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Home My WebLink AboutC-3037(C) - Big Canyon Floating Cover and Disinfection System0 f X 37 PROFESSIONAL SERVICES AGREEMENT FOR CONSTRUCTIBILITY REVIEW SERVICES FOR THE BIG CANYON RESERVOIR THIS AGREEMENT, entered into this A& day of J�, 2002, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City"), and PBS&J, whose address is 175 Calle Magdelena, Encinitas, Califomia, 92024, (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 City. B. City is planning to implement the Big Canyon Reservoir Covering and Disinfection Facilities Improvement Project ( "Project") and Construction Docuements for the Project 'are being prepared by Tetra Tech, Inc. C. The City desires to engage Consultant to perform a constructability review of the Contract Documents being prepared by Tetra Tech upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are Skip Griffin, Project Manager, Mark Iverson and John Klimuszko. 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 and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the 1 st day of November 2002, and shall terminate on the 30V' day of June, 2003, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the duties set forth in the scope of services, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for the services in accordance with the provisions of this Section and the scheduled billing rates set forth in Exhibit "B" attached hereto and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without prior written approval of City. Consultant's compensation for all work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the total contract price of Twelve Thousand Eight Hundred Eight Two Dollars ($12,882). 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 -2- billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly progress invoices to City payable by City within thirty (30) days of receipt of invoice. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with the schedule of the billing rates as set forth in Exhibit `B ". 3.4 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. 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. 3.5 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. -3- 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 to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. If Consultant is performing inspection or construction management services for the City, the assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City Staff; consultant's Nextel Direct Connect I.D. Number will be provided to City to be programmed into City Nextel units, and vice versa. Consultant further represents 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, acts of God, failure of City to furnish timely information or to promptly approve or disapprove Consultant's work, delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control. 4.3 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or charge of, and shall not be me responsible for Project's design, Project's contractor (hereinafter referred to as "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or charge of acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 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 agents or employees of City. Consultant shall have the responsibility for and control over the details and 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. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated 162 0 • Project Administrator, and any other agencies, which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with Consultant on Project. 7. PROJECT MANAGER Consultant shall assign Project to a Project Manager, who shall coordinate all phases of Project. This Project Manager shall be available to City at all reasonable times during term of Project. Consultant has designated Skip Griffin to be its Project Manager. Consultant shall not bill any personnel to Project other than those personnel identified in Exhibit 'B ", 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 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. Consultant, at the sole discretion of City, shall remove from Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants it will continuously furnish the necessary personnel to complete Project on a timely basis as contemplated by this Agreement. 8. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement. The failure by Consultant to perform in a timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby 110 agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten. (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all -such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. " CITY POLICY Consultant shall 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 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. 11. PROGRESS 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 -7- 0 0 are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and 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 and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, excepting only the active negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. 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. 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. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and • 0 employees as additional insured for all liability arising from Consultant's services as described herein. Insurance policies with original certificates and endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A- VII or better rating: A. Worker's compensation insurance, including "Wavier of Subrogation" clause, covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance original certificate and endorsement (which includes additional insured and primary and non- contributory wording), 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, including additional insured (and primary and non - contributory wording for waste haulers only), 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. In 0 11 D. Professional errors and omissions insurance, which covers the services, to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000). 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 City prompt and 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, which Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing workers compensation, 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. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any 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. -10- 0 0 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 venturer or syndicate member or co- tenant 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, 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 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. -11- 0 0 16, CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless City authorizes the release of information. 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 for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility-of Consultant and. as defined above. C. City staff will provide usable life of facilities criteria and provide information with regards to deficient facilities. D. City will prepare and provide to Consultant street base digital file in AutoCAD (DWG) compatible format. 18. ADMINISTRATION -12- • The Public Works Department will administer this Agreement. Michael J Sinacori 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. 19. 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 activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. 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 be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date -13- of withholding of any amounts found to have been improperly withheld. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Project. 23. CONFLICTS OF INTEREST A. 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 hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. ME 0 • 24. SUBCONSULTANT AND ASSIGNMENT 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. 25. 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach, Public Works Department, Attention Michael J. Sinacori, P.E. 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Phone: 949 -644 -3311 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Skip Griffin PBS &J 175 Calle Magealena Encinitas, CA 92024 Phone: 760 - 753 -1120 Fax: 760 - 753 -0730 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions -15- 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. 26.1 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 Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. 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. 29. INTEGRATED CONTRACT -16- 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. 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. -17- • • All drawings shall be transmitted to the City in the City's latest adopted version of AutoCAD in ".dwg" file format. All written documents shall be transmitted to the City in the City's latest adopted version of Microsoft Word and Excel. 32. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: City Attorney CITY OF NEWPORT BEACH A Municipal Corporation By: PBS &J MAW-M! y. f: \users\pbw\shared\agreements \fy 02- 03\pbs &j -big canyon reservoir.doc M 0 PBS 1 An employee -owned company September 24, 2002 Mr. Michael Sinacori Utilities Engineer City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 P SUBJECT: PROPOSAL TO PROVIDE CONSTRUCTIBILITY REVIEW SERVICES FOR THE BIG CANYON RESERVOIR Dear Mr. Sinacori In response to your request, PBS&J is pleased to submit this proposallagreement to you for engineering consulting services for the Constructability Review Services for the Big Canyon Reservoir. I. PROJECT TEAM and RESPONSIBILITIES Project Manager - Skip Griffin As Project Manager, Skip will have overall responsibility for team coordination and technical reviews. Skip has relevant design and construction field experience for both chlorination system and floating reservoir covers design. He has also conducted several constructability reviews for chlorination systems, reservoirs, pump stations, and treatment plants. Chlorine System Review - Mark Iverson Mark Iverson has over 15 years in the design, construction, operation and maintenance of municipal water and wastewater facilities. Some of Mark's most important experience comes from being the maintenance manager for a large wastewater treatment plant in Riverside, California. Mark understands first -hand the hazards and importance of good design for these systems. On two occasions, Mark was in charge of hazardous materials response caused by evaporator and piping. He also coordinated the five -year internal inspection and certification of the four 50,000 pound storage tanks on -site at the plant. 175 Calle Magdalena • Encinitas, California 92024 • Telephone: 760.753.1120 • Fax: 760.753.0730 • www.pbsj.com C Mr. Michael Sinacori September 24, 2002 Page 2 of 6 In addition, Mark's experience covers a wide range of treatment processes including liquid and gaseous chlorination systems and other chemical feed systems. Mark has provided design, start -up and trouble - shooting services for several chlorination systems in his career. He has designed new and retrofitted old, chlorinators, evaporators, and injection systems. He has also designed leak detection and cylinder handling facilities as well. Floating Cover review - John Klimuszko As a Senior Field Representative at PBS &J, Mr. Klimuszko provides more than 20 years of experience in construction inspection and administration, in a wide variety of municipal, capital improvement, and development projects. Mr. Klimuszko has successfully completed numerous projects including treated water reservoir floating covers, water and sewer mains, grading and drainage improvements, traffic signals, and municipal improvements. His responsibilities have included daily construction observation, change order negotiation, sub- consultant coordination, construction cost accounting, shop drawing, and submittal review for various municipal and development projects. Specific experience includes: • El Toro R -6 Reservoir, Mission Viejo California - As a Resident Inspector, Mr. Klimuszko inspected the installation of a new floating reservoir cover for the El Toro Municipal Water District's R -6 Reservoir. The $4.2 million project included deflating the existing reservoir cover to use as the reservoir's new liner, installation of a new 1.2 million square foot polypropylene floating cover, construction of a metering station, installation of inlet and outlet vales, and installation of all electrical/telemetry equipment. • Maerkle Reservoir, Carlsbad California — As a Resident Inspector, Mr. Klimuszko inspected the installation of a new floating reservoir cover for the City of Carlsbad's Maerkle Reservoir. The $5.4 million project included regrading and paving of an existing. earth data and reservoir bottom, installation of piping and valves, and installation of a 700,000 square foot hypalon floating cover. Contract Language Review - Larry Pierce Mr. Pierce is a Vice President with PBS &J. He provides overall direction and assistance to the Construction Services Group to assure the successful management and completion of all construction projects on time and budget and to the client's satisfaction. As a Registered Professional Engineer, Mr. Pierce offers more than 25 years of diversified experience in all aspects of planning, design, and construction management, including the management of large multiple construction and consultant contracts on a wide variety of projects, ranging from airport terminals, facilities and runways; pump stations; pipelines; reservoirs; municipal and Public. Works; flood control; military facilities; waterfront structures; and building 1 0 0 Mr. Michael Sinacori September 24, 2002 Page 3 of 6 renovations to major buildings and convention center facilities. His construction management experience includes a full range of contract administration duties, partnering, claims negotiation and settlement, litigation support, depositions, and trial testimony. Prior to joining PBS &J, Mr. Pierce served as Director of Engineering for the San Diego Unified Port District. _ His responsibilities included the management of numerous engineering projects, ranging from small annual maintenance work to major airport terminal expansion projects. Among his other duties, Mr. Pierce has successfully directed and managed the Port's $50 million Annual Capital Improvement Program for all port lands and