HomeMy WebLinkAboutC-3774 - PSA for Model Landscape Ordinance for Newport CoastC,#5114
AMENDMENT NO. 1
TO
PROFESSIONAL SERVICES AGREEMENT
WITH FUSCOE ENGINEERING
FOR MODEL LANDSCAPE ORDINANCE FOR NEWPORT COAST
THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered
into this LqfA day of i 44e- , 2007, by and between the CITY OF
NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City") and
FUSCOE ENGINEERING, INC., a California corporation whose address is 16795 Von
Karman, Suite 100, Irvine, California, 92606 ("Consultant"), and is made with reference
to the following:
RECITALS
A. On May 6, 2005, CITY and CONSULTANT entered into a Professional
Services Agreement, hereinafter referred to as "Agreement", to develop
draft language for a landscaping and irrigation ordinance for the City
("Project"). This Agreement is scheduled to expire on 30th day of June,
2006.
B. City desires to enter into this Amendment No. 1 to reflect additional
services not included in the Agreement and to extend the term of the
Agreement to December 31, 2007.
C. City desires to compensate Consultant for additional professional services
needed for Project.
D. City and Consultant mutually desire to amend Agreement, hereinafter
referred to as "Amendment No. 1 ", as provided here below.
NOW, THEREFORE, the parties hereto agree as follows:
1. Consultant shall be compensated for services performed pursuant to this
Amendment No. 1 according to "Exhibit A" dated May 4, 2007 attached
hereto.
2. Total additional compensation to Consultant for services performed
pursuant to this Amendment No. 1 for all work performed in accordance
with this Amendment, including all reimburseable items and subconsultant
fees, shall not exceed Four Thousand Nine Hundred Fifty Dollars
($4,950.00).
3. The term of the Agreement shall be extended to December 31, 2007.
4. Except as expressly modified herein, all other provisions, terms, and
covenants set forth in Agreement shall remain unchanged and shall be in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on
the date first above written.
APPROVED AS TO FORM:
By: A ,`.--- C
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By: .
LaVonne Harkless,
City Clerk
Attachment: Exhibit A
f:\users\pbw\shared\agreements\fy 04-05\fuscoe-am end ment1.doc
CITY OF NEWPORT BEACH,
AM nicip I Corporation
By: .f. .
City Manager
for the City of Newport Beach
CONSULTANT:
By. p X—'5
(Corporate
Officer)
Title:
Print Name: o\w 6f 1s
(Financial Officer)
Title:
Print Name:
EXHIBIT A
"All
FUSCOE
��Arr
E N i 1 N I I R I N B
May 4, 2007
Mr. Robert Stein, P.E.
CITY OF NEWPORT BEACH
3300 Newport Boulevard
Newport Beach, CA 92663
Public Works Department
Re: Landscape Ordinance User Friendly Implementation Guide Scope of Services and Fee Proposal
Dear Bob:
Per our conversation last week, we've crafted a small scope and fee to prepare a user friendly
implementation guide to accompany the Model Landscape Ordinance for the Newport Coast.
We are prepared to begin work upon your authorization to proceed. We anticipate it will take a
couple of weeks to put together a draft for your review and it can be finalized up within a week or
two after that.
Upon approval of the proposal, please initial and sign in the indicated areas and return via fax to
(949) 225-6094 to the attention of ALICA NAKASONE as our authorization to proceed. Do not
hesitate to contact me if you have any questions or comments.
Sincerely,
FUSCOE ENGINEERING, INC.
Ian Adam
Environmental Resources Manager
Enclosures
IA:am
16795 Von Korman. Suite 100. 1r me, California 92606 lel 949 474 1960 fax 949 474 5315 -- (uscoo coal
„R1�1
r
i
E N 0 1 N E E R 1 N a
Scope of Services & Fee Proposal
Landscape Ordinance User Friendly Implementation Guide
City of Newport Beach
May 4, 2007
PROJECT DESCRIPTION
Prepare a user friendly implementation guide to accompany the Model Landscape Ordinance for
Runoff Reduction.
