HomeMy WebLinkAboutC-3004(DD1) - Professional Services-Utilities Yard Site & Building Improvements-Phase IIAGREEMENT
PROFESSIONAL SERVICES FOR
CONSTRUCTION SURVEYING OF THE
UTILITIES YARD SITE AND BUILDING IMPROVEMENTS - PHASE II
AS PART OF THE GROUNDWATER DEVELOPMENT PROJECT
THIS AGREEMENT, entered into this `ftk day of June, 1997, by and between
CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as
"City "), and DEREK J. MCGREGOR, INC. (DBA DMC ENGINEERING), a California
Corporation, address is 18 Technology Drive, Suite 100, Irvine, California, 92618
(hereinafter referred to as "Consultant'), 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 the City.
B. City will be constructing the Utilities Yard Site and Building Improvements
- Phase II as part of the Groundwater Development Project. ( "Project').
C. City desires to engage Consultant to provide surveying services for
construction staking for the Project upon the terms and conditions
contained in this Agreement.
D. The principal members of Consultant are for purpose of this Project are
Derek J. McGregor, P.E., P.L.S. and Scott Wilson, P.E.
E. City has solicited and received a proposal from Consultant, has reviewed
the previous experience and evaluated the expertise of Consultant and
desires to contract with Consultant under the terms of conditions provided
in this Agreement.
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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 9th day of June, 1997, and
shall terminate in January 1998, unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
Consultant shall diligently perform all the duties set forth in the following scope of
services: Consultant shall perform construction surveying services for the City's
contractor to be utilized for installation of the buildings, site improvements, retaining and
perimeter walls, street improvements, underground utilities and site grading. As
outlined in Consultants proposal dated 4/23/97.
3. COMPENSATION TO CONSULTANT
City shall pay Consultant for the services in accordance with the provisions of
this Section, and the scheduled billing rates as set forth in the Fee Schedule as shown
herein. No rate changes shall be made during the term of this Agreement without prior
written approval of the City. Consultant's compensation for all work performed in
accordance with this Agreement shall not exceed the total contract price of twenty -nine
thousand, five hundred dollars ($ 29,500.00).
FEE SCHEDULE
Personnel
Hourly Rates
Principal...................................................
............................... $ 110.00
Project Manager ......................................
............................... 90.00
Project Engineer ......................................
............................... 85.00
Senior Engineer .......................................
............................... 75.00
Project Surveyor ......................................
............................... 75.00
Surveyor Calculator .................................
............................... 65.00
Associate Engineer ..................................
............................... 65.00
CADOperator ..........................................
............................... 55.00
Specification Typist ..................................
............................... 35.00
Survey Crew (2- man) ..............................
............................... 140.00
Survey Crew (3- man) ..............................
............................... 160.00
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3.1 Consultant shall maintain accounting records of its billings which includes
the name of the employee, type of work performed, times and dates of all work which is
billed on an hourly basis.
3.2 City agrees to reimburse Consultant for the actual cost (plus 10 %) for all
outside expenses, including those for: reproduction for copies of plans, reports and
related documents, material costs authorized in advance by the City's Project
Administrator, and other reasonable expenses, where such costs have been advanced
by Consultant and approved in advance by the City.
3.3 Consultant shall submit monthly invoices to City payable within thirty (30)
days of receipt of invoice subject to the approval of the Project Administer.
3.4 Consultant shall not receive any compensation for extra work without prior
written authorization by City. Any authorized compensation shall be paid in accordance
with the fee schedule.
3.5 City shall reimburse Consultant only for those costs or expenses which
have been specifically approved in this Agreement, or specifically approved in advance
by City. Such cost shall be limited and shall include nothing more than the following
costs incurred by Consultant:
A. The actual costs of subconsultants for performance of any of the services
which Consultant agrees to render pursuant to this Agreement which have
been approved in advance by City and awarded in accordance with the
terms and conditions of this Agreement.
B. Approved computer data processing and reproduction charges.
C. Actual costs and /or other costs and /or payments specifically authorized in
advance in writing and incurred by Consultant in the performance of this
Agreement.
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3.6 Notwithstanding any other paragraph or provision of this Agreement,
beginning on the effective date of this Agreement, City may withhold payment of ten
percent (10 %) of each approved payment as approved retention until all services under
this Agreement have been substantially completed.
4. STANDARD OF CARE
4.1 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 the 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. Consultant
represents and warrants to City that it has or shall obtain all licenses, permits,
qualifications and approvals required of its profession. Consultant further represents
and warrants that it shall keep in effect all such licenses, permits and other approvals
during the term of this Agreement.
