HomeMy WebLinkAboutC-2644 - Engineering Agreement to prepare for Avon Street ImprovementENGINEERING AGREEMENT
THIS AGREEMENT, entered into this 1 %,day of '27)a 6l
198 -1, by and between the CITY OF NEWPORT BEACH, a municipal corpor ion,
(hereinafter referred to as "CITY ") and K. W. LAWLER & ASSOCIATES, whose
address is 2832 Walnut Avenue, suite "A ", Tustin, CA 92680, (hereinafter
referred to as "ENGINEER "), is made with reference to the following:
RECITALS:
A. CITY is a municipal corporation duly orgainized 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 the City.
B. CITY and ENGINEER desire to enter into an agreement for civil
engineering services to prepare improvement plans for the northerly half of Avon
Street
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 27th day of
April, 1987, and shall terminate on the 30th day of September, 1987, unless ter-
minated earlier as set forth herein.
2. SERVICES TO BE PERFORMED BY ENGINEER
ENGINEER shall perform each and every service set forth in Exhibit
"A" (revised October, 1986) which is attached hereto and incorporated herein by
this reference.
3. COMPENSATION TO CONSULTANT
Consultant shall be compensated for services performed pursuant to
this Agreement in the amount and manner set forth in Exhibit "B" which is
attached hereto and incorporated herein by this reference.
4. STANDARD OF CARE
Consultant warrants and guarantees that all services performed
hereunder shall be provided in a manner commensurate with the highest pro-
fessional standards and shall be performed by qualified and experienced
personnel.
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5. INDEPENDENT PARTIES
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The parties to this Agreement intend that the relation between
them created by this Agreement is that of employer- independent contractor. The
manner and means of conducting the work are under the control of ENGINEER,
except to the extent they are limited by statute, rule or regulation and the
express terms of this Agreement. No Civil Service status or other right of
employment will be acquired by virtue of ENGINEER'S services. None of the bene-
fits provided by CITY to its employees, including but not limited to unemploy-
ment insurance, workers' compensation insurance, retirement and deferred
compensation plans, vacation and sick leave, are available from CITY to
ENGINEER, its employees or agents. From any fees due ENGINEER, deductions shall
not be made for any State or Federal taxes, FICA payments, PERS payments, or
other purposes normally associated with an employer- employee relationship.
Payment of the above items, if required, are the responsibility of ENGINEER.
6. HOLD HARMLESS
ENGINEER shall indemnify and hold harmless CITY, its City Council,
boards and commissions, officers, agents, servants, and employees from and
against any and all loss, damages, liability, claims, suits, costs and expenses,
whatsoever, including reasonable attorneys' fees, regardless of the merit or
outcome of any such claim or suit, arising from or in any manner connected to
ENGINEER'S negligent performance of services or work conducted pursuant to this
Agreement.
7. INSURANCE
On or before the commencement of the term of this Agreement,
ENGINEER shall furnish CITY with certificates showing the type, amount, class of
operations covered, effective dates and dates of expiration of insurance
policies. Such certificates, which do not limit ENGINEER'S indemnification,
shall also contain substantially the following statement: "The insurance
covered by this certificate will not be cancelled or materially altered, except
after ten (10) days' written notice has been received by the City of Newport
Beach."
It is agreed that ENGINEER shall maintain in force at all times
during the performance of this Agreement all appropriate policies of insurance,
and that said policies of insurance shall be secured from a good and responsible
company or companies, doing insurance business in the State of California.
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Consultant shall maintain the following insurance coverage:
a. Errors and Omissions. Errors and omissions insurance, which
includes coverage for professional malpractice in the amount of at least
$500,000. The policy shall provide for coverage of all claims occurring during
the term of the policy notwithstanding the fact that the claim may be asserted
subsequent to the expiration of the policy.
b. Subrogation Waiver. ENGINEER agrees that in the event of loss
due to any of the perils for which it has agreed to provide insurance, ENGINEER
shall look solely to its insurance for recovery. ENGINEER hereby grants to
CITY, on behalf of any insurer providing insurance to either ENGINEER or CITY
with respect to the services of ENGINEER herein, a waiver of any right of subro-
gation which any such insurer of said ENGINEER may acquire against CITY by vir-
tue of the payment of any loss under such insurance.
c. Failure to Secure. If ENGINEER at any time during the term
hereof, should fail to secure or maintain the foregoing insurance, CITY shall be
permitted to obtain such insurance at a rate no more than the existing rate in
ENGINEER'S name or as an agent of ENGINEER, and shall be compensated by ENGINEER
for the costs of such insurance at the maximum rate permitted by law computed
from the date written notice is received that such costs have been paid.
d. Additional Insured
CITY, its City Council, boards and commissions, officers, agents,
servants and employees shall be named as an additional insured on all policies
of insurance required by this Agreement. The naming of an additional insured
shall not affect any recovery to which such additional insured would be entitled
under this policy if not named as such additional insured; and an additional
insured named herein shall not be held liable for any premium or expense of any
nature on this policy or any extension thereof. Any other insurance held by an
additional insured shall not be required to contribute anything toward any loss
or expense covered by the insurance provided by this policy. Proceeds from any
such policy or policies shall be payable to CITY primarily, and to ENGINEER
secondarily, if necessary.