WATERSHED MANAGEMENT SERVICES
Task 1: User Friendly Implementation Guide
Based on the prior Model Landscape Ordinance and accompanying Landscape and
Irrigation Guidance Manual, prepare a user friendly informational guide to assist those
impacted by the future Ordinance. Implementation guidance document to include
easy -to -understand pictures, diagrams, illustrations and simple text descriptions on ways
to implement the City's Landscape & Irrigation Ordinance and to better convey the
importance of efficient irrigation and water -thrifty landscape design within these areas.
Includes one meeting and additional coordination with City staff and sub -consultant
staff as necessary to ensure the user friendly implementation guide is consistent with the
City Ordinance.
All services and products will be completed by September 30, 2007.
Hourly (not -to -exceed) Fee $1,950
Sub -Consultant Fee $3,000
Reproducible Budget (Est.) $ 350
*Not to exceed without prior authorization
Watershed Management Total $4,950
Client Initials
16795 Van Karmnn, Suite 100. 1rvine, CaIifornin 92606 tel 9.19 474 1960 fnx 949 474 5315---fuscoo com
Scope of Services & Fee Proposal
City of Newport Beach
Model Landscape Ordinance
SUMMARY
WATERSHED MANAGEMENT
Task 1. User Friendly Implementation Guide
Sub- Consultant
Reproducible Budget
WATERSHED MANAGEMENT TOTAL
May 4, 2007
Hourly $1,950
Fee $3,000
$350
This Fee Proposal is Valid for Thirty (30) Days from the Date of This Document.
$4,950
FUSCOE Engineering, Inc. will perform the services on a fixed fee basis, except where noted.
Services rendered outside of the scope will be performed at prevailing hourly rates. Costs of blue-
printing, deliveries and out-of-pocket expenses are not included and will be considered
re i m b u rsa b l e. e wi I I
I
11 1z) [HUT ull illy
f -result in cessa ion o services and/or reassessment of service
priority. _
Client Initials
_U,�C
I N 0 I N I I R I N 0
2006 RATE SCHEDULE
CLASSIFICATION
President
Principal
Sr. Project Manager
Project Manager
Sr. Designer / Project Engineer / Sr. Water Resources Engineer
Designer / Engineer / Project Scientist / GIS Coordinator
CADD / Engineering / Environmental Tech. / Graphics Tech.
Information Coordinator
1 -Man Survey Crew
2 -Man Survey Crew
3 -Man Survey Crew
HOURLY RATE
$250
$220
$210
$170
$145
$130
$ 100
$ 75
$160
$215
$250
--MIT— - - - -- •
r' . . . . .. - . . - = - -
2. ing o wage Increa
3. Overtime is available for critical deadlines at 1-1/2 times the normal rates for office
employees. Surveyors' rates are also adjusted automatically for overtime or holiday/weekend
work in agreement with the Operating Engineers Union.
Client Initials _
Effective 10/2006
16195 Von Karmnn, Suite 100, Irvine, Cnhfornin 97606 lel 949 474 1960 fox 949 474.53 15 __ fuscoo com
MEMORANDUM
MEMO TO:
Steve Badum
FROM:
Bob Stein
DATE:
May 4, 20071
SUBJECT:
Landscape/Irrigation Ordinance
Fuscoe Engineering completed a draft landscape/irrigation ordinance and User's
Manual last May. I have comments from all the departments. Under this amendment,
Fuscoe will complete these documents and will add a front end chapter to the User's
Manual that will address the most frequently asked questions.
Fuscoe's original contact amount was $19,850.00. The amendment fee of $4,950 is
just less than 25% of the original contract amount.
