HomeMy WebLinkAboutC-8758-1 - PSA for Hillsborough Pump Station Rehabilitation - Design, Amendment No. 1N
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CfJ AMENDMENT NO. ONE TO
I PROFESSIONAL SERVICES AGREEMENT
V WITH BROWN AND CALDWELL FOR
HILLSBOROUGH PUMP STATION REHABILITATION — DESIGN
THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT
("Amendment No. One") is made and entered into as of this 1st day of February, 2024
("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California
municipal corporation and charter city ("City"), and BROWN AND CALDWELL, a
California corporation ("Consultant"), whose address is 201 North Civic Drive, Suite 300,
Walnut Creek, California 94596, and is made with reference to the following:
RECITALS
A. On July 23, 2021, City and Consultant entered into a Professional Services
Agreement ("Agreement") for engineering and design services for the Hillsborough
Pump Station Rehabilitation Project ("Project").
B. The parties desire to enter into this Amendment No. One to extend the term of the
Agreement to June 30, 2026.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
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 June 30, 2026, unless terminated earlier as set forth herein."
2. 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]
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:?c>2
By:
a on C. Harp
Ci y Attorney
ATTEST:
Date:
w-my'IT117,I %Aj
Brown
City Clerk
CITY OF NEWPORT BEACH,
a Californi municipal corporation
Date: II -po Niq
By:
K. Leung
Manager
CONSULTANT: Brown and Caldwell, a
California cg• 0rp�� n
Date: /
By:
Mark Briggs
Vice President
[END OF SIGNATURES]
Brown and Caldwell Page 2
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0� PROFESSIONAL SERVICES AGREEMENT
WITH BROWN AND CALDWELL FOR
HILLSBOROUGH PUMP STATION REHABILITATION - DESIGN
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 23rd day of July, 2021 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
BROWN AND CALDWELL, a California corporation ("Consultant'), whose address is 201
North Civic Drive, Suite 300 Walnut Creek, CA 94596, and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide engineering and design services for
the Hillsborough Pump Station Rehabilitation Project ("Project').
C. Consultant possesses the skill, experience, ability, background, certification and
knowledge to provide the professional services described in this Agreement.
D. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1. TERM
The term of this Agreement shall commence on the Effective Date, and shall
terminate on December 31, 2023, 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 One Hundred Fifteen
Thousand Seventy Eight Dollars and 00/100 ($115,078.00), 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.
Brown and Caldwell 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 Mark Briggs 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.
Brown and Caldwell 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, or to
require a Consultant who is a design professional, as defined by Civil Code section
2782.8(c), to provide indemnification or defense of the Indemnified Parties inconsistent
with existing law. Nothing in this indemnity shall be construed as authorizing any award
of attorneys' fees in any action on or to enforce the terms of this Agreement. This
indemnity shall apply to all claims and liability regardless of whether any insurance
policies are applicable. The policy limits do not act as a limitation upon the amount of
indemnification to be provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis
and Consultant is not an agent or employee of City. The manner and means of
conducting the Work are under the control of Consultant, except to the extent they are
limited by statute, rule or regulation and the expressed terms of this Agreement. No civil
service status or other right of employment shall accrue to Consultant or its employees.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or any
of Consultant's employees or agents, to be the agents or employees of City. Consultant
Brown and Caldwell Page 4
shall have the responsibility for and control over the means of performing the Work,
provided that Consultant is in compliance with the terms of this Agreement. Anything in
this Agreement that may appear to give City the right to direct Consultant as to the details
of the performance of the Work or to exercise a measure of control over Consultant shall
mean only that Consultant shall follow the desires of City with respect to the results of the
Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator and any other agencies that may have jurisdiction or interest in the
Work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in order
to ensure the Project proceeds in a manner consistent with City goals and policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator informed on a
regular basis regarding the status and progress of the Project, activities performed and
planned, and any meetings that have been scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement
of Work, Consultant shall obtain, provide and maintain at its own expense during the term
of this Agreement or for other periods as specified in this Agreement, policies of insurance
of the type, amounts, terms and conditions described in the Insurance Requirements
attached hereto as Exhibit C, and incorporated herein by reference.
