pavement rehabilitation from Carmel Drive to San Leandro Lane. This two-lane street with a center turning lane is located in a residential area - The project involved complete pavement reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manua( for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the RNV Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.30 million. Superior Avenue Pavement Rehabilitation, City of Costa Mesa. Project Engineer. Preparation of final design and construction documents for pavement rehabilitation from the City limits to Anaheim Avenue. This two -lane street with a center turning lane is located in a busy commercial. area. The project involved both pavement overlay and complete reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We. also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS&E Certification Form, the RAN Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.63 million. Pasco Rancho Castilla and Circle Drive, California Stale University, Los Angeles. Project Engineer for final design plans for pavement rehabilitation for primary access road within the University_ Paseo Rancho Castilla is used by both University traffic and the public traffic. The project evaluated cost tradeoffs between short term and long term fix regarding pavement strategy. Construction cost for each street was $200,000. SR -118 / First Street & SR -118 / Erringer Road Westbound Ramps Interchange Improvements, Forest City Construction, Caltrans District 7, City of Simi Valley. Project Engineer. Project involved final design for improving the interchanges at SR- 1181First Street and SR- 118 /Erringer Road in the City of Simi Valley. The improvements were mitigation measures for the development of a new 600,000 square foot mall to the north of the SR -118. At each interchange the project involved widening the local street, widening and /or reconstructing the westbound off -ramps and the westbound loop on- ramps, installation of new traffic signals, modification of existing traffic signals, utility relocations, and coordination with the City improvements adjacent to the interchange. Fact sheets, encroachment permits, stormwater data reports, aerial deposited lead reports, initial site assessment reports, geotechnical reports and right of way documents for both interchanges were prepared and processed through the City and Caltrans. Cost estimates and specifications were also prepared. Construction cost was $3.5 million. Kenneth Hahn Regional Park Expansion. Tatsumi and Partners, County of Los Angeles Department of Parks and Recreation. Proiect Engineer for construction of new park access road, parking stalls, pedestrian trails, restroom building, lot lot and picnic areas. The site is an.undeveloped portion of the existing park. The project intent is to provide additional public use facilities while minimizing the impact to the existing native plants and site topography. Design involved site grading, drainage, new utility services, and erosion control plans. Mojave Park. NUVIS, City of Hesperia. Project Engineer for construction of new sports park and parking lot as part of an adjacent residential development. The project involved construction of a new surface parking lot, baseball field, soccer field, tot lot, pedestrian trails and picnic areas. Design involved site grading, drainage, parking lot improvements, new utility services, and erosion control plans. Design of project was required to be completed in two phases. California State University, Fullerton, Parking Structure No. 2. International Parking Design, City of Fullerton. Proiect Engineer responsible for all aspects of design through final PS &E. Project was a design /build involving surface parking and site reconstruction of parking lot B surrounding the new multilevel parking structure. The project involved storm drain relocations, sewer and fire water service construction, construction of new pavement sections and parking islands, compliance with ADA access requirements, and completion of a Storm Water Pollution Prevention Plan (SWPPP). Construction engineering services were also provided. Campus Road, California State University, Los Angeles. Project Engineer. Prepared final design plans for pavement reconstruction and curb and gutter installation from Paseo Rancho Castilla to Circle Drive (approximately 700 feet). Campus Road is the access roadway used by both University traffic and the public traffic. The project also evaluated cost tradeoffs between short term and long term fix regarding pavement strategy. Construction cost was $200,000. Section 5 - Public Agency Work performed in last five years — continued Proiects for Public Agencies with Former Firm — Same Staff Client: City of Newport Beach Project: 21st Street Improvements Assignment: Final Design for Conversion to 2 -Way Traffic Project: Mariners Village Improvements Assignment: Final Design for Palm Trees on PCH Client: City of San Buenaventura Project: US -101 f California Street Northbound Off -Ramp Improvements Assignment