C,/�
JVI�161 ---,/ t wo�
HAprojects\Integraged Bay -Watershed Program\Newport Coast Watershed\Ordinances\memo 050407 fuscue amend.doc
PROFESSIONAL SERVICES AGREEMENT WITH
FUSCOE ENGINEERING
FOR MODEL LANDSCAPE ORDINANCE FOR NEWPORT COAST
THIS AGREEMENT is made and entered into as of this 6 day of ,
2005, by and between the CITY OF NEWPORT BEACH, a Municipal Corporati n ("City"),
and FUSCOE ENGINEERING, INC., a corporation whose address is 16795 Von Karman,
Suite 100, Irvine, California, 92606 ("Consultant"), and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws of
the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City is planning to implement measures to control irrigation and landscaping
practices in Newport Coast.
C. City desires to engage Consultant to develop draft language for a landscaping and
irrigation ordinance for the Newport Coast area ("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 Ian Adam,
Environmental Resources Manager for Fuscoe Engineering.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as
follows:
1. TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on the 30th day of June, 2006, 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 Nineteen Thousand, Eight Hundred Fifty Dollars and no/100
($19,850.00) without additional 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 advance by City.
Unless otherwise approved, such costs shall be limited and include nothing
more than the following costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the
services that Consultant agrees to render pursuant to this Agreement,
which have been approved in advance by City and awarded in
accordance with this Agreement.
B. Approved reproduction charges.
2
C. Actual costs and/or other costs and/or payments specifically
authorized in advance in writing and incurred by Consultant in the
performance of this Agreement.
4.3 Consultant shall not receive any compensation for Extra Work without the
prior written authorization of City. As used herein, "Extra Work" means any
work that is determined by City to be necessary for the proper completion of
the Project, but which is not included within the 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 Ian Adam 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. Robert
Stein, 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:
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.
3
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.
8.2 Consultant represents and warrants to City that it has or shall obtain all
licenses, permits, qualifications, insurance and approvals of whatsoever
nature that are legally required of Consultant to practice its profession.
Consultant further represents and warrants to City that Consultant shall, at
its sole cost and expense, keep in effect or obtain at all times during the term
of this Agreement, any and all licenses, permits, insurance and other
approvals that are legally required of Consultant to practice its profession.
Consultant shall maintain a City of Newport Beach business license during
the term of this Agreement.
8.3 Consultant shall not be responsible for delay, nor shall Consultant be
responsible for damages or be in default or deemed to be in default by
reason of strikes, lockouts, accidents, or acts of God, or the failure of City to
furnish timely information or to approve or disapprove Consultant's work
promptly, or delay or faulty performance by City, contractors, or
governmental agencies.
9. HOLD HARMLESS
To the fullest extent permitted by law, Consultant shall indemnify, defend and hold
harmless City, its City Council, boards and commissions, officers, agents and
employees (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to
property), demands, obligations, damages, actions, causes of action, suits, losses,
judgments, fines, penalties, liabilities, costs and expenses (including, without
limitation, attorney's fees, disbursements and court costs) of every kind and nature
whatsoever (individually, a Claim; collectively, "Claims"), which may arise from or in
any manner relate (directly or indirectly) to any work performed or services provided
under this Agreement (including, without limitation, defects in workmanship or
materials and/or design defects [if the design originated with Consultant]) or
Consultant's presence or activities conducted on the Project (including the
negligent and/or willful acts, errors and/or omissions of Consultant, its principals,
officers, agents, employees, vendors, suppliers, consultants, subcontractors,
anyone employed directly or indirectly by any of them or for whose acts they may
be liable or any or all of them).
Notwithstanding the foregoing, nothing herein shall be construed to require
Consultant to indemnify the Indemnified Parties from any Claim arising from the
Il
sole negligence or willful misconduct of the Indemnified Parties. Nothing in this
indemnity shall be construed as authorizing any award of attorney's fees in any
action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are applicable.
The policy limits do not act as a limitation upon the amount of indemnification to be
provided by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of
conducting the work are under the control of Consultant, except to the extent they
are limited by statute, rule or regulation and the expressed terms of this Agreement.
Nothing in this Agreement shall be deemed to constitute approval for Consultant or
any of Consultant's employees or agents, to be the agents or employees of City.
