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HomeMy WebLinkAboutC-3026(A) - Development of San Diego Creek North property, Consultant Agreement0 0 STATE OF CALIFORNIA— BUSINESS AND TRANSPORTATION AGENCY PETE WILSON, Co"rmr DEPARTMENT OF TRANSPORTATION DISTRICT 12 :s 2501 PULLMAN STREET SANTA ANA, CA 92705 February 20, 1996 12- ORA- 73 -P.M. 4.3 EA 102502 R/W map 1191 -8/10 Ref. Parcel DD063769 -01 -01 Mr. Jerry Bennett, Chief Engineer Transportation Corridor Agency 201 E. Sandpointe, #200 Santa Ana, CA 92707 Subject: Memorandum of Understanding between Caltrans, SJHTCA and the City of'Newport Beach regarding Bike Trail between Jamboree and University Drive and Newport Beach adjacent to Fletcher Jones parcel Dear Mr. Bennett, This letter is to confirm your receipt of one of three signed originals of the above - mentioned Memorandum of Understanding. The second has been sent to Don Webb with the City of Newport Beach and the third to Caltrans Excess Land Section. Caltran's Right of Way engineering staff will prepare the documentation for the transfer of title to the City upon notice from the City and TCA that the project has been completed. This transfer of title will need to go before the CTC for approval which will take a minimum of 3 months processing time. Please do not hesitate to call the undersigned with any questions. Sincerely, v ; rG Vicci Messer Right of Way Agent Excess Land Sales 714 - 724 -2422 cc. Project Development, Walt Hagen R/W District Division Chief, Otto Kihm R/W Project Management, Brice Paris R/W Project Management, Toll Roads, Jean Quan R/W Engineering, Mel Galer Toll Road Oversight, Dan Butler Ted Schneider City of Newport Beach, Don Webb STATE OF CALIFORNIA — BUSINESS AND TRANSPORTATION AGENCY PETE WILSON, Gomrmr DEPARTMENT OF TRANSPORTATION DISTRICT 12 2501 PULLMAN STREET SANTA ANA, CA 92705 February 20, 1996 Mr. Don Webb Public Works Director City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92659 -1768 12- ORA- 73 -P.M. 4.3 EA 102502 R/W map 1191 -8/10 Ref. Parcel DD 063769 -01 -01 Subject: Memorandum of Understanding between Caltrans, SJHTCA and the City of Newport Beach regarding Bike Trail between Jamboree and University Drive and Newport Beach adjacent to Fletcher Jones parcel Dear Mr. Webb, Enclosed is an executed original of the above - mentioned Memorandum of Understanding. Please note decertification of the above - mentioned bike trail parcel from the project will be initiated after the SJHTC project is open to the public to commence transportation. Caltrans Right of Way engineering staff will prepare the documentation for the transfer of title to the City upon notice from the City and TCA that the project has been completed. This transfer of title will need to go before the CTC for approval which will take a minimum of 3 months processing time. Please do not hesitate to call the undersigned with any questions. Sin'erely, 1G av14- Vicci Messer Right of Way Agent Excess Land Sales 714 - 724 -2422 Attachment cc. Project Development, Walt Hagen R/W District Division Chief, Otto Kihm R/W Project Management, Brice Paris R/W Project Manangement, Toll Roads, Jean Quan R/W Engineering, Mel Galer Toll Road Oversight, Dan Butler, Ted Schneider TCA, Jerry Bennett mo n MEMORANDUM OF UNDERSTANDING This memorandum dated - /,5 — /� 1996, expresses the understanding of the San Joaquin Hills Transportation Corridor Agency (AGENCY), the State of California Department of Transportation ( CALTRANS) and the City of Newport Beach (CITY) regarding the construction, ownership and long -term maintenance of a bicycle trail adjacent to the San Joaquin Hills Transportation Corridor (Corridor). The bicycle trail is designated as a portion of Bike Trail D on the Corridor construction drawings, located between Jamboree Road and University Drive (see Exhibit A). The understanding of the parties is premised on the following facts: A. Bike Trail D is part of the Corridor construction plans and will be identified as part of the CITY's Bike Trail Master Plan and is identified in the SJHTCA Environmental Impact Report #FHWA -CA- EIS- 90 -2 -F. B. AGENCY is obligated to construct Bike Trail D. C. CALTRANS will not assume ownership and maintenance responsibility for non - highway improvements, such as said portion of Bike Trail D between Jamboree Road and University Drive. D. CITY will assume ownership and long -term maintenance of that portion of Bike Trail D located between Jamboree Road and University Drive. CALTRANS will transfer fee title for the portion of Bike Trail D, of which fee title is held by Caltrans, to the CITY upon the completion of the Corridor project. E. CITY wishes AGENCY to initiate a design modification to the current plan for said portion of Bike Trail D to accommodate a proposed automobile dealership project adjacent to and southerly of Bike Trail D. AGENCY and CALTRANS are willing to accommodate the CITY's requested revision providing certain access and maintenance criteria are met. 0 Bike Trail D SJHTC MOU Page 2 of 3 NOW THEREFORE, AGENCY, CALTRANS, and CITY agree to the following terms: 1. CITY has provided plans, sketches, exhibits, etc. to AGENCY and CALTRANS, demonstrating that CITY's requested revision to said portion of Bike Trail D will not impair CALTRANS ability to access the Corridor for CALTRANS maintenance operations of Corridor improvements. 2. Upon review and approval of CITY's documentation by AGENCY and CALTRANS, AGENCY will initiate the formal process of revising the construction drawing for said portion of Bike Trail D. 3. CITY will provide AGENCY with any necessary easements or permits to construct Bike Trail D, as shown on Exhibit A and held in fee title by Caltrans, and any other Corridor improvements within any portion of property owned or controlled by CITY. CITY will provide at no cost to CALTRANS any necessary easements for access and maintenance of Corridor within said portion of Bike Trail D on CITY property. 4. CITY agrees to accept ownership, maintenance and liability for those portions of Bike Trail D within the City of Newport Beach upon completion of Corridor project, provided: a. CITY is under no obligation to purchase Bike Trail D. b. The transfer of fee title for that portion of Bike Trail D to the CITY from CALTRANS is a separate transaction from CITY's purchase of 1.10 acres of surplus CALTRANS right -of -way, which is currently being processed by CALTRANS. 5. CITY and AGENCY agree Bike Trail D will not be opened to the public until CITY has formally accepted fee title to and maintenance responsibility for said portion of Bike Trail D between Jamboree Road and University Drive as indicated on Exhibit A and as shown on Sheets L -20, L -21 and L -22 of the project plans for the Corridor. 6. CITY hereby grants AGENCY and its contractor a right -of -entry to construct Bike Trail D and associated improvements within portions of land owned or controlled by CITY as shown on Exhibit A. Bike Trail D SJHTC MOU Page 3 of 3 This memorandum of understanding is an agreement between the CITY, CALTRANS and AGENCY. SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY By. Names Title: (- ti e,, STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION In Name: /, ,a, ir- Title: L111 � �4 1 e 'L CITY OF NEWPORT BEACH M Kevin My Title: C er See Contract File for Exhibit A (Bike Trail D between Jamboree Road and University Drive) S W V W — a• W N o� W N U q' S< _I ' I W M1 I R �- M1 I �lllq, i� t ISN ON T *A � •ate -'� �_ —�_ i,=�T n ._ -. _ RCFo ' _ h — AagEE `1l I 1 I I II I t +I. 1 (Ji _' LAC• b — — `RAC — �1'__ - -_� .—�, ____� _ __� /� /�, �� / /111..( J\ � �1 • 1�`I, c - i !2_7 133kS 33S - C3W3a 31rd 1 "/NJ 0•r A0 MIA33143 AY MSIn3Y ' IT As MHM30 i r ,O31vtnol 3 } 3Nl) = F O N J A =z ao S . 