San Diego Lindbergh Field. Prior to becoming Director of Engineering, Mr. Pierce was Project Manager on the planning, design, and construction of the $200 million San Diego Convention Center. His duties included management of multiple contracts for architectural construction management and construction inspection services. He provided project and construction management from initial design concepts through construction, including a complete revision of the Port's Contract Documents. II. SCOPE OF SERVICES Based on our current understanding of the Project, PBS &J will provide the following engineering services: A. Fifty Percent Complete plans Task 1— Kick off meeting and site visit • Team members will travel to Newport Beach for a meeting with the City staff and/or design engineers to discuss the project. • Team members will visit the Big Canyon Reservoir site Task 2 — Team Reviews • Team members will independently review their areas of expertise. • Team member meeting regarding consolidation of issues and clarifications. Task 3 — Report Preparation • Each reviewer will prepare a summary written report and submit to Project Manager for review and completion. • Draft report sent to City and/or design engineers for comments. Task 4 — Report Presentation • Project manager and Construction Manager receive comments and Mr. Michael Sinacori September 24, 2002 Page 4 of 6 prepare a final report for presentation to City and design engineer. B. Ninety Percent Complete plans Task 1— Team Reviews • Each team member will independently assure that revised plans have been correctly prepared. • Remaining required revisions are discussed and City and/or design engineer are notified. Task 2 — FinaI Client Meeting • Project manager and Construction Manager meet with City and design engineer to discuss any remaining issues. Task 3 — Project Specific Web Based Site • PBS &J can provide these services at no cost to the City if desired. III. ADDITIONAL ENGINEERING SERVICES If requested by Client, PBS &J will provide the following Additional Services, beyond the services included in Section II, Scope of Services: A. Attendance to additional meetings beyond those specifically identified in Section II. B. Environmental services, including environmental reviews, analysis or studies, permit preparation and processing, attendance to public hearings, etc. C. Assistance with public participation and communications, including planning and participation in public outreach programs, attendance to public meetings and workshops, etc. D. Planning, analysis or design of additional or alternative facilities. E. Field Services During the construction phase of the Project, PBS &J will provide the following field services: 1. Provide on -site project observation and field engineering services during the construction phase to observe progress and quality of work and inform the Client of the overall progress. � :1 Mr. Michael Sinacori September 24, 2002 Page 5 of 6 2. Prepare agenda for and hold weekly on -site progress meetings with the Client, general contractor, subcontractors and engineering subconsultants. 3. Issue necessary interpretations and clarifications of the contract documents, and make recommendations as to the acceptability of the work. 4. Assist the Client with negotiation of construction contract change orders to address design changes, unanticipated field conditions, additional work requests, etc. 5. Determine the amount of progress payments due based on completion of work and recommend issuance of payments by the Client. 6. Observe initial operation and testing of the completed project. Prepare a Punch List of deficiencies and follow up with the contractor to finalize all work. 7. Perform final inspection of the project and make recommendations for final payment, final acceptance and release of retainages or securities of the contractor. IV. CLIENT FURNISHED SERVICES The following services or information will be provided by Client or its consultants: A. Copies of all relevant reports, studies, drawings, correspondence, and other relevant project information or data. B. Assign one person to serve as the Client's project manager who has authority to represent the Client and will serve as the point of interface for all project issues and communications. C. Application and processing of all required permits including complete environmental compliance. D. All required surveys and photogrammetry services including complete topographic information based upon lambert coordinate system, location and plotting of property lines, right -of -ways and easements, ground survey and spot elevations for obscured or flat areas, and critical i� 0 0 Mr. Michael Sinacori September 24, 2002 Page 6 of 6 drainage and tie -in locations, flow line elevations of sewer and drainage manholes, and other information necessary to. support the planning or design services. Based on this understanding and scope our proposed fee is $ 12,882. If you have any questions, please call me at 760- 753 -1120. Thank you for the opportunity to provide these services. Respectfully submitted, ; ;J a Charles A. "Ap�ri n, , P .E. Vice President CAG:mkac c: Sara Maples, PBS &J N., - \800DOOkEU62\Prcposajs\MAC SEP2002 Nwprt Bch Big Cayn Team.doc Project Name: Big Canyon Reservoir Client/Owner: Newport Beach /Mike Sinacori Project Manager: Skip Griffin Prepared By: Skip Griffin Date Prepared: September 23, 2002 Proj /Prop No.: 62xxxx i� FEE SUMMARY ITEM TOTAL Labor $12,269 Outside Services $0 Direct Costs $613 tvu c. �.vaw oaow ncu a.riu/ TOTAL $12,882 California Offices in Irvine, Riverside, Encinitas, and San Diego FILE: Newport Beach Big Canyon fee est 2002.)ds Project Analyst - PA $54 ENGINEERING SERVICES ENVIRONMENTAL SCIENCE $50 Officer- OFF $175 Senior Scientist III - SSIII $150 Senior Program Manager - SPG $165 Senior Scientist 11 -SSII $124 Project Director - PD $165 Senior Scientist I - SSI $116 Program Manager- PGM $140 Scientist III - SIII $106 Principal Engineer II - PRII $140 Scientist II - SII $95 Principal Engineer I - PR $133 Scientist I - SI $85 Senior Project Manager - SPM $120 Assistant Scientist - AS $71 Project Manager - PM $114 Research Assistant - RA $50 Senior Project Engineer - SPE $108 Designer - DES $75 Project Engineer II - SEII $98 ADMINISTRATIVE SERVICES $71 Project Engineer I - SEI $92 Information Systems Mgr - ISM $120 Senior Engineer- SE $85 Financial Manager- FM $110 Engineer II - Ell $82 Senior IS Manager I - SIM $97 Engineer I - El $73 Administrative Manager - AM $75 Engineering Aide II - EAII $50 Senior Administrative Asst II - SAII $66 Engineering Aide I - FJ',I $43 Senior Administrative Asst I - SAI $62 California Offices in Irvine, Riverside, Encinitas, and San Diego FILE: Newport Beach Big Canyon fee est 2002.)ds Project Analyst - PA $54 CONSTRUCTION RELATED SERVICES Administrative Assistant - AA $50 Senior Construction Manager - SCM $118 Administrative Clerk - AC $43 Construction Manager - CM $108 Senior Project Engr (Const.) - SPEC $96 DESIGN & GRAPHIC SERVICES Senior Field Representative - SFR $89 Senior Design Manager - SDM $105 Construction Mgmt Rep. II - CMII $82 Senior Designer III - SDIII $102 Construction Mgmt Rep. I -.CMI $75 Senior Designer II - SDI] $93 Senior Designer I - SDI $85 OTHER PROFESSIONAL SERVICES Senior Graphics Designer - SGD $80 Principal Professional, Division Mgr. - PP $155 Designer - DES $75 Sr. Prof. III, Prog Mgr, Sr. Developer III - SPIII $140 Graphics Designer - GD $71 Sr. Prof. II, Sr. Analyst III, Sr. Devel II - SPII $120 Senior CADD Technician - SCT $71 Senior Analyst 11, Sr. Developer I -SAD $105 CADD Technician I I - CTI1 $66 Sr. Prof. I, Sr. Analyst I, Developer 11 - SPI $90 CADD Technician I - CTI $60 Professional 11, Analyst II - PII $75 Professional I, Analyst I, Developer I - PI $60 JPA/PBSJ PA40D -3/01 California Offices in Irvine, Riverside, Encinitas, and San Diego FILE: Newport Beach Big Canyon fee est 2002.)ds N m a rn A °o a IL I v V O u] p M LO 0 0 C) W O m NN 1(0 '� W LL 'O ij N OLfl, LO N L[) V N iCf N N [7 fA r EA EA 69 EA fR 61? Hi fA 60).19 • K O N O co 00 O O� LO V' O O O • T W Z O O O O O O O O • • O O O O • O O • • N N N N N N N n CO (D N N m �D m D w N N tO co N V N V n N p CD N N d' • N N N a m � N a a) m U m E E O W d) 0) Ica Z a) a) N° c d E G 0) •� N O UTl � .N. > C Lu • = C m m e C7 W E E` 3 0 E y E ) v a s U j m L 0 o �°-- r o o I-- °cv a' °c -0 a ; F LL h () b � N M � --� -N N M N N N N O O Q T R O] W C O, l0 l0 H F rn A °o a IL I X37 C� PROFESSIONAL SERVICES AGREEMENT WITH PBS&J FOR CONSTRUCTION INSPECTION SERVICES THIS AGREEMENT is made and entered into as of this � day of 1 4 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and PBS&J a corporation whose address is 175 Calle Magdelena, Encinitas, California, 92024 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to cant' on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to install a floating cover and new disinfection facilities at the Big Canyon Reservoir (he "Project'). C. City desires to engage Consultant to provide construction inspection and administrative support services for the Project. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Agreement shall be Gasper A. Chifici, Vice President, and Charles "Skip" Griffin, Jr., Senior Vice President. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the day of , 2004, and shall terminate on the 31st day of January, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The a City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Agreement, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Two Hundred Twenty Nine Thousand One Hundred Eight Dollars and no /100 ($229,108.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and/or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in 2 a 0 advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of services for this Agreement, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated John Klimuszko to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel for services under this Agreement without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove personnel assigned to the performance of services under this Agreement upon written request of City. Consultant warrants that it will continuously fumish the necessary personnel to complete the services on a timely basis as contemplated by this Agreement. The Consultant is performing inspection and construction management services for City. The Project Manager and any other assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City staff. Consultant's Nextel Direct Connect I.D. number will be provided to City to be programmed into City Nextel units, and vice versa. 3 • 6. ADMINISTRATION 0 This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by M 0 9 reason of strikes, lockouts, accidents, or acts of God, or the failure of City to fumish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor'), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on under this Agreement (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. N • • 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees'of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. .A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any. permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers 7 0 0 the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 0 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transferor other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint - venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents'), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 9 0 • 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 10 0 24. CONFLICTS OF INTEREST 0 The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Michael J. Sinacori, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3342 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Gasper A. Chifici PBS &J 175 Calle Magdalena Encinitas, CA 92024 Phone: 760- 753 -1120 Fax: 760 - 753 -0730 26. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are 11 0 0 reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. 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. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govem. 12 0 31. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 32. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 33. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 34." EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: -M City Attorney for the City of Newport Beach CITY OF NEWPORT BEACH, A Municipal Corporation By: Tod W. Ridgeway, Uayor for the City of Newport Beach gES T: PBS &J: TO / By. le as per A. Chifici, Vi resident Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f:\ users \pbvAshared\agreements\fy 03- 04\pbs &j -bcr floating cover.doc 13 a • Scope of Services mos goal is to provide professional services that create value for our clients through technical excellence and innovation DESCRIPTION OF FACILITIES The facility for which this scope of work is intended is the Big Canyon Reservoir for the City of Newport Beach. The work required for the facility includes the addition of a floating cover and side slope chafer, a sump and rainwater collection system, a cement slung bottom repairs to the existing asphalt lining, a sub -drain system, four new mixing pumps, disinfection facilities, an asphalt ramp, and various related appurtenant improvements SCOPE OF SERVICES Based on our experience with similar projects, and our understanding of your needs, the following scope of services describes the anticipated tasks and level of effort anticipated for the construction phase of the Project. The Scope is purposely described in temrs that allow you to decide upon the level of service you require from us. The fee proposal that accompanies the Scope is therefore presented in two three separate options. Option 1 includes Construction Engineering only —that is, full time project inspection and related tasks. Option 1B includes Construction Engineering and a limited amount of Construction Management oversight, and does not include submittal review, logging, or tracking, which would be done by either the designer, or City staff. Option 2 includes Construction Engineering and full Construction Management & Administration. The extent of construction management services is based upon the following construction phase schedule assumptions. It is assumed that the actual construction will require nine (9) months (approximately 40 weeks) for completion. Based on our experience on similar construction projects, we anticipate that there will be a