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HomeMy WebLinkAboutC-6406 - PSA for Bayside Drive Improvements - Design0 AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ' WITH MARK THOMAS & COMPANY, INC. FOR V BAYSIDE DRIVE IMPROVEMENTS - DESIGN THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 22nd day of January, 2019 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and MARK THOMAS & COMPANY, INC., a California corporation ("Consultant"), whose address is 16795 Von Karman Avenue, Suite 205, Irvine, California 92606, and is made with reference to the following: RECITALS A. On August 8, 2017, City and Consultant entered into a Professional Services Agreement ("Agreement") for engineering services for Bayside Drive Improvements (16R12) ("Project"). B. The parties desire to enter into this Amendment No. One to reflect additional Services not included in the Agreement, to extend the term of the Agreement to December 31, 2019 and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows.- 1. ollows:1. TERM Section 1 of the Agreement is amended in its entirety and replaced with the following: "The term of this Agreement shall commence on the Effective Date, and shall terminate on December 31, 2019, unless terminated earlier as set forth herein." 2. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement, and Exhibit A to this Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Exhibit B to the Agreement, and Exhibit B to Amendment No. One shall collectively be known as "Exhibit B." Section 4.1 of the Agreement is amended in its entirety and replaced with the following: "City shall pay Consultant for the Services on a time and expense not-to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Three Hundred Seventy Thousand Seven Hundred Eleven Dollars and 00/100 ($370,711.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Seventeen Thousand Nine Hundred Sixty Dollars and 00/100 ($17,960.00). 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] Mark Thomas & Company, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTO7NEY'S OFFICE Date: 2Z CITY OF NEWPORT BEACH, a California municipal corporation Date: By: By: Fat: Aaron C. Harp Gr K. Leung City Attorney Ci Manager ATTEST: Date: �Q By: e `ic Nmn'= Leilani I. Brown City Clerk CONSULTANT: Mark Thomas & Company, Inc., a California corporation Date: Signed in Counterpart By: Robert A. Himes Chief Executive Officer Date: Signed in Counterpart By: Robert M. Brogan Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Mark Thomas & Company, Inc. Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: By: F,f:Aaron C. Harp I•�i•�`I City Attorney ATTEST: Date: Leilani I. Brown City Clerk Attachments CITY OF NEWPORT BEACH, a California municipal corporation Date: Grace K. Leung City Manager CONSULTANT: CompaVV-5/1 nc., c-1,Date: Mark Thomas & ,alifornia corporation By: I � N I -- _ - Rob4t-A.-Illi es Chief Executive Officer Date: 1 23 I C� By: �?—. V Robert M. Brogan Secretary [END OF SIGNATURES] Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Mark Thomas & Company, Inc. Page 3 EXHIBIT A SCOPE OF SERVICES Consultant shall provide the following additional Services: Task 9. Roadway Renderings/Landscape Concepts Consultant shall prepare a landscape rendering of the proposed crosswalk improvements at Bayside Drive and Jamboree Road intersection. The color rendering will show the thermoplastic treatment proposed for the crosswalk for public outreach purposes. Task 12. Right -of -Way The City's recommended design options for the south-west corner of Bayside Drive and Jamboree Road, requires the sidewalk to be widened from six (6) feet to eight (8) feet. This modification from the original design would create a larger pedestrian clear path around this corner, which is typically very heavily travelled by both pedestrians and bicycles in the summer. The existing right-of-way is located at the back of the existing sidewalk, therefore requiring the proposed wider sidewalk to an easement. Consultant shall prepare a Plat and Legal Description of the property for the sidewalk easement on the property in question. Task 13. Final Design The Project Development Team required an extra submittal to finalize the plans and specifications. Consultant submitted final plans and received significant comments and in order to revise and resubmit for final concurrence, extra effort was necessary. Task 16. Construction Support Services Addendum #1 Plan Modifications: per City request to add additional palm tree and three (3) wells along the south side of the road. Task 16 Deliverables: • Plat and Legal Description (2nd Property). • Additional Color Rendering for Final Crosswalk Design. • Post Final PS&E Submittal. • Addendum #1, Revised Roadway and Landscape & Irrigation Plans. Mark Thomas & Company, Inc. Page A-1 EXHIBIT B SCHEDULE OF BILLING RATES Consultant shall perform the additional Services as outlined in Exhibit A at the following rates: Task Total Hours Postiion/Rate Task Total Task 9 28 Project Landscape Architect $118/hr $3,304.00 Task 12 44 Project Surveyor $150/hr $6,600.00 Task 13 40 Civil Lead $192/hr (6) $4,586.00 Design Engineer I $101/hr 34 Task 16 32 Design Engineer 1 $101/hr (18) T___$3,470.00 Project Landscape Architect $118/hr 14) Amendment No. One Total $17,960.00 Total Agreement Not To Exceed $370.711.00 Mark Thomas & Company, Inc. Page B-1 PROFESSIONAL SERVICES AGREEMENT WITH MARK THOMAS & COMPANY, INC. FOR BAYSIDE DRIVE IMPROVEMENTS - DESIGN THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 8th day of August, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and MARK THOMAS & COMPANY, INC., a California corporation ("Consultant'), whose address is 16795 Von Karman Ave, Suite 205, Irvine, CA 92606, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to Engineering services for Bayside Drive Improvements (16R12) ('Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2019, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services' or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Three Hundred Fifty Two Thousand Seven Hundred Fifty One Dollars and 00/100 ($352,751.