Consultant shall have the responsibility for and control over the means of
performing the work, provided that Consultant is in compliance with the terms of this
Agreement. Anything in this Agreement that may appear to give City the right to
direct Consultant as to the details of the performance or to exercise a measure of
control over Consultant shall mean only that Consultant shall follow the desires of
City with respect to the results of the services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated Project
Administrator and any other agencies that may have jurisdiction or interest in the
work to be performed. City agrees to cooperate with the Consultant on the Project.
12. CITY POLICY
Consultant shall discuss and review all matters relating to policy and Project
direction with City's Project Administrator in advance of all critical decision points in
order to ensure the Project proceeds in a manner consistent with City goals and
policies.
13. PROGRESS
Consultant is responsible for keeping the Project Administrator and/or his/her duly
authorized designee informed on a regular basis regarding the status and progress
of the Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of
work, Consultant shall obtain, provide and maintain at its own expense during the
term of this Agreement, 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
5
required herein. Insurance certificates must be approved by City's Risk
Manager prior to commencement of performance or issuance of any permit.
Current certification of insurance shall be kept on file with City's at all times
during the term of this Agreement.
B. Signature. A person authorized by the insurer to bind coverage on its behalf
shall sign certification of all required policies.
C. Acceptable Insurers. All insurance policies shall be issued by an insurance
company currently authorized by the Insurance Commissioner to transact
business of insurance in the State of California, with an assigned
policyholders' Rating of A (or higher) and Financial Size Category Class VII
(or larger) in accordance with the latest edition of Best's Key Rating Guide,
unless otherwise approved by the City's Risk Manager.
D. Coverage Requirements.
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 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.
General Liability Coverage. Consultant shall maintain commercial
general liability insurance in an amount not less than one million
dollars ($1,000,000) per occurrence for bodily injury, personal injury,
and property damage, including without limitation, contractual liability.
If commercial general liability insurance or other form with a general
aggregate limit is used, either the general aggregate limit shall apply
separately to the work to be performed under this.Agreement, or the
general aggregate limit shall be at least twice the required occurrence
limit.
iii. Automobile Liability Coverage. Consultant shall maintain automobile
insurance covering bodily injury and property damage for all activities
of the Consultant arising out of or in connection with work to be
performed under this Agreement, including coverage for any owned,
hired, non -owned or rented vehicles, in an amount not less than one
million dollars ($1,000,000) combined single limit for each occurrence.
iv. Professional Errors and Omissions Insurance. Consultant shall
maintain professional errors and omissions insurance, which covers
X
15.
the services to be performed in connection with this Agreement in the
minimum amount of one million dollars ($1,000,000).
E. Endorsements. Each general liability and automobile liability insurance
policy shall be endorsed with the following specific language:
The City, its elected or appointed officers, officials, employees, agents
and volunteers are to be covered as additional insureds with respect
to liability arising out of work performed by or on behalf of the
Consultant.
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 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.
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
lr1
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 orjoint-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
Consultant. Further, any and all liability arising out of changes made to
Consultant's deliverables under this Agreement by City or persons other than
Consultant is waived against Consultant and City assumes full responsibility for
such changes unless City has given Consultant prior notice and has received from
Consultant written consent for such changes.
18. COMPUTER DELIVERABLES
CADD data delivered to City shall include the professional stamp of the engineer or
architect in charge of or responsible for the work. City agrees that Consultant shall
not be liable for claims, liabilities or losses arising out of, or connected with (a) the
modification or misuse by City, or anyone authorized by City, of CADD data; (b) the
decline of accuracy or readability of CADD data due to inappropriate storage
conditions or duration; or (c) any use by City, or anyone authorized by City, of
CADD data for additions to this Project, for the completion of this Project by others,
or for any other Project, excepting only such use as is authorized, in writing, by
Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for
damages and liability resulting from the modification or misuse of such CADD data.
All original drawings shall be submitted to City in the version of AutoCAD used by
CITY in ".dwg" file format on a CD, and should comply with the City's digital
submission requirements for Improvement Plans. The City will provide AutoCAD
:
file of City Title Sheets. All written documents shall be transmitted to City in the
City's latest adopted version of Microsoft Word and Excel.