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BOX 1768, NEWPORT BEACH, CA 92659 -1768 TO: FINANCE DIRECTOR FROM: CITY CLERK DATE: April 29, 1996 SUBJECT: Contract No. 3026 (714) 644 -3005 Description of Contract: Amendment to Consultant Agreement with Emmet Berkery (Fletcher Jones Motorcars /Bayview Way Extension) Effective date of Contract: April 22, 1996 Authorized by Minute Action, approved on: April 22, 1996 Contract with: Emmet Berkery, P.E. 3345 Newport Blvd., Suite 215 Newport Beach, CA 92663 Amount of Contract: (See Agreement) LaVonne M. Harkless, CMC /AAE City Clerk lm Attachment 3300 Newport Boulevard, Newport Beach AMENDMENT NO. 3 - ? , � (r- CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects THIS AMENDMENT NO. 3 TO AGREEMENT, made and entered into this ai,r,j day of 1996, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and Emmet Berkery, P.E., whose address is 3345 Newport Boulevard, Suite 215, Newport Beach, CA 92663 (hereinafter referred to as "CONSULTANT') is made with reference to the following: RECITALS: A. On December 1, 1994, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT'. B. Amendment No. 1 to AGREEMENT, entered into between CITY and CONSULTANT on June 20, 1995, extended the term of the AGREEMENT to June 30, 1996. C. Amendment No. 2 to AGREEMENT, entered into between CITY and CONSULTANT on November 13, 1995, increased the maximum fee to $70,000. D. CITY and CONSULTANT mutually desire to further amend the AGREEMENT as provided herein. NOW, THEREFORE, the parties hereto agree as follows: 1. The maximum fee to be paid as compensation to CONSULTANT to cover project management services performed during the term of this AGREEMENT is hereby increased to $85,000. 2. The term of this AGREEMENT, which was previously extended to June 30, 1996, not to extend past December 31, 1996. 3. The standard hourly rates established for AGREEMENT shall continue in effect and shall be unchanged before December 31, 1996. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the date first above written. CITY OF NEWPORT BEACH, a municipal corporation BY: A� i Man g APPROVED AS TO FORM: Cit Attorney CONSULTANT BY: &Vwj � Emmet Berkery, P.E. ATTEST: �d / . City Clerk r� U • 0 TO: Mayor and Members of the City Council FROM: Public Works Department 1' April 22, 1996 CITY COUNCIL AGENDA ITEM NO. 10 APR SUBJECT: AMENDMENT TO CONSULTANT AGREEMENT WITH EMMET BERKERY (FLETCHER JONES MOTORCARS /BAYVIEW WAY EXTENSION) CONTRACT NO. 3026 RECOMMENDATIONS: 1. Approve Amendment No. 3 to Consultant Agreement with Emmet Berkery for continued Project Management Services in the amount of $15,000, thereby increasing the not -to- exceed amount from $70,000 to $85,000. 2. Authorize the City Manager and City Clerk to sign Amendment No. 3. DISCUSSION: On December 1, 1994, the City Council authorized execution of a Consultant Agreement with Emmet Berkery, P.E., for project management services during the period of December 1994 through June 1995. The initial agreement established a not - to- exceed fee of $55,000 for services averaging 30 hours per week. On June 20, 1995, the City Manager authorized execution of Amendment No. 1 to the Consultant Agreement extending its term through June 1996. On November 13, 1995, the City Council authorized Amendment No. 2 in the amount of $15,000 for additional items of work. Project management services under this agreement include services to help select, manage and coordinate the work of consultant firms necessary to provide right -of -way, permits, environmental documentation, utility coordination, plans, specifications and contract documents for the development of the Fletcher Jones Motorcars dealership on a portion of the San Diego Creek North site and the extension of Bayview Way. Amendment No. 3 extends the contract term to December 31, 1996, and provides additional $15,000 compensation to perform the following items of work: 0 0 SUBJECT: AMENDMENT TO CONSULTANT AGREEMENT WITH EMMET BERKERY . April 22, 1996 Page 2 1. Coordination and management of the off -site environmental mitigation (gnatcatcher) required by the resource agencies. The mouth of Big Canyon creek has been selected for this mitigation. 2. Management and coordination of the Bayview Way street construction. Staff recommends approval of Amendment No. 3 to the Consultant Agreement with Emmet Berkery, P.E. Amendment No. 3 establishes the following provisions: 1. Increases the total not -to- exceed budget amount to $85,000. 2. Extends the term of the Agreement to December 31, 1996. It should be noted that 50% of the project management services will be reimbursed by Fletcher Jones. Funds for Amendment No. 3 are to be allocated as follows: PROJECT BUDGET NO. AMOUNT San Diego Creek North 7251- C5100262 $ 7,500 • San Diego Creek North 7261- C5100262 $ 7,500 A copy of Amendment No. 3 to the Consultant Agreement is attached for reference. Respectfully submitted, PUBLIC WORKS DEPARTMENT Don Webb, Director By `, John Wolter Cooperative Projects Engineer Attachment • LJ LJ 0 AMENDMENT NO. 3 CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects • THIS AMENDMENT NO. 3 TO AGREEMENT, made and entered into this day of ,1996, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY') and Emmet Berkery, P.E., whose address is 3345 Newport Boulevard, Suite 215, Newport Beach, CA 92663 (hereinafter referred to as "CONSULTANT') is made with reference to the following: RECITALS: A. On December 1, 1994, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT'. B. Amendment No. 1 to AGREEMENT, entered into between CITY and CONSULTANT on June 20, 1995, extended the term of the AGREEMENT to June 30, 1996. C. Amendment No. 2 to AGREEMENT, entered into between CITY and CONSULTANT on November 13, 1995, increased the maximum fee to $70,000. D. CITY and CONSULTANT mutually desire to further amend the AGREEMENT as provided herein. NOW, THEREFORE, the parties hereto agree as follows: 1. The maximum fee to be paid as compensation to CONSULTANT to cover project management services performed during the term of this AGREEMENT is hereby increased to $85,000. 9 0 2. The term of this AGREEMENT, which was previously extended to June 30, 1996, not to extend past December 31, 1996. • 3. The standard hourly rates established for AGREEMENT shall continue in effect and shall be unchanged before December 31, 1996. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the date first above written. CITY OF NEWPORT BEACH, a municipal corporation go APPROVED AS TO FORM: City Attorney City Manager CONSULTANT F-017 ATTEST: City Clerk Emmet Berkery, P.E. LJ • • i CITY OF NEWPORT BEACH P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 d'tvlqsD //- :� / -9S TO: PURCHASING /ADMINISTRATIVE SERVICES DEPARTMENT FROM: CITY CLERK DATE: November 21, 1995 SUBJECT: Contract No. C- 3026(A) Description of Contract Consultant Agreement for Project Management Services and Capital Improvement Projects Effective date of Contract November 20, 1995 Authorized by Minute Action, approved on November 13, 1995 Contract with Emmet Berkery, P.E. Address 3345 Newport Boulevard, Suite 215 Newport Beach, CA 92663 Amount of Contract (See Agreement) Wanda E. Raggio City Clerk WER:pm Attachment 3300 Newport Boulevard, Newport Beach C • 0 0 November 13. 1995 CITY COUNCIL AGENDA ITEM NO. 15 TO: MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: PUBLIC WORKS DEPARTMENT SUBJECT: AMENDMENT TO CONSULTANT AGREEMENT WITH EMMET BERKERY (FLETCHER JONES MOTORCARS /BAYVIEW WAY EXTENSION) CONTRACT NO. 3026 RECOMMENDATIONS: 1. Approve Amendment No. 2 to Consultant Agreement with Emmet Berkery for additional Project Management Services during F.Y. 1995 -96. Increase the not to exceed amount from $55,000 to $70,000. 