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HomeMy WebLinkAboutC-4095(A) - PSA for Kings Road / Kings Place Pavement Reconstruction0-4035 PROFESSIONAL SERVICES AGREEMENT WITH DMS CONSULTANTS, INC. FOR KINGS ROAD / KINGS PLACE PAVEMENT RECONSTRUCTION THIS AGREEMENT is made and entered into as of this day of O , 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and DMS CONSULTANTS, INC. a California Corporation whose address is 12377 Lewis Street, Suite 101, Garden Grove, California, 92840 ( "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 remove and reconstruct the asphalt concrete street and deteriorated concrete curbs along Kings Road and Kings Place. C. City desires to engage Consultant to prepare construction plans and specifications. ( "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 Mr. Surender Dewan, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 151 day of October 2009, 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 Consultant shall perform the services in accordance with the schedule included in Exhibit A. The failure by Consultant to strictly adhere to the schedule 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 SEVENTY -FOUR THOUSAND, ONE HUNDRED AND FIFTY -FIVE Dollars and no /100 ($74,155.00) 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: F 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 MR. SURENDER DEWAN, 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. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. TOM SANDEFUR, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: M 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 2 costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement 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/her duly authorized designee informed on a regular basis regarding the status and 5 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, 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. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 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 R 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 two million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L 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 7 written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon 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 E-3 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. All improvement and /or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City `As- Built' drawings, and a copy of digital ACAD and tiff image 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. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. E 21. 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. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant 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. 23. 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. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 10 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Tom Sandefur Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949-644-3312 Fax: 949 -644 -3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Surender Dewan, P.E. DMS Consultants, Inc. 12377 Lewis Street, Suite 101 Garden Grove, CA 92840 Phone: 714 - 740 -8840 Fax: 714 -740 -8842 11 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, 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. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 12 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. 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. 34. 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. 35. 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. 36. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: o,,— 'fff'—, Aaron C. Harp, Asst. City Attorney for the City of Newport Beach ATTEST: , By: LaVonne Harl I ss, City Clerk n EACH, Edward D. Selich, Mayor for the City of Newport Beach CONSULTANT: By; -- (Corporate Officer) Title: "I"TQS j 4eAt Print Name: Swed dev leoqu (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 14 -- - - - -- - EXHIBIT "A" The project area is Kings Road, a residential collector that loops from Cliff Drive to the east and to Cliff Drive to the west. The existing curb -io -curb width is 36 feet with a 60 -foot right -of -way. The street is a wo -lone street with parking permitted on both sides of the street. Rolled curb and gutter exists on both sides of the street. There are no sidewalks or curb romps in the proles area. Rolled curb and gutter from Cliff Drive to St. Andrews Road is in very good condition except for a small section on the north side of the street, which will need to be reconstructed to resolve a drainage /ponding problem. (Figure 1) the cross gutter at the intersection of 51. Andrews Road is cracked and will require reconstruction. tfgture 2) Figue I Figure 2 The curb and guiier on the north side of the street from 1210 to 1 120 Kings Road east of St. Andrews Road is standard curb and gutter with a 6 -inch curb face and should be reconstructed for uniformity of street section. (Figure 3) Some sections of the rolled curb and gullet, between St. Andrews Road and Signal Road ate cracked and should he reconstructed. (fiigure A) The cross gutter at the intersection of Signol Road and Kings Road is in very good condition. .''s 8QC9 Rojml iM Cavavenrn bu, • Fjyo J 1 J a.