two- week mobilization and start -up phase involving submittal review and site work that will require only limited on -site project observation. There will then be a 36 -week period of major construction that will require increased project observation, followed by 2 weeks that will require diminishing levels ofproject observation during the punch list and start -up phase. Field Inspection and Resident Engineering during Construction (Construction Engineering) Field Inspection and Resident Engineering services are those services typically performed by a qualified Construction Field Representative or Resident Engineer, with support from a qualified Construction Manager. Each of our Field Comprehensive resources, proven service Section 3, Page 1 EXHIBIT A 0 0 Representatives and Resident Engineers is furnished with a vehicle, laptop computer, digital camera, and cellular phone. During the construction of the project, PBS &J will provide the following construction phase services, as a minimum: 1. We will provide one full -time on -site Resident Inspector, subject to the City's approval, for project observation and field engineering services during the construction phase, to assure that the progress and quality of work is in conformance with the contract documents and the City's expectations, and to inform the City of the overall progress. He will prepare Daily Inspection Reports documenting the progress of construction, including notations of visitors to the site, weather conditions, contractor work force and equipment, changed conditions encountered, workmanship, safety concerns, and all associated construction- related issues. The Resident Inspector will also provide daily construction photo documentation. He will document construction activities on a daily basis, and specific issues as they occur. Construction photographs will be taken using a minimum 2.0 megapixel digital camera or 35 mm standard format pocket camera. Standard format film will be developed and scanned onto a CD as digital images. Photo proof sheets with thumbnail images shall be attached to the Daily Construction Progress Reports. All digital files will be transferred to the City upon completion of the project and will be organized by date. The Resident Inspector will report directly to the City's Project Manager for this project. The project is expected to take approximately 9 months to complete. Our Resident Inspector will establish his schedule based upon the Contractor's. 2. We will attend and conduct weekly on -site Construction Team Progress meetings with the Contractor, Designer, sub - contractors, and the City, with a fixed agenda, producing action items with designated responsible parties and due dates. 3. We will issue, process and track Requests for Information (RFIs) for interpretations and clarifications of the contract documents. The appropriate design engineer may review interpretations and clarifications. We will consult and advise the City on the effects of the interpretations and clarifications of the contract documents. 4. We will provide as- needed scheduling services for periodic review, analysis and tracking of the Contractor's construction schedule. 5. We will review, negotiate and make recommendations on construction contract change orders to address contract revisions, design changes, unanticipated field conditions, additional work requests, etc. 6. We will observe initial operation and testing of the completed project, and prepare a punch list of deficiencies and follow up with the Contractor to ensure that the deficiencies are corrected in a timely manner. 7. We will coordinate and manage the City - provided construction materials testing services. It is assumed that the City will provide independent contract construction testing services for items such as cover materials, concrete, rebar, welding, coatings and geotechnical. PWComprehensive resources, proven service Section 3, Page 2 0 0 8. We will coordinate and manage the City - provided construction surveying support services. It is assumed that the City will provide independent contract construction surveying support services for items such as boundary control, rough grade stakes, line and grade stakes, finish grade stakes and final grade verification. 9. We will perform a final inspection of the project. a. We will schedule and conduct substantial completion inspections, prepare and issue punch lists, and advise the City when the completed facility is acceptable. b. We will provide construction management services and assistance to the City, as required, related to operational aspects of the constructed facility. c. We will prepare a final report documenting the contractor's actual versus planned progress schedule, start-up procedures, the disposition of all claims and disputed change orders that impact the City's long -term interests, and all other pertinent information. d. We will present the City with a complete set of all project records in hard copy and electronic format. We will make certain that changes are made to the drawings based upon Contractor - furnished record of construction changes, and our own independent documentation. e. We will collect from the Contractor all equipment submittal information required for an O &M Manual for the project. f We will provide construction management services to the City during the 12- month warranty period, including 11th month warranty inspection and coordination and inspection of remedial work performed by the Contractor. Other incidental tasks that are included in the above are: oti Assuming that the State of California's provisions for Prevailing Wage apply with respect to the inspection of this project, and in accordance with the State of California's requirements, PBS &J will prepare weekly Certified Payroll Documentation for this project. 0 We will assure that the contractor keeps up with the documentation of all field changes to the plans and specifications. Construction Management and Administration during Construction Construction Management and Administration Services are typically performed by a qualified Construction Manager and/or Resident Engineer, and a part-time off -site clerical assistant. When Construction Management and Administration is included in the services we perform, we also add the following Construction Engineering tasks: 1. We will support and coordinate the efforts of all subconsultants provided by either the City or by PBS &J. During the construction phase, PBS&J will provide the following Construction Management and Administration services, as a minimum: PffilComprehensive resources, proven service Section 3, Page 3 E E 1. We will prepare the agenda for and conduct the pre - construction conference, and issue minutes of the meeting within 3 days. 1 We will log, track and review Contractor submittals using Expedition (or other software if the City so desires). The Construction Management team will review all Contractor submittals with the exception of those requiring review by the design engineer. We will consult and advise the City on the acceptability of substitute materials and equipment proposed by the Contractor. 3. We will coordinate and review lab, shop and mill test reports and results of field materials testing, including concrete tests, soils tests, etc. 4. We will provide general construction contract administration services during the construction phase, including such tasks as maintaining and documenting all project records and general correspondence with the City, Designer, the Contractor, and any other stakeholders, using Expedition. We will provide any and all services requested by the City or otherwise required for the proper administration of the construction contract. 5. We will prepare contract revisions, if required, during construction to resolve problems due to unanticipated field conditions or other field changes. 6. We will provide construction cost accounting services during the construction phase, including such tasks as progress payment review, cost accounting, budget tracking, general correspondence with the City and Contractor, etc. We will consult with and advise the City on construction cost - related issues. We will meet with the City regularly, at the City's convenience, to discuss construction - related issues. 8. We will assist the City in the closing of the project with services such as Final Acceptance, claims negotiations, filing of the Notice of Completion, and make recommendations for final payment, and release of retention or securities of the Contractor. Incidental tasks in addition to the above include: + We will prepare and submit monthly progress reports documenting the general progress of the construction, along with the progress of submittal reviews, the status of RFPs, any changes to the schedule, status of change orders, and any other pertinent information. & We will monitor the contractor's compliance with all construction and site permits, and advise the City on the appropriate course of action to assist the contractor in complying with the permit conditions. PWComprehensive resources, proven service section 3, Page 4 Project Name: Big Canyon Reservoir ClienVOwner: City of Newport Beach Project Manager. Blaine Barth Prepared By: Gasper Chifici Proj /Prop No.: Option 1B Date: January 27 2004 ENGINEERING SERVICES Officer - OFF Senior Program Manager- SPG Project Director - PD Principal Engineer III - PRIII Program Manager - PGM Principal Engineer II - PRII Principal Engineer I - PR Senior Project Manager - SPM Project Manager - PM Senior Project Engineer - SPE Project Engineer II - SEII Project Engineer I - SEI Senior Engineer - SE Engineer II - EII Engineer l- El Engineering Aide II - EAII Engineering Aide I - EAI ADMINISTRATIVE SERVICES Financial Manager - FM Administrative Manager - AM Senior Administrative Asst II - SAII Senior Administrative Asst I - SAI Project Analyst - PA Administrative Assistant - AA Administrative Clerk - AC OTHER PROFESSIONAL SERVICES Principal Professional, Division Mgr. - PP Sr. Prof. III, Prog Mgr, Sr. Developer III - SPIiI Sr. Prof. 11, Sr. Analyst III, Sr. Devel II - SPII Senior Analyst 11, Sr. Developer I - SAD Sr. Prof. I, Sr. Analyst 1, Developer II - SPI Professional 11, Analyst II - Pit Professional I, Analyst 1, Developer I - PI $190 $175 $166 $150 $145 $140 $135 $125 $115 $108 $102 $96 $88 $85 $75 $50 $45 $110 $80 $66 $62 $57 $50 $43 $160 $145 $125 $110 $90 $75 $65 FEE SUMMARY ITEM TOTAL Labor $219,888 Outside Services $0 Direct Costs $9,220 TOTAL $229,108 BILLING RATES ENVIRONMENTAL SCIENCE Senior Scientist III - SSIII Senior Scientist II - SSII Senior Scientist I - SSI Scientist III - Slll Scientist II - S11 Scientist I - SI Assistant Scientist - AS Research Assistant - RA CONSTRUCTION RELATED SERVICES Senior Construction Manager - SCM Construction Manager - CM Senior Project Engr (Const.) - SPEC Prevailing Wage Field Rep. - PWFR Senior Field Representative` - SFR Construction Mgmt Rep. II` - CMII Construction Mgmt -Rep. I' - CMI (" non - prevailing wage) DESIGN & GRAPHIC SERVICES Senior Design Manager - SDM Senior Designer III - SDIII Senior Designer II - SDII Senior Designer I - SDI Senior Graphics Designer - SGD Designer- DES Graphics Designer- GD Senior CARD Technician - SCT CADD Technician 11 - CTII CADD Technician I - CTI JPA/PBSJ PA400 -VOI California Offices in Irvine, Riverside, Encinitas, and San Diego FILE: Big Canyon Reservoir Option IBAS EXHIBIT B $160 $124 $116 $106 $98 $85 $70 $50 $118 $108 $96 $98 $111 $82 $75 $110 $105 $95 $85 $80 $75 $75 $71 $66 $60 Y a G a V a T a C X a 0 I (O O 0 0 0 0 0 0 V O O O O O O O N 0 Y 7 c co ID LU �On pool ch W L OMB �� W °_om��cW'i Cl rn Or CD 0) A LL P- (O N (O V N t- r W O (O CO N CO E6 r r f 63 m fA fR m fli b°) fH fA fA (A w, fig, 6,J fA VR H3 N N m • dt N 7 • 1 7 O O 0 0 N O O O 0 N O O V 0 61 rl N O co M CD M V v T p N C14 m V 00 0 V R N I I _ r r N N I I o 0 i t I t o 0 o 0 0 0 • 0 0 0 0 • • 0 0 n • 0 0 Q Q r (D N IT C4 U v M N — t2 y r N V N N a- O 00 O 00 00 00 IT O NN N CD OD (D V V V'N v 4 .R o w M 0 Z v 0 p 'v ((D m C (O 4' a1 v O ..... 00 N C C -O W E Vl _ v N U U N p m W F 610 U YJ a'U W Z A Or f- 05 C fD W-0 .N LL Z— w O L of U �O N C N C y" Q w CJ LL a' h O. Q_ d° N W LL C~ a C w Z V U @ N_ rn Z O O 2' rl .6 ca 7 U m �' C U j m D C C' C O is d V a3j V1 co C a' O/ (Ca M Of a) O H tu -7 O a) u! y O �2xlcjC\j 0) �pU�tf°z��° Op LU • s ♦— N N N 3 N U W .-. I— .-. N j O D U C U'2 p 3 NQ a)v 3_�-o-o— �. W w Cl) o E v U) D :: H °oo as ' • 0 W' a) 00) 0ID2 'aa)ioLDo 22 O °c °aaa) 00 t•- Uaa LLL UUUa. Ua Oamof 000LLL dW� =J Y Ha N M 4 L() 6 r 06 6 1 N M V (D O t` aD W 1� N � _F it Q m U 00 W N 0 °c a a n PBS &J Direct Costs DESCRIPTION Pt Task Type Quantity Unit Unit Cost TOTALS Cost Vehicle - Monthly 9 MONTHS $750.00 $6,750.00 Film /Processing 400 PHOTOS $0.30 $120.00 Cell Phone Usage per month 9 VARIES $150.00 $1,350.00 Courier - Next Day 40 TRIPS $20.00 $800.00 Fed Ex 20 PARCELS $10.00 $200.00 TOTAL $9,220 JPA PA400 -2/99 , Big Canyon Reservoir Option 1B.xls - 1/27/2004 e PROFESSIONAL SERVICES AGREEMENT WITH PBS &J FOR CONSTRUCTION ENGINEERING SERVICES THIS AGREEMENT is made and entered into as of this day of 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and PBS &J a corporation whose address is 175 Calle Magdelena, Encinitas, California, 92024 ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statZao the State of California and the Charter of City. kihe I\ B. City is planning to install ng ver and new disinfection facilities at the Big l G {) Canyon Reservoir " �f6 e C. City desires to engage sultant to provide construction inspection and administrative support for the Project. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consult* for purPoses of Agreement shall be Gasper A. Chifici, Vice President a C arles "Skip" Griffin, Jr., Senior Vice President., F. City has solicited and received propo I from Consultant, has reviewed the previous experience and evaluat t expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the day of , 2004, and shall terminate on the 31st day of January, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The ACOR�n. CERTIFICAT OF LIABILITY INSURAWkE ` DATE (MIWDDnYYY)` 03/05/2003' PRODUCER (305)822 -7800 FAX 30 70585 THIS CERTIFICATE IS SUED AS A MATTER O Collinsworth, Alter, Fowler, Dowling & French Group Inc. P. 0. Box 9315 Miami Lakes, FL 33014 -9315 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW, INSURERS AFFORDING COVERAGE NAIC # INSURED Post, Buckley, Schuh, & Jernigan, Inc. d /b /a PBS&J 2001 NW 107 Avenue Miami,, 'FIL 33 172 -2 50 7 INSURERA: Continental Casualty Company A X INSURER R: American Casualty Ca_Reading A X GENERAL LIABILITY INSURER C: Lloyds of London A- XV EACH OCCURRENCE INSURER D: ...... ... INSURER E: X COMMERCIAL GENERAL LIABILITY COVERAGES THE POLICIES, OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY. PERIOD INDICATED: NOTWITHSTANDIN ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR DD`L TYPE OF INSURANCE POLICY NUMBER POUCYEFFECTIVE 09/30/2003 POLICY EXPIRATION DATE INIMIDDIYYJ 09/30/2004 LIMITS GENERAL LIABILITY GL247943206 EACH OCCURRENCE S 1,000,00 X COMMERCIAL GENERAL LIABILITY DAMAGE TO RENTED E 1,600,000 CLAIMS MADE � OCCUR MED EXP (Any one person) $ 25,006 A X Contractual Llab PERSONAL &ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GENT AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMPfOP AGO $ 2,000,000 POLICY M PROT FX LOC AUTOMOBILE LIABILITY ANY AUTO BUA247843223 09/30/2003 09/30/2004 COMBINED SINGLE LIMIT (Ea accident) S 1,000,00 X X BODILY INJURY (Per person) S A ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON-OWNED AUTOS X . (Per amben() $ X • Contractual COnirdCiDal Llab :X PROPERTY DAMAGE .- .,5.. ... . -.. ., GARAGE LIABILITY.'.' :. : {.:;: ,: !; AUTO ONLY - EA ACCIDENT S ANY:AUTO .. _ . .. . OTHER THAN EA ACC AUTO ONLY: AGG $ $. EXCESSAJMBRELLA LIABILITY CUPZ068179760 09/30/2003 09/30/2004 EACH OCCURRENCE $ 10,, 000, 00 X OCCUR O CLAIMS MADE AGGREGATE S 10,000,000 A $ $ DEDUCTIBLE - X RETENTION S 10,00 $ WORKERS COMPENSATION AND WC247843268 09/30/2003 09/30/2004 X WCSTAT% OTH- FR B -EMPLOYERS' LIABILITY ANY PROPRIETOWPARTNERIEXECUTNE OFFICER/MEMSER EXCLUDED?, NO E.L. EACH ACCIDENT S 1,000,000 E.L. DISEASE - EA EMPLOYE $ '1;000,00 If yes, tlescdbe antler SPECIALPROVISIONSbelav - - - E.L. DISEASE - POLICY LIMIT $ 1,000,00 DTH P42303 09/30/2003 09/30/2004 $1,000,000 Limits C roessional/ Pollution Liability CLAIMS -MADE FORM Ea Claim and Annual Aggregate 11/11/1961 Retrodate DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS E: Professional Services Agreement for Constructibility Review Services for the Big Canyon Reservoir. EE ATTACHED Newport Beach, City of 3300 Newport Boulevard Newport Beach, CA 92658 -8915 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR Colli ACORD 25 (2001108) © ACORD CORPORATION 1988 Certificate issued to Newport Beach, City of 03/05/2003 Collinsworth, Alter, Fowler, Dowlinq 10/08/2003 NAMED INSURED: Post, Buckley, Schuh & Jernigan, Inc. d /b /a PBS &J CERTIFICATE HOLDER: City of Newport Beach REF: Professional Services Agreement for Constructibility Review Services for the Big Canyon Reservoir. City of Newport Beach, its elected officials, officers, representatives and employees are named additional insured on the General & Auto Liability, excluding professional services. Insurance evidenced by this certificate shall be primary and non - contributory to that of the certificate holder. Worker's Compensation Liability contains a waiver of subrogation in favor of the City, its elected officials, officers, representatives, and employees. Issuing companies will provide 30 days written notice of cancellation to the certificate holder. • • IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of tins form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001108) POLICY NUMBER: #GL247843206 Post, Buckley Schuh & Jernigan, Inc. dba PBS &J THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS (FORM B) This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART. SCHEDULE Name of Person or Organization: City of Newport Beach It's elected officals, officers, representatives and emploees. 3300 Newport Boulevard Newport Beach, Ca. 92658 -8915 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to this endorsement) WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respects to liability arising out of "your work' for that insured by or for you. Ref: Professional Services Agreement for Contructibility Review Services for the Big Reservoir CG 20 10 11 -85 Copyright Insurance Services Office, Inc. 1984 THIS ENDORSEMEOCHANGES THE POLICY I ADDITIONAL INSURED THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: BUSINESS AUTOMOBILE COVERAGE FORM GARAGE COVERAGE FORM TRUCKERS COVERAGE FORM SCHEDULE NAME OF PERSON LOCATION: N/A ORGANIZATION: City of Newport Beach Its elected officals, officers, representatives and employees 3300 Newprot Blvd. Newport Beach, CA 92658 -8915 WHO IS AN INSURED (SECTION II) IS AMENDED TO INCLUDE AS AN "INSURED" THE PERSON(S) OR ORGANIZATION(S) SHOWN IN THE SCHEDULE BUT ONLY WITH RESEPCTS TO THEIR LIABILITY ARISING OUT OF: a) YOUR WORK FOR THE ADDITIONAL INSURED(S) AT THE LOCATION DESIGNATED, OR b) ACTS OR OMISSIONS OF THE ADDITIONAL INSURED(S) IN CONNECTION WITH THEIR GENERAL SUPERVISION OF YOUR WORK AT THE LOCATION SHOWN IN THE SCHEDULE FOR CLAIMS ARISING OUT OF THE OPERATION, MAINTNANCE, OR USE OF A COVERAGED "AUTO ". REF: Professional Services Agreement for Constructibility Review Services for the Big Canyon Reservoir. This endorsement is part of your policy and takes effect on the effective date of your policy, unless another effective date is shown below. Must be completed ENDT. NO. POLICY NUMBER � BUA247843223 CNA For All The Commitments You Make G- 39543A NRJ/M28GC0 Complete Only When This Endorsement Is Not Prepared With the Policy Or Is Not to be Effective with the Policy ISSUED TO: EFFECTIVE DATE OF THIS ENDORSEMENT 9/30/03 Countersigned by `Di! Weade CoTinsworth Authorized Representative E �.J THIS ENDORSEMENT CHANGES THE POLICY PLEASE READ IT CAREFULLY AMENDATORY ENDORSEMENT — ADDITIONAL INSURED THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: COMMERCIAL GENERAL LIABILITY COVERAGE PART IT IS AGREED THAT THE INSURANCE AFFORDED TO THE ADDITIONAL INSURED IS PRIMARY INSURANCE. IT, HOWEVER, THE ADDITIONAL INSURED HAS OTHER INSURANCE WHICH IS APPLICABLE TO THE LOSS, THE SAID OTHER INSURANCE IS EXCESS OVER ANY OTHER VALID AND COLLECTIBLE INSURANCE PROVIDING COVERAGE. THE COMPANY'S LIMITS OF LIABILITY UNDER THIS POLICY SHALL NOT BE REDUCED BY THE EXISTENCE OF SUCH OTHER INSURANCE. City of Newport Beach Its officals, officers, & employees. 3300 Newport Blvd. Newport Beach, CA 92658 -8915 This endorsement is part of your policy and takes effert on the effective date of your policy, unless another effective date is shown below. Must Be Completed Complete Only When This Endorsement Is Not Prepared With the Policy Or Is Not to be Effective with the Policy ENDT. NO. POLICY NO. ISSUED TO: EFFECTIVE DATE OF THIS ENDORSEMENT GL247843206 Post, Buckley, Schuh & Jernigan, Inc. dba P.B.S. & J. 9/30/03 CNA For All The Commitments You Make Countersigned by `W. Meade Cofnswonh Authorized Representative G- 39543A NRJ/M28GC0 0 0 CNA G- 19160 -A For all the Commitments you Make (Ed. 01/93) WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE POLICY BLANKET WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS This endorsement changes the policy to which it is attached. It is agreed that Part One — Workers' Compensation Insurance G. Recovery from Others and Part Two — Employers' Liability Insurance H. Recovery From Others are amended by adding the following: We will not enforce our right to recover against persons or organizations. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) PREMIUM CHARGE — 5% of the total standard premium for California Exposure. City of Nwport Beach Its elected officals, officers, representatives and employees. 3300 Newport Blvd. Newport Beach, CA 925658 -8915 G- 19160 -A Page 1 of 1 (Ed. 01/93) MAR -10 -2004 WED 04:53 PM FAX N0, P. 01 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Veatch This checklist is cornppLiiied of requirements as outlined by the City of Newport Beach. Date Recelvvd: De t.lContact R cPiv From- 'P Con l ACtoci: "' y t �) t Sent k t t By: 1� � CampnnylPorsc:n required to have certificate; ly 1. GENERAL LIABILITY 1 A. INSURANCE COMPANY: �. (. B. AM EsEST RATING (A: VII or greater): C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? Yes No D. LIMITS (Must be $1M or greater): What is limit provided? [-. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? xYes U No F. ADDITIONAL INSURED WORDI 4." ' Dt- (The City its qii €cers, tiffioials, employees an voluntee is it included? Yes [] No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it iricludod? .. Yes ❑ No hi. CAUTION! (Confirm that lass or liability of the named Insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? © Yes XNo 1, NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of caneellat!on by certifiod mail; per Lauren Farley, the City will accept the endeavor wording. It. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: U Yi :' 4 lc(_m 13. AM I3t36T RATING (A: VII orgreater ): _ ^_ C. ADMITTED COMPANY (Must be California Admitted); Ni Company admitted.in California? Wo�s��,� No D. LIMITS (Must be $11 M min, BI & PD and $500,000 UM): What is limits provided? _�_frr�.-L-L— E. ADDI I -ZONAL INSURED WORD[ UDE (The City its officers, officials, employees and volunteers): is it Included? Yes ❑ No F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only ir, it included? I A Q Yes 0 No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of c,nncOlation by certified mail; per Lauren Farley, the City will accept the endeavor wording. Ill. WOI?ICERS' COMPENSATION A. INSiLINANCE COMPANY. CI D. ki PA AM HEST RATING (A: Vil or greater): _ LIMITS: Statutory WAIVER OF , UBROGATION (To include): MM AULABGVE RE UIRE_MENTS BEEN MET? Is it included? `Yes 0 No [] Yes No ,10 ij CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT OF 10 Agenda Item No. 7 February 10, 2004 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Michael J. Sinacori 949 - 6443311 msinacod@city.newport- beach.ca.us SUBJECT: BIG CANYON RESERVOIR FLOATING COVER AND DISINFECTION SYSTEM - AWARD OF CONTRACT NO. 3037 RECOMMENDATIONS: 1. Approve the plans and specifications. 2. Award Contract No. 3037 to Banshee Construction Company of Colton, California for the Total Bid Price of $5,664,015.00, and authorize the Mayor and the City Clerk to execute the contract. 3. Establish an amount of $450,000.00 to cover the cost of unforeseen work and estimated bonus for early completion. 4. Approve a Professional Services Agreement with Tetra Tech, Inc., for Construction Support Services for a fee of $54,500.00. 5. Approve a Professional Services Agreement with PBS &J for Construction Inspection Services for a fee of $229,108.00. 6. Approve a Professional Services Agreement with Hilts Consulting Group, Inc., for Floating Cover Advisor Services for a fee of $84,000.00. 7. Approve a Professional Services Agreement with URS Corporation for Geotechnical Services for a fee of $24,480.00. 8. Approve a Budget Amendment in the amount of $1,962,587.00 from Un- appropriated Water Enterprise Fund Reserves and $17,300.00 from Grant Fund Contributions to Account No. 7503- C5500690 and increase revenue estimates in to Account No. 500 -4841, EPA Grant. Subject: Big Canyon Res it Floating Cover And Disinfection System -Award of Contract No. 3037 February 10, 2004 Page: 2 DISCUSSION At 2:00 P.M. on January 27, 2004 the City Clerk opened and read the following bids for this project: BIDDER Low Banshee Construction Company 2 Pacific Hydrotech Corporation 3 Griffith Company 4 Pascal & Ludwig Constructors TOTAL BID AMOUNT $5,664,015.00 5,783,518.00 5,950,000.00 6,018,000.00 * Corrected Bid Amount is $5,995,000.00 The low total bid amount is 2 percent above the Engineer's Estimate of $5,540,000.00. The low bidder, Banshee Construction Company, possesses a California General State Contractors License Class "A" as required by the project specifications. In addition, their sub - contractors assigned to complete the covering portion of the contract (roughly 2 million dollars of the project) also have the required experience to complete the project. A check of the Contractors references indicates they have satisfactorily completed road and bridge projects for other municipalities and have done significant work with Caltrans. They have limited experience in this particular type of water resource work, but have assembled a team of well respected sub - contractors in this field to expand their business in the industry. In their most recent water project very favorable comments were received from the agency. BACKGROUND The Big Canyon Reservoir (BCR) is a 600 acre -foot (200 million - gallon) potable water storage reservoir located in Corona del Mar. The full capacity of the reservoir provides the City with 10 days of average water demand storage. If an emergency takes place within the City, those 10 days could be extended by implementing water conservation measures. During the 1950's, the City's wells in Huntington Beach began to experience saltwater intrusion. As a result, the BCR facility was constructed in the 1960's as a main delivery point for the imported Metropolitan Water District supply and the City's wells were subsequently abandoned when the BCR was put into service. An open water reservoir was an acceptable facility in the 1960's; however, as water quality standards have become more stringent over the years, the Department of Health Services (DOHS) mandated the City cover its reservoir or abandon the facility. This mandate has been in effect since 1994. At that time, the City was designing and constructing the Groundwater Development Project and funding was already committed to this effort. The City planned to comply with the mandate and cover the reservoir by setting aside reserves to complete the multi - million dollar project. After four years of applications to EPA, staff was successful last year in securing $867,300.00 in federal funding assistance. 