8. PROHIBITION AGAINST TRANSFERS
ENGINEER shall not assign, sublease, hypothecate, or transfer this
Agreement or any interest therein directly or indirectly, by operation of law or
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otherwise, without the prior written consent of CITY; any attempt to do so
without said consent shall be null and void, and any assignee, sublessee,
hypothecate or transferee shall acquire no right or interest by reason of such
attempted assignment, hypothecation or transfer.
The sale, assignment, transfer or other disposition of any of the
issued and outstanding capital stock of ENGINEER, or of the interest of any
general partner or joint venturer or syndicate member or cotenant if ENGINEER
is a partnership or joint venturer or syndicate or cotenancy, which shall
result in changing the control of ENGINEER, shall be construed as an assignment
of this Agreement. Control means fifty percent (50 %) or more of the voting
power of the corporation.
9. PERMITS AND LICENSES
ENGINEER, at its sole expense, shall obtain and maintain during
the term of this Agreement, all appropriate permits, licenses and certificates
that may be required in connection with the performance of services hereunder.
10. REPORTS
Each and every report, draft, work product, map, record and other
document reproduced, prepared or caused to be prepared by ENGINEER pursuant to
or in connection with this Agreement shall be the exclusive property of CITY.
No report, information or other data given to or prepared or
assembled by ENGINEER pursuant to this Agreement shall be made available to
any individual or organization by ENGINEER without prior approval of CITY.
ENGINEER shall, at such time and in such form as CITY may require,
furnish reports concerning the status of services required under this Agreement.
11. RECORDS
ENGINEER shall maintain complete and accurate records with respect
to costs, expenses, receipts and other such information required by CITY that
relate to the performance of services under this Agreement.
ENGINEER shall maintain adequate records on services provided in
sufficient detail to permit an evaluation of services. All such records shall
be maintained in accordance with generally accepted accounting principles and
shall be clearly identified and readily accessible. ENGINEER shall provide free
access to the representatives of CITY or its designees at all proper times to
such books and records, and gives CITY the right to examine and audit same, and
to make transcripts therefrom as necessary, and to allow inspection of all work,
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data, documents, proceedings and activities related to this Agreement. Such
records, together with supporting documents, shall be kept separate from other
documents and records and shall be maintained for a period of three (3) years
after receipt of final payment.
12. NOTICES
All notices, demands, requests or approvals to be given under this
Agreement, shall be given in writing and conclusively shall be deemed served
when delivered personally or on the second business day after the deposit
thereof in the United States mail, postage prepaid, registered or certified,
addressed as hereinafter provided.
All notices, demands, requests, or approvals from ENGINEER to CITY
shall be addressed to CITY at:
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663 -3884
All notices, demands, requests, or approvals from CITY to ENGINEER
shall be addressed to ENGINEER at:
K. W. Lawler and Associates, Inc.
2832 Walnut Avenue, Suite "A"
Tustin, CA 92680
Attention: Kerry W. Lawler
13. TERMINATION
In the event ENGINEER hereto fails or refuses to perform any of
the provisions hereof at the time and in the manner required hereunder, ENGINEER
shall be deemed in default in the performance of this Agreement. If such
default is not cured within a period of two (2) days after receipt by ENGINEER
from CITY of written notice of default, specifying the nature of such default
and the steps necessary to cure such default, CITY may terminate the Agreement
forthwith by giving to the ENGINEER written notices thereof.
CITY shall have the option, at its sole discretion and without
cause, of terminating this Agreement by giving seven (7) days' written notice
to ENGINEER as provided herein. Upon termination of this Agreement, each
party shall pay to the other party that portion of compensation specified in
this Agreement that is earned and unpaid prior to the effective date of ter-
mination.
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14. COST OF LITIGATION
If any legal action is necessary to enforce any provision hereof
or for damages by reason of an alleged breach of any provisions of this
Agreement, the prevailing party shall be entitled to receive from the losing
party all costs and expenses in such amount as the court may adjudge to be
reasonable attorneys' fees.
15. COMPLIANCES
ENGINEER shall comply with all applicable laws, State or Federal,
and all ordinances, rules and regulations enacted or issued by CITY.
16. WAIVER
A waiver by the CITY of any breach of any term, covenant, or con-
dition 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.
17. 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
hereof. Any modification of this Agreement will be effective only by written
execution signed by both CITY and ENGINEER.
IN WITNESS WHEREOF, the parties have caused this Agreement to be exe-
cuted on the day and year first above written.
ATTEST:
City Clerk
APPROVED AS TO FORM:
C y Attorney
CITY OF NEWPORT BEACH,
a Municipal Corporation
By
City Manager
K. W. LAWLER ASSOCIATES
By C�._..........
