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HomeMy WebLinkAboutC-2670 - Engineering Agreement for Avon Street-i ENGINEERING AGREEMENT THIS AGREEMENT, entered into this -**� day of�T,F,�QL , 1982, by and between the CITY OF NEWPORT ~BEACH, a municipal corporation, (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 "EN( A. CITY existing under the its business as it California and the 'INEER "), is made with reference to the following: RECITALS: is a municipal corporation duly orgainized and validly laws of the State of California with the power to carry on is now being conducted under the Statutes of the State of Charter of the City. B. CITY and ENGINEER desire to enter into an agreement for civil engineering services to prepare improvement plans for the redesign of Avon Street, and to compensate ENGINEER for additional work performed under Contract 2644 for the original design 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 28th day of August, 1987, and shall terminate on the 31st day of December, 1987, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED BY ENGINEER ENGINEER shall perform each and every service set forth in Exhibit "A" 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. 1 o 6 0 • 5. INDEPENDENT PARTIES 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. 2 of 6 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. B. 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 3 o 6 , I � . • 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, 4 of 6 c a " 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. 5 of 6 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. APPROVED AS TO FORM: 4Ci y A torne CITY OF NEWPORT BEACH, a Municipal Corporation By By 2tUZt � IU — City Manager K. W. LAWLER N ASSOCIATES By v Law ASSOCIATES resi ent 6 of 6 i • 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. Revise the project street plans to add thirty -four parking spaces along northerly side of Avon Street. (This will involve a complete redesign of both sides of Avon Street and will affect the improvement plan and profile views, typical cross sections, etc., for the street.) The revised plans shall also include proposed street lights at locations as specified by your office. 2. Revise project retaining wall design and profiles. (This redesign and redrafting is necessary since the proposed parking spaces will encroach into the retaining walls as currently designed; thus, I anticipate that the walls will have to be redesigned and redrafted to revise both wall loca- tion and wall height.) 3. Recalculate project earthwork quantities as a result of revised street and retaining wall designs. 4. Revise project storm drain plans to correctly show new street curb con- figuration and to add catch basin(s) and storm drain lateral(s) as appropriate. Revise storm drain profiles accordingly to show new proposed finish surface over storm drain. 5. Revise project hydrology study and map to illustrate modifications in pro- posed improvements and catch basin locations. 6. Add a plan sheet illustrating a proposed 6 -inch water main, fire hydrant, and appurtenant facilities with appropriate notes and details. The pro- posed main shall connect to the existing water system in Riverside southerly of its intersection with Avon. 7. Perform a quantity estimate to determine all revised street, retaining wall, storm drain, and water system quantities. 8. Reprocess revised plans for CITY approval; make all necessary revisions and/or corrections as required. 9. Prepare written project specifications based upon the "Standard Specifications for Public Works Construction: (the "green book ") and contract bid documents. 1 of 2 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 Two Thousand Dollars ($2,000), an amendment providing for such revisions shall be processed and executed by the parties I 2of2 EXHIBIT "B" I. Fee Schedule and Payment A. Additional compensation for the work completed under Contract No. 2644 for Avon Street improvement plan: The additional work included the design of 650 feet of 42 -inch storm drain including accompanying hydrology, design of an 8 -inch sewer main, and more detailed crib wall plan than originally requested, for the total amount of Five Thousand Dollars ($5,000). B. 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 Fifteen Thousand Four Hundred Thirty Dollars ($15,430). Hourly rates for office and field personnel shall be as follows: PRINCIPALS LICENSED LAND SURVEYORS PROJECT MANAGER PROJECT DESIGNER DESIGNER DRAFTSPERSON DRAFTSPERSON CLERICAL FIELD TWO -MAN SURVEY CREW THREE -MAN SURVEY CREW AND PROFESSIONAL ENGINEERS $ 70.00 /hour $ 62.00 /hour $ 60.00 /hour $ 53.00 /hour $ 48.00 /hour $ 42.00 /hour $ 24.00 /hour $125.00 /hour $140.00 /hour Outside agency fees, reproductions, photographs, and long distance phone charges are not included in above fees and will be billed at cost. Periodic progress billings will be made for work completed. 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 percent (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 Bann hourly basis in accordance with the hourly rate standard fee schedule-.. above.