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HomeMy WebLinkAboutC-4434 - PSA for Newport Beach Pipeline Rehabilitation and Undergrounding Effluent SamplingPROFESSIONAL SERVICES AGREEMENT WITH RBF CONSULTING FOR NEWPORT BEACH PIPELINE REHABILITATION AND UNDERGROUND EFFLUENT SAMPLING THIS AGREEMENT FOR PROFES ONAL SERVICES ("Agreement") is made and entered into as of this 2,,OMday ofyplue 2010, by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ("City"), and RBF CONSULTING, a California Corporation whose address is 14725 Alton Parkway, Irvine, California, 92618 ("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 is planning to engage in construction dewatering activities within the Newport Bay Watershed pursuant to Santa Ana Regional Water Quality Control Board Order No. R8-2004-0021. C. City desires to engage Consultant to provide as -needed effluent sampling services and lab report analyses ("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 Mercier. 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 1 st day of August, 2011, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Work" or "Services"). The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 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 either 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. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Nineteen Thousand Dollars and no/100 ($19,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: Professional Services Agreement Page 2 A. The actual costs of subconsultants for performance of any of the Services that Consultant agrees to render pursuant to this Agreement, 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 performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 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 MERCIER 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. If Consultant is performing inspection or construction management services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. Consultant's cellular phone number will be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. IRIS LEE, or her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or her authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. Professional Services Agreement Page 3 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 blueprinting and other Services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. 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, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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. Professional Services Agreement Page 4 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 any breach of the terms and conditions of this Agreement, any Work performed or Services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action 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 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. Professional Services Agreement Page 5 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. A. Proof of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this contract. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Consultant shall procure and maintain for the duration of the contract insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Consultant, his agents, representatives, employees or subconsultants. The cost of such insurance shall be included in Consultant's bid. B. 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. C. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) for Consultant's employees in accordance Professional Services Agreement Page 6 with the laws of the State of California, Section 3700 of the Labor Code In addition, Consultant shall require each subconsultant to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subconsultant'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 (ten (10) calendar days written notice of non- payment of premium) prior to such change. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers. ii. 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, blanket contractual liability. iii. 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 accident. iv. Professional Liability (Errors & Omissions) Coverage. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) limit per claim and in the aggregate. D. Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees and volunteers or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subconsultants. Professional Services Agreement Page 7 ii. Enforcement of Contract Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non-compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. iii. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. iv. Notice of Cancellation. Consultant agrees to oblige its insurance agent or broker and insurers to provide to City with thirty (30) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. E. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Consultant's performance under this Agreement. F. 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 City and Consultant agree that subconsultants may be used to complete the Work outlined in the Scope of Services. The subconsultants authorized by City to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create Professional Services Agreement Page 8 any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 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. 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 in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. K@@ "I:e1a�.1 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 under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall Professional Services Agreement Page 9 allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. 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 the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. 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 immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. 