2. Authorize the Mayor and City Clerk to sign Amendment No. 2. DISCUSSION: On December 1, 1994, the City Council authorized execution of a Consultant Agreement with Emmet Berkery, P.E. for project management services during the period of December 1994 through June 1995. A not -to- exceed budget amount of $55,000 was established for services averaging 30 hours per week. On June 20, 1995, the City Manager authorized execution of Amendment No. 1 to the Consultant Agreement extending its term through June 1996. Project management services under this agreement include services to help select, manage and coordinate the work of consultant firms necessary to provide right -of -way, permits, environmental documentation, utility coordination, plans, specifications and contract documents for the development of the Fletcher Jones Motorcars dealership on a portion of the San Diego Creek North site and the extension of Bayview Way. The additional $15,000 compensation being requested under Amendment No. 2 is necessary to complete the following items of work pertaining to the project: 1. Coodination with Southern California Edison for the relocation of a 66 kv overload transmission line. 0 E SUBJECT: AMENDMENT TO CONSULTANT AGREEMENT WITH EMMET BERKERY November 13, 1995 Page 2 2. Coordination with Metropolitan Water District and Mesa Consolidated Water District to allow construction of site improvements within their existing easements. 3. Coordination and management of the off -site environmental mitigation (gnatcatcher) required by the resource agencies. The mouth of Big Canyon has been selected for this mitigation. 4. Management and coordination of the Bayview Way street construction. To continue the project management services, staff is now recommending approval of Amendment No. 2 to the Consultant Agreement with Emmet Berkery, P.E. Amendment No. 2 establishes the following items: 1. The total not -to- exceed budget amount for project management services is increased from $55,000 to $70,000. • 2. The average weekly hours of services to be made available are expected to average between 10 and 20. The additional $15,000 authorized for Amendment No 2 is allocated as follows: PROJECT BUDGET NO. AMOUNT Fletcher Jones Motorcars 7261- C5100262 $ 15,000 A copy of Amendment No. 2 to the Consultant Agreement is attached for reference. Respectfully submitted, 4UBLIC WORKS DEPARTMENT Don Webb, Director n Wolter Projects Engineer Attachment AMENDMENT NO.2 • CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects THIS AMENDMENT NO. 2 TO AGREEMENT, made and entered into this day of ,1995, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and Emmet Berkery, P.E., whose address is 3345 Newport Boulevard, Suite 215, Newport Beach, CA 92663 (hereinafter referred to as "CONSULTANT ") is made with reference to the following: RECITALS: A. On December 1, 1994, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT ". • B. Amendment No. 1 to AGREEMENT was entered into between CITY and CONSULTANT on June 20, 1995. C. CITY and CONSULTANT mutually desire to further amend the AGREEMENT as provide herein. NOW, THEREFORE, the parties hereto agree as follows: 1. The maximum fee to be paid as compensation to CONSULTANT to cover project management services performed during the previously extended time period is hereby increased to $70,000. 2. CONSULTANT's address listed in Section 12 of the AGREEMENT for notice purposes is hereby changed to: Emmet Berkery, P.E. 3345 Newport Boulevard, Suite 215 Newport Beach, CA 92663 • 3. The standard hourly rates established for AGREEMENT shall continue in effect and shall be unchanged before June 30, 1996. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the date first above written. APPROVED AS TO FORM: Attorney CITY OF NEWPORT BEACH, • a municipal corporation City Manager CONSULTANT BY: Emmet Berkery, .E. ATTEST: City Clerk • • Emmet Berkery, P. E. • 3345 Newport Boulevard Suite 215 Newport Beach, CA 92663 714- 673 -6446 FEE RATE SCHEDULE Effective July 1, 1995 Professional Services 0 Title Rate per hour Project Manager $90.00 Technician /Designer /Plan Checker $60.00 • Clerical/Word Processing /Drafting $35.00 II. Reimbursable Expenses • Travel and subsistence to locations outside Orange and Los Angeles Counties will be billed at cost. • Reproduction, blueprinting, photocopying, and photographing will be billed at cost. III Outside Services Invoice costs of services and expenses charged by independent contractors or consultants, specialists, and professional or technical firms in support of services provided by Emmet Berkery, P.E. will be billed at 1.15 times cost. • AMENDMENT NO. 1 • CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects THIS AMENDMENT NO. 1 TO AGREEMENT, made and entered into this day of ,1995, by and between the CITY OF NEWPORT BEACH, a municipal corporationn,, /.�ii�2.Z� (hereinafter referred to as "CITY') and Emmet Berkery, P.E., whose address is 3345 Newport Boulevard, Suite 215, Newport Beach, CA 92663 (hereinafter referred to as "CONSULTANT') is made with reference to the following: RECITALS: A. On December 1, 1994, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT'. B. CITY and CONSULTANT mutually desire to amend the agreement as provide herein. NOW, THEREFORE, the parties hereto agree as follows: The term of this AGREEMENT, which commenced on November 15, 1994, is extended from June 30, 1995 to June 30, 1996. 2. The standard hourly rates established for AGREEMENT shall continue in effect and shall be unchanged before June 30, 1996. 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the date first above written. CITY OF NEWPORT BEACH, a municipal corporation BY: ' Cit anag AP VE TO FORM: City Attorney CONSULTANT BY: Emmet Berkery, P.E. ATT ST::,yr +;,cam City Clerk � r €•r'rt ,� L • • CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects THIS AGREEMENT, entered into this 1,',1e day of /(�0/'Dir�Y/�__ 1994, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and Emmet Berkery, P.E., whose address is 2456 Heliotrope Drive, Santa Ana, CA 92706 (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 Statues of the State of California and the Charter of the City. B. CITY and CONSULTANT desire to enter into an agreement for • Professional Civil Engineering services to manage implementation of Public Works capital improvement and cooperative projects within the City. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1. TERM A. The term of this agreement shall commence on the 15th day of November, 1994 and shall terminate on the 30th day of June 1995, unless terminated earlier as set forth herein. B. It is anticipated that project management services as provided for in this agreement will also be desired in the 1995/96 fiscal year. The term of this agreement may be extended by mutual consent of both parties under the terms of an amended Consultant Agreement approved by the City Manager. SECTION 2. SERVICES TO BE PERFORMED BY THE CONSULTANT Project management services will include supervision of consultant • firms preparing project studies, final plans and specifications; coordination and presentations to various Federal and State agencies necessary to obtain permits for the projects; preparation of cooperative agreements as necessary for funding and construction of the projects; negotiations with property owners to coordinate construction, obtain right -of -entry permits and right -of -way as required; coordination of various Federal, State, local and private parties as necessary to manage projects; and construction management services including contract administration, construction observation, scheduling and change order negotiation, 0 preparation and processing. Public Works projects for which project management services are anticipated to be provided are: 1. Development of the San Diego Creek North site for use as a Mercedes -Benz automobile dealership. 2. Extension of Bayview Way easterly of jamboree Road including utility infrastructure. 