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Mark Thomas & Company, Inc. Page 2 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Robert A. Himes, P.E. to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. City's Public Works Director or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to provide access to and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's Work schedule. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with community professional standards and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and legally recognized professional standards. Mark Thomas & Company, Inc. Page 3 8.2 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), and which relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR 10.1 It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in Mark Thomas & Company, Inc. Page 4 this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 10.2 Consultant agrees and acknowledges that no individual performing Services pursuant to this Agreement shall: work full-time for more than six (6) months; work regular part-time service of at least twenty (20) hours per week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS member i I i eleZel;j=1 GrI[a]Z Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the Services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. Mark Thomas & Company, Inc. Page 5 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Additionally, all material posted in cyberspace by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability Mark Thomas & Company, Inc. Page 6 resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 17.4 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to Consultant or contractor bids or actual cost to City. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow Mark Thomas & Company, Inc. Page 7 inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), 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. 25.2 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. 26. NOTICES 26.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. Mark Thomas & Company, Inc. Page 8 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Robert A. Himes, P. E. Mark Thomas & Company, Inc. 16795 Von Karman Ave, Suite 205 Irvine, CA 92606 27. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 28. TERMINATION 28.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Mark Thomas & Company, Inc. Page 9 Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. PREVAILING WAGES If any of the Work contemplated under the Agreement is considered a "public work", pursuant to the applicable provisions of the Labor Code of the State of California, including but not limited to Section 1720 et seq., not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman shall be paid to all workmen employed on such. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 30.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. Mark Thomas & Company, Inc. Page 10 30.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 30.7 Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 30.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 30.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 30.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 30.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 30.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Mark Thomas & Company, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT E 'S OFFICE Date: By: Aaron C. Harp oa�at City Attorney ATTEST: Date: JF�4,By: m ' Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporal Date: {� /,=? / / -71' /, By: - Kevin M Mayor/ CONSULTANT: Company, Inc., a Date: Mark Thomas & California corporation Signed in Counterpart By: Robert A. Himes President Signed in Counterpart Robert Matthew Brogan Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Mark Thomas & Company, Inc. Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT EY'S OFFICE Date: i By: Aaron . Harp City Attorney ATTEST: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Kevin Muldoon Mayor CONSULTANT: Mark Thomas & Company, Inc., 0 President Date: q Robert Matthew Brogan Secretary [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements is corporation Mark Thomas & Company, Inc. Page 12 EXHIBIT SCOPE OF SERVICES Mark Thomas & Company, Inc. Page A-1 SCOPE OF WORK Task 1. Project Management 1. Project ManagemenUCoordination/Meetings: Consultant will provide ongoing general project management and coordination of subconsultants and internal staff. Agency coordination, including coordination with the City and other project stakeholders will also be provided. This will include coordinating with meetings, e-mails and phone calls as necessary to manage this project. 