15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, the Services to be
provided under this Agreement shall not be assigned, transferred contracted or
subcontracted out without the prior written approval of City. Any of the following shall be
construed as an assignment: The sale, assignment, transfer or other disposition of any
of the issued and outstanding capital stock of Consultant, or of the interest of any general
partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or
joint -venture or syndicate or co -tenancy, which shall result in changing the control of
Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five
percent (25%) or more of the assets of the corporation, partnership or joint -venture.
Brown and Caldwell 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
Brown and Caldwell 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
Brown and Caldwell 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") and/or Government Code §§ 1090 et
seg., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
25.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. Failure to do so constitutes a material breach
and is grounds for immediate termination of this Agreement by City. Consultant shall
indemnify and hold harmless City for any and all claims for damages resulting from
Consultant's violation of this Section.
26. NOTICES
26.1 All notices, demands, requests or approvals, including any change in
mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
Brown and Caldwell Page 8
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided.
26.2 All notices, demands, requests or approvals from Consultant to City shall
be addressed to City at:
Attn: 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 D. Goodson
Brown and Caldwell
201 North Civic Drive, Suite 300
Walnut Creek, CA 94596
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
Brown and Caldwell Page 9
giving no less than seven (7) calendar days' prior written notice to Consultant. In the
event of termination under this Section, City shall pay Consultant for Services
satisfactorily performed and costs incurred up to the effective date of termination for which
Consultant has not been previously paid. On the effective date of termination, Consultant
shall deliver to City all reports, Documents and other information developed or
accumulated in the performance of this Agreement, whether in draft or final form.
29. STANDARD PROVISIONS
29.1 Recitals. City and Consultant acknowledge that the above Recitals are true
and correct and are hereby incorporated by reference into this Agreement.
29.2 Compliance with all Laws. Consultant shall, at its own cost and expense,
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Work prepared by Consultant shall conform to applicable City,
county, state and federal laws, rules, regulations and permit requirements and be subject
to approval of the Project Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant or
condition contained herein shall not be deemed to be a waiver of any subsequent breach
of the same or any other term, covenant or condition contained herein, whether of the
same or a different character.
29.4 Integrated Contract. This Agreement represents the full and complete
understanding of every kind or nature whatsoever between the parties hereto, and all
preliminary negotiations and agreements of whatsoever kind or nature are merged herein.
No verbal agreement or implied covenant shall be held to vary the provisions herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Scope of Services or any other
attachments attached hereto, the terms of this Agreement shall govern.
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by a
written document executed by both Consultant and City and approved as to form by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be invalid,
illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement shall continue in full force and effect.
29.9 Controlling Law and Venue. The laws of the State of California shall govern
this Agreement and all matters relating to it and any action brought relating to this
Brown and Caldwell Page 10
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29.10 Equal Opportunity Employment. Consultant represents that it is an equal
opportunity employer and it shall not discriminate against any subcontractor, employee
or applicant for employment because race, religious creed, color, national origin,
ancestry, physical handicap, medical condition, marital status, sex, sexual orientation,
age or any other impermissible basis under law.