3. Construction of the JR -5 Ramp providing for northbound Jamboree Road traffic to join the westbound lanes of the Corona del Mar Freeway (S.R. 73). The City has a wide range of projects underway and the list of projects set forth above is not intended to be restrictive or all - inclusive. Project management services are intended to be available to the City staff on an as needed basis that allows flexibility and readjustment to meet requirements as they arise. CONSULTANT shall be available to city on an as needed basis up to an average of thirty (30) hours per week and shall provide project management services as noted above and as attached hereto set forth in Exhibit "A" The proposal dated October 11, 1994. SECTION 3: COMPENSATION TO CONSULTANT A. CONSULTANT shall be compensated for services performed pursuant to this agreement by invoicing City for services rendered on a monthly basis. Fee shall be on a time and materials basis, based on standard hourly rates as set forth in Exhibit "A ", the Proposal, which is attached hereto and incorporated herein by this reference. The maximum fee shall not exceed 555,000.00. In the event of unforeseen changes or required additions to the work which are not outlined by this agreement, the Public Works Director may authorize additional compensation up to 15% of the original contract amount. Such work shall be performed on a time and materials basis at the rates shown in Exhibit "A ". B. It is anticipated that project management services as provided for in this agreement will also be desired in the 1995/96 fiscal year. Compensation under this agreement is for services over the remaining fiscal year. Compensation may be extended for services performed during the 1995/96 fiscal year by mutual consent of both parties under the terms of an amended Consultant Agreement approved by the City Manager. SECTION 4: STANDARD OF CARE CONSULTANT agrees to perform all services hereunder in a manner commensurate with the community professional standards and agrees that all • 0 / services shall be performed by qualified and experienced ptlnnel who are not employed by the CITY nor have any contractual relationship with CITY. SECTION 5: INDEPENDENT PARTIES CITY and CONSULTANT 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 CONSULTANT, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. SECTION 6: HOLD HARMLESS CONSULTANT shall indemnify and hold harmless CITY, its CITY Council, boards and commissions, officers 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 CONSULTANTS negligent performance of services or work conducted or performed pursuant to this Agreement. SECTION 7. INSURANCE Without limiting the consultant's indemnification of City, 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 the City, Such policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must filed with the City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies shall add as insured the City, its elected officials, officers and employees for all liability arising from Consultant's services as described herein. Prior to the commencement of any services hereunder, Consultant shat provide to City, certificates of insurance from an insurance company certified to d, business in the State of California, with original endorsements, and copies r policies, if requested by City, of the following insurance, with Best's Class B c better carriers: A. Worker's compensation insurance covering all employees and principi of the Consultant, per the laws of the State of California; B, Commercial general liability insurance covering third party liabil risks, including without limitation, contractual liability, in a minim, amount of $1 million combined single limit per occurrence for boi injury, personal injury and property damage. if commercial gen, liability insurance or other form with a general aggregate is used, either I 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 51 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 I be suspended, voided or canceled by either party, or reduced in coverage or in limits except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give to City prompt timely =notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in i its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. SECTION 8. PROHIBITION AGAINST TRANSFER CONSULTANT shall not assign, sublease, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of CITY. Any attempt to do so without said consent shall be null and void, and any assignee, subleasee, 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 CONSULTANT, or of the interest of any general partner or joint venture or syndicate member or co- tenancy if CONSULTANT is a partnership or joint venture or syndicate or co- tenancy, 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 of the corporation. 9 SECTION 9: PERMITS AND LICENSES CONSULTANT, 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. SECTION 10: REPORTS 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 upon final payment to the CONSULTANT. CITY shall make no use of materials prepared by CONSULTANT pursuant to this Agreement, except for construction,, maintenance and repair of the Project. Any use of such documents for other projects, and any use of uncompleted documents, shall be at the sole risk of the CITY and without liability or legal exposure of the CONSULTANT. No report, information or other data given to or prepared or assembled by the CONSULTANT pursuant to this Agreement shall be made available to any • individual or organization by the CONSULTANT without prior approval by CITY. CONSULTANT shall, at such time and in such form as CITY may require, furnish reports concerning the status of services required under this Agreement. SECTION 11: RECORDS CONSULTANT 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 required under this Agreement. CONSULTANT shall maintain adequate records of 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. CONSULTANT 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, 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. SECTION 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 approved. All notices, demands, requests, or approvals from CONSULTANT to CITY shall be addressed to CITY at: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Attention: John Wolter, Project Manager (714) 644.3311 All notices, demands, requests, or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: Emmet Berkery, P.E. , 2456 Heliotrope Drive Santa Ana, CA 92706 (714) 972 -2770 SECTION 13: TERMINATION Either party may terminate this Agreement at any time and for any reason by giving the other party seven (7) days' prior written notice; notice shall be deemed served upon deposit in the United States Mail, postage prepared, addressed to the other party's business office. In the event of termination due to the fault of CONSULTANT, CITY shall be obligated to compensate CONSULTANT for only those authorized services which have been completed and accepted by CITY. If this Agreement is terminated for any reason other than fault of CONSULTANT, CITY agrees to compensate CONSULTANT for the actual services performed up to the effective date of the Notice of Termination, on the basis of fee schedule contained above, subject to any maximum amount to be received for any specific service. SECTION 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. SECTION 15: COMPLIANCES CONSULTANT shall comply with all laws, state or federal, and all ordinances, rules and regulations enacted or issued by CITY. SECTION 16: WAIVER A waiver by CITY or CONSULTANT of any breach of any term, covenant, r � • • • • 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. SECTION 17: INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind of 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 CONSULTANT. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. CITY OF NEWPORT BEACH, a municipal corporation `I I BY: ' q Mayor APPROVED AS TO FORM: Ci y Attorney CONSULTANT BY: ATTEST: � x-ftm- c CITY CLERK AMENDMENT NO. 2 CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects • C - 3,%z6 (A) THIS AMENDMENT NO. 2 TO AGREEMENT, made and entered into this 20th day of November 11995, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and Emmet Berkery, P.E., whose address is 3345 Newport Boulevard, Suite 215, Newport Beach, CA 92663 (hereinafter referred to as "CONSULTANT ") is made with reference to the following: RECITALS: A. On December 1, 1994, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT ". B. Amendment No. 1 to AGREEMENT was entered into between CITY and CONSULTANT on June 20, 1995. C. CITY and CONSULTANT mutually desire to further amend the AGREEMENT as provide herein. NOW, THEREFORE, the parties hereto agree as follows: 1. The maximum fee to be paid as compensation to CONSULTANT to cover project management services performed during the previously extended time period is hereby increased to $70,000. 2. CONSULTANT's address listed in Section 12 of the AGREEMENT for notice purposes is hereby changed to: Emmet Berkery, P.E. 3345 Newport Boulevard, Suite 215 Newport Beach, CA 92663 3. The standard hourly rates established for AGREEMENT shall continue in effect and shall be unchanged before June 30, 1996. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the date first above written. CITY OF NEWPORT BEACH, a municipal corporation BY: 4V24" it Ma ager APPROVED AS TO FORM: ZL� F City Attorney CONSULTANT M Emmet Berkery, P.E. ATTEST: ava ' City Clerk :1.--, 0 0 AMENDMENT NO. 1 CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects THIS AMENDMENT NO. 1 TO AGREEMENT, made and entered into this c*O 61 ay of 11995, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and Emmet Berkery, P.E., whose address is 3345 Newport Boulevard, Suite 215, Newport Beach, CA 92663 (hereinafter referred to as "CONSULTANT') is made with reference to the following: RECITALS: A. On December 1, 1994, a Consultant Agreement was entered into by and between CITY and CONSULTANT, hereinafter referred to as "AGREEMENT'. B. CITY and CONSULTANT mutually desire to amend the agreement as provide herein. NOW, THEREFORE, the parties hereto agree as follows: 1. The term of this AGREEMENT, which commenced on November 15, 1994, is extended from June 30, 1995 to June 30, 1996. 2. The standard hourly rates established for AGREEMENT shall continue in effect and shall be unchanged before June 30, 1996. 3. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain the same and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AGREEMENT on the date first above written. CITY OF NEWPORT BEACH, a municipal corporation BY: - -- �ti�rdC " - 4 AP�VEV'P S, TO FORM: Ci anag City Attorney CONSULTANT BY: I Emmet Berkery, P.E. ATT ST: (0 cad pO4� City Clerk'. t::..........::r y �"� C r FU Reams * • CITY OF NEWPORT BEACH OFFICE OF THE CITY CLERK P.O. BOX 1768, NEWPORT BEACH, CA 92658 -8915 (714) 644 -3005 G TO: FINANCE DIRECTOR �//� FROM: CITY CLERK DATE: December 8, 1994 SUBJECT: Contract No. C- 3026(A) Description of Contract Consultant Agreement for Project Management Services and Capital Improvement Projects - Development of San Diego Creek North Property Effective date of Contract December 1, 1994 Authorized by Minute Action, approved on November 28, 1994 Contract with Emmet Berkery Address 2456 Heliotrope Drive Santa Ana Amount of Contract (See Agreement) GC/LL %j� 6e Wanda E. Raggio p City Clerk WER:pm Attachment 3300 Newport Boulevard, Newport Beach November 28, 1994 t CITY COUNCIL AGENDA ITEM NO. 6 pa: BA -015 APPROVED TO: Mayor and Members of the City Council FROM: Public Works Department C'- 3UZL SUBJECT: DEVELOPMENT OF SAN DIEGO CREEK NORTH PROPERTY RECOMMENDATIONS: 1. Approve the establishment of a $70,000 budget for management professional services to be provided by outside consultants for development entitlements. 2. Authorize the City Manager to execute an Amendment to the existing Engineering Services Agreement with Gail P. C -2 M2- Pickart, P.E. for Project Management Services. • V 3. Authorize the Mayor and City Clerk to execute an Engineering Services Agreement with Emmet Berkery, P.E. C - -w6(H) for Project Management. 4. Authorize the staff to negotiate an agreement with the Transportation Corridor Agency to provide for construction of the Jamboree Road flyover ramp OR-5) to be on a structure over the San Diego Creek North parcel and to provide for surface use under the structure. DISCUSSION: After a series of meetings and discussions, an informal conclusion has been reached by representatives of the City of Newport Beach, The Irvine Company, and Fletcher Jones Motorcars that it appears feasible to develop the San Diego Creek North property as a relocation site for the Mercedes Benz dealership currently located along Quail Street between Spruce Street and • Dove Street. San Diego Creek North is a triangular shaped parcel of land bounded by Jamboree Road, the San Joaquin Hills Transportation Corridor (SJHTC), and San Diego Creek (see attached location map). Access for the site will be provided by an extension of Bayview Way easterly of jamboree Road (a segment of future roadway presently identified as University Drive North). SUBJECT: DEVELOPIVINT OF SAN DIEGO CREEK NORAROPERTY November 28, 1994 Page 2 A tentative time schedule of two years and a preliminary infrastructure cost estimate of $4.2 million have been established for the project. The first phase of construction will only construct Bayview Way between Jamboree Road and the wetlands 600 feet easterly. In the future an additional $4.5 million will be required to extend Bayview Way easterly to join MacArthur Boulevard. A copy of both the time line and cost estimate are attached for reference. Fletcher Jones has retained an architectural firm and a preliminary site plan has been prepared. The next steps in the project schedule are to begin environmental documentation, perform topographical and boundary work, and do geotechnical investigation of the site. This work is proposed to be done by private consultants under Engineering Services Agreements with a project management consultant to coordinate and direct the overall work efforts. A cost summary that provides estimates of the professional services anticipated during the remainder of F.Y. 1994 -95 is as follows: TASK DESCRIPTION SITE SHARE BAYVIEW WAY SHARE RAMPJR -5 SHARE TOTAL (FletcherJones) (City of Newport Beach) TCA Composite Site Plan 52,000.00 52,000.00 $1,000.00 $5,000.00 Graphics EIR for Bayview Way 540,000.00 540,000.00 0 $80,000.00 (Jamboree to MacArthur) and Auto Dealershi Site Permit Processing for $17,500.00 $17,500.00 0 $35,000.00 Bayview Way and Auto Dealership Site with Federal and State Agencies Environmental 0 0 $50,000.00 $50,000.00 Documentation for Ram JR -5 Permit Processing for 0 0 $100,000.00 $100,000.00 Ramp JR -5 with Federal and State Agencies Topographical $22,500.00 $22,500.00 $5,000.00 $50,000.00 Mapping and Boundary Surveying Preliminary 527,500.00 527,500.00 $5,000.00 $60,000.00 Engineering for Street and Site Grading; Street Improvements and Utility Infrastructure; and Ram JR -5 Alignment Geotechnical Field $16,000.00 $16,000.00 $8,000.00 $40,000.00 Investigation and Written Report Level $4,500.00 $4,500.00 51,000.00 $10,000.00 Environmental Analysis for Hazardous Materials Project Mana ement $24,500.00 $35,000.0 510 500.00 $70,000.00 TOTALSI 5154,500.00 $165,000.00 1 $180,500.00 5500,000.00 • • SUBJECT: DEVELOPMENT OF SAN DIEGO CREEK NORIPROPERTY November 28, 1994 Page 3 • A budget amendment, providing for $70,000 from unappropriated Transportation