4.2 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, or any other delays beyond Consultant's
control or without Consultant's fault.
5. INDEPENDENT PARTIES
City retains Consultant on an independent contractor basis and Consultant is not
an 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 Consultant or any of Consultant's employees or agents, to be the
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agents or employees of City. Consultant shall have the responsibility for and control
over the details in means of performing the work provided that Consultant is in
compliance with the terms of this Agreement. Anything in this Agreement which may
appear to give City the right to direct Consultant as to the details of the performance of
the services or to exercise a measure of control over Consultant shall mean that
Consultant shall follow the desires of City only in the results of the services.
6. ADMINISTRATION
This Agreement will be administered by the Publics Work Department. Michael J.
Sinacori, P.E. shall be considered 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. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated
Project Administrator, and any other agencies which may have jurisdiction or interest in
the work to be performed. City agrees to cooperate with the Consultant on the Project.
8. PROJECT MANAGER
Consultant shall assign the Project to 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 Project term. Consultant has designated Derek J. McGregor, P.E.,
P.L.S. to be its Project Manager. Consultant shall not bill any personnel to the Project
other than those personnel identified in Fee Schedule, whether or not considered to be
key personnel, without City's prior written approval by name and specific hourly billing
rate. Consultant shall not remove or reassign any personnel designated in this Section
or assign any new or replacement person to the Project without the prior written consent
of City. City's approval shall not be unreasonably withheld with respect to removal or
assignment of non -key personnel.
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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 the City
Engineer. Consultant warrants it will continuously furnish the necessary personnel to
complete the Project on a timely basis as contemplated by this Agreement.
9. CITY POLICY
Consultant will discuss and review all matters relating to policy and project
direction with the Project Administrator in advance of all critical decision points in order
to ensure that the Project proceeds in a manner consistent with City goals and policies.
10. CONFORMANCE TO APPLICABLE REQUIREMENT
All work prepared by Consultant shall conform to applicable city, county, state
and federal law, regulations and permit requirements and be subject to approval of the
Project Administrator and City Council.
Consultant is responsible to keep the Project Administrator and /or his /her duly
authorized designee informed on a regular basis regarding the status and progress of
the work, activities performed and planned, and any meetings that have been scheduled
or are desired.
12. HOLD HARMLESS
Consultant shall indemnify, save and hold harmless City, its City Council, boards
and commissions, officers and employees from and against any loss, damages, liability,
claims, allegations of liability, suits, costs and reasonable expenses for damages of any
nature whatsoever, including, but not limited to, bodily injury, death, personal injury,
property damages, or any other claims arising from any negligent acts, errors or
omissions of Consultant, its employees or subconsultants in the performance of
services conducted or performed pursuant to this Agreement. 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.
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13. INSURANCE
Without limiting consultant's indemnification of City, and prior to commencement
of work, Consultant shall obtain and provide and maintain at its own expense during the
term of this Agreement policy or policies of liability insurance of the type and amounts
described below and satisfactory to City. Certification of all required policies shall be
signed by a person authorized by that insurer to bind coverage on its behalf and must
be filed with City prior to exercising any right or performing any work pursuant to this
Agreement.
All insurance policies shall be issued by an insurance company certified to do
business in the State of California, with original endorsements, with Best's A VII or
better carriers, unless otherwise approved by the City Risk Manager.
A. Worker's compensation insurance covering all employees and principals
of Consultant, per the laws of the State of California.
B. Commercial general liability insurance covering third party liability risks,
including without limitation, contractual liability, in a minimum amount of $1
million combined single limit per occurrence for bodily injury, personal
injury and property damage. If commercial general liability insurance or
other form with a general aggregate is used, either the general aggregate
shall apply separately to this Project, or the general aggregate limit shall
be twice the occurrence limit.
C. Commercial auto liability and property insurance covering any owned and
rented vehicles of Consultant in a minimum amount of $1 million combined
single limit per accident for bodily injury and property damage.
Said policy or policies shall be endorsed to state that coverage shall not be
canceled by either party, except after thirty (30) days' prior notice has been given in
writing to City. Consultant shall give to City prompt and timely notice of claim made or
suit instituted arising out of Consultant's operation hereunder. Consultant shall also
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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.
14. PROHIBITION AGAINST TRANSFERS
Consultant shall not assign, sublease, hypothecate or transfer this Agreement or
any for of the services to be performed under this Agreement, directly or indirectly, by
operation of law or otherwise without prior written consent of City. Any attempt to do so
without consent of City shall be null and void.