29.11 No Attorneys' Fees. In the event of any dispute or legal action arising under
this Agreement, the prevailing party shall not be entitled to attorneys' fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
Brown and Caldwell Page 11
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTORNEY'S OFFICE a Califorrlia rpunicipal corporation
Date: 2Z zl Date:
By:!A - By:
Aaron C. Harp Z� Grace K. Leung
City Attorney City Manager
ATTEST: �. �3�a CONSULTANT:
Date: BROWN AND CALDWELL, a California
corporation
Date:
fi 61 j By: �4l�, . City Clerk
Signed in Counterpart
Richard M. D'Amato
Chief Executive Officer
Date:
By:_
D. Goodson
ecretary
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Brown and Caldwell Page 12
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM: CITY OF NEWPORT BEACH,
CITY ATTO NEY'S OFFICE a California municipal corporation
Date: 7 ZZ Z�Z\ Date:
By- (/)I � By:
Aaron C. Harp Grace K. Leung
City Attorney C'A-'L 0 City Manager
ATTEST: CONSULTANT:
Date: BROWN AND CALDWELL, a California
corporation
Date: 7-28rZ/
Leilani I. Brown
City Clerk
r Iji
Mark • Briggs,- .J�
Vice P
resident
OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Brown and Caldwell Page 12
CERTIFICATE OF SECRETARY
OF
BROWN AND CALDWELL,
A CALIFORNIA CORPORATION
I, the undersigned, do hereby certify that:
1. 1 am the duly elected and acting Secretary of Brown and Caldwell, a California corporation,
and am keeper of the corporate records and seal of said corporation.
2. At the annual meeting of the Board of Directors on February 4, 2021, the following
resolution was adopted:
BE IT RESOLVED that appointment of the individuals, whose names
appear on the attached list titled Brown and Caldwell Directors and
Officers with Signature Authority — January 2021, to the offices
indicated is approved and ratified effective January 1, 2021, unless
otherwise indicated; and
BE IT FURTHER RESOLVED that said individuals are appointed to hold
the office indicated at the pleasure of the Board of Directors of this
corporation until the next annual meeting of the Board of Directors of
this corporation or until his/her respective successor is elected or
qualified, or until his/her earlier resignation; and
BE IT FURTHER RESOLVED that these individuals are authorized to
financially commit the corporation in accordance with the Company
procedures and policies within his/her respective area of responsibility
or as stated in the Bylaws.
3. Mark Briggs is a Vice President of Brown and Caldwell, is so identified in the February 4,
2021, resolution referenced above, and in that capacity, is duly authorized to financially
commit the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the Corporation this
281h day of J u ly 2021.
SIGNED:
(Seal)
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ROBERT D. GOODSON, Secretary
EXHIBIT
SCOPE OF SERVICES
Brown and Caldwell Page A-1
EXHIBIT A
SCOPE OF SERVICES
HILLSBOROUGH PUMP STATION REHABILITATION — DESIGN
PROJECT BACKGROUND
The City has identified a key need to upgrade elements of its existing Hillsborough Pump Station including
a new pump, new standalone starter, new motor, new pressure relief valve, and new check valve. New
electrical power and controls, conduit and wiring, and integration with the existing supervisory control
and data acquisition (SCADA) are also required. Originally built circa 1979, the pump station has one
constant speed, four -stage vertical turbine pump, 250 hp motor, and non -rising stem style gate valve. The
pump station is primarily controlled manually based on the level in the reservoir and is only used in cases
of emergency to pump from Zone 3 and feed Zones 4 or 5 of the distribution system. Currently, the pump
station can only be operated manually. The existing pump and motor is rated at 1,500 gallons per minute
(gpm) at 360 feet of head and the City desires the new pump match existing flow rate and head. If the City
cannot sole source the pump, a very tight specification will be needed in order to ensure a matching unit
can be acquired. It is noted that the current pump installation may not be in full compliance with the latest
Hydraulic Institute Standards, including undersized suction piping and flow velocities approaching 10 fps
which cannot be remedied within the space available.
Consultant understands the pump station is primarily used as an auxiliary station and the pump is normally
off. The City desired to keep manual control feature with the ability to ramp speed and within pump
manufacturer recommended operating range. The City previously relied on an inhouse controls
programmer. Currently, the City has third -party system integrators familiar with their facilities they
recommend for programming and integration at the time of construction. Staff indicated the pump station
can be offline for long periods of time and only operated during an emergency.