19. CONFIDENTIALITY
All Documents, including drafts, preliminary drawings or plans, notes and
communications that result from the services in this Agreement, shall be kept
confidential unless City authorizes 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.
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 any other sections of this Agreement.
25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other Consultants in connection with the Project.
26. CONFLICTS OF INTEREST
The Consultant or its employees may be subject to the provisions of the California
Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose
any financial interest that may foreseeably be materially affected by the work
performed under this Agreement, and (2) prohibits such persons from making, or
participating in making, decisions that will foreseeably financially affect such
interest.
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, to City by Consultant 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: Robert Stein, P.E.
Public Works Department
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA, 92663
Phone: 949-644-3322 Fax: 949-644-3318
All notices, demands, requests or approvals from CITY to Consultant shall be
addressed to Consultant at:
Attention: Ian Adam
Fuscoe Engineering, Inc.
16795 Von Karman, Suite 100
Irvine, CA 92606
Phone: 949-474-1960 Fax: 949-474-5315
10
28. TERMINATION
In the event that either party fails or refuses to perform any of the provisions of this
Agreement at the time and in the manner required, that party shall be deemed in
default in the performance of this Agreement. If such default is not cured within a
period of two (2) calendar days, or if more than two (2) calendar days are
reasonably required to cure the default and the defaulting party fails to give
adequate assurance of due performance within two (2) calendar days after receipt
of written notice of default, specifying the nature of such default and the steps
necessary to cure such default, the non -defaulting party may terminate the
Agreement forthwith by giving to the defaulting party written notice thereof.
Notwithstanding the above 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.
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.
11
33. AMENDMENTS
This Agreement may be modified or amended only by a written document executed
by both Consultant and City and approved as to form by the City Attorney.
34. SEVERABILITY
If any term or portion of this Agreement is held to be invalid, illegal, or otherwise
unenforceable by a court of competent jurisdiction, the remaining provisions of this
Agreement shall continue in full force and effect.
35. CONTROLLING LAW AND VENUE
The laws of the State of California shall govern this Agreement and all matters
relating to it and any action brought relating to this Agreement shall be adjudicated
in a court of competent jurisdiction in the County of Orange.
36. EQUAL OPPORTUNITY EMPLOYMENT
Consultant represents that it is an equal opportunity employer and it shall not
discriminate against any subcontractor, employee or applicant for employment
because of race, religion, color, national origin, handicap, ancestry, sex or age.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the
day and year first written above.
APPROVED AS TO FORM:
'4 ,w—
Aaron C. Harp
Assistant City Attorney
CITY OF NEWPORT BEACH,
A Municipal Corp-Q0t
Vre
. Ba um
Public Works
wport Beach
FUSCOE ENGINEERING, INC.:
By:
O
Officer of Corporation Title
Print Name
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
12
ah1 Fi h� �cr'
Exhibit A
E N G I N E E R I N G
March 10, 2005
Mr. Robert Stein, P.E.
CITY OF NEWPORT BEACH
3300 Newport Boulevard
Newport Beach, CA 92663
Public Works Department
Re: Model Landscape Ordinance Scope of Services and Fee Proposal
Dear Robert:
Irvine
San Diego
Inland Empire
Attached for your review is our Scope of Services and Fee Proposal for the project known as the
Landscape Ordinance for the Newport Coast located in City of Newport Beach, California.
Enclosed you will find our proposal for drafting a Model Landscape Ordinance for the Newport
Coast as we discussed last week. In order to maximize our efforts and provide the best use of the
City's resources, we have divided our services into three separate tasks. The first two tasks would
include meeting with the Public Works Department, brief field review of a select number of
landscape facilities with your staff, review of relevant existing Newport Beach Ordinances, and
development of a draft ordinance for the City. After the draft has been circulated to City staff for
review and comment, a final draft of the document would be completed as part of the third and
final task. The draft would address major categories of issues related to landscapes, including
plant palettes, irrigation, fine grading as it relates to landscapes, drainage and drainage systems as
they relate to landscapes, pruning, pest and disease control, fire/fuel modification, protection of
slopes and natural areas, best management practices, and monitoring procedures. The final draft
would address City staff comments and input and would further flesh -out any details and
specifications requested by the City.