2. Critical Path Method ("CPM') Schedule, Progress Reports and Budgets: At the project kick-off meeting, Consultant shall distribute a master CPM schedule as a draft for review by the Project Development Team (PDT). The draft CPM schedule will be updated, incorporating comments received from the PDT. The CPM schedule will be prepared in Microsoft Project and will be updated and prepared for discussion at each Progress Meeting. Consultant will monitor project delivery cost and provide budget status reports upon City request. 3. Quality Assurance/Quality Control: Consultant's Quality Control plan consists of established procedures for performing the work (which are reassessed with each project), including methods for design calculations, establishing appropriate levels of design development for intermediate submittals, identification of required plan checks, design checklists, and methods of project documentation. Consultant's project manager will be responsible for internal and external quality control measures. Task 1 Deliverables: • CPM Master Schedule Task 2. Research and Data Collection Consultant will obtain, from the City, available record drawings and other pertinent data for the project including as-builts, GIS information, preliminary engineering reports, tract maps, parcel maps, right of way maps, street centerline ties and utility information from the City of Newport Beach, Orange County Public Works and Caltrans as necessary. Task 2 Deliverables: Records Obtained from City and Outside Agencies Task 3. Utility Coordination Utility Mapping: Consultant will utilize As -Built data and utility maps obtained by the utility companies to prepare base mapping and identify all utilities on the plans that are within the project limits. Page 1 of 9 2. Utility Conflict Mapping Procedure: Consultant will assist the City with the typical "ABC" process of utility letters, which includes: a. Utility "A" Letter — The Utility "A" Letters will be sent to each utility to request as - built mapping of their facilities. b. The utility mapping developed for the PS&E will be verified. The mapping will be verified through topographic surveys. c. Utility "B" Letter — Maps showing the utility mapping and the proposed improvements will be sent to the utility companies for verification. d. Utility "C" Letter— Final plans along with a letter will be sent to the utility companies showing the existing utilities and the final design. 3. Potholing: If instructed by City's Project Administrator, Potholing will be utilized to locate utilities to mitigate potential conflicts. Consultant will retain a vacuum pothole company to positively identify the depths, material type, and size of known critical facilities. Task 3 Deliverables: • Utility mapping shown on the basemapping • Certified List of Utilities per USA • Utility Conflict Mapping Procedure ("ABC" Letters) • Pothole Data (optional) Task 4. Field Surveying Services The Consultant team will set temporary field control, including temporary benchmarks, for use in topographic surveys throughout the project, including a minimum of three (3) durable control points intended to be used during the construction phase. The Basis of Bearings and Benchmark will be consistent with Orange County Survey Horizontal Controls and the North American Vertical Datum 1988 (NAVD88). The Consultant team will perform field survey to locate topographic features within the project limits that may affect design. These features include: back of walks, top of curbs, flow lines, edge of gutters, crown lines, manholes, water valves, street lights, trees (2" dhb and larger), utility poles, traffic and utility pull boxes, signs, driveways, ditches, culverts, etc. Cross sections at every 25 -feet will be provided along Bayside Drive, Jamboree Road and Marine Avenue Bridge, and where critical features exist. It is assumed the City will provide encroachment permits along local roads and East Coast Highway from Caltrans (Consultant will prepare the encroachment permits for the City's submittal). This task includes necessary traffic control during performance of field surveys. It is assumed one day of traffic control will be necessary to complete the field survey of Bayside Drive/Coast Highway intersection. Data collected from field survey will be incorporated into Base Mapping prepared for the use of this project and per Task 5. Task 4 Deliverables: • Point File in AutoCAD 2015 and Field Notes Page 2 of 9 Task 5. Base Mapping A base map of the existing conditions will be prepared for the project utilizing data obtained from Task 2 through 4. Project base map will be in imperial units, showing parcel lines, easements, right-of-way, existing utilities, centerlines and topographic information including sidewalks, curbs, gutters, striping, etc. Consultant will prepare the base sheet utilizing AutoCAD. The base map will include a digital terrain model and topographic mapping at a scale of 1" = 40' with one -foot contour interval. One survey control sheet will be developed including control points, basis of coordinates, bearings and elevations. Task 5 Deliverables: Topographic Survey (AutoCAD 2015) Digital Terrain Model ("DTM") of existing surface features Survey Control Sheet Task 6. Geotechnical Investigation Background Review: Leighton Group, Inc. ("Leighton") will review geotechnical reports and geology maps available in their in-house library pertinent to the site or other readily available background materials. In Leighton's review, Consultant will look for information on the existing street and pavement (as -built information to be provided by City) as well as potential geotechnical issues that may significantly impact the site and affect the proposed field exploration and laboratory testing program. 