PHASE 1.0 PROJECT MANAGEMENT AND MEETINGS
Task 1.1: Proiect Management
Consultant shall perform overall project management to maintain and monitor the project schedule and
fee. Project schedules shall be presented to the City with any change in the overall project schedule.
Consultant shall monitor the progress of the project from a schedule perspective and submit to the City a
written report indicating deviation from the work progress versus the planned schedule. Consultant shall
also monitor the progress of the project from a budget perspective and submit to the City a monthly
payment request that summarizes the following by task: budget amount, previous expenditures, period
expenditures, total expenditures, and remaining balance.
Task 1.2: Meetings
Kickoff Meeting:
A virtual kick-off meeting with representatives from Consultant and the City will be conducted at project
initiation. The following shall be accomplished:
• Introduce team members
• Review the project scope and schedule
• Identify specific goals and expectations
• Identify key issues affecting project development
• Request background information
• Discuss and identify preferred system operation, equipment and suppliers for the mechanical,
electrical, and instrumentation and controls (I&C) equipment limited to the scope of work;
electrical and instrumentation may include presentation of an Electrical Questionnaire to be
completed by the City as applicable.
Meeting minutes shall be prepared and distributed to the attendees by Consultant.
Submittal Review Meetings:
Virtual submittal review meetings, attended by two to three Consultant personnel, shall be conducted to
review the draft Preliminary Design Report (PDR), 60 percent design submittal, and 90 percent design
submittal. Consultant shall prepare meeting minutes, identify action items, and document decisions
made.
Progress Meetings:
Consultant shall conduct four virtual focus meetings to update the City on project progress and discuss
and resolve any immediate issues that may arise.
PHASE 2.0: PRELIMINARY DESIGN
Task 2.1: Research, Data Collection
This task involves collection and review of existing background information and documentation.
The items below shall be researched. The City shall provide record drawings, applicable computer -aided
design and drafting (CADD) files, and prior contract bid specifications as requested by Consultant:
• Assessor's parcel maps
• Electrical one -line, schematic, and layout plans
• Relevant studies and reports
• Record drawings for the pump station
• Existing pump curves
• SCADA design standards
• Written response by Operations and Maintenance to the Consultant Electrical Questionnaire, if
applicable
• Copy of existing PLC program files including 10 module "traffic cop" assignment and
programming standards (for the system integrator's use)
The following items shall be collected and/or performed by Consultant with City provided access and
support:
• Site visits, field measurements, and photography
Tasks 2.2: Utility Coordination
Consultant shall perform necessary utility investigation and cross -discipline coordination.
Tasks 2.3: Site Visit
Consultant shall conduct one site visit to field verify surface evidence of utilities and verify assumptions
and proposed design criteria
Task 2.4: Preliminary Design Report/30% Design
The following items shall be analyzed, vetted with the City, and documented, along with decisions and
recommendations to be carried forward into final design:
• Design and operational preferences and goals (focus meeting required).
• Collect existing pump data. Research alternative pump which meets exact performance,
material, and configuration to establish "or equal." Prepare preliminary pump specification.
Verify if pump can be sole sourced.
• Identify if any structural improvements are needed to pump pad along with any design
recommendations.
• Pump motor control and operational strategy for the pump station.
• Identification of SCADA integration provisions. City to assist with utility investigations associated
with new fiber conduit run along with any traffic control needs.
PHASE 3.0: FINAL DESIGN
Tasks 3.1A. 3.1B, 3.2A, and 3.213: 75 Percent and 100 Percent Design
Consultant shall incorporate any comments from the PDR/30% design and advance them into 75 percent
level followed by 100 percent level of completion plans and specifications. Plans shall show
existing/demolition conditions as well as the proposed improvements. CADD shall be prepared using
AutoCAD Civil 3D 2019 and AutoCAD 2019 as required. Specifications special provisions supplementing
the latest version of Greenbook shall be provided, along with technical specifications (Construction
Specifications Institute [CSI] Division 17 format) using Microsoft Word.