Project Report Client: City of Yorba Linda Project Rose Drive Design Study Assignment: Design Study Client: OCTA Project: SR -91 Express Lanes, Preventive Pavement Maintenance Project Assignment: PS &E Project: SR -91 - Tustin Avenue to SR -55 Auxiliary Lane Addition Assignment: PSR Section 5 - Public Agency Work performed in last five years Client: City of Buena Park Project: 1 -5 Far North Widening Project Assignment: Engineering Review and Assistance Client: City of Yorba Linda Project: 3 Drainage Improvement Projects Assignment: Final Design Client: City of Corona Project: f -15 Cajatco Road Assignment: Final Design for Roadway Restriping Client: City of Costa Mesa Project: Sakioka Drive Assignment: Final Design for Pavement Rehabilitation Project: Wilson Street Assignment: Final Design for Pavement Rehabilitation Project: South Coast Drive Assignment: Final Design for Pavement Rehabilitation Project: Superior Avenue Assignment: Final Design for Pavement Rehabilitation Client: City of Newport Beach Project: Mesa Orive f Irvine Avenue Intersection Improvements Assignment: Final Design for Intersection Improvements Client: City of San Buenaventura Project: California Street Arts /Aesthetics Improvements Assignment: Prepare RFP for Project Client: California State University, Los Angeles Project: Hillside Drive Sidewalk Assignment Final Design Client: California State University, Los Angeles Project: Parking Lot D Entrance Modification Assignment: Final Design Client: California State University, Los Angeles Project: Campus Road Assignment: Final Design for Pavement Rehabilitation Client: California State University, Los Angeles Project: Paseo Rancho Castilla and Circle Drive Assignment: Final Design for Pavement Rehabilitation Section 6 — References Municipal Caltrans Ms. Cindy Ouon Mr. Fekade Mesfin District Director Sr. Transportation Engr Caltrans, District 12 Caltrans, District 7 3337 Michelson Dr. 0380 100 S. Main Street Irvine, CA 92612 Los Angeles, CA 90012 (949) 440 -3440 (213) 897 -0096 Consultants Mr. Ray Bragg Mr. Jim Biery Mr. Steve Badum Community Svcs Director Public'Works Director Public Works Director City of Fontana City of Buena Park City of Newport Beach 8353 Sierra Avenue 6650 Beach Blvd. 3300 Newport Blvd. Fontana, CA 92335 Buena Park, CA 90622 Newport Beach, CA 92658 (909) 350 -7697 (714) 562 -3676 (949) 644 -3311 (909) 481 -5750 (949) 251 -9909 Mr. Bill Morris Mr. John Ballas Mr. Moharnmad Mostahkami Director of Public, Services City Engineer Engineering Manager City of Costa Mesa City of Industry City of South Gate 77 Fair Drive 15651 E. Stafford Street 8650 California Avenue Costa Mesa, CA 92626 Industry, CA 91744 South Gate, CA 90280 (714) 754 -5298 (626) 333 -2211 (323) 563 -9582 Caltrans Ms. Cindy Ouon Mr. Fekade Mesfin District Director Sr. Transportation Engr Caltrans, District 12 Caltrans, District 7 3337 Michelson Dr. 0380 100 S. Main Street Irvine, CA 92612 Los Angeles, CA 90012 (949) 440 -3440 (213) 897 -0096 Consultants Developers Mr. Richard Hart Ms. Leslee Temple Mr. Wei Koo Vice President Principal, Vice President PBS &J David Evans & Associates NUVIS 625 The City Drive South 800 N. Haven Avenue 3151 Airway Ave., Suite J -3 Suite #200 Suite #300 Costa Mesa, CA 92626 Orange, CA 92868 Ontario, CA 91764 (714) 754 -7311 (714) 750 -7275 (909) 481 -5750 (949) 251 -9909 Developers Mr. Jon Cantrell Mr. Doug Cleary Mr. Sam Veltri Project Manager Project Manager Suncal Companies Forest City Construction Eclipse Development 2392 Morse Avenue 43812 Buena Vista Way 17802 Skypark Circle Irvine, CA 92614 Lancaster, CA 93536 Suite #200 (949) 7774000 (661) 816 -1259 Irvine, CA 92614 (949) 251 -9909 CMI World Englncers RATE SCHEDULE PROFESSIONAL SERVICES Principal Project Manager Senior Engineer Engineer / Sr. Designer Jr. Engineer 1 Designer CADD Designer / Technician Clerical / Admin Support REIMBURSABLE EXPENSES Reproduction Consultant Services Automobile Transportation Computer Plots Delivery, Freight, Courier Agency Fees Commercial Travel / Subsistence 3151 Airway Avenue Suite S -2 Costa Mesa, CA 92626 HOURLY RATE f$1 $150.00 $140.00 $125.00 $105.00 $ 90.00 $ 80.00 $ 55.00 Cost Cost plus 10% $0.485 / mile $ 1.50 / SF Bond $ 2.001 SF Vellum $ 3.001 SF Color $ 4.001 SF Mylar Cost Cost Cost civjlw"13 Enginmrs PROFESSIONAL SERVICES Principal Project Manager Senior Engineer Engineer Senior Designer Jr. Engineer Designer Jr. Designer CADD Technician Clerical / Admin Support REIMBURSABLE EXPENSES Reproduction Consultant Services Automobile Transportation Computer Plots Delivery, Freight, Courier Agency Fees Commercial Travel / Subsistence SCHEDULE Effective Through 6/30/11 3151 Airway Avenue Suite S -2 Costa Mesa, CA 92626 HOURLY RATE ($) $165.00 $150.00 $130.00 $115.00 $110.00 $ 95.00 $ 90.00 $ 80.00 $ 75.00 $ 60.00 Cost Cost plus 10% Current IRS Rate /Mile $ 1.50 / SF Bond $ 2.00 / SF Vellum $ 3001 SF Color $ 4.00 / SF Mylar Cost Cost Cost PROFESSIONAL SERVICES AGREEMENT WITH SO CAL WALDEN, INC. DBA WALDEN & ASSOCIATES FOR ON -CALL ENGINEERING SERVICES THIS AGREEMENT is made and entered into as of this day of , 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and SO CAL WALDEN, INC., a California corporation doing business as WALDEN & ASSOCIATES, whose address is 2552 White Road, Suite B, Irvine, California ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has a need for on -call assistance for civil engineering and surveying services related to the City's Capital Improvement Programs. C. City desires to engage Consultant to perform on -call civil engineering and /or surveying services throughout the City on an as need basis ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be David L. Bacon. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 315` day of March, 2011, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" civil engineering and survey services, including but not limited to, planning, design, and construction management 1 related to the City's Capital Improvement Program. Upon verbal or written request from the Project Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of 2 Billing Rates attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Fifty Thousand Dollars and No Cents ($50,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and /or classification of employee who performed the work, a brief description of the services performed and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit A. 3 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated David L. Bacon to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Dave Webb shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not W employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or the acts or omissions of its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on 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. 5 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. . PROGRESS Consultant is responsible for keeping the Project Administrator and /or his duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by C^ City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for 7 any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Tmely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to E 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. 18. COMPUTER DELIVERABLES 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 City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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 contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 10 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 23. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 11 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Dave Webb Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3328 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: David L. Bacon Walden & Associates 2552 White Road, Suite B Irvine, CA 92614 Phone: 949 - 660 -0110 Fax: 949 - 660 -0418 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of 12 termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. 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. 32. 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. 33. 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. 34. 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. 13 35. 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. 36. 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. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: 4dyneiYe D. e champ, Assistant City torney for the City of Newport Beach ATTEST: CITY OF NEWPORT BEACH A Municipal Corporation M Edward D. Selich, Mayor for the City of Newport Beach SO CAL WALDEN, INC. DBA WALDEN & ASSOCIATES: By: By: Leilani Brown, City Clerk for the City of Newport Beach By: Attachment: Exhibit A — Schedule of Billing Rates 14 David L. Bacon, President David W. Couch, Chief Financial Officer m ov 0 FEE SCHEDULE for City of Newport Beach Request for Qualifications The following fees are effective through March 30, 2011 $160.00 /hr. for Principal $140.00 /hr. for Project Manager $125.00 1hr. for Project Engineer $110.001hr. for Design Engineer(Land Surveyor $95.00 /hr. for Engineer /Land Surveyor $85.00 /hr. for Assistant Engineer /Designer /Land Surveyor $80.00 /hr. for Cad Draftsman $60. 00/hr. for Clerical /Processor $175.00/hr. for 2 -man Survey Crew $205.00 /hr. for 3 -man Survey Crew $300.00 /hr Expert Witness Deposition and Trial Testimony Reproduction, deliveries, additional insured endorsements and other reimbursables will be surcharged 10% and billed in addition to the above fees. PROFESSIONAL SERVICES AGREEMENT WITH C & C ENGINEERING, INC. DBA CNC FOR ON -CALL ENGINEERING SERVICES THIS AGREEMENT is made and entered into as of this day of , 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and C & C ENGINEERING, INC., a California corporation doing business as CNC, whose address is 1 Corporate Park, Suite 101, Irvine, California, 92606 ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has a need for on -call assistance for civil engineering services related to the City's Capital Improvement Program. C. City desires to engage Consultant to perform on -call civil engineering throughout the City on an as need basis ( "Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Cory A. Bersch. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31St day of March, 2011, unless terminated earlier as set forth herein. 1 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" civil engineering services, including but not limited to, planning, design and construction management related to the City's Capital Improvement Program. Upon verbal or written request from the Project Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. . 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 2 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Any Letter Proposal that sets forth fees in excess of Fifty Thousand Dollars and No Cents ($50,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and /or classification of employee who performed the work, a brief description of the services performed and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter 3 Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit A. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Corey A. Bersch to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Dave Webb shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this I Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, 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, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or the acts or omissions of its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This 5 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. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. 6 A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 7 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 8 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further 9 compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES 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 City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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 contractor bids or actual cost to City. 10 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. Nx9ii1101R] Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 23. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 11 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Dave Webb Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3328 Fax: 949 -644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Cory A. Bersch CNC 1 Corporate Park, Suite 101 Irvine, CA 92606 Phone: 949- 863 -0588 Fax: 949 - 863 -0589 12 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the 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 and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. 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. 13 32. 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. 33. 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. 34. 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. 35. 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. 36. 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. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 14 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: OynetW D. a h mp, Assistant City At ney for the City of Newport Beach ATTEST: Leilani Brown, City Clerk for the City of Newport Beach CITY OF NEWPORT BEACH A Municipal Corporation Edward D. Selich, Mayor for the City of Newport Beach SO CAL WALDEN, INC. DBA CNC: AN Clement N. Calvillo, President and Chief Executive Officer By: Mary R. Cavillo, Chief Financial Officer Attachment: Exhibit A - Schedule of Billing Rates 15 -AC NC ON -CALL CIVIL ENGINEERING SERVICES FOR THE CITY OF NEWPORT BEACH SECTION 7 FEE SCHEDULE STANDARD HOURLY FEE SCHEDULE FOR PROFESSIONAL SERVICES Nrotessional tnameerina Services $175.00 Principal -in- Charge $150.00 Senior Project Manager $125.00 Project Manager $110.00 Project Engineer $ 90.00 Design Engineer $ 75.00 AutoCAD Designer $ 60.00 Administration $ 50.00 Technician vroressronai t-ieia Survey ana construction mspecuon services $125.00 Survey Manager $ 85.00 Project Surveyor $110.00 One (1) Man Crew $165.00 Two (2) Man Crew $220.00 Three (3) Man Crew $300.00 Four (4) Man Crew $ 70.00 Survey Technician $ 95.00 Senior Construction Inspector $ 85.00 Construction Inspector uirect Photo Copies — Color $2.75 per page Photo Copies — Black & White /Fax $0.25/1.70 per page Plan Sheet Printing — In house bond /Mylar $1.75/5.00 per square foot Subconsultant Services Actual cost + 15% Subcontracted Services /Reproduction Actual cost + 15% Federal Express, etc. Deliveries Actual cost Communications (fax, telecommunications, etc..) Actual cost Project Communication Fee $5.00/hour An overtime premium multiplier of 1.5 will be applied to the billing rate of hourly personnel who work overtime in order to meet a deadline, which cannot be met during normal hours. This will be agreed to by both parties prior to implementation of this multiplier.