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
venture 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, shall
be construed as an assignment of this Agreement. 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.
15. OWNERSHIP OF DOCUMENTS
Each and every report, draft, work product, map, record and other document
reproduced, prepared or caused to be prepared by Consultant pursuant to or in
connection with this Agreement shall be the exclusive property of City.
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
as against Consultant and City assumes full responsibility for such changes unless City
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has given Consultant prior notice and has received from Consultant written consent for
such changes.
Consultant shall, at such time and in such forms as City may require, furnish
reports concerning the status of services required under this Agreement.
16. CONFIDENTIALITY
The information, which results from the services in this Agreement, is to be kept
confidential unless the release of information is authorized by City.
17. CITY'S RESPONSIBILITIES
In order to assist Consultant in the execution of his responsibilities under this
Agreement, City agrees to provide the following:
A. City will provide access to and upon request of Consultant, provide one
copy of all existing record information on file at City. Consultant shall be
entitled to rely upon the accuracy of data information provided by City or
others without independent review or evaluation. City will provide all such
materials in a timely manner so as not to cause delays in Consultant's
work schedule.
B. Provide blueprinting, CADD plotting, copying and other services through
City's reproduction company. Consultant will be required to coordinate the
with City's reproduction company.
18. 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. All such records shall
be clearly identifiable. Consultant shall allow a representative of City during normal
business hours to examine, audit and make transcripts or copies of such records.
Consultant shall allow inspection of all work, data, documents, proceedings and
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activities related to the Agreement for a period of three (3) years from the date of final
payment under this Agreement.
19. WITHHOLDINGS
City may withhold payment 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 for a period of thirty (30) days from the date of withholding as a result of such
withholding. Consultant shall have an immediate right to appeal to the City Manager or
his designee with respect to such disputed sums. Consultant shall have an immediate
right to appeal to the City Manager or his designee with respect to such disputed sums.
Consultant shall be entitled to receive interest on any withheld sums at the rate of seven
percent (7 %) per annum from the date of withholding of any amounts found to have
been improperly withheld.
20. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS
City reserves the right to employ other consultants in connection with the Project.
21. CONFLICTS OF INTEREST
A. 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 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.
B. 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
termination of this Agreement by City. Consultant shall indemnify and
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hold harmless City for any and all claims for damages resulting from
Consultants violation of this Section.
22. SUBCONSULTANT AND ASSIGNMENT
A. Except as specifically authorized under this Agreement, the services
included in this Agreement shall not be assigned, transferred, contracted
or subcontracted without prior written approval of City.
23. 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 third business day after the deposit thereof in the United States
mail, postage prepaid, first class mail, addressed as hereinafter provided.
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All notices, demands, requests or approvals from Consultant to City shall be
addressed to City at:
Michael J. Sinacori, P.E., Utilities Engineer
City of Newport Beach
3300 Newport Boulevard
P. O. Box 1768
Newport Beach, CA, 92658 -8915
(714) 644 -3342 / (714) 646 -5204 Fax
All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
Attention: Derek J. McGregor
DMc Engineering
18 Technology Drive, Suite 100
Irvine, CA 92618
(714) 753 -9393 / (714) 753 -9322 Fax
24. TERMINATION
In the event either party hereto fails or refuses to perform any of the provisions
hereof at the time and in the manner required hereunder, 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) days, or if more than two (2) days are reasonably required to cure the default
and the defaulting party fails to give adequate assurance of due performance within two
(2) days after receipt by defaulting party from the other party of written notice of default,
specifying the nature of such default and the steps necessary to cure such default, the
nondefaulting party may terminate the Agreement forthwith by giving to the defaulting
party written notice thereof.
24.1 City shall have the option, at its sole discretion and without cause, of
terminating this Agreement by giving seven (7) days' prior written notice to Consultant
as provided herein. Upon termination of this Agreement, City shall pay to the
Consultant that portion of compensation specified in this Agreement that is earned and
unpaid prior to the effective date of termination.
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25. COMPLIANCES
Consultant shall comply with all laws, state or federal and all ordinances, rules
and regulations enacted or issued by City.
26. 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.
27. 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 hereon. Any modification of this
Agreement will be effective only by written execution signed by both City and
Consultant.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the first date above written:
APPROVED AS TO FORM:
Robin Clauson
Assistant City Attorney
ATTEST:
� I /
LaVonne Harkless
City Clerk
City of Newport Beach,
a municipal corporation
Jan Debay, Mayor
l'Zty"
Derek J. McGregor, Inc.,
dba DMe Engineering
a California Corporation
Derek J. McGregor, Princi
"Consultant"