- e, 1, �fr > �rYt J• Figure 3 Figum 4 The rolled curb and gutter at driveway approaches is depressed and has concrete apron which slopes toward the roadway. Many of the driveways have excessive lip at the gutter and should be reconstructed. (Figure 5) fit some locations, residenis hove covered the gutter with asphalt and placed a PVC pipe in the gutter io provide for drainage. These pipes are illegal and do not have the capacity to carry the street runoff, thus resulting in damage to the structural section of the roadway. (Figure 6) These PVC pipes should be removed and driveways reconstructed. figure 5 s The driveway to 1521 Kings Road is crocked and should be reconstructed. The driveways to 1511, 101 1, 1001 and 420 Kings Road do not hove a depressed driveway and hove a standard rolled curb V ) �~ t Figure 6 s The driveway to 1521 Kings Road is crocked and should be reconstructed. The driveways to 1511, 101 1, 1001 and 420 Kings Road do not hove a depressed driveway and hove a standard rolled curb EXHIBIT W'­- and gutter and should be reconstructed, if grades permit. (Figure 7) Reconstruction of these driveways will require reconstruction on private properly. There is an existing storm drain system in the project area that ultimately drains southerly to ilia drainage system on Pacific Coosi Highway. There ore catch bosins located on both the north and south sides of the street. s -built plans provided by the City indicalo that ilia sireel was initially built in 1447. A visual inspection of the project area indicates the pavement to be in poor condition with transverse and longitudinal cracks and will require reconstruction. ft figure 8,1 Figure 7 Figure 8 'I Preliminary Design Development In a consultation meeting with the City, the scope of work, procedure for the project and the precise limits of the project improvements will be reviewed. Review with city staff to obtain specific input related to city goals, and discuss preliminary issues. Meet with city staff on a continuous, as- needed basis throughout the design and construction phases to ensure that work is expeditiously carried out in keeping with the city's requirements Obtain from city, record maps which provide alignment and right -of -way for Kings Road, also ci monument notes, tie notes, bench marks, etc Design Survey . • Locate beginning, intermediate and final benchmarks. Locate and identify horizontal controls used. Set a total of 11 aerial targets. v Conduct aerial survey. Aerial survey to show spot elevations and contours at 1' intervals. ' ♦ Locate limits of broken curb and gutter as well as defective sidewalk and dig -outs. (City crew to mark limits in the field). v Conduct topographic survey and obtain street cross sections for reconstruction at 25' intervals to determine pavement cross slope. Street cross sections to show elevations at top of curb, gutter flowline, lip of gutter, edge of pavement, lane line, grade breaks, centerline, top of median curb, and finished surface at median curb. A minimum of two (2) bench marks will be used. A bench circuit will be run and closure error established, if any. Each bench mark will be established on the plans and in the survey notes. Additional temporary bench marks will be established for use during construction and identified on the plans. • A report will be provided to the City containing all survey control and cross section notes. Utility Coordination Request for existing utilities from utility agencies. Notify all utilities at the start, at 70 %, and at 95% design of the location and extent of the work to ensure that all structures are properly located on the plans. Kings Rood Reconstruction Project DNS Consultoms, Inc. ♦ Page 7 Final plans will be sent to each affected utility company prior to bidding of the work. V A copy of all correspondence with utility companies will be provided to the city Proposed improvements will be coordinated with utility companies in the project area. Each utility company will be sent a "Utility Notification Letter" prior to commencement of preliminary design. v Final plans will be sent to each affected utility company prior to bidding of the work. Pavement Rehabilitation Rehabilitation treatment to be provided by the City of Newport Beach Preliminary Design — 70% • Prepare base maps at 20 scale. Plot existing utilities, existing right -of -ways, cross sections, etc. • Superimpose proposed improvements over existing cross sections. • Prepare preliminary street improvement plans • Prepare base maps on plan and profile sheets ands plot existing and proposed centerline, curb and gutter profile. • Prepare preliminary striping and signage plans in accordance with the State of California Department of Transportation Traffic Manual. V Prepare driveway modification plans, if any. V Prepare preliminary estimate of probable costs in tabular form. Final Design — 100% Prepare final street improvement. V Title sheet will include: Project title, vicinity and location map