The control strategy shall be based on the preliminary design phase research, and design/operational
preferences identified together with the City, Consultant shall develop an updated control strategy. This
will be integrated into the 75 and 100 percent design work and provide the basis for programming changes
at the PLC during construction.
Task 3.3: Engineer's Cost Opinion
Consultant shall prepare a construction cost opinion in Excel at PDR/30%, 75 and 100 percent levels of
completion. Quantity backups shall be provided, as appropriate, for the level of design available.
Drawing Sheet Count
Plans shall be prepared in 22-inch by 34-inch format, typically reduced to half-size, using the cited
AutoCAD software and Consultant CAD plan and format. Refer to Table A-1 for expected drawing count
by title and discipline.
Table A-1 H Drawing Sheet Count
1
DrawingSheet
G1
Title
Title Sheet, Sheet Index, Vicinity
Map
2
G2
Legends, Symbols, Abbreviations
3
G-3
General Notes
4
C-1
Site Civil Plan and Horizontal Control
5
D-1
Demolition Plan
6
M-1
Mechanical Plan and Sections
7
M-2
Mechanical Details
8
E-1
Electrical Legends and Symbols 1
9
E-2
Electrical Legends and Symbols 2
10
E-3
Electrical Abbreviations
11
E-4
Electrical Details
12
E-5
Electrical Site Plan
13
E-6
Electrical Plan
14
E-7
Power One Line Diagram
15
E-8
Control One Line Diagram
16
E-9
Control Schematic 1
17
E-10
Control Schematic 2
Assumptions
The following items are assumed:
• The City shall accept the preliminary design report as the basis for final design.
• Design meetings shall typically be conducted virtually and attended by two Consultant personnel
unless other staff are needed.
• Consultant proposes eight (8) virtual design meetings in addition to kick-off, PDR, 75, and 100 percent
reviews.
• Piping and instrumentation diagrams are not required.
• No lighting, heating, ventilation, and air conditioning design is needed.
• Programming of existing SCADA system will be by a City recommended systems integrator
during construction. Consultant shall develop a new control strategy for the pump station.
• City submittal reviews shall take 3 weeks, with the exception of the 100 percent review requiring only
1 week. Review comments on 100 percent submittal shall be incorporated directly into the Bid Set.
• No hydraulic evaluation shall be provided. Consultant shall select pump to match existing pump
and develop specifications to match the performance and material criteria of the existing pump.
Specifications shall allow two pump and motor manufacturers and orequal.
• The City shall accept pump and motor replacement without modifications to mitigate
shortfalls in HI compliance.
• Consultant shall prepare pump control strategies for PLC programming.
• City shall provide written summaries of their current control strategies and associated pressure
setpoints.
• Replacement of the Service Entrance Section or Electrical Utility metering is not required.
• Coordination with the Electric Utility is not required.
• No lighting design is required.
• Electrical grounding design shall be limited to the new pump motor and standalone starter.
• No power system study shall be provided. New electrical Equipment withstand rating of starter shall
be specified to match that of existing equipment rating or 65kA1C or available fault current provided
by the City.
• Arc flash study shall be performed by a third -party subcontractor to the Contractor to be set forth
in the bid documents.
• No new PLC or other Control Panel shall be required.
• Replacement of or upgrades to the 480V-1201240V transformer and 1201240 panelboard is not
required.
• Font end bid documents to be provided by the City.
• Design submittal deliverables shall be submitted in electronic form.
M CAD drawings to be developed using City CAD standards. If no such standards exist, Consultant
standards shall be used.