2. Pavement Condition Survey: Leighton will walk the site with city maintenance to conduct a condition survey of the existing pavement to visually assess the structural integrity of the pavement and to identify appropriate pavement rehabilitation alternatives. The condition survey will identify distresses such as fatigue cracking, longitudinal and transverse cracking, rutting, patched and utility cuts, distortions and depressions, and weathering and raveling. Leighton's levels of severity and locations will be noted and photo document will be provided. 3. Retaining Wall Foundation Exploration: Leighton will perform subsurface exploration consisting of drilling, logging and sampling 2 borings at the new retaining wall on Bayside Drive and 1 boring at the existing wall on Jamboree Road. The borings will be drilled 15' below the existing ground surface. All borings will be drilled to the proposed depths or auger refusal, whichever is shallower, and will be logged by a member of Leighton's staff. Representative soil samples of the subgrade will be collected directly below the existing pavement and at the selected depths, and transported to their laboratory for testing. The borings will be backfilled with native material. Prior to the field exploration, they will Premark the proposed boring locations and contact Underground Service Alert (USA) and the City for utility clearance. 4. Laboratory Testing: Leighton will conduct geotechnical testing on sampled earth materials in our laboratory for soil classification and to evaluate engineering properties. Page 3 of 9 This testing will include in-place moisture content and dry density, R -value, and direct shear. The R -values will be calculated based on the design Traffic Index to be provided to Leighton. Sulfate content tests will be performed on near surface samples to assess corrosively of onsite soils. 5. Pavement Design: Leighton will perform geotechnical analyses of the collected data to evaluate the existing pavement conditions and develop recommendations for pavement rehabilitation. Leighton will determine the grind and overlay thickness to extend the pavement design life for the Traffic Index to be provided by the City. Leighton's analyses will follow the guidelines in California Test Method 356. Leighton will also evaluate failed pavement areas and provide recommendations for new pavement section. For design of new asphalt pavement, Leighton will use the methods in Caltrans Highway Design Manual. 6. Report Preparation: Based on the collected field and laboratory data and results of the pavement analysis, Leighton will develop the pavement sections and subgrade preparation for the proposed reconstruction. Leighton will prepare a report presenting Consultant's geotechnical findings, conclusions and recommendations that will be signed and stamped by a California -licensed Geotechnical Engineer (GE). The report will include a boring location map, boring logs, and geotechnical testing results, and address the following: - Site Conditions: Leighton will review and summarize surface, subsurface and groundwater conditions, and engineering properties of soils encountered during our geotechnical exploration. They will discuss excavation characteristics of encountered subsurface materials, including ease or difficulty of excavation. - Pavement Design: Leighton will provide recommendations for new pavement sections and pavement rehabilitation consisting of grind and overlay. - Foundation Design: Leighton will provide geotechnical parameters for shallow foundation design. - Lateral Earth Pressures: Leighton will provide recommendations for lateral earth pressures acting on retaining walls. We will also provide recommendations regarding frictional and passive values for resistance of lateral forces. Task 6 Deliverables: Geotechnical Pavement Rehabilitation and Foundation Report Task 6.1 Overhead Sign Foundation and Roadway Borings Leighton will perform subsurface exploration consisting of drilling, logging and sampling 2 borings at the existing overhead sign locations (one on Bayside Drive and one on Jamboree Road) and 5 pavement borings within the project limits. The borings for the overhead sign foundations will be drilled 15' below the existing ground surface and the borings in the pavement will be 5' deep. All borings will be drilled to the proposed depths or auger refusal, whichever is shallower, and will be logged by a member of their staff. Representative soil Page 4 of 9 samples of the subgrade will be collected directly below the existing pavement and at the selected depths, and transported to their laboratory for testing. The borings will be backfilled with native material. Prior to the field exploration, they will Premark the proposed boring locations and contact Underground Service Alert (USA) and the City for utility clearance. Task 7. Traffic Signal Design Services LIN Consulting (LCI) will prepare Traffic Signal Rehabilitation plans and Specifications for a replacement of the existing traffic signal at Bayside Drive/Jamboree Road and the pedestrian signal along Bayside Drive. The plans will also include replacement of street signs and the informational signs on Bayside Drive and Jamboree Road approaching the Bayside Drive/Jamboree Road intersection. The traffic signal plans will be prepared at 50% 90% and 100% submittal packages. The plan will be prepared at 1"=40' scale, double stacked. 