with plan sheet index and scale Utility and plan legends, utility notes, contact names and telephone numbers Bench marks, basis of bearings General and master construction notes Standard signature and title blocks Rings Koaa Keconstrudlon Project DM$ Consultants, Inc. • Page 8 Street improvement plan will include: opograp y Between right-of-way and beyond as necessary • Right -of -way limit lines • Construction notes • Centerline and curb and gutter profile • Driveway modification details, if any • Prepare final striping and signage plans, plans to include: Removal and /or reconstruction of existing and /or proposed traffic features where applicable • Traffic striping Traffic signing • Pavement markings and markers V Prepare project specifications based on the 2006 edition of the Standard Specifications for Public Works Construction. V Prepare final estimates of probable cost. V After final approval of project design the plans will be plotted on 4 mil thick mylar and delivered to the City along with electronic file 100 %AutoCAD drawings. Construction Assistance ' V Provide coordination during bidding process including answering bidder's questions. V Provide assistance during construction phase for plan interpretation and plan revisions resulting from changed conditions. Prepare as -built mylars based on information provided by the City. DMS Consultants, Inc. ♦ Page 9 EXHIBIT' B Kings Road Reconstruction Projed Description Fes Preliminary Design Development: ............................................................................ $1,120.00 DesignSurvey: ..................................................................................... ............... $15,070.00 Preliminary Design Phase: ................................................... ................................. $33,950.00 Final Design Phase: ............................................................................................. $13,440.00 Assistance During Bidding /Construction Phase: ............................................................ $610.00 As -Built Plans: ....................................................................................................... $1,290.00 Reproduction Allowance: ...... ................................................................................. $1,200.00 SUB-TOTAL: ........................... $66,680.00 Subconsultants Fee: Digital Mapping, Inc.: $6,500 + 15% Mark- Up :..................... ......................$7,475.00 SUB-TOTAL: ............................ $7,475.00 TOTALPROJECT FEE: ........................ ........... .............. ......................... ........... . NOTE: Any additional work outside the official scope of work will be performed at an hourly rate in accordance with the attached schedule of hourly rates. Project Manager ............. ............................... Project Engineer ............. ............................... Design Engineer ............. ............................... Senior Drafter ................. ............................... Senior Plan Checker ........ ............................... Construction Administrator .............................. Construction Inspector ..... ............................... Building Plan Examiner .... ............................... Building Inspector ........... ............................... Two -Man Field Party ....... ............................... Three -Man Field Party ..... ............................... Office Survey Manager .... ............................... Word Processor .............. ............................... OCT 14 2008 vv�d C- go95 *100- ate) CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. ' October 14, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Tom Sandefur, Associate Civil Engineer 949 -644 -3312 or tsandefur @city.newport - beach.ca.us SUBJECT: KINGS ROAD /KINGS PLACE PAVEMENT RECONSTRUCTION - APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH DMS CONSULTANTS, INC. FOR DESIGN SERVICES RECOMMENDATIONS: Approve a Professional Services Agreement with DMS Consultants, Inc., of Garden Grove, CA, for design of final construction plans for Kings Road /Kings Place Pavement Reconstruction at a not to exceed price of $74,155.00 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: The City has requested and received a proposal from DMS Consultants, Inc. for the design of and plans for the reconstruction of the pavement along Kings Road and Kings Place. Two other engineering firms were considered for this project. DMS Consultants was selected based on their previous high quality of design work done for the City, their responsiveness to the City and their familiarity with City standards and expectations. The project involves the removal and reconstruction of asphalt concrete street and deteriorated concrete curbs, gutters and driveways. DMS Consultants, Inc. will be required to produce construction plans, estimate and specifications that can be competitively bid by Public Works. The project is scheduled for construction in Spring 2009. The proposed not to exceed professional engineering services fee is $74,155.00. The scope of the professional services will