Fuscoe Engineering has extensive experience working on large-scale projects for which sustainable
landscape practices, fuel modification and habitat protection issues play a significant role in the
planning and design processes. FEI also has extensive experience in providing landscape
recommendations for compliance with NPDES and BMP regulations. In addition, FEI's resources
include the expertise of Randall Ismay, a certified arborist and highly experienced horticulturist who
specializes in landscapes, environmental and conservation issues, slope protection and fire/fuel
modification in the urban/wildland interface zone. Mr. Ismay has previous experience working on
model landscape ordinances for other cities including the City of San Diego.
16795 Von Karman, Suite 100, Irvine, California 92606 tel 949.474.1960 fax 949.474.5315 www.fuscoe.com
E N G I N E E R I N G
Irvine
San Diego
Inland Empire
Please contact me if you have any questions regarding our approach and proposed services. We
are prepared to tailor our services to the needs of the City. We appreciate the opportunity to assist
the City of Newport Beach in their progressive approach to sustainable landscapes and the
practices that maintain them.
We are prepared to begin work within 10 days of receipt of contract and notification to start. We
would anticipate requiring approximately 10 weeks to complete all work and provide all
deliverables, depending on time required by City staff to review and return the preliminary draft.
Upon approval of the proposal, please initial and sign in the indicated areas and return via fax to
(949) 225-6094 to the attention of ALICA NAKASONE as our authorization to proceed. Do not
hesitate to contact me if you have any questions or comments.
Sincerely,
FUSCOE ENGINEERING, INC.
Ian Adam
Environmental Resources Manager
Enclosures
IA: m m
16795 Von Karman, Suite 100, Irvine, California 92606 tel 949.474.1960 , fax 949.474.5315 (, www.fuscoe.com
E N G I
FUSCOF Irvine
San Diego
N E E R 1 N Inland Empire
Scope of Services & Fee Proposal
Model Landscape Ordinance
City of Newport Beach
March 10, 2005
PROJECT DESCRIPTION
Prepare a Model Landscape Ordinance for the Newport Coast within the City of Newport Beach.
WATERSHED MANAGEMENT SERVICES
Task 7: Kick-off Meeting and Ordinance Review
Coordinate and attend a kick-off meeting with the City Public Works Division to discuss
the general categories and approach for the model ordinance. This meeting would
also involve scheduling and execution of a follow-up field review of select landscape
areas that would be representative of properties to be impacted by the ordinance. FEI
would obtain and review 2 other coastal city landscape ordinances for incorporation of
measures beneficial to the City where applicable. The City would provide copies of all
existing relevant measures and ordinances for FEI review and all categories of concern
and areas of consideration would be discussed. Such areas would include, but not be
limited to, hillside landscapes and protection, sensitive habitat and natural areas, areas
within the coastal zone and/or under Coastal Commission jurisdiction, geographic
areas of environmental concern and/or special concern to the City (e.g. ASBS,
estuaries, coastal bluffs, main entry street intersections, parks, etc.).
Hourly (not -to -exceed) Fee: $5,500
iii Cif ( i, 1)1
16795 Von Korman, Suite 100, Irvine, California 92606 �-- tel 949.474.1960 fax 949.474.5315 www.fuscoe.com
Scope of Services & Fee Proposal
City of Newport Beach March 30, 2005
Model Landscape Ordinance
Task 2: Draft Model Ordinance
Prepare a draft ordinance with the following major categories for the Newport Coast:
plant palette; irrigation design, installation, management; planting procedures; tree
selection; pruning; pests and diseases; ASBS protection; best management practices;
fire/fuel modification; grading and drainage; soils; emergencies. Each category would
include lists, guidelines, review processes, appeal processes, etc. The purpose of the
draft ordinance would be to provide City Staff with a starting point for review and input
so that the final document would address all City needs in landscape -related matters
and that each of those needs would be addressed to the proper level of detail.