1. Visual Inspection and Field Inventory: LCI will perform a visual inspection of the traffic signal poles, overhead sign poles and equipment at Bayside Drive/Jamboree Road - Marine Avenue and the traffic signal poles and equipment at the midblock pedestrian signal on Bayside Drive to determine if the existing equipment meets current standards. LCI will document the findings in a letter report. 2. Traffic Signal Design: - Bayside Drive/Jamboree Road -Marine Avenue — LCI will prepare a plan which shows the existing traffic signal and overhead sign system. The plan will show the installation of Accessible Pedestrian Signal (APS) equipment and the replacement of existing detector loops on all approaches. The plans will include new poles and mast arms if replacement is required. PCH/Jamboree Road — LCI will design new replacement loops for the south leg of the intersection. The installation of new loops will be shown on either the street improvement or signing/striping plans. PCH/Bayside Drive - LCI will design new replacement loops for the south leg of the intersection. The installation of new loops will be shown on either the street improvement or signing/striping plans. - Mid -Block Pedestrian Signal — LCI will prepare a plan which shows the existing traffic signal at the mid -block pedestrian signal on Bayside Drive west of Jamboree Road. The plan will show the installation of Accessible Pedestrian Signal (APS) equipment and the replacement of existing detector loops on both approaches. The plans will include new poles and mast arms if replacement is required. Page 5 of 9 Specifications and cost estimates will be prepared. The PS&E package will be submitted to the City (Bayside Drive/Jamboree Road -Marine Avenue and mid -block Bayside Drive) and to the City and Caltrans (PCH/Jamboree Road and PCH/Bayside Drive) for review and comments. Task 7 Deliverables: Traffic Signal Plans (50%, 80% and 100%) Task 8. Structural Design Services Consultant will provide structural design services for a standard retaining wall system for the new sidewalk between the pedestrian signal at Bayside Drive to the intersection at Bayside Drive and East Promontory Drive, approximately 580 LF and design a new retaining wall or new stem wall on the existing footing for the retaining wall located on the east side of Jamboree Road. The retaining wall plans will be prepared at 50%, 80% and 100% submittal packages. The plans will be prepared at 1"=20' scale. Task 8 Deliverables: • Retaining Wall Plans for Wall on Bayside Drive (50%, 80% and 100%) • Retaining Wall Plans for Wall on Jamboree Road (50%, 80% and 100%) Task 9. Roadway Renderings/Landscape Concepts Consultant will develop up to 4 renderings of the new roadway improvements, decorative pavement, landscaping, retaining walls and other items, with the intent of showing them to the public. Consultant will develop a conceptual landscape corridor exhibits for three alternatives. The alternatives will include: "minimal" improvements, "standard" landscape improvements, and "enhanced" landscape improvements. The purpose of the design package is to receive feedback from City staff and Council before proceeding to 50% PS&Es. Task 9 Deliverables: • Roadway Renderings (4) • Conceptual Landscape Corridor Exhibits (3 Alternatives) Task 10. Environmental Documentation Consultant will provide developed project CADD files to help support the City prepare the CEQA document. Task 10 Deliverables: • AutoCAD 2015 CADD files Page 6 of 9 Task 11. Permitting Consultant will provide the coordination to obtain applicable permits from Caltrans, City departments and other public agencies, as necessary to facilitate the project work as described in this scope. This includes the two encroachment permits required from Caltrans for loop detector reconstruction at PCH/Bayside Drive and PCH/Jamboree Road. The first encroachment permit is for the initial encroachment permit to perform engineering evaluation and surveys to be prepared by the Consultant team and submitted by the City, the other is the one necessary to begin construction, which will be prepared by Consultant and submitted to Caltrans encroachment permits department for approval. A coastal commission permit is not anticipated for this project. Task 11 Deliverables: • Caltrans Encroachment Permit to Perform Investigations (2 locations) • Caltrans Encroachment Permit for Design Approval (2 locations) Task 12. Right -of -Way Consultant will perform record research at the City, County and Caltrans to locate recorded control maps, right-of-way maps, records of survey, corner records, and other maps of record necessary to determine the RNV limits within the area of the proposed project. Consultant team will perform a field survey to search and locate existing survey monuments and physical evidence required. Precise right of way will be delineated at the acquisition parcel; the remainder of the project will have right of way shown based on record mapping. The monument ties will be analyzed in the Existing Right of Way delineation. At