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EXHIBIT B
SCHEDULE OF BILLING RATES
Brown and Caldwell Page B-1
EXHIBIT B
FEE SCHEDULE
HILLSBOROUGH PUMP STATION REHABILITATION — DESIGN
Total Not -To -Exceed Fee, All Tasks 1 through 3: $115,078
Hillsborough Pump Station Rehabilitation
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BC Total
Labor
Hours
BC Labor Effort
ODCs
I Total Cost
Role
Proj
Manager
Proj
Eng
Mech
Eng
Elect,
I&C
CAD
Designer
Proj
Analyst
Biller
Billing Rate
311.02
181.85
118.36
269.60
183.83
129.43
95.73
Task 1.0 Prniect Management and Meetings
AR
1e
d
12
n
12
12
102
$ 24,1125
$
$ 24,125
1.1 Project Management
36
12
12
60
$ 13,899
$ 13,899
1.2 Meetings
12
14
4
12
42
$ 10,227
$ 10,227
Task 2.0 Preliminary Design
8
30
30
54
12
0
0
134
$ 29,339
$ 200
$ 29,539
2.1 Research and Data Collection
6
6
12
24
$ 5,276
$ 5,276
2.2 Utility Coordination
2
2
8
12
$ 2,917
$ 2,917
2.3 Site Visit (1 ea)
2
2
2
2
8
$ 1,802
$ 200
$ 2,002
2.4 Draft PDR/Feasibility Study/30% Design
6
20
20
32
12
90
$ 19,343
$ 19,343
Task 3.0 Final Design
8
40
38
93
110
0
0
289
$ 61,414
$
$ 61,414
3.1A75 Percent Design Drawings
12
12
21
62
107
$ 21,082
$ 21,082
3.1 B 75 Percent Technical Specifications
4
4
32
40
$ 10,468
$ 10,468
3.2A 100 Percent Design Drawings
4
10
8
24
48
94
$ 19,784
$ 19,784
3.2B 100 Percent Technical Specifications
4
6
6
8
24
$ 5,362
$ 5,362
3.3 Cost Estimate
8
8
8
24
$ 4,718
$ 4,718
Totals
64
84
72
159
122
12
12
525
$ 114,878
$ 200
$ 116,0 88
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.
Brown and Caldwell 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. The
certificates and endorsements for each insurance policy shall be signed by
a person authorized by that insurer to bind coverage on its behalf. At least
Brown and Caldwell Page C-2
fifteen (15) days prior to the expiration of any such policy, evidence of
insurance showing that such insurance coverage has been renewed or
extended shall be filed with the City. If such coverage is cancelled or
reduced, Consultant shall, within ten (10) days after receipt of written notice
of such cancellation or reduction of coverage, file with the City evidence of
insurance showing that the required insurance has been reinstated or has
been provided through another insurance company or companies. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
B. City's Right to Revise Requirements. 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. Right to Review Subcontracts. Consultant agrees that upon request, all
agreements with subcontractors or others with whom Consultant enters into
contracts with on behalf of City will be submitted to City for review. Failure
of City to request copies of such agreements will not impose any liability on
City, or its employees. Consultant shall require and verify that all
subcontractors maintain insurance meeting all the requirements stated
herein, and Consultant shall ensure that City is an additional insured on
insurance required from subcontractors. For CGL coverage,
subcontractors shall provide coverage with a format at least as broad as CG
20 38 04 13.
D. 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.
E. 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.
F. 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 -
Brown and Caldwell Page C-3
insurance will not be considered to comply with these requirements unless
approved by City.
G. 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.
H. Timely Notice of Claims. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, 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.
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.
Brown and Caldwell Page C-4
City of Newport Beach
Insurance Compliance
PO Box 100085 - FV
Duluth, GA 30096
August 20, 2021
Brown And Caldwell
201 North Civic Drive
Suite 300
Walnut Creek, CA 94596
Reference Number: FV00000609
This Account has moved from non -compliant to COMPLIANT status and currently in compliance for
certificate of insurance requirements.
As of the date above, your insurance meets City of Newport Beach insurance requirements. We appreciate your efforts
and those of your insurance agent in working with our insurance representatives.
Please call us at (951) 766-2285 if you have any questions.
Sincerely,
City of Newport Beach
Compliant Notice [CA1]