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, Professional Services Agreement Page 10 postage prepaid, first-class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Iris Lee Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949-644-3323 Fax: 949-644-3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: David Mercier RBF Consulting 14725 Alton Parkway Irvine, CA 92618-2027 Phone: 949-330-4118 Fax: 949-586-6531 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 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, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, 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, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. Professional Services Agreement Page 11 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, rules, regulations and permit requirements and be subject to approval of the Project 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 term, covenant or condition contained herein, whether of the same or a different character. 30. 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. 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. 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. 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. Professional Services Agreement Page 12 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: OFF VFTHECITY ATTOR EY: By V Leonie Mulvihill, Assistant City Attorney ATTEST: M r Leilani I. Brown, City Clerk -� UNUT 0111 L" I ore 'G. Badum, orks Director CONSULTANT: RBF CONSULTING By', Y S. Robert Kallenbaugh, Chief Executive Officer By: �^- Dougr st, Chief ' ancial Officer Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Professional Services Agreement Page 13 EXHIBIT A FBF ■ ■ CONSULTING SCOPE OF SERVICES Newport Beach Pipeline Rehabilitation and Undergrounding Effluent Sampling The City of Newport Beach is conducting a pipeline rehabilitation and utility undergrounding project near the intersection of Balboa Boulevard and 12th Street on the Newport Beach Peninsula. The project is for the rehabilitation of water and sewer pipelines and the overhead to undergrounding of utilities. Groundwater is approximately 5 feet below ground surface and is frequently encountered during excavating activities. The City of Newport Beach is covered by a city-wide permit that regulates discharges from construction dewatering and other de minimis type of discharges. In accordance with the stakeholder requirements for dischargers in the Newport Bay Watershed under Santa Ana Regional Water Quality Control Board Order No. R8- 2004-0021 RBF Consulting will provide as -needed effluent sampling services for the City of Newport Beach. TASK 1: SAMPLING RBF will provide effluent testing for the Central Balboa Water and Sewer Improvement and Assessment District No. 100 project on the Newport Beach Peninsula. RBF staff will take representative samples and deliver them to an environmental laboratory for analysis. It is assumed that there will be ten (10) sampling events. Upon receipt of the lab results RBF will tabulate and forward a report for each sampling event. TASK 2: REIMBURSABLES The City of Newport Beach will be responsible for the direct cost of reimbursable expenses, including lab fees and mileage. The analysis of the samples will cost $635.00 per sampling event. The mileage for each sampling event is estimated to be $25.00, based on the standard RBF mileage rate. Products: - Report of Sampling Results PLANNING ■ DESIGN ■ CONSTRUCTION 14725 Alton Parkway, Irvine, CA 92618-2027 ■ P.O. Box 57057, Irvine, CA 92619-7057 ■ 949.472.3505 ■ Fax 949.472.8373 Offices located throughout California, Arizona & Nevada ■ www.RBF.com EXH..IBIT B FBF CONSULTING COMPENSATION Newport Beach Pipeline Rehabilitation and Undergrounding Effluent Sampling Client agrees to compensate RBF Consulting for Tasks 1 and 2 as follows: On a fixed fee based upon the rate schedule for all personnel working on the project, the estimated initial maximum budget is $19,000. The total is based on an estimated per sampling event fee of $1,900 and assumes ten (10) sampling events. This budget amount is for authorization purposes only. Should the total of the monthly billings reach eighty percent (80%) of the budget amount, client and RBF Consulting will review the status of the work to determine the need for an increase in the budget amount, and whether additional budget authorization to complete the project is appropriate. ANTICIPATED WORK TASK INITIAL BUDGET 1. Sampling...................................................................................$1,240.00 a. Project Engineer.....................................................................................$148 b. Design Engineer.....................................................................................$135 2. Reimbursables........................................................................... $660.00 EVENT TOTAL: $1,900.00 Billings will be forwarded to client upon completion of the scope products. The billings will include direct costs by RBF Consulting. The Client shall make every reasonable effort to review the billing invoice within thirty (30) working days from the date of receipt and notify RBF Consulting in writing of any particular item that is alleged to be incorrect. TOTAL CONTRACT SUMMARY Fixed Fee per Event = $1,900 T & M Budget = $0 Number of Events = 10 Total = $19,000 PLANNING ■ DESIGN ■ CONSTRUCTION 14725 Alton Parkway, Irvine, CA 92618-2027 ■ P.O. Box 57057, Irvine, CA 92619-7057 ■ 949.472.3505 ■ Fax 949.472.8373 Offices located throughout California, Arizona & Nevada ■ www.RBF.com ACORD,. CERTIFICATE OF LIABILITY INSURANCE ATE(MMIDD/YY) 10 D11 2010 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Dealey, Renton & Associates ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE P. 0. Box 10550 Santa Ana CA 92711-0550 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. POLICY EXPIRATIONJJB- LIMITS INSURERS AFFORDING COVERAGE INSURED INSURERA: Travelers property Casualty Cc of Ameri RBF Consulting PO Box 57057 Irvine CA 92619-7057 INSURERB:Underwriters at Llo ds London INSURER c: Fireman Is Fund Insurance Co. INSURER D: INSURER E: COVERAGES HE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. OTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS ERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATIONJJB- LIMITS A GENERAL LIABILITY 63050OD4092 11/30/2009 11/30/2010 EACH OCCURRENCE $1,000,000 FIRE DAMAGE (Any one fire) $1,000, 000 X COMMERCIAL GENERAL LIABILITY CLAIMS MADE Fx-1 OCCUR MED EXP (Any one person) $10,000 PERSONAL & ADV INJURY $1, 000,000 X CONTRACTUAL X BFPD, XCU GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS . COMP/OP AGG $2,000,000 POLICY X PRO- LOC A AUTOMOBILE X LIABILITY ANY AUTO 8109496B499 11/30/2009 11/30/2010 COMBINED SINGLE LIMIT (Ea accident) $1, 000,000 BODILY INJURY $ (Per person) ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY $ (Per accident) X X HIRED AUTOS NON -OWNED AUTOS PROPERTY DAMAGE $ (Per accident) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ ANY AUTO AUTO ONLY: AGG $ C EXCESS LIABILITY SSE00071722276 11/30/2009 11/30/2010 EACH OCCURRENCE $10,000,000 AGGREGATE $10,000,000 X OCCUR F—I CLAIMS MADE Professional $ Liability is $ DEDUCTIBLE Excluded $ RETENTION $ WORKERS COMPENSATION AND WC STATU• OTH- I FR EMPLOYERS' LIABILITY E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ E.L. DISEASE - POLICY LIMIT $ B OTHER Professional Liability PI099400 11/30/2009 11/30/2010 Per Claim $1,000,000 Annl Aggr. $2,000,000 DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS General Liability policy excludes claims arising out of the performance of professional services. Independent Contractors Included Re: Newport Beach Pipeline Rehabilitation & Underground Effluent SamplingCity of Newport Beach, its elected or appointed officers, officials, employees, agents and volunteers are additional insured as respects to General and Auto Liability as required by written contract. Primary and Non -Contributing coverage, Waiver of Subrogation applies to GL s required by written contract. l.CR 11PIVA1 C IlVLUr-M I I ADDITIONAL INSURED: INSURER LETTER: L:ANL r-LLAI IL)N City of Newport Beach, Shauna Lyn Oyler Public Works Specialist, Public Works Department 3300 Newport Boulevard Newport Beach CA 92663 ACORD 25-S (7/97) OULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED FORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER LL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE RTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO ALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON E INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED 0 ACORD CORPORATION 1988 COMMERCIAL GENERAL LIABILITY 63050OD4092 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY BLANKED' ADDITIONAL INSURED (CONTRACTORS) This endorsement modifies Insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART 1. WHO IS AN INSURED – (Section II) is amended to include any person or organization that you agree in a "written contract requiring insurance" to Include as an additional insured on this Cover- age Part, but: a) Only with respect to liability for "bodily injury", "property damage" or "personal injury'; and b) If, and only to the extent that, the injury or damage is caused by acts or 'omissions of you or your subcontractor in the performance of "your work" to which the "written contract requiring insurance" applies. The person or organization does not qualify as an additional Insured with respect to the independent acts or omissions of such person or organization. 2. The insurance provided to the additional insured by this endorsement is limited as follows: a) In the event that the Limits of Insurance of this Coverage Part shown In the Declarations exceed the limits of liability required by the "written contract requiring insurance", the in- surance provided to the additional Insured shall be limited to the lirrilts of liability re- quired by that "written contract requiring in- surance". This endorsement shall not in- crease the limits of insurance described In Section III —Limits Of Insurance. b) The insurance provided to the additional In- sured does not apply to "bodily injury", pprop- erty damage" or "personal injury" arising out of the rendering of, or failure to render, any professional architectural, engineering or sur- veying services, including: i. The preparing, approving, or failing to prepare or approve, snaps, shop draw- ings, opinions, reports, surveys, field or- ders or change orders, or the preparing, approving, or failing to prepare or ap- prove, drawings and specifications; and ii. Supervisory, inspection, architectural or engineering activities. c) The insurance provided to the additional in- sured does not apply to "bodily Injury" or "property damage" caused by "your work" and included In the "products -completed op- erations hazard" unless the "written contract requiring insurance" specifically requires you to provide such coverage for that additional insured and then the insurance provided to the additional Insured applies only to such "bodily injury" or "property damage" that oc- curs before the end of the period of time for Which the "written contract requiring insur- ance" requires you to provide such coverage or the end of the policy period, whichever is earlier. 3. The insurance provided to the additional insured by this endorsement is excess over any valid and collectible "other Insurance", whether primary, excess, contingent or on any other basis, that is available to the. additional insured for a lost we cover under this endorsement. However, if the "written contract requiring insurance" specifically requires that this insurance apply on a primary basis or a primary and non-oontributory basis, this insurance is primary to "other insurance" available to the additional insured which covers that person or organization as a named insured for such loss, and we will not share with that "other insurance". But the insurance provided to the .additional insured by this endorsement still is excess over any valid and collectible "other in- surance", whether primary, excess; contingent or on any other basis, that is available to the addi- tional Insured when that person or organization is an additional insured under such "other insur- ance". 