the two (2) anticipated easement acquisitions on Bayside and Jamboree, the affected parcel lines will be delineated based on field ties to monumentation. This scope assumes that two (2) plat and legal descriptions will be prepared covering one temporary construction easement and one permanent easement acquisition for one parcel impacted at the anticipated retaining wall on Bayside Drive. These will undergo one review by the City for technical accuracy before being signed and wet -stamped. It is assumed the existing wall and the replacement wall at Jamboree Road is located within the existing roadway right of way and will not require easements. As required by law, it is anticipated that existing monument potentially impacted by the project will be referenced in the field and corner records drafted. At this time, it is assumed that no monuments will be impacted. It is assumed that if monuments need to be protected, the contractor will tie the monuments or the Consultant team will tie the monuments prior to construction if requested by City's Project Administrator. Page 7 of 9 Task 12 Deliverables: • Temporary Construction Easement (Bayside Drive Retaining Wall) • Permanent Easement (Bayside Drive Retaining Wall) Task 13. Final Design Plans: Consultant will prepare 50%, 80% and 100% level design plans, specifications and estimates based on the approved GAD concept. The PS&E packages will include at minimum: Title Sheet, Typical Sections, Street Plans, Details, Grading Plans, Signing and Striping, Retaining Wall, Traffic Signal Modifications, Irrigation and Landscaping. The drawings will be prepared in AutoCAD 2015 and will be prepared at a scale of V=40' with details shown at V=20' and/or 1"' as needed. 2. Cross Sections: Final cross sections at every 25 -feet will be provided at the submittal of the 100% level design plans. 3. Special Provisions: Consultant will prepare Special Provisions in accordance with the Greenbook - Standard Specifications for Public Works Construction (2004 Edition) in Microsoft Word. The specifications will include a bid item list as typically required in the General Provisions and to be included as part of the Contractor's bid list. 4. Cost Estimate: Consultant will prepare an Engineer's Estimate of Construction Costs based on estimated quantities and available construction cost utilizing Caltrans Contract Cost Data, RS Means and/or readily available data from similar past projects. Backup of all quantities and unit cost will be provided prior to construction. Consultant will utilize contingency values based on industry standards, however, City to agree upon these values. Construction Cost Estimate will be prepared and submitted in Microsoft Excel format. Task 13 Deliverables: • Plans (50%,80% and 100%) • General Cross Sections (100%) • Special Provisions (50%, 80% and 100%) • Construction Cost Estimate (50%, 80% and 100%) Task 14. Progress Meetings Consultant will meet with City staff and the Project Development Team (PDT) during the design process to review and discuss progress. Consultant will take the lead in PDT meetings. This work includes preparation of meeting agenda, arrangement of attendance of meeting participants, and preparation and distribution of meeting notes, including a recap of actions to be taken prior to the next meeting. Consultant will prepare materials, attend, conduct and prepare meeting notes for the following anticipated meetings: Kick-off Meeting (1), Project Submittal Meetings (3), Progress Meetings (5), Pre -Bid (1) and Pre -Construction Meeting (1). Page 8 of 9 Task 14 Deliverables: • Kick-off Meeting (1) Agenda and Notes (E-mail) • Project Submittal Meetings (3) Agenda and Notes (E-mail) • Progress Meetings (5) Agenda and Notes (E-mail) • Pre -Bid Meeting (1) Agenda and Notes (E-mail) • Pre -Construction Meeting (1) Agenda and Notes (E-mail) Task 15. Public Meetings Consultant will attend, present and provide presentation materials for up to two public meetings. Consultant will update the public on the status of the project and receive feedback on the design features such as: roadway layout, landscape concepts, and decorative features. These meetings include City Council meetings, Home Owners Association meetings, and other community meetings. Task 15 Deliverables: • Public Meeting Exhibits Task 16. Construction Support Services 1. Bid Phase: Consultant will provide the City support during the bidding phase of this project by reviewing and responding to Request for Clarifications, issuing Addenda to the bid package as necessary to facilitate construction, attending the pre -construction meetings. Design revisions related to contractor preference are the overall approval design concept are not anticipated. 