Hourly (not -to -exceed) Fee: $8,000
Task 3: Final Landscape Ordinance
Develop and deliver the detailed and fleshed -out Landscape Model Ordinance for
Newport Coast to the City.
Hourly (not -to -exceed) Fee: $6,000
Reproducible Budget (Est.) $ 350.00
*Not to exceed without prior authorization
Watershed Management Total $19,850
Client Initials
Exhibit B
E N G 1 N E E R I N G
RATE SCHEDULE
Classification
Hourly Rate
Principal
$170
Sr. Project Manager
$155
Project Manager
$135
Sr. Designer / Project Engineer / Sr. Water Resources Engineer
$120
Designer / Engineer / Project Scientist / GIS Coordinator
$ 95
CADD / Engineering / Environmental Tech. / Graphics Tech.
$ 80
Information Coordinator
$ 60
1 -Man Survey Crew
$140
2 -Man Survey Crew
$190
3 -Man Survey Crew
$230
Irvine
San Diego
inland Empire
1 . Reproduction and other reimbursable expenses will be billed in addition to the above rates, with
a 10% handling surcharge (detailed costs provided upon request).
2. This rate schedule is subject to change due to the granting of wage increases and / or other
employer benefits to field or office employees during the lifetime of this agreement.
3. Overtime is available for critical deadlines at 1-1 /2 times the normal rates for office
employees. Surveyors' rates are also adjusted automatically for overtime or holiday / weekend
work in agreement with the Operating Engineers Union.
Client Initials
Effective 1/1/05
16795 Von Karman, Suite 100, Irvine, California 92606 tel 949.474.1960 c, fax 949.474.5315 www.fuscoe.com
'�•" APR -22-2005 FRI 02:07 PM CAL SURANCE FAX N0. 7149391654 P. 01
Fax#
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. /
Date Received: —o0S Dept./Contact Received From: V �1�1i9Y1G /e4-
Date Completed: —c2 —QE_ Sent to: Q�hGUil BY: A z1apan r z�,r �-
Company/Person required to have certificate: 2z- s co e i a e t—r r o+ .
I. GENERAL LIABILITY /
A. INSURANCE COMPANY: L/f lel/!
B. AM BEST RATING (A: VII or greater):
C. ADMITTED Company (Must be California Admitted):
Is Company admitted in California? es ❑ No
D. LIMITS (Must be $1M or greater): What is limit provided? ° /,;LAM,/ Cc
E, PRODUCTS AND COMPLETED OPERATIONS (Must include): is it included? Yes ff&o
F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its
officers, officials, employees and volunteers): Is it included? 21es ❑ No
G. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included):
Is it included? es ❑ No
H. CAUTION! (Confirm that loss or liability of the named insured is not
limited solely by their negligence) Does endorsement include "solely by
negligence" wording? ❑ Yes No
I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of
cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording.
II. AUTOMOBILE LIABILITY //__ �/, % '
A. INSURANCE COMPANY:
7� �/w`� L/'l/lG�YG!/�'T
B, AM BEST RATING (A: VII or greater): XI/
C, ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California? Yes ❑ No
D. LIMITS (Must be $1 M min, BI & PD and $500,000 UM): What is limits provided?
E. ADDITIONAL INSURED WORDING TO INCLUDE (The City its
officers, officials, employees and volunteers): Is it included? es ❑ No
F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only):
Is it included? ►J ❑ Yes ❑ No
G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of
cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording.
III. WORKERS' COMPENSATION P
A. INSURANCE COMPANY: 1 J r� ',10 Gr/yuc
B, AM BEST RATING (A; VII or greater):
C. LIMITS: Statutory
;��D. WAIVER OF SUBROGATION (To include): Is it included? es ❑ No
HAVE ALL ABOVE REQUIREMENTS BEEN MET? es ❑ No
IF NO, WHICH ITEMS NEED TO BE COMPLETED?