4. As a condition of coverage provided to the additional insured by this endorsement: a) The additional insured must give us written notice as soon as practicable of an "occur- rence" or an offense which may result in a claim. To the extent possible, such notice should include; CG D2 46 0805 0 2005 The St. Paul Travelers Companies, Inc. Page 4 of 2 OP ID: KH CERTIFICATE OF LIABILITY INSURANCE DATE(M10!008/18/1YYY) 0 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER 714-708-4370 United Captive Ins. Brokers 714-708-2300 17151 Newhope St., Ste 211 Fountain Valley, CA 92708 Mark Barrie CONTACT NAME: PHONE A No: E-MAIL PRODUCER CUSTOMER ID #: RB FCO -1 INSURERS AFFORDING COVERAGE MAIC # INSURED RBF Consulting 14725.Alton Parkway Irvine, CA 92618 INSURER A: U.S. Fidelity and Guaranty Co. 25887 INSURER B: INSURER C INSURER D INSURER E: INSURER F r'nVFRAt±FLC CFRTIFICATF NHMRFR: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. ILTR TYPE OF INSURANCE DDL BR POLICY NUMBER POLICY EFF MM/DD/YYYY POLICY EXP MMIDD/YM LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS -MADE � OCCUR EACH OCCURRENCE $ PREMISES Ea occurrence $ MED EXP (Anyone person) $ PERSONAL &ADV INJURY $ GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY PRO- LOC PRODUCTS -COMP/OP AGG $ $ AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT $ (Ea accident) BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE $ (Per accident) $ UMBRELLA LAB EXCESS LIAB OCCUR CLAIMS -MADE EACH OCCURRENCE $ _ AGGREGATE $ DEDUCTIBLE RETENTION $ $ $ A ... WORKERS COMPENSATION AND EMPLOYERS' LIABILITY N ANY PROPRIETOR/PARTNER/EXECUTIVE YIN OFFICER/MEMBER EXCLUDED? FN (Mandatory In NH) If yes, describe under - DESCRIPTION OF OPERATIONS below N /A X D123W000200 07/01/10 07/01/11 X WC STATU- I IOTH- E.L EACH ACCIDENT is 1,000,000 E.L. DISEASE- EA EMPLOYEd $ 1,000,000 E.L. DISEASE POLICY LIMIT $ 1,()00,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, If more space Is required) RE: Newport Beach Pipeline Rehabilitation & Underground Effluent Sampling. aL•1-111111122 CITYNEW City of Newport Beach Public Works Specialist Attn: Shauna Lyn Oyler 3300 Newport Blvd. ,Newport Beach, CA 92663 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2009 ACORD CORPORATION. All rights reserved. ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 10/12/10 Dept./Contact Received From: Shauna Oyler Date Completed: 10/13/10 Sent to: Shauna Oyler Kristin Walters Company/Person required to have certificate: RBF Consulting I. GENERAL LIABILITY A. INSURANCE COMPANY: Travelers Property Casualty Co. of America B. AM BEST RATING (A-: VII or greater): "A+"(XV) C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $1,000,000 E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers) ® Yes ❑ No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No G. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No H. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ® No I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. II. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: Travelers Property Casualty Co. of America B. AM BEST RATING (A-: VII or greater) "A+"(XV) C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): Is it included? N/A ❑ Yes ❑ No F. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. III. WORKERS' COMPENSATION A. INSURANCE COMPANY: U.S. Fidelity and Guaranty Co. B. AM BEST RATING (A-: VII or greater): "A+"(XV) C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ® No HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? WC) WC Waiver of Subrogation endorsement is missim Approved: Agent of Brown & Brown Date Broker of record for the City of Newport Beach --------------------------------------------------------------------------------------------------------------------------- ❑ Requires approval/exception/waiver by Risk Management B&B initials Comments: Approved: Risk Management Date ❑ Yes ® No --i— PROFESSIONAL SERVICES AGREEMENT WITH CY) RBF CONSULTING FOR _I NEWPORT BEACH UNDERGROUNDING EFFLUENT SAMPLING THIS AGREEMENT is made and entered into as of this c -day of ce0?e0_` 2009, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and RBF CONSULTING , a California corporation whose address is 14725 Alton Parkway, Irvine, California, 92619 ("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 is planning to engage in construction dewatering activities within the Newport Bay Watershed pursuant to Santa Ana Regional Water Quality Control Board Order No. R8-2004-0021. C. City desires to engage Consultant to provide as -needed effluent sampling services and lab report analyses ("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 Mercier. 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 July 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The City may elect to delete certain tasks of the Scope of Services at its sole discretion. 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 either 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. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Nineteen Thousand Dollars and no/100 ($19,000.00) without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in writing 5 in advance by City. 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, 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 performed without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 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 MERCIER 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. If Consultant is performing inspection or construction management services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. Consultant's cellular phone number will be provided to City. ADMINISTRATION This Agreement will be administered by the Public Works Department. IRIS LEE shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or 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 blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. 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, shall obtain, and shall keep in full force in effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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 any breach of the terms and conditions of this Agreement, any work performed or services provided under this Agreement including, without limitation, defects in workmanship or materials or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action 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 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 Project, activities performed and planned, and any meetings that have been scheduled or are desired. iIki6*11:7a141us] 4 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 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 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. 