0 0 Subject: Big Canyon Reservoir Floating Cover And Disinfection System - Award of Contract No. 3037 February 10, 2004 Page: 3 Per the contract specifications the Contractor will have 200 consecutive working days to complete the work. The specifications also included a Council directed bonusipenalty clause to provide an incentive to complete the project early ($3,000.00 per day). Council received a detailed presentation of the work to be completed at their September 23, 2003 Study Session. CONSULTANT SUPPORT SERVICES For a project of this magnitude, outside construction support services will be required. In addition, with the Council directed bonus /penalty clause included in the contract documents, the construction activities will require more than full -time attention.to this project to address the extensive requests for inspection from the contractor. Four main firms will be involved in assisting the City to complete this project: Tetra Tech, Inc. is the project design firm providing construction support for shop drawing review, responding to request for clarification and record drawings; PBS &J will provide project inspection and administration; Hilts Consulting Group will provide oversight for the cover installation beginning with material manufacturing and fabrication oversight along with part-time installation observation and advising, and URS will provide the necessary geotechnical services. Tetra Tech, formerly ASL Consulting Engineers, was hired in 1995 to design the floating cover. In June 2002, the City Council approved an amendment to Tetra Tech's contract to include the new disinfection facility which became integral to the cover design. Tetra Tech's expertise will be required to review the multitude of shop drawings, requests for clarification (RFC's), and requests for information (RFI's). On a project of this magnitude we could be looking at a few hundred documents that require detailed review and City approval. Tetra Tech will work in concert with our Utilities Department staff to ensure the best quality products and components are being provided for this project. They will also prepare the Record "As Built" drawings at the completion of the project. The team of PBS &J and Hilts Consulting was used on the 2001 replacement of the El Toro Water District's (ETWD) floating cover. The ETWD staff highly recommends these experts who inspected their cover of roughly the identical size as the Big Canyon Reservoir. The same inspection staff from PBS &J is available for this project, which will be a full -time inspection assignment along with administrative support. By using this same team, the City can draw on the ETWD experience and the lessons learned on that project. Doug Hilts has worked on several floating cover projects over his 20 -year career. Mr. Hilts is considered the industry expert on floating covers who spent the first 10 years of his career working for the Metropolitan Water District managing 3 major floating cover projects. Mr. Hilts will oversee the manufacturing and fabrication of the cover material. He will also be on site during the installation to insure proper construction. URS performed the recent seismic evaluation of the Big Canyon Reservoir Dam and assessed the bottom conditions for Tetra Tech during the cover design process. Their construction support services will include oversight for the reservoir asphalt bottom Subject Big Canyon Reservoir Floating Cover And Disinfection System -Award of Contract No. 3037 ' February 10, 2004 Page: 4 repairs and installation and overall testing services related to the structural elements of the disinfection facility and new access roads. Staff believes the consulting team of Tetra Tech, PBS &J, Hilts Consulting, and URS will be key for the successful and timely completion of this critical project. Professional Services Agreements for the four firms are attached for Council consideration. Environmental Review: A Negative Declaration in accordance with the California Environmental Quality Act (CEQA) has been prepared and approved by the City Council on June 27, 1994. An environmental document in accordance with the National Environmental Policy Act (NEPA) was developed by EPA as part of the implementation of the grant program. The NEPA document and associated Finding of No Significant Impact (FONSI) was issued in December 2003. Fundino Availabili A Budget Amendment is required to complete this project. The FY 2003/04 CIP for the covering project identified a contribution of $850,000.00 in federal funding. The final approved EPA Grant Award is $867,000.00. An additional $1,962,587.00 needs to be appropriated from the Un- Appropriated Water Enterprise Fund reserves. The City has anticipated this expenditure and has set aside funds over the last several years to . accomplish this project. Upon approval of the recommended Budget Amendments, sufficient funds will be available in the following accounts for the project: Account Description Account Number Amount Big Canyon Reservoir Covering (Water Fund) 7503- C5500690 $5,818,018.00 Big Canyon Disinfection Improvements (Water Fund) 7503- C5500689 $688,085.00 TOTAL $6,506,103.00 Prepared by: t Submitted bye/ J. Sinacori, P.E. �S46 n G. Badum I Engineer PutIfic Works Director Attachments: Bid Summary Professional Services Agreement with Tetra Tech, Inc. Professional Services Agreement with PBS &J Professional Services Agreement with Hilts Consulting Group Professional Services Agreement with URS, Inc. 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FOR BIDDING AND CONSTRUCTION SERVICES THIS AGREEMENT is made and entered into as of this _ day of , 20_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and TETRA TECH, INC. a Corporation whose address is 16241 Laguna Canyon Road, Suite 200, Irvine, California, 92618 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to install a floating cover and new disinfection facilities at the Big Canyon Reservoir (the "Project "). C. City desires to engage Consultant for Bidding and Construction Phase Services for the Project. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Steve Tedesco, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the _ day of 2004, and shall terminate on the 31s` day of January 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The 0 0 City may elect to delete certain tasks of the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Agreement, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Fifty Four Thousand Five Hundred Dollars and no /100 ($54,500.00) without additional authorization from City. No billing rate changes shall be made during the tens of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 4.2 City shall reimburse Consultant only for those costs or expenses Asspecifically approved in this Agreement, or specifically approved in 2 Ll 0 advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the is services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of services for this Agreement, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Steve Tedesco to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel services under this Agreement without the prior written consent of City. City s approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously fumish the necessary personnel to complete the services on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 0 3 0 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new . facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate . with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. fl 0 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and 1101 hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted under this Agreement (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION 5 E Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the • work to be performed. City agrees to cooperate with the Consultant. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that havwbeen scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. • A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. I. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of N. the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with . the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers. the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: I. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess 7 insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the • Consultant under this Agreement will be permitted only with the express written M consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY 0 All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 20. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. LJ 0 21. RECORDS • Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 22. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his /her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 10 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Michael J. Sinacori, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3342 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Steve Tedesco, P.E. Tetra Tech, Inc. 16241 Laguna Canyon Road, Suite 200 Irvine, CA 92618 Phone: 949 - 727 -7099 Fax: 949 - 727 -7097 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of 11 is termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 29. 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. 30. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govem. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 12 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Mayor for the City of Newport Beach TETRA TECH, INC.: 0 Steve Tedesco Vice President Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f: luserslpbwlsharedlagreementslfy 03- 041tetra tech -bcr floating cover.doc 13 9 11 0 u E TETRATECH, INC. Infrastructure Services Group October 7, 2003 Mr. Michael J. Sinacori, P.E. Utilities Manager City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 OU Y 7gy3 Reference: Big Canyon Reservoir Floating Cover and Disinfection Facilities Proposal for Bidding and Construction Phase Services Dear Mr. Sinacori: Tetra Tech, Inc. is pleased to submit this proposal to provide bidding and construction phase services for the Big Canyon Reservoir Floating Cover and Disinfection Facilities Project. Bidding Phase Services Following our submittal of signed plans and specifications to the City, bidding services to be provided to the City shall include: 1. Coordination and response to questions from contractors and.equipment suppliers. 2. Attend the prebid conference and job walk- 3. Preparation of any addenda. 4. Review of bid results. It is anticipated that the bidding phase will be approximately 45 days, with a bid opening scheduled for November 2003. Construction Phase Services The construction phase services will consist of the following tasks: 1. Shop Drawings will be reviewed for items including the floating cover, disinfection facilities, mechanical equipment, piping, site work, electrical, instrumentation and structural. 2. Requests for Clarification (RFC) will be addressed from the contractor. The proposal assumes an average 40 RFCs from the contractor will be addressed. 3. Site Visits/Meetings - Up to 12 site visits/project meetings will be attended by Tetra Tech staff to meet with the City and contractor. 4. Review of contractor change orders. We have assumed assistance with 4 to 5 change orders. 5. Record Drawings - Upon completion of construction, the contractor's red line plans will be used to prepare record drawings. Both mylars and electronic files will be updated accordingly and provided to the City. 6. Reimbursable expenses include mileage, printing, mylars, etc. 16241 Laguna Canyon Road, Suite 200, Irvine, CA 92618 Tel 949.727.7099 Fax 949.727.7097 www.tetMtech.com EXHIBIT A TETRATECH, INC. Infrastructure Services Group Mr. Michael J. Sinacori, P.E. October 7, 2003 Page 2 The construction phase schedule is estimated to start in December 2003 and be completed in October 2004. The total construction time is 200 working days. The Scope of Services and Fee Schedule are presented in the attachments. The total requested fee for bidding and construction phase services is $54,500. We look forward to continuing this project through completion. Sincerely, Steve Tedesco, P.E. Vice President SDT /SE:cg JA0606\0055V- 007se.doc(100) Attachments 0 0 TETRA TECH, INC. CITY OF NEWPORT BEACH Big Canyon Reservoir Floating Cover and Disinfection Facilities SCOPE OF SERVICES The following additional services are provided for the bidding and construction phase of the project: Bidding Assistance Shop Drawings RFCs/Change Orders Site Visits/Meetings (12) Record Drawings Reimbursibles $ 6,000.00 $ 26,000.00 $ 9,000.00 $ 8,000.00 $ 4,500.00 $ 1.000.00 Total $ 54,500.00 Our billing rates are presented in the attached rate schedule per Exhibit "A ". JA0606\0055U- 007se.do (3 00) 0 0 TETRATECH, INC. EXHIBIT "A" 2004 . HOURLY CHARGE RATE AND EXPENSE REII IMURSEMENT SCHEDULE Professional Engineering Intern/Technician ................... $ 48.00 Designer /CAD Operator/Engineer I........... $ 89.00 Engineer H and IHfSenior Designer .......... $ 100.00 Biologist ...................... ............................... $ 99.00 Pl anner......................... ..............................$ 99.00 Senior Engineer/Landscape Architect........ $ 115.00 Project Engineer/Project Coordinator........ $ 135.00 Senior Pl anner ............. ............................... $ 140.00 Senior Scientist ........... ............................... $ 140.00 Project Manager /Sr. Project Coordinator... $ 150.00 Senior Project Manager .............................. $ 165.00 Program Director/Project Director ...........:. $ 200.00 Administrative Administrative Clerk ... .:............................. $ 42.00 Word Processor /Admin. Support ............... $ 58.00 Graphic Designer ........ ............................... $ 94.00 Survev/Maonine Survey Technician I .... ............................... $ 90:00 Survey Technician Wield Supervisor...... $ 100.00 Senior Surveyor .......... ............................... $ 115.00 Project Surveyor ......... ............................... $ 135.00 Two-Person Survey Party .......................... $ 185.00 Two - Person Survey Party with GPS.......... $ 225.00 Three- Person Survey Parry ........................ $ 268.00 Survey Travel Time (Two - person) ............ $ 90.00 Survey Travel Time (Three- person) ........... $ 127.00 Construction Management Construction Observer ............................... $ 78.00 Senior Construction Observer .................... $ 85.00 Resident Engineer ....... ............................... $ 120.00 Construction Manager . ............................... $ 150.00 Reproduction, special photography, postage, delivery services, express mail, out -of -area telephone calls, printing and any other services performed by subcontractor, will be billed at cost plus 15 %. Reimbursable In -House Costs Photo Copies (B &W 8.5 "xl F ...... $ 0.10/Each Photo Copies (B &W 11 "x1T')....... $ 0.35/Each Color Copies (up to 8.5 "x11 ") ........ $ 1.50/Each Color Copies (to 11 "x17") .............. $ 2.50/Each Compact Disks . ............................... $10.00/Each Large Format Copies ..................... $ 0.301S.F. Computer Time ............................. $10.00/Hour Mileage ............ ............................... $ 0.40/Mile NOTE: All rates are effective to October 1, 2004. There will be a negotiated increase in rates, 5% minimum per year, for contracts extending beyond October 1, 2004. EXHIBIT B 7:\060610055)1- 007mdoc(100) • 0 0 PROFESSIONAL SERVICES AGREEMENT WITH PBS&J FOR • CONSTRUCTION INSPECTION SERVICES THIS AGREEMENT is made and entered into as of this _ day of , 2004, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and PBS&J a corporation whose address is 175 Calle Magdelena, Encinitas, California, 92024 ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to install a floating cover and new disinfection facilities at the Big Canyon Reservoir (he "Project "). C. City desires to engage Consultant to provide construction inspection and administrative support services for the Project. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members of Consultant for purposes of Agreement shall be Gasper A. Chifici, Vice President, and Charles "Skip" Griffin, Jr., Senior Vice President. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the day of 2004, and shall terminate on the 31st day of January, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of • Services attached hereto as Exhibit A and incorporated herein by reference. The 3. 4. 0 0 City may elect to delete certain tasks of the Scope of Services at its sole discretion. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Agreement, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Two Hundred Twenty Nine Thousand One Hundred Eight Dollars and no /100 ($229,108.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in 2 E 0 9 0 advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of services for this Agreement, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated John Klimuszko to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel for services under this Agreement without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove personnel assigned to the performance of services under this Agreement upon written request of City. Consultant warrants that it will continuously fumish the necessary personnel to complete the services on a timely basis as contemplated by this Agreement. The Consultant is performing inspection and construction management services for City. The Project Manager and any other assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City staff. Consultant's Nextel Direct Connect I.D. number will be provided to City to be programmed into City Nextel units, and vice versa. 3 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by Il 0 0 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. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in charge of and shall not be responsible for the project's design, City s project contractor ( "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a .Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on under this Agreement (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 5 10. 11. 12. 13. 14. 0 INDEPENDENT CONTRACTOR 0 It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. U 0 0 B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers 7 0 0 the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). . E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents'and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. A. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. �J • • 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transferor other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS . Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents"), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon, prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. E 19. 20. 21 22. 23. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction • of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be bome by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. cl 01 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Michael J. Sinacori, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3342 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Gasper A. Chifici PBS &J 175 Calle Magdalena Encinitas, CA 92024 Phone: 760 - 753 -1120 Fax: 760 - 753 -0730 26. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this • Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are 11 reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt . of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. 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. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govem. 0 12 0 E 32. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 33. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 34. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Tod W. Ridgeway, Mayor for the City of Newport Beach PBS&J: By: Gasper A. Chifici, Vice President Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f:l userslpbv,Ashared%agreements\fy 03 -04bbs &1-ber floating cover.doc 13 Scope of Services PBS&i's goal is to provide professional services that create value for our clients through technical excellence and innovation DESCRIPTION OF FACHITIES The facility for which this scope of work is intended is the Big Canyon Reservoir for the City of Newport Beacb. The work required for the facility includes the addition of a floating cover and side slope chafer, a sump and rainwater collection system, a cement slurry bottom, repairs to the existing asphalt lining, a sub -drain system, four new mixing pumps, disinfection facilities, an asphalt ramp, and various related appurtenant improvements SCOPE OF SER«CES Based on our experience with similar projects, and our understanding of your needs, the following scope of services describes the anticipated tasks and level of effort anticipated for the construction phase of the Project The Scope is purposely described in terms that allow you to decide upon the level of service you require from us. The is fee proposal that accompanies the Scope is therefore presented in two three separate options. Option 1 includes Construction Engineering only —tbat is, full time project inspection and related tasks. Option 1B includes Construction Engineering and a limited amount of Construction Management oversight, and does not include submittal review, logging, or tracking, which would be done by either the designer, or City staff. Option 2 includes Construction Engineering and full Construction Management & Administration. The extent of construction management services is based upon the following construction phase schedule assumptions. It is assumed that the actual construction will require nine (9) months (approximately 40 weeks) for completion. Based on our experience on similar construction projects, we anticipate that there will be a two - week mobilization and start-up phase involving submittal review and site work that will require only limited on-site project observation. There will then be a 36 -week period of major construction that will require increased project observation, followed by 2 weeks that will require diminishing levels ofproject observation during the punch list and start-up phase. Field Inspection and Resident Engineering during Construction (Construction Engineering) Field Inspection and Resident Engineering services are those services typically performed by a qualified Construction Field Representative or Resident Engineer, with support from a qualified Construction Manager. Each of our Field Comprehensive resources, proven service Section 3, Page I EXHIBIT A Representatives and Resident Engineers is furnished with a vehicle, laptop computer, digital camera, and cellular phone. During the construction of the project, PBSO will provide the following construction phase services, as a minimum: 1. We will provide one full -time on -site Resident Inspector, subject to the City's approval, for project observation and field engineering services during the construction phase, to- assure that the progress and quality of work is in conformance with the contract documents and the City s expectations, and to inform the City of the overall progress. He will prepare Daily Inspection Reports documenting the progress of construction, including notations of visitors to the site, weather conditions, contractor work force and equipment, changed conditions encountered, workmanship, safety concerns, and all associated construction- related issues. The Resident Inspector will also provide daily construction photo documentation. He will document construction activities on a daily basis, and specific issues as they occur. Construction photographs will be taken using a minimum 2.0 megapixel digital camera or 35 mm standard format pocket camera. Standard format film will be developed and scanned onto a CD as digital images. Photo proof sheets with thumbnail images shall be attached to the Daily Construction Progress Reports. All digital files will be transferred to the City upon completion of the project and will be organized by date. The Resident Inspector will report directly to the City's Project Manager for this project. The project is expected to take approximately 9 months to complete. Our Resident Inspector will establish his schedule based upon the Contractor's. 2. We will attend and conduct weekly on -site Construction Team Progress meetings with the Contractor, Designer, sub-contractors, and the City, with a fixed agenda, producing action items with designated responsible parties and due dates. 3. We will issue, process and track Requests for Information (RFIs) for interpretations and clarifications of the contract documents. The appropriate design engineer may review interpretations and clarifications. We will consult and advise the City on the effects of the interpretations and clarifications of the contract documents. 4. We will provide as- needed scheduling services for periodic review, analysis and tracking of the Contractor's construction schedule. 5. We will review, negotiate and make recommendations on construction contract change orders to address contract revisions, design changes, unanticipated field conditions, additional work requests, etc. 6. We will observe initial operation and testing of the completed project, and prepare a punch list of deficiencies and follow up with the Contractor to ensure that the deficiencies are corrected in a timely manner. 7. We will coordinate and manage the City - provided construction materials testing services. It is assumed that the City will provide independent contract construction testing services for items such as cover materials, concrete, rebar, welding, coatings and geotechnical. 1 Comprehensive resources, proven service Section 3, Page 2 E 0 8. We will coordinate and manage the City - provided construction surveying support services. It is assumed that the City will provide independent contract construction surveying support services for items such as boundary control, rough grade stakes, line and grade stakes, finish grade stakes and final grade verification. 9. We will perform a final inspection of the project a. We will schedule and conduct substantial completion inspections, prepare and issue punch lists, and advise the City when the completed facility is acceptable. b. We will provide construction management services and assistance to the City, as required, related to operational aspects of the constructed facility. c. We will prepare a final report documenting the contractor's actual versus planned progress schedule, start-up procedures, the disposition of all claims and disputed change orders that impact the City's long -term interests, and all other pertinent information. d. We will present the City with a complete set of all project records in hard copy and electronic format. We will make certain that changes are made to the drawings based upon Contractor - furnished record of construction changes, and our own independent documentation. e. We will collect from the Contractor all equipment submittal information required for an O&M Manual for the project f. We will provide construction management services to the City during the 12- month warranty period, including 11th month warranty inspection and coordination and inspection of remedial work performed by the Contractor. Other incidental tasks that are included in the above are: Pe Assuming that the State of California's provisions for Prevailing Wage apply with respect to the inspection of this project, and in accordance with the State of California's requirements, PBS&J will prepare weekly Certified Payroll Documentation for this project 0 We will assure that the contractor keeps up with the documentation of all field changes to the plans and specifications. Construction Management and Administration during Construction Construction Management and Administration Services are typically performed by a qualified Construction Manager and/or Resident Engineer, and a part-time off -site clerical assistant When Construction Management and Administration is included in the services we perform, we also add the following Construction Engineering tasks: I. We will support and coordinate the efforts of all subconsultants provided by either the City or by PBS&J. During the construction phase, PBS&J will provide the following Construction Management and Administration services, as a minimum: 1 �. 61 Comprehensive resources, proven service Section 3, Page 3 11 L 0 0 0 1. We will prepare the agenda for and conduct the pre - construction conference, and issue minutes of the meeting within 3 days. 2. We will log, track and review Contractor submittals using Expedition (or other software if the City so desires). The Construction Management team will review all Contractor submittals with the exception of those requiring review by the design engineer. We will consult and advise the- City on the acceptability of substitute materials and equipment proposed by the Contractor. 3. We will coordinate and review lab, shop and null test reports and results of field materials testing, including concrete tests, soils tests, etc. 4. We will provide general construction contract administration services during the construction phase, including such tasks as maintaining and documenting all project records and general correspondence with the City, Designer, the Contractor, and any other stakeholders, using Expedition. We will provide any and all services requested by the City or otherwise required for the proper administration of the construction contract. 5. We will prepare contract revisions, if required, during construction to resolve problems due to unanticipated field conditions or other field changes. 