and Circulation Account funds to a new San Diego Creek North Account No. 7261 P 301 262 A, has been prepared for Council's consideration. A portion of these costs may be reimbursed to the City upon acquisition of the site by Fletcher }ones, and when TCA takes control of JR -5. The City Council Budget Committee reviewed and approved a budget amendment request for $500,000 at their November 1, 1994 meeting. This would cover the full extimated cost of consulting services for the project. At this time the staff is only asking for a budget amendment in the amount of $70,000 to cover the project management consultants. When the consultants have better defined the scope of work and received proposals for the various work items, the staff will come back to the City Council for approval of a larger budget amendment to proceed. In order to meet the time schedule for this work, staff proposes to retain professional consultants for project management, environmental documentation, geotechnical engineering and civil engineering services for the project. At this time, Engineering Services Agreements with • Mr. Gail P. Pickart, P.E. and Emmet Berkery, P.E. to provide Project Management and Preliminary Engineering Services are recommended for approval. Mr. Pickart is currently performing similar Project Management Services for the MacArthur Boulevard Widening project and Birch Street Bridge Widening over the Corona del Mar Freeway (Route 73). Mr. Pickart will continue to focus his time on those two projects; however, due to his familiarity with the site and land development in the City, he will devote a portion of his time to the San Diego Creek project. Mr. Berkery has more than 20 years experience in Public Works and land development engineering in Orange County. In the last four years he has provided project management services on commercial - industrial subdivisions in Lake Forest and Chula Vista. His experience in developing commercial and industrial sites will be very beneficial to the successful development of this project. Proposals were requested and have been received from Mr. Berkery and Mr. Pickart to provide project management services on an as needed basis. Both proposals are for services through July 1995. However it is anticipated that services will be needed after July 1, 1995 and language has been included in the agreements providing for extension by the City • Manager. Fees have been based on standard hourly rates for level of services and the available time to work on this project of 30 hours per week for Mr. Berkery and a portion of the 30 hours per week Mr. Pickart is available for City projects. Mr. Pickart and Mr. Berkery will both provide project management services at $90.00 /hr. and plan check /technical /designer services at $60.00 /hr. which are comparable to rates for engineering firms in Orange SUBJECT: DEVELOPOINT OF SAN DIEGO CREEK NOR #PROPERTY November 28, 1994 Page 4 County. Copies of their rate schedules are attached. Engineering service • agreements provide as follows: A) Consultant: Gail P. Pickart Term: October 1994 through June 1995 Fee: Not to exceed $15,000 for this project based on standard hourly rates Services: Project management services on as needed basis up to average of 5 hours per week B) Consultant: Emmet Berkery Term: November 1994 through June 1995 Fee: Not to exceed $55,000 for this project based on standard hourly rates Services: Project management services on as needed basis up to average of 30 hours per week I Funds for these services will become available if the Council approves the proposed budget amendment for this project. The current TCA design for the Jamboree Road flyover ramp OR -5) • provides for the ramp to be on an earth -fill between Bayview Way and Bristol Street. To provide an added 2.8 acres of usable land to the site, the ramp can be constructed on structure across the site. It is estimated that it will cost an additional $1.7 to $2 million for the structure. It will be necessary for the City to negotiate an agreement with the TCA to provide for the additional costs of constructing the ramp on structure and for allowing commercial uses under the structure. The staff also needs to work with the TCA on sharing the costs for design and environmental work. When the terms of an agreement are reached. It will then be brought back to the City Council for approval. (a, � Don Webb Public Works Director • DW:so Attachments 1 • BAYVIEW EXTENSION, Jamboree Road to MacArthur Blvd. 0 SAN DIEGO CREEK NORTH SITE DEVELOPMENT COST ESTIMATE • I:1i1I -Y1'1I Item Quantity Unit Estimated Descri tion Curb & Gutter I Price I Cost Bayview Extension Bridge Costs Bridge Structure (350'x 104) Bayview Roadway Costs In Newport Beach (600) 36400 SF $100.00 /SF $3,640,000 ion Contingency and Administration, 15 %, _ $560,000 Bridge total $4,200,000 AC Pavement, 6 "AC /12 "AB 50400 SF $2.50 /SF $126,000 Curb & Gutter 1200 LF $15.00 /LF $18,000 Sidewalk 12000 SF $3.00 /SF $36,000 Traffic Signal modifications Q Jamboree 1 LS $20,000.00 /LS $20,000 Traffic signal @ Ramp 1 LS $80,000.00 /LS $80,000 Signing and Striping 1 LS $8,000.00 /LS $8,000 Storm Drain improvements 1 LS $6,000.00 /LS $6,000 • Construction Contingency and Administration, 15 %, _ $46,000 Newport Roadway Total $340,000 In Irvine (800) Pavement Overlay 67200 SF $1.50 /SF $100,800 Curb & Gutter 1600 SF $15.00 /SF $24,000 Sidewalk 16000 SF $3.00 /SF $48,000 Traffic Signal Installation @ MacArthur 1 LS $100,000.00 /LS $100,000 Signing & Striping 1 LS $5,000.00 /LS $5,000 Construction Contingency and Administration, 15 %, _ $42,000 Irvine Roadway Subtotal = $320,000 Bayview Extension Total = $4,860,000 UTILITIES Water Service to Site ( 12') Sewer Service to Site • Relocate SCE 66kv Power Lines Gas Service to Site Telephone/ Electrical Service to Site 1900 LF $130.00 /LF $247,000 1 LS $250,000.00 /LS $250,000 4 EA $75,000.00 /EA $300,000 500 LF $15.00 /LF $8,000 500 LF $50.00 /LF $25,000 Total Utilities cost = $830,000 0 SAN DIEGO CREEK NORTH SITE DEVELOPMENT COST ESTIMATE (Cont.) ROUTE 73 ON -RAMP (JR-51 Additional Bridge Structure, 400' Ramp pavement Credit Embankment Credit Excavation Credit SITE Grading Excavation - Below Ramp JR -5 Site Preparation Transportation Related Fees Fairshare Fees SJHTC Fees 16000 SF -16000 SF -34700 CY -8000 CY 0 8/25/94 $110.00 /SF $1,760,000 $5.00 /SF ($80,000) $5.00 /CY ($173,500) $2.00 /CY ($16,000) Subtotal = $1,490,500 Construction Contingency and Administration, 15 %, = $223,500 Ramp Structure Cost= $1,714,000 Miscellaneous Building Related Fees Building Excise Tax Fee Building, Planning, EIR, School Dist„ Etc. WITH CONNECTION TO MACARTHUR WITH OUT CONNECTION TO MACARTHUR Unknown Cost is Caltrans Surplus R/W 40000 CY $7.50 /CY $300,000 80000 CY $7.50 /CY $600,000 Grading total = $900,000 1291 trips $121.14 /trip $157,000 75000 SF $2.80 /SF $210,000 Fee total = $367,000 $16,000 $80,000 PROJECT TOTAL = $8,687,000 PROJECT TOTAL = $4,200,000 • • t EAR C, 0 N DIEGO CREEK NORTH SITE :rrcNEQ JONES AU i O DC- -ALErL P I C C - ,wW) CONSULTANT AGREEMENT Project Management Services Capital Improvement Projects THIS AGREEMENT, entered into this /,dtt- day of Q2; >, 1 1994, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY ") and Emmet Berkery, P.E., whose address is 2456 Heliotrope Drive, Santa Ana, CA 92706 (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 Statues of the State of California and the Charter of the City. B. CITY and CONSULTANT desire to enter into an agreement for Professional Civil Engineering services to manage implementation of Public Works capital improvement and cooperative projects within the City. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: SECTION 1. TERM A. The term of this agreement shall commence on the 15th day of November, 1994 and shall terminate on the 30th day of June 1995, unless terminated earlier as set forth herein. B. It is anticipated that project management services as provided for in this agreement will also be desired in the 1995 /96 fiscal year. The term of this agreement may be extended by mutual consent of both parties under the terms of an amended Consultant Agreement approved by the City Manager. SECTION 2. SERVICES TO BE PERFORMED BY THE CONSULTANT Project management services will include supervision of consultant firms preparing project studies, final plans and specifications; coordination and presentations to various Federal and State agencies necessary to obtain permits for the projects; preparation of cooperative agreements as necessary for funding and construction of the projects; negotiations with property owners to coordinate construction, obtain right -of -entry permits and right -of -way as required; coordination of various Federal, State, local and private parties as necessary to manage projects; and construction management services including contract administration, construction observation, scheduling and change order negotiation, 0 0 preparation and processing. Public Works projects for which project management services are anticipated to be provided are: 1. Development of the San Diego Creek North site for use as a Mercedes -Benz automobile dealership. 2. Extension of Bayview Way easterly of jamboree Road including utility infrastructure. 3. Construction of the JR -5 Ramp providing for northbound jamboree Road traffic to join the westbound lanes of the Corona del Mar Freeway (S.R. 73). The City has a wide range of projects underway and the list of projects set forth above is not intended to be restrictive or all- inclusive. Project management services are intended to be available to the City staff on an as needed basis that allows flexibility and readjustment to meet requirements as they arise. CONSULTANT shall be available to city on an as needed basis up to an average of thirty (30) hours per week and shall provide project management services as noted above and as attached hereto set forth in Exhibit "A" The proposal dated October 11, 1994. SECTION 3: COMPENSATION TO CONSULTANT A. CONSULTANT shall be compensated for services performed pursuant to this agreement by invoicing City for services rendered on a monthly basis. Fee shall be on a time and materials basis, based on standard hourly rates as set forth in Exhibit "A ", the Proposal, which is attached hereto and incorporated herein by this reference. The maximum fee shall not exceed $55,000.00. In the event of unforeseen changes or required additions to the work which are not outlined by this agreement, the Public Works Director may authorize additional compensation up to 15% of the original contract amount. Such work shall be performed on a time and materials basis at the rates shown in Exhibit "A ". B. It is anticipated that project management services as provided for in this agreement will also be desired in the 1995/96 fiscal year. Compensation under this agreement is for services over the remaining fiscal year. Compensation may be extended for services performed during the 1995 /96 fiscal year by mutual consent of both parties under the terms of an amended Consultant Agreement approved by the City Manager. SECTION 4: STANDARD OF CARE CONSULTANT agrees to perform all services hereunder in a manner commensurate with the community professional standards and agrees that all services shall be performed by qualified and experienced personnel who are not employed by the CITY nor have any contractual relationship with CITY. SECTION 5: INDEPENDENT PARTIES CITY and CONSULTANT 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 CONSULTANT, except to the extent they are limited by statute, rule or regulation and the express terms of this Agreement. SECTION 6: HOLD HARMLESS CONSULTANT shall indemnify and hold harmless CITY, its CITY Council, boards and commissions, officers 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 CONSULTANTS negligent performance of services or work conducted or performed pursuant to this Agreement. SECTION 7. INSURANCE Without limiting the consultant's indemnification of City, 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 the City. Such policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must filed with the City prior to exercising any right or performing any work pursuant to this Agreement. All insurance policies shall add as insured the City, its elected officials, officers and employees for all liability arising from Consultant's services as described herein. Prior to the commencement of any services hereunder, Consultant shall provide to City, certificates of insurance from an insurance company certified to do business in the State of California, with original endorsements, and copies of policies, if requested by City, of the following insurance, with Best's Class B or better carriers: A. Worker's compensation insurance covering all employees and principals of the 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 0 0 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 suspended, voided or canceled by either party, or reduced in coverage or in limits except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give to City prompt timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. 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. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. SECTION 8. PROHIBITION AGAINST TRANSFER CONSULTANT shall not assign, sublease, hypothecate, or transfer this Agreement or any interest therein directly or indirectly, by operation of law or otherwise without the prior written consent of CITY. Any attempt to do so without said consent shall be null and void, and any assignee, subleasee, 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 CONSULTANT, or of the interest of any general partner or joint venture or syndicate member or co- tenancy if CONSULTANT is a partnership or joint venture or syndicate or co- tenancy, 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 of the corporation. 0 0 SECTION 9: PERMITS AND LICENSES CONSULTANT, 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. SECTION 10: REPORTS 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 upon final payment to the CONSULTANT. CITY shall make no use of materials prepared by CONSULTANT pursuant to this Agreement, except for construction, maintenance and repair of the Project. Any use of such documents for other projects, and any use of uncompleted documents, shall be at the sole risk of the CITY and without liability or legal exposure of the CONSULTANT. No report, information or other data given to or prepared or assembled by the CONSULTANT pursuant to this Agreement shall be made available to any individual or organization by the CONSULTANT without prior approval by CITY. CONSULTANT shall, at such time and in such form as CITY may require, furnish reports concerning the status of services required under this Agreement. SECTION 11: RECORDS CONSULTANT 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 required under this Agreement. CONSULTANT shall maintain adequate records of 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. CONSULTANT 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, 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. SECTION 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 9 0 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 approved. All notices, demands, requests, or approvals from CONSULTANT to CITY shall be addressed to CITY at: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Attention: John Wolter, Project Manager (714) 644 -3311 All notices, demands, requests, or approvals from CITY to CONSULTANT shall be addressed to CONSULTANT at: Emmet Berkery, P.E. 