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 6 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. ii. 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. iii. 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. iv. 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: 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. ii. 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. iii. 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. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. 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. vi. 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 City and Consultant agree that subconsultants may be used to complete the work outlined in the Scope of Services. The subconsultants authorized by City to perform work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. 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. 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 in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. 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 under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. 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 the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. 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 immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. 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: Attn: Iris Lee Public Works Department P.O. Box 1768 City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949-644-3323 Fax: 949-644-3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attention: David Mercier RBF Consulting 14725 Alton Parkway Irvine, CA 92618-2027 Phone: 949-330-4118 Fax: 949-586-6531 26. 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, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, 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, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. 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. 31. 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. 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. 12 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. 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. 35. 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: OFFICE OF THE CITY ATTORNEY: ATTEST: as Q r� iy: \ An, Leilani I. Brown, City Clerk GLl FOR� CITY OF NEWPORT BEACH, A Municipal Corporation When G. Badum blic Works Director RBF CONSULTING: By By Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates - 1-3 EXHIBIT A SCOPE OF SERVICES Newport Beach Undergrounding Effluent Sampling The City of Newport Beach is conducting a utility undergrounding project in the peninsula point area. The project includes trenching and excavating to place electrical conduit and structures. Groundwater is approximately 5 feet below ground surface and is frequently encountered during excavating activities. The City of Newport Beach is covered by a city-wide permit that regulates discharges from construction dewatering and other de minimis type of discharges. In accordance with the stakeholder requirements for dischargers in the Newport Bay Watershed under Santa Ana Regional Water Quality Control Board Order No. RS -2004-0021 RBF Consulting will provide as -needed effluent sampling services for the City of Newport Beach. TASK 1: SAMPLING RBF will provide effluent testing for the AD -103 Undergrounding Project on the Newport Beach Peninsula. RBF staff will take weekly representative samples and deliver them to an environmental laboratory for analysis. It is assumed that there will be 10 sampling events. Upon receipt of the lab results RBF will tabulate and forward a report for each sampling event. TASK 2: REIMBURSABLES The City of Newport Beach will be responsible for the direct cost of reimbursable expenses, including lab fees and mileage. The analysis of the samples will cost $635.00 per sampling event. The mileage for each sampling event is estimated to be $25.00, based on the standard RBF mileage rate. Products: - Report of Sampling Results PLANNING Iii DESIGN 0 CONSTRUCTION 14725 Alton Parkway, Irvine, CA 92618-2027 ■ P.O. Box 57057, Irvine, CA 92619-7057 ■ 949.472.3505 ■ Fax 949.472.8373 Offices located throughout California, Arizona & Nevada 0 www.RBF.com EXHIBIT B FBF 1► I CONSULTING COMPENSATION Newport Beach Undergrounding Effluent Sampling Client agrees to compensate RBF Consulting for Tasks 1 and 2 as follows: On a fixed fee based upon the rate schedule for all personnel working on the project, the estimated initial maximum budget is $19,000. The total is based on an estimated per sampling event fee of $1,900 and assumes 10 sampling events. This budget amount is for authorization purposes only. Should the total of the monthly billings reach eighty percent (80%) of the budget amount, client and RBF Consulting will review the status of the work to determine the need for an increase in the budget amount, and whether additional budget authorization to complete the project is appropriate. ANTICIPATED WORK TASK INITIAL BUDGET 1. Sampling..................................................................................$1,240.00 a. Project Engineer.....................................................................................$144 b. Design Engineer.....................................................................................$132 2. Reimbursables............................................................................$660.00 EVENT TOTAL: $1,900.00 Billings will be forwarded to client upon completion of the scope products. The billings will include direct costs by RBF Consulting. The Client shall make every reasonable effort to review the billing invoice within thirty (30) working days from the date of receipt and notify RBF Consulting in writing of any particular item that is alleged to be incorrect. TOTAL CONTRACT SUMMARY Fixed Fee per Event = $1,900 T & M Budget = $0 Total = $19,000 Number of Events = 10 PLANNING N DESIGN 0 CONSTRUCTION 14725 Alton Parkway, Irvine, CA 92618-2027 ■ P.O. Box 57057, Irvine, CA 92619-7057 ■ 949.472.3505 ■ Fax 949.472.8373 Offices located throughout California, Arizona & Nevada ■ www.RBF.com