6. We will provide construction cost accounting services during the construction phase, including such tasks as progress payment review, cost accounting, budget tracking, general correspondence with the City and Contractor, etc. We will consult with and advise the City on construction cost - related issues. We will meet with the City regularly, at the City's convenience, to discuss construction - related issues. 8. We will assist the City in the closing of the project with services such as Final Acceptance, claims negotiations, filing of the Notice of Completion, and make recommendations for final payment, and release of retention or securities of the Contractor. Incidental tasks in addition to the above include: + We will prepare and submit monthly progress reports documenting the general progress of the construction, along with the progress of submittal reviews, the status of Urs, any changes to the schedule, status of change orders, and any other pertinent information. 6 We will monitor the contractor's compliance with all construction and site permits, and advise the City on the appropriate course of action to assist the contractor in complying with the permit conditions. Comprehensive resources, proven service Section 3, Page 4 Project Name: Big Canyon Reservoir Client/Owner: City of Newport Beach Project Manager: Blaine Barth Prepared By: Gasper Chifici Proj/Prop No.: Option 1B Date: January 27, 2004 ENGINEERING SERVICES Officer - OFF Senior Program Manager- SPG Project Director - PD Principal Engineer III - PRIII Program Manager- PGM Principal Engineer II - PRII Principal Engineer I - PR Senior Project Manager - SPM Project Manager - PM Senior Project Engineer - SPE Project Engineer 11- SEII Project Engineer I - SEI Senior Engineer - SE Engineer 11- Ell Engineer l- El Engineering Aide II - EAII Engineering Aide I EAI ADMINISTRATIVE SERVICES Financial Manager - FM Administrative Manager - AM Senior Administrative Asst II - SAII Senior Administrative Asst I - SAI Project Analyst - PA Administrative Assistant - AA Administrative Clerk - AC OTHER PROFESSIONAL SERVICES Principal Professional, Division Mgr. - PP Sr. Prof. III, Prog Mgr, Sr. Developer III - SPIII Sr. Prof. 11, Sr. Analyst III, Sr. Devel II - SPII Senior Analyst II, Sr. Developer I - SAD Sr. Prof. I, Sr. Analyst I, Developer 11- SPI Professional II, Analyst II - Pit Professional I, Analyst 1, Developer I - PI $190 $175 $165 $150 $145 $140 $135 $125 $115 $106 $102 $96 $88 $85 $75 $50 $45 $110 $80 $66 $62 $57 $50 $43 $160 $145 $125 $110 $90 $75 $65 FEE SUMMARY ITEM TOTAL Labor $219,888 Outside Services $0 Direct Costs $9,220 TOTAL $229,108 BILLING RATES ENVIRONMENTAL SCIENCE Senior Scientist III - SSIII Senior Scientist 11- SSII Senior Scientist I - SSI Scientist III - Sill Scientist II - SII Scientist I - S1 Assistant Scientist - AS Research Assistant - RA CONSTRUCTION RELATED SERVICES Senior Construction Manager- SCM Construction Manager - CM Senior Project Engr (Const.) - SPEC Prevailing Wage Field Rep. - PWFR Senior Field Representative' - SFR Construction Mgmt Rep. II` - CMII Construction Mgmt Rep. I` - CMI r non - prevailing wage) DESIGN & GRAPHIC SERVICES Senior Design Manager- SDM Senior Designer III - SDIII Senior Designer II - SDII Senior Designer I - SDI Senior Graphics Designer- SGD Designer - DES Graphics Designer - GO Senior CADD Technician - SCT CADD Technician II - CTII CADD Technician I - CTI California Offices in Irvine, Riverside, Encinitas, and San Diego FILE: Big Canyon Reservoir Option 1B.)ds EXHIBIT B $160 $124 $116 $106 $98 $85 $70 $50 $118 $108 $96 $98 $111 $82 $75 $110 $105 $95 $85 $80 $75 $75 $71 $66 $60 • u T O 1.11 m V d N m it 7 0 0 O Q J -'7 Q a 0 n m rn N v Q a a M O 000000 VO. 0000000 N 047 CD co co Go W C) I, CD CD (M c00 VO �O C. 0Om�TONl c•07 cl W 0 OD 01 W a1 LL �� I��Ct>N N C V �N1�— ai c0 C Cis M Ali T T f9 fA E9 69 tH 69 6Y ER f9 � G3 vA N N N f9 f9 C4 N 69 • • LO co LO 1 Mt�9 0 000 V NNCN7 co ,r ON W X00 COO V V N OR'0V S ci 0 0 0 0 0 0 0 0 0 0 • 0 0 0 0 • 0 0 LO f00 N C,4 tnq tnl V V 0 ? O` Cl N T N 7 N N ca V O 0 0 0 t- 0 0 O O O O V N O V o 333 V N N N O O b co V V V T O v O p N U Z tA� v m m� a^ c 0 C C W E f!1 ^ C C.07 yZ N Z C m (!1 '�O •� LL Z t_- g O v Or U ca omEv"0 0) t~il ZLLmaaF�° K -°� aai CA *-5 N N O 0 Q' m 0 ad N 7 y Z L) — � Z Q N mp O O N N� U Co W U1 O O Z a p F m m p F= 2��v'��a°�i�� d.Z c��a 00 WW Er wooa'S yy3!! y E d y_ Q C aCj a"i d "m a) m 12 -- H y Q • N O O ML E Z O C` L > N O O A o IL f+ O y N O 0 T N1 J Ua"CLmX()LL UIL Ua00-wU�00L)E CLW �~ W rN fi V 66 il:6Oi c-N ch V 661 W 6 1-:N as a Q m U 00 a 0 n m rn N v Q a a PBS &J Direct costs DESCRIPTION Pt Task Type Quantity Unit Unit Cost TOTALS Cost Vehicle - Monthly 9 MONTHS $750.00 $6,750.00 Film /Processing 400 PHOTOS $0.30 $120.00 Cell Phone Usage per month 9 VARIES $150.00 $1,350.00 Courier- Next Day 40 TRIPS $20.00 $800.00 Fed Ex 20 PARCELS $10.00 $200.00 TOTAL $9220 SPA PA400 -2/99 Big Canyon Reservoir Option 1B.xls- 127/2004 E • 0 PROFESSIONAL SERVICES AGREEMENT WITH HILTS CONSULTING GROUP, INC. FOR REPRESENTATIVE SERVICES THIS AGREEMENT is made and entered into as of this _ day of 20_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and HILTS- CONSULTING GROUP, INC. a corporation whose address is 16716 Quail Country Avenue, Chino Hills, California, 91709 ( "Consultant "), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to cant' on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is� planning to install a floating cover and new disinfection facilities at the Big Canyon Reservoir (The "Project"). C. City desires to engage Consultant to provide manufacturing, fabrication and installation observation services for the cover portion of the Project. • D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E., The principal member of Consultant for purposes of this Agreement shall be Douglas Hilts, S.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the _ day of 2004, and shall terminate on the 31st day of January, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference. The 0 9 0 City may elect to delete certain tasks of the Scope of Services at its sole discretion. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent-and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Agreement, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to -exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Eighty Four Thousand Dollars and no /100 ($84,000.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in E 9 P J 0 • advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of services for this Agreement, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Douglas Hilts to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel for services under this Agreement without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove personnel assigned to the performance of services under this Agreement upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the services on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 3 VA 0 0 CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to cant' out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate directly to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted under this Agreement (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of 5 11 12. 13. 14. control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. COOPERATION Consultant agrees to worts closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his/her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 0 0 0 D. Coverage Requirements. L General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iii. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: L The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. v. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. FA 0 vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint - venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to 01 0 Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings • and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 20. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 0 r� L �J 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the �. Project. 23. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after • the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Michael J. Sinacod, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3342 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Douglas Hilts, S. E. Hilts Consulting Group, Inc. 16716 Quail Country Avenue Chino Hills, CA 91709 Phone: 909- 590 -5200 is 10 i • 25. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 26. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 27. 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. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 29. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 11 30. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 31. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 32. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 33. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, A Municipal Corporation By: City Attorney Tod W. Ridgeway, Mayor for the City of Newport Beach for the City of Newport Beach ATTEST: HILTS CONSULTING GROUP, INC.: By: LaVonne Harkless, Douglas Hilts, S.E. City Clerk President Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f:lusers%pbw'sharedlagreements* 03- 041h11ts4)a floe ft cover.doc 0 12 Hilts Consultina Grouu. Inc. 16716 Quail Country Ave. Chino Hills, CA 91709 \� (909) 590 -5200 February 2, 2004 City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 Attn.: -Mr. Mike Sinacori Big Canyon Reservoir — Floating Cover Project — City Representative Services Mr. Sinacori, Hilts Consulting Group, Inc. (HCG) had completed a peer review for the City of Newport Beach (City) Big Canyon Reservoir Improvement Project. As part of the peer review, HCG reviewed plans and specifications prepared by the City's design consultant, Tetra Tech, and attended coordination review meetings with City personnel and Tetra Tech. The Big Canyon Reservoir Improvement Project is currently advertised for public bidding. HCG would like to submit our proposal to provide City Representative Services for the floating cover aspects of this project. SCOPE OF WORK: HCG would like to submit our proposal for City representative services to assist the City during the construction of the Big Canyon Reservoir Floating Cover Project. HCG's involvement on the Big Canyon Reservoir project is limited to the floating cover portions of work. The scope of work has been jointly defined between HCG and the City and includes the following tasks: Project Management / Coordination • Back check previous peer review comments. Attend peer review coordination meeting with City and Tetra Tech. Attend mandatory contractor pre -bid meeting. Provide coordination with the City and Tetra Tech during construction. Construction Period Support: • Attend kick -off meeting with City, Tetra Tech, and Contractor. U-N �C t� • r-r L-A Big Canyon Reservoir — Floating Cover Project — City Representative Services February 2, 2004 Page 2 of 4 • Review geomembrane manufacturer's quality control / quality assurance plan for the floating cover and chafer. • Review geomembrane fabricator's quality control / quality assurance plan for both the floating cover and-chafer. • Review geomembrane installation contractor's quality control / quality assurance plan for both the floating cover and chafer. • Review contractor floating cover related submittals. Construction Meetings / Site Visits: • Attend weekly construction coordination meetings. This proposal assumes (16) 1 -hour meetings which will be conducted by others. • Site visits during construction of the floating cover. This proposal assumes on site 2 days per week during the construction of the floating cover. The floating cover construction duration is assumed at 16 weeks. Site visits 2 days per week for up to 4 weeks during the initial fill and start up of the floating cover. Interact with the City's inspector (or hired inspector) relative to floating cover construction activities. Off -Site Observations Visits: • Site visit and observation to geomembrane manufacturing facility during - the production of the reinforced polypropylene floating cover material. This proposal. assumes 2 days on site during the manufacturing for a portion of the geomembrane material. This random observation does not assume full -time inspection. • Site visit and observation to geomembrane fabricator facility during the fabrication of the reinforced polypropylene floating cover prefabricated panels. This proposal assumes 2 days on site during the fabrication for a portion of the floating cover panels. This random observation does not assume full -time inspection. The construction phase services are based on the following assumptions: • Inspection services are not part of this proposal, and the City will separately engage inspection services. • All material testing will be performed by the Contractor and under the direction of the on site inspector. Material testing is not included in this proposal. • Responses to Contractor RFI's shall be performed by others. • HCG will provide comments on Contractor submittals. The submittals shall be reviewed by the design engineer of record and HCG's comments shall be in addition to the design engineer's comments. C� V Big Canyon Reservoir — Floating Cover Project — City Representative Services February 2, 2004 Page 3 of 4 The consolidation of HCG comments with those comments by other reviewers shall be performed by others. • Construction progress coordination meetings shall be conducted by others. Meeting minutes shall be prepared by others. • Contractor progress pay applications shall be reviewed performed by others. • Contractor's initial construction schedule and periodic update reviews shall be performed by others. • Contractor change order reviews shall be performed by others. PROFESSIONAL FEES: The professional fees for the city representative services scope of work defined above are proposed on time and materials basis plus reimbursables, with an estimated maximum payable amount of $84,000. A cost breakdown by task is listed below. Task Estimated Fee Project Management / Coordination $12,000 Construction Period Support $58,000 Off -Site Observation Visits $12,000 Misc. Reimbursables $2,000 Total $84,000 Billing will be in accordance with the attached fee schedule. At the direction of the City, additional services may be performed and shall be based on the hourly rates in the attached fee schedule plus reimbursable expenses. HCG will submit invoices to the City on a monthly basis commensurate with work completed as of the billing date. Invoices will indicate the total amount billed to date of all previous invoices, the current invoice amount, and the remaining agreement amount. LIMITATIONS: The design of the Big Canyon Reservoir Improvement Project was designed by entities other than HCG. HCG is not the design engineer of record, and as such, HCG assumes no design liability for the design concepts, drawings, and specifications. HCG's involvement during the construction phase shall be limited to the floating cover components, and shall not include other items such as the chemical storage and feed systems, mechanical systems, electrical systems. HCG's involvement is to assist the City during the construction phase for the floating cover portion of work. ?