KERRY W. LAWLER PRESIOEMT
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• SCHEDULE "A" •
SCHEDULE OF SERVICES
AVON STREET IMPROVEMENT PLANS
CITY OF NEWPORT BEACH, CALIFORNIA
THE ENGINEER AGREES TO PERFORM AND FURNISH TO THE CLIENT THE VARIOUS
PROFESSIONAL SERVICES PERTINENT TO THE PROJECT AS SPECIFICALLY OUTLINED BELOW:
1. SUPPLEMENTAL TOPOGRAPHY SURVEY:
Perform a field topography survey on the northerly side of
Avon Street, between Riverside Avenue and approximately 650
feet west of Riverside Avenue, to supplement the infor-
mation currently shown on the "Boundary and Topographic
Survey for Newport Imports," as prepared by this office.
The field survey shall extend approximately 50 feet
northerly of the north right -of -way line of Avon Street, or
as necessary to accurately and completely plot existing
5 -foot contour intervals representative of the existing
slope northerly of Avon Street. (This supplemental
topography survey is necessary to determine precise heights
of proposed retaining walls.)
Maximum Fee . . . . . . . . . . . . . . . . . . . . . . $1,080.00
2. SUPPLEMENTAL TOPOGRAPHY BASE MAP:
Plot the results of the above - referenced survey and prepare
a supplemental topography base map, complete with existing
contours, for use as a basis for street design and improve-
ment plan preparation.
Maximum Fee . . . . . . . . . . . . . . . . . . . . . . 840.00
3. STREET IMPROVEMENT PLANS FOR AVON STREET:
Prepare and process for City approval street improvement
plans, including retaining wall for Avon Street from
Riverside Avenue to the proposed cul -de -sac approximately
650 feet westerly of Riverside Avenue. (This work is in
addition to the scope of services involved with design of
the southerly portion of Avon Street and the one -way drive
westerly of the cul -de -sac, under contract with Mr. Lee
West.) Determine and plot top of wall /base of wall eleva-
tions for proposed crib (or other materials), retaining
walls along the northerly right -of -way of Avon Street, a
minimum of three types of curb walls shall be submitted to
the City for review and approval. The street improvement
plans shall include an estimate of earthwork and improve-
ment quantities and all notes and details necessary to
effect bidding and construction. The plans shall further
include preparation and processing of a hydrology study and
hydraulic analysis for the proposed catch basin /storm drain
system.
Maximum Fee . . . . . . . . . . . . . . . . . . . . 3,240.00
TOTAL
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$5,160,00
SCHEDULE "A"
SCHEDULE OF SERVICES
AVON STREET IMPROVEMENT PLANS
CITY OF NEWPORT BEACH, CALIFORNIA
(Continued)
NOT INCLUDED IN THIS PROPOSAL ARE THE FOLLOWING:
1. Soils engineering services to determine required pavement sections or
to provide structural engineer with soil data for design of retaining
walls.
2. Landscape architectural services relative to planting or irrigating
slopes, crib walls, or planter areas.
3. Street designs westerly of the west project boundary to Santa Ana
Avenue. This proposal assumes that a preliminary design for this area,
prepared by Berryman - Stephenson, Inc., can be obtained and utilized as
a reference for this project.
4. Blueprints and reproductions.
Project Scope Revisions
The scope of the project may be changed and the maximum fee revised upon
prior written approval of the Public Works Director if the increase in the
maximum fee does not exceed Five Hundred Dollars ($500), an amendment pro-
viding for such revisions shall be processed and executed by the parties
hereto.
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EXHIBIT "B"
Fee Schedule and Payment
In consideration of the performance of the engineering services
described in Exhibit "A ", CITY hereby agrees to pay ENGINEER an
amount based upon the hourly rate schedule set forth below. In
no event shall said amount be greater than Five Thousand,
One- Hundred -Sixty Dollars ($5,160.00).
Hourly rates for office and field personnel
shall be as follows:
PRINCIPALS $ 70.00 /hour
LICENSED LAND SURVEYORS AND PROFESSIONAL ENGINEERS $ 62.00 /hour
PROJECT MANAGER $ 60.00 /hour
PROJECT DESIGNER $ 53.00 /hour
DESIGNER DRAFTSPERSON $ 48.00 /hour
DRAFTSPERSON $ 42.00 /hour
CLERICAL $ 24.00 /hour
FIELD
TWO -MAN SURVEY CREW
THREE -MAN SURVEY CREW
$120.00 /hour
$135.00 /hour
Outside agency fees, reproductions, photographs, and
long distance phone changes are not included in above
fees and will be billed at cost plus 10 %. Periodic
progress billings will be made for work completed.
B. The contract amount shall be paid to ENGINEER as
follows:
1. Monthly partial payments shall be based on the
amount earned each month, as determined by the fee
schedule. The sum of the monthly partial payments
shall not exceed ninety -five per cent (95 %) of the
maximum fee.
2. Balance of the total amount earned to be paid upon
completion of work, specified in Section 2 (Service
to be performed by ENGINEER).
II. Additional Work
Should ENGINEER complete any additional work not outlined in this
Agreement, but authorized by City, the extra work shall be
performed on an hourly basis in accordance with the hourly rate
standard fee schedule (Fee Schedule and Payment) above.