Loading...
HomeMy WebLinkAboutC-3314(A) - PSA for project management and traffic engineering servicesPROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this Zfi) day of 0c , 1999, by and between CITY OF NEWPORT BEACH , a Municipal Corporation (hereinafter referred to as "City "), and Austin -Foust Associates, Inc., whose address is 2020 North Tustin Avenue, Santa Ana, California, 92705 -7827, (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 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 considering an expansion of Newport Center ( "Project "). C. City desires to engage Consultant to update the Newport Beach Traffic Analysis Model (NBTAM) and prepare both short and long range traffic analysis of the proposed project and alternatives to the project upon the terms and conditions contained in this Agreement. D. The principal members of Consultant for purpose of Project are Terence W. Austin, Joe E