2. Construction Phase: Consultant will provide assistance to the City during the construction phase of this project. This includes: attending meetings, answering RFI's, reviewing submittals, reviewing shop drawings, field observations, interpretation of bid documents, and clarifications. Consultant will also assist the City in reviewing Construction Change Orders and changes in field conditions. A 6 -month construction duration has been assumed in order to estimate the effort required for this task. 3. Record Drawings: Upon completion of construction and during project closeout, Consultant will prepare record drawings from a redlined set (provided by the City) documenting revisions to the final conformed bid set for City records. Task 16 Deliverables: • Respond to Request for Clarifications (as necessary) • Addenda (as necessary) • RFI's (8 total) • Submittals (8 total) • Record Drawings (As-Builts) Page 9 of 9 EXHIBIT B SCHEDULE OF BILLING RATES Mark Thomas & Company, Inc. Page B-1 Exhibit B BILLING RATES Position Rate (Per Hour) PROJECT MANAGER $260 QA/QC MANAGER $192 CIVIL LEAD $192 DESIGN ENGINEER $101 SENIOR SURVEY MANAGER $210 LAUD DIVISION MANAGER $243 PROJECT LANDSCAPE ARCHITECT $118 LANDSCAPE DESIGNER $112 PROJECT SURVEYOR $150 SURVEYOR $120 SENIOR TECHNICIAN (CADD) $115 SENIOR GRAPHICS ARTIST $120 SENIOR PROJECT COORDINATOR $110 TOTAL NOT -TO -EXCEED: $352,751.00 EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1. Provision of Insurance. Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 2. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 3. Coverage Requirements. A. Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its City Council, boards and commissions, officers, agents, volunteers and employees. B. General Liability Insurance. Consultant shall maintain commercial general liability insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 covering bodily injury and property damage for all activities of Consultant arising out of or in connection with Work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. Mark Thomas & Company, Inc. Page C-1 D. Professional Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability insurance that covers the Services to be performed in connection with this Agreement, in the minimum amount of one million dollars ($1,000,000) per claim and two million dollars ($2,000,000) in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the Effective Date of this Agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the Services required by this Agreement. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. Waiver of Subrogation. All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its City Council, boards and commissions, officers, agents, volunteers and employees or shall specifically allow Consultant or others providing insurance evidence in compliance with these requirements to waive their right of recovery prior to a loss. Consultant hereby waives its own right of recovery against City, and shall require similar written express waivers from each of its subconsultants. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, but not including professional liability, shall provide or be endorsed to provide that City, its City Council, boards and commissions, officers, agents, volunteers and employees shall be included as insureds under such policies. C. Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self-insurance maintained by City. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days' notice of cancellation (except for nonpayment for which ten (10) calendar days' notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. Evidence of Insurance. Consultant shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation endorsement for workers' compensation and other endorsements as specified herein for each coverage. Insurance certificates and endorsement must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. Mark Thomas & Company, Inc. Page C-2 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days' advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. Self-insured Retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. F. City Remedies for Non -Compliance. If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this Agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. Consultant's Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the Work. Mark Thomas & Company, Inc. Page C-3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach.'` Date Received: 9/14/17 Dept./Contact Received From. Raymund Date Completed: 9/22/17 Sent to: Raymund By: Jan Company/Person required to have certificate: Mark Thomas & Company Type of contract: 1. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 9/15/17 — 9/15/18 A. INSURANCE COMPANY: Travelers Indemnity Company of CT 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? $IM/$2M E. ADDITIONAL INSURED ENDORSEMENT—please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided?) include): Is it included? (completed Operations status does F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? ❑ Yes ®No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No II. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 9/15/17-9/15/18 A. INSURANCE COMPANY: Travelers Indemnity Company of CT B. AM BEST RATING (A-: VII or greater) A++/ XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided?) N/A F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ❑ N/A ® Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes ® No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 9/15/17 — 9/15/18 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): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? ® Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY XL SPECIALTY INS CO, 7/1/17-7/1/18, RATED: A/XV Admitted, Limits - $2M/$2M ❑ N/A ® Yes ❑ No V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 9/22/17 Date ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _ Self Insured Retention or Deductible greater than $ ) El El Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management Date * Subject to the terms of the contract.