include: • Preliminary Design Development including design survey • Utility Coordination • Design submittals at 70% preliminary design and 100% final design stages. • Construction Engineering Assistance Kings Road Pavement Reconstruction oval of PSA'ml h LAS Consultants October 14, 2008 Page 2 Environmental Review: Engineering design services are not projects as defined by the California Environmental Quality Act (CEQA) Implementing Guidelines. Funding Availability: There are sufficient funds available in the following account for the project: Account Description Gas Tax Prepared by: Tom Sandefur, REIV Associate Civil Engineer Account Number 7181- C2002020 Total Submitted by: Attachment: Professional Services Agreement :n G. Badum Works Director Amount $ 74,155.00 $ 74,155.00 0 • PROFESSIONAL SERVICES AGREEMENT WITH DMS CONSULTANTS, INC. FOR KINGS ROAD / KINGS PLACE PAVEMENT RECONSTRUCTION THIS AGREEMENT is made and entered into as of this _ day of 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and DMS CONSULTANTS, INC. a California Corporation whose address is 12377 Lewis Street, Suite 101, Garden Grove, California, 92840 ( "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 remove and reconstruct the asphalt concrete street and deteriorated concrete curbs along Kings Road and Kings Place. C. City desires to engage Consultant to prepare construction plans and specifications. ( "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 Mr. Surender Dewan, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 1St day of October 2009, 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. • 0 3. TIME OF PERFORMANCE 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. The failure by Consultant to strictly adhere to the schedule 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 SEVENTY -FOUR THOUSAND, ONE HUNDRED AND FIFTY -FIVE Dollars and no 1100 ($74,155.00) 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: 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 MR. SURENDER DEWAN, 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. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. TOM SANDEFUR, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: 3 0 0 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 i • • costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement 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 /her duly authorized designee informed on a regular basis regarding the status and E • 0 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, 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. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employers 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 Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 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 I 0 0 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 two 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 7 L E written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon 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 I • 0 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. All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings, and a copy of digital ACAD and tiff image 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. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the .engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by CITY in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 0 0 • 21. 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. 22. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant 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. 23. 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. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under the law or any other sections of this Agreement. 10 • • 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Tom Sandefur Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3312 Fax: 949-644-3318 All notices, demands, requests or approvals from CITY to Consultant shall be addressed to Consultant at: Attn: Surender Dewan, P.E. DMS Consultants, Inc. 12377 Lewis Street, Suite 101 Garden Grove, CA 92840 Phone: 714-740-8840 Fax: 714 - 740 -8842 11 0 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, 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. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 12 • 0 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. 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. 34. 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. 35. 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. 36. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 37. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 13 E • IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Aaron C. Harp, Asst4CAtfttoorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk Attachments: CITY OF NEWPORT BEACH, A Municipal Corporation Edward D. Selich, Mayor for the City of Newport Beach CONSULTANT: Title: Print By:_ Title: (Corporate Officer) (Financial Officer) Print Name: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates 14 • EXHIBIT "A" The project area is Kings Road, a residential collector that loops from Cliff Drive to the east and to Cliff Drive to the west. The existing curb -lo -curb width is 36 feel with a 60 -foot right- of -woy. The street is a two -lone street with parking permitted on both sides of the street. Rolled curb and gutter exists on both sides of the street. There ore no sidewalks or curb ramps in the project area. Roiled curb and gutter from Cliff Drive to 51. Andrews Road is in very good condition except for a small section on the north side of the street, which will need to be reconstructed to resolve o drainage /ponding problem. (Figure 1) the cross gutter at the intersection of St. Andrews Rood is crocked and will require reconstruction. (Figure 2) u . . . . . . . . . . . . W��. r I Figure 2 The curb and gutter on the north side of the street from 1210 to 1 120 Kings Rood east of St. Andrews Road is standard curb and gutter with a 6 -inch curb face and should be reconstructed for uniformity of street section. (Figure 3) Some sections of the rolled curb and gutter between St. Andrews Rood and Signal Road are cracked and should be reconstrucied. (Figure 4) The cross gutter at the intersection of Signal Rood and Kings Road is in very good condition. r „• adS Ccn ;tnn'> in- • r'bge C J EXHIBIT "A" I "gore Figure 4 The rolled curb and gutter at driveway approaches is depressed and has concrete apron which slopes toward the roadway. Many of the driveways have excessive lip a! the gutter and should be reconstructed. (;qe,;e ` -„ t some locations, residents have covered the gutter with asphalt and placed a ?VC pipe in the gutter to provide for drainage. These pipes are illegal and do not have the capacity to carry the street runoff, thus resulting in damage to the structural section of the roadway- (f%gUre 51 These ?VC pipes should be removed and driveways reconstructed. r;yu• «. F:gcne 6 The driveway to 1521 Kings Rood is cracked and should be reconstructed. The driveways to 1511, f 01 1, 1001 and 420 Kings Road do not have a depressed driveway and have a standard rolled curb 'PR OJECT UNDERSTANDING I I Preliminary Design Development • In a consultation meeting with the City, the scope of work, procedure for the project and the precise limits of the project improvements will be reviewed. Review with city staff to obtain specific input related to city goals, and discuss preliminary issues. V Meet with city staff on a continuous, as- needed basis throughout the design and construction phases to ensure that work is expeditiously carried out in keeping with the city's requirements Obtain from city, record maps which provide alignment and right -of -way for Kings Road, also cil monument notes, tie notes, bench marks, etc Design Survey Locate beginning, intermediate and final benchmarks. Locate and identify horizontal controls used. Set a total of 1 1 aerial targets. v Conduct aerial survey. Aerial survey to show spot elevations and contours at 1' intervals. ■ ♦ Locate limits of broken curb and gutter as well as defective sidewalk and dig -outs. (City crew to mark limits in the field). • Conduct topographic survey and obtain street cross sections for reconstruction at 25' intervals to determine pavement cross slope. Street cross sections to show elevations at top of curb, gutter flowline, lip of gutter, edge of pavement, lane line, grade breaks, centerline, top of median curb, and finished surface at median curb. A minimum of two (2) bench marks will be used. A bench circuit will be run and closure error established, if any. Each bench mark will be established on the plans and in the survey notes. Additional temporary bench marks will be established for use during construction and identified on the plans. • A report will be provided to the City containing all survey control and cross section notes. Utility Coordination Request for existing utilities from utility agencies. Notify all utilities at the start, at 70%, and at 95% design of the location and extent of the work to ensure that all structures are properly located on the plans. Kings Rood Reconstruction Project DM$ Consultants, Inc T Page 7 1 V Final plans will be sent to each affected utility company prior to bidding of the work. v A copy of all correspondence with utility companies will be provided to the city Proposed improvements will be coordinated with utility companies in the project area. Each utility company will be sent a "Utility Notification Letter" prior to commencement of preliminary design. Final plans will be sent to each affected utility company prior to bidding of the work. Pavement Rehabilitation V Rehabilitation treatment to be provided by the City of Newport Beach. Preliminary Design — 70% V Prepare base maps at 20 scale. Plot existing utilities, existing right -of -ways, cross sections, etc. • Superimpose proposed improvements over existing cross sections. Prepare preliminary street improvement plans V Prepare base maps on plan and profile sheets ands plot existing and proposed centerline, curb and gutter profile. V Prepare preliminary striping and signage plans in accordance with the State of California Department of Transportation Traffic Manual. Y Prepare driveway modification plans, if