2456 Heliotrope Drive Santa Ana, CA 92706 (714) 972 -2770 SECTION 13: TERMINATION Either party may terminate this Agreement at any time and for any reason by giving the other party seven (7) days' prior written notice; notice shall be deemed served upon deposit in the United States Mail, postage prepared, addressed to the other party's business office. In the event of termination due to the fault of CONSULTANT, CITY shall be obligated to compensate CONSULTANT for only those authorized services which have been completed and accepted by CITY. If this Agreement is terminated for any reason other than fault of CONSULTANT, CITY agrees to compensate CONSULTANT for the actual services performed up to the effective date of the Notice of Termination, on the basis of fee schedule contained above, subject to any maximum amount to be received for any specific service. SECTION 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. SECTION 15: COMPLIANCES CONSULTANT shall comply with all laws, state or federal, and all ordinances, rules and regulations enacted or issued by CITY. SECTION 16: WAIVER A waiver by CITY or CONSULTANT of any breach of any term, covenant, 0 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. SECTION 17: INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind of 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 CONSULTANT. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first above written. APPROVED AS TO FORM: i 1 (t�vvC City Attorney ATTEST: CITY CLERK CITY OF NEWPORT BEACH, a municipal corporation BY: ' � Mayor CONSULTANT W,. V • Emmet Berkery, P.E. • 2456 Heliotrope Drive Santa Ana, Calif. 92706 714- 972 -2770 October 11, 1994 Mr. John Wolter CITY OF NEWPORT BEACH Public Works Department 3300 Newport Boulevard Newport Beach, Calif. 92659 -1768 Dear Mr. Wolter As a result of my meeting with you and Steve Badum on October 10, 1994, I am pleased to submit this proposal to provide professional civil engineering services rela- tive to the management of the planned San Diego Creek North Site in the City of Newport Beach. This proposal antici- pates providing project management services on an essenti- ally time and materials basis for a period of approximately one year. Project management services will be provided in an amount expected to average thirty (30) hours per week. Such services will be billed in accordance with the Fee Rate Schedule attached. It is anticipated that at least 50% of the services provided will be billed at the Project Manager rate. Actual services rendered and tasks performed will be closely coordinated with the Public Works Depart- ment staff member assigned to the project. It is understood that the level of involvement in the project will vary and may be changed from time to time. It is further understood Public Works staff may request services on other City projects. This proposal is not in- tended to be restrictive or all- inclusive. The objective of the contract is to make project management services available to City staff in a manner which allows flexibil- ity and readjustment to meet requirements as needed. I understand this proposal will be attached to or be made part of a standard form City of Newport Beach consultant contract which will be presented to the City Council for approval. I also understand there are certain insurance requirements I must satisfy before the contract can be formally approved. • C� Thank you for the opportunity to submit this proposal. I look forward to working with you and the public Works staff. Sincerely Emmet Berkery • Emmet Berkery, P.E. . 2456 Heliotrope Drive Santa Ana, Calif. 92706 714 - 972 -2770 FEE RATE SCHEDULE Effective October 1, 1994 I. Professional Services Title Rate per Hour Project Manager $90.00 Technician /Designer /Plan Checker $60.00 Clerical /Word Processing $35.00 II. Reimburseable Expenses 1. Travel and subsistence to locations outside Orange and Los Angeles Counties will be billed at cost. 2. Reproduction, blueprinting, photocopying, and photographing will be billed at cost. III. Outside Services Invoice costs of services and expenses charged by independent contractors or consultants, specialists, and professional or technical firms in support of services provided by Emmet Berkery, P.E. will be billed at 1.15 times cost. • Emmet M- Berkery • 2,456 Heliotrope Drive Santa Ana, California 92706 (714) 972 -2770 (Home) (714) 250 -1806 (Office) EMPLOYMENT OBJECTIVE: Position as Director of Development, Director of Engineering, Project Manager, or similar, overseeing design consultants, and coordinating construction contracts. EMPLOYMENT HISTORY- Feb. 1990-Present Vice President - Engineering Los Alisos Development Company Irvine, California. 1980 -1990 Senior Director Robert Bein, William Frost & Associates Irvine, California. 1979 -1980 Project Manager J.P. Kapp & Associates Tustin, California. 1977 -1979 Project Engineer Ronald Martin & Associates Costa Mesa, California. 1975 -1977 Assistant Director of Public Works City of San Dimas San Dimas, California. 1972 -1975 Associate Civil Engineer City of Costa Mesa Costa Mesa, California. 1969 -1972 Civil Engineer Assistant Los Angeles County Road Department Los Angeles, California. EDUCATION: 1965 -1969 University of Southern California B.S. in Civil Engineering REGISTRATION: Registered Civil Engineer State of California No. 22882 PERSONAL: Born: July 5, 1947 in Brooklyn, New York Marital: Married,1 child (daughter age 11) Health: Excellent Residence: Own Home Finances: Good Order Hobbies: Outdoor and Family Activities 0 EMPLOYMENT HIGHLIGHTS: 7/90- Present LOS ALISOS DEVELOPMENT COMPANY As Vice President - Engineering, was responsible for managing and coordinating design consultants and contractors in the development of two large commercial - industrial projects: Pacific Commercentre in the city of Lake Forest, and Otay Rio Business Park in the city of Chula Vista. Coordinated preparation of improvement plan design and agency processing, prepared bid documents, awarded construc- tion contracts, reviewed and approved invoices and change orders. Also managed the design and construction of a successful 25 acre wetlands mitigation project in William R. Mason Regional Park in Irvine. Approximate total value of construction contracts: $7,500,000. 1980 -1990 ROBERT BEIN, WILLIAM FROST & ASSOCIATES As Senior Director of Development Engineering, had direct responsi- bility for the preparation of grading and improvement plans for several large projects, including: Pacific Commercentre, Hoag Cancer Center, Metropolitan Condominiums (Irvine), Four Seasons Hotel (Newport Beach), Monarch Beach Tennis Club, Pacific Club Expan- sion (Newport Beach), Koll Center Newport Parking Lot Modifica- tion, Orange County Performing Arts Center, Center Tower and Center Garage, all in Costa Mesa, and Harbor Gateway Business Center (Costa Mesa). Assigned work to engineers, designers and drafters. Processed plans for agency approvals. Worked with other design professionals and contractors. 1979 -1980 J.P. KAPP & ASSOCIATES Managed the preparation of grading and improvement plans for a large hillside residential development. 1977 -1979 RONALD MARTIN & ASSOCIATES Directed the preparation of grading and improvement plans for several single and multi - family residential projects. EMPLOYMENT HIGHLIGHTS: (CONTINUED) 1975 -1977 CITY OF SAN DIMAS Involved in all phases of municipal engineering, including public works design, park design, right -of -way acquisition, construction contracts and map and plan checking. 1972 -1975 CITY OF COSTA MESA Designed street and storm drain improvement plans and supervised the work of technicians. Checked subdivision plans and maps. 1969 -1972 LOS ANGELES COUNTY ROAD DEPARTMENT Under general supervision, designed and drafted improvement plans for County highways.