\ . �Ci� Big Canyon Reservoir — Floating Cover Project — City Representative Services February 2, 2004 Page 4 of 4 HCG appreciates the opportunity to submit our proposal. If you have any questions regarding this proposal, please call me at (909) 590 -5200. Very truly yours, Hilts Consulting Group, Inc. ougl s Hilts, S.E. Principal Attachments 0 \\\ �I \` HILTS CONSULTING GROUP. INC. \ FEE SCHEDULE V FOR PROFESSIONAL ENGINEERING SERVICES- Big Canyon Reservoir— Floating Cover Project City Representative Services Professional Services: Classification I Title Hourly Billing Rate Principal $150.00 Senior Engineer $125.00 Project Draftsperson $85.00 Clerical $40.00 . Reimbursable Expenses Reproduction Cost plus 15% Outside Consultant Services Cost plus 15% Automobile Transportation $0.325 / mile Delivery / Courier/ Express Mail Cost plus 15% Travel / Subsistence Cost Rates effective for calendar year 2004 v 0 PROFESSIONAL SERVICES AGREEMENT WITH URS CORPORATION FOR OBSERVATION AND TESTING SERVICES THIS AGREEMENT is made and entered into as of this _ day of , 20_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ("City"), and URS Corporation, whose address is 2020 East First Street, Suite 400, Santa Ana, California, 92705 ( "Consultant"), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to install a floating cover and new disinfection facilities at the Big Canyon Reservoir (the "Project "). C. City desires to engage Consultant to perform geotechnical observation and testing services for the Project. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Jean Suter Hill. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the _ day of 2004, and shall terminate on the 31st day of January, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 0 0 Consultant shall diligently perform all the services described in the Scope of . Services attached hereto as Exhibit A and incorporated herein by reference. The • • City may elect to delete certain tasks of the Scope of Services at its sole • discretion. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to- perform the services in a diligent and timely'manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Agreement, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. In no event shall Consultant's compensation exceed Twenty Four Thousand Four Hundred and Eighty Dollars and no /100 ($24,480.00) without additional authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in FA 5. • advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of suboonsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work' means any work that is determined by City to be necessary for the proper completion of services for this Agreement, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Jean Suter Hill to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel services under this Agreement without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services under this Agreement upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the, services on a timely basis as contemplated by this Agreement. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 3 0 • 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by ' this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 8.4 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or be in n charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be -responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities; costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted under this Agreement (including the negligent and /or willful acts, errors and/or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. 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. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents oir employees of City. 5 0 0 Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance "of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Slanature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of L4 Best's Key Rating Guide, unless otherwise approved by the City s Risk Manager. Coverage Requirements. i. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his ocher employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. ii. General Liability. Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property. damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. iii. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. iv. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are, to be covered as additional insureds with FA 0 E 0 0 r� respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers., V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either parry except after thirty (30) calendar days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of. or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the prior written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon prior written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. M 11 0 r� U 20. RECORDS 0 . Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his/her designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially . affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 10 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, to City by Consultant and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Michael J. Sinacori, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3342 Fax: 949 -644 -3311 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: . Attn: Jean Suter Hill URS, Corporation 2020 East First Street, Suite 400 Santa Ana, CA 92705 Phone: 714 - 835 -6886 Fax: 714 - 667 -7147 26. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. Notwithstanding the above provisions, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days prior written notice to Consultant. In the event of 11 termination under this Section, City shall pay Consultant for services satisfactorily • performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. 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. 29. INTEGRATED CONTRACT • This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 31. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 32. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 12 The laws of the State of California shall govem this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 34. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation By: Tod W. Ridgeway, Mayor for the City of Newport Beach URS Corporation: By: Steve Pearson Senior Vice President Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f :lusers\pbwlsharedlagreementsNfy 03- 041urs -bor floating ower.doc 13 0 • 0 0 ! ! January 30, 2004 Mr. Michael J. Sinacori, P.E. Project Manager Public Works Department City of Newport Beach 3300 Newport Boulevard P.O. Box 1768 Newport Beach, California 92658 SUBJECT: PROPOSAL TO PROVIDE FIELD OBSERVATION AND TESTING SERVICES BIG CANYON RESERVOIR FLOATING COVER AND DISINFECTION FACILITIES PROJECT NEWPORT BEACH, CALIFORNIA Dear Mr. Sinacori: URS Corporation (URS) is pleased to have this opportunity to propose construction observation and materials testing services as part of the City of Newport Beach's quality assurance program . for the subject project. Specifically, we propose to provide the following services on an as- needed basis: • Engineering services to assist the City with the review of the contractor's submittals • Field technician(s) to observe subdrain construction observations and perform QA tests on soils and asphalt The following paragraphs describe our proposed scope of services in more detail. ENGINEERING SERVICES Over the past 4 years, URS' engineers have provided various services to the City relative to Big Canyon Dam and Reservoir. Most recently, we designed a subdrain to control the groundwater table under the existing porous asphalt lining while the cover construction work is proceeding in the reservoir. The subdrain will be tied into the existing "East Underdrain" system at the reservoir, and provide additional capacity to reduce pore water pressures under the lining during future lowerings of the reservoir. We propose to continue to make our principal engineer for the Big Canyon project, Ms. Jean Hill, available to the City for as- needed construction -phase assistance in reviewing required contractor submittals for the new subdrain, including, but not limited to, product data and material certifications for conformance with the technical specifications, and the contractor's trench excavation plan, possibly including an Excavation Safety Plan (possibly including shoring design) for consistency with accepted safe practices. EXHIBIT A URS Corporation 2020 East First Street, Sune 400 Santa Ana, CA 92705 Tel: 714.835.6886 Fax: 714.667.7147 EXHIBIT A 0 n U Mr. Michael J. Sinacori, P.8 City of Newport Beach January 30, 2004 Page 2 of 3 Ms. Hill will also be responsible for scheduling technicians for construction -phase field assignments as described in the following paragraphs, and preparation of a report at the end of construction presenting our field observations and test results. Ms. Hill, a California - registered civil engineer, will stamp and sign the construction report. FIELD OBSERVATION AND TESTING SERVICES Our proposed field observation and testing services includes the subdrain work designed by URS as well as new pavement and base designed by others. Specifically, our field technician(s) will provide the following services: • Observation and documentation of the contractor's methods of trench excavation and groundwater control including assistance to the City's survey crew in obtaining the as- built line and grade of the trench invert, and verification of the minimum trench width. • . Testing of the proposed pipe bedding and backfill and the trench backfill materials prior to use in construction for conformance with the technical specifications. Observation, testing and documentation of subdrain pipe- laying and backfill operations for conformance with the technical specifications, particularly compaction requirements. At least one field test will be made per material type per construction shift. We will utilize the nuclear test gage for determining relative compaction, with daily quality control checks using a sand cone apparatus. Assistance to the City's survey crew in obtaining the as -built line and grade of the subdrain pipe. Observation, testing and documentation of the contractor's pavement construction for conformance with the project specifications, including, but not limited to, testing of the aggregate base gradation, measuring the asphalt temperature at placement, documenting the base and pavement section thicknesses, and testing the in -place density of the asphalt Asphalt density testing will be performed using the nuclear test gage. TERMS URS proposes to perform the above- described construction -phase services on the time -and- materials basis under the City's standard professional services agreement. Although we have not reviewed the terms of a specific agreement, we note that we have not taken significant exception to the City's terms in the past. Without knowledge of the contractor's schedule, it is difficult to estimate the office and field effort that will be required to complete the scope of work proposed herein. The following table presents our unit rates and recommended initial budget allowance. Our rate for the field technician is based on prevailing wage rates for "Field Soils and Material Tester" per the California Labor Code. We have assumed 8 -hour days for the field technician. u 0 11 URS ' Mr. Michad J. Sinacori, P.E. City of Newport Beach January 30, 2004 Pave 3 of 3 Personnel Category Unit Rate Estimated Recommended Comments - Quantity Initial Budget . PM /Principal (J. Hill) $160/hr 40 hrs. $5,400 Sr. Project/ Project $1151hr 12 hrs. $1,380 Significant effort not Professional anticipated; however, occasional effort may Sr. Staff! Staff $701hr 4 hrs. $280 Professional be required to assist PM's review work Word Processor/ $55/hr 4 hrs. $220 Project Asst. Field Technician $900 /day 18 days $16,200 Rate includes time, vehicle, and all field and laboratory testing effort. Hourly rate: $125/hr, 2 hrs min. TOTAL $24,480 1 71 URS looks forward to continuing work with the City on the Big Canyon Reservoir project. If you have any questions or comments regarding this proposal, please do not hesitate to call Ms. Jean Hill at 714- 648 -2756. Very truly yours, URS CORPORATION Jean Suter Hill Principal Engineer 11 EXHIBIT B Vy of Newport Beade NO. BA- 031 BUDGET AMENDMENT 2003 -04 EFFECT ON BUDGETARY FUND BALANCE: Pq Increase Revenue Estimates Increase Expenditure Appropriations AND Transfer Budget Appropriations SOURCE: from existing budget appropriations X from additional estimated revenues X from unappropriated fund balance EXPLANATION: This budget amendment is requested to provide for the following: AMOUNT: $1,979,887.00 0 Increase in Budgetary Fund Balance X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance To increase revenue estimates and expenditure appropriations related to the B!9 Canyon Reservoir Floating Cover and Disinfection System. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Amount Fund Account Description Debit Credit 500 3785 Water Fund Infrastructure Reserve $1,962,587.00 REVENUE ESTIMATES (3601) Fund /Division Account Description 500 4841 Water Fund - EPA Grant $17,300.00 EXPENDITURE APPROPRIATIONS (3603) Description Division Number 7503 Water Fund - Pumping & Operating Account Number C5500690 Big Canyon Reservoir Cover $1,979,887.00 Division Number Account Number Division Number Account Number Division Number Account Number • Automatic System Entry. Signed: Fina c'aval: Administrative Services Director Date Signed: Administrative proval: City Manager bate Signed: City Council Approval: City Clerk Date