any_ v Prepare preliminary estimate of probable costs in tabular form. Final Design — 100% Prepare final street improvement. V Title sheet will include: Project title, vicinity and location map with plan sheet index and scale • Utility and plan legends, utility notes, contact names and telephone numbers Bench marks, basis of bearings General and master construction notes Standard signature and title blocks Kings Road Reconstruction Project DnaS Consultants, Inc. • Page F I I I I J I I I • Street improvement plan will include: Topography between right -of -way and beyond as necessary Righl -of -way limit lines Construction notes Centerline and curb and gutter profile Driveway modification details, if any Prepare final striping and signage plans, plans to include: Removal and /or reconstruction of existing and /or proposed traffic features where applicable Traffic striping Traffic signing Pavement markings and markers V Prepare project specifications based on the 2006 edition of the Standard Specifications for Public Works Construction. V Prepare final estimates of probable cost. V After final approval of project design the plans will be plotted on 4 mil thick mylar and delivered to the City along with electronic file 100% AutoCAD drawings. Construction Assistance V Provide coordination during bidding process including answering bidder's questions. v Provide assistance during construction phase for plan interpretation and plan revisions resulting Kings from changed conditions. Prepare as -built mylars based on information provided by the City. ,,oleo DMS Consulfonis, Inc. v Poge 9 U J L. u Aswrried Notice to frroceed -,C? rer 1% 2-008 ?� .• { i 1 ":_ roe! trig DMS Consultants, Inc. V Page 10 Aerial Survey and Design Survey j 3 weeks ; 3 weeks Utility Coordination MIN& 9 Pcefisf#�+ar� Design Pti.- .t��jgti. Prepare Base Maps '3 weeks tllM /a8' 4 weeks Street Improvement Plans ; 2 weeks Signage and Striping Plans 1 I j 1 - 3 weeks City Review of Preliminary Plans - 70% Il./z3 /OH Fitq IDWO.On Phase >.:rA b Cleatgn Street Improvement Plans ! 2 weeks ' •, 2 weeks Project Specifications and Cost Estimates `1113109 j3 weeks 11/x7/09 City Review of Preliminary Plans - 95% V Project Complete - 100% Design Aswrried Notice to frroceed -,C? rer 1% 2-008 ?� .• { i 1 ":_ roe! trig DMS Consultants, Inc. V Page 10 EXHIBIT 08" Kings Road Reconstruction Project Foe-scnPoon Fee Preliminary Design Development: ....... ........................................... ................... $1,120.00 DesignSurvey: ......... .. ..................................................... ............................... $15,070.00 Preliminary Design Phase: ......................................... ............................ $33,950.00 Final Design Phase: ............................................................................................. $13.440.00 Assistance During Bidding /Construction Phase: ............................................................ $610.00 As -Built Plans: ....................................................................... ............................... $1,290.00 Reproduction Allowance: ............ ................................... ............................... $1,200.00 SUB-TOTAL: ........................... $66,680.00 Subconsultants Fee: Digital Mapping, Inc.: $6,500 + 15% Mark-Up: ........................................... $7,475.00 SUB-TOTAL: ............................ $7,475.00 NOTE: Any additional work outside the official scope of work will be performed at an hourly rate in accordance with the attached schedule of hourly rates. Kings Rood Reco.skudion Project DMS Consultons, Irrc. ♦ Page EXHIBIT "Bo ProjectManager ......... ....... ............................. .......................................................... $116.00 ProjectEngineer ....................................... ........................................................... .... .$9S.OU DesignEngineer ................................................................. � .......................................... $85.00 SeniorDrafter .................................. ............................................................................. $7O.0O Senior Plan [kpckac--.—,,.---..--...----.—...---.,.. ............. $6080 Construction Administrator .... ....... .............. ............. ............... ...... ... ........ .......... $9S.00 Construction Inspector. .-----. ....... ......... .`.............. ........................... ............ 18O.O0 Building Plan Examiner ............................... ..................................... .............. .............. $8O.UO BuildingInspector ................................................... ............. .—.................. ........... $85.00 Twn`Wk%n Field Party ...... .............................. .............................................................. $195.00 Three-Mon Field Party ..................................................................................... ............ $225.88 Office Survey Manager ................................................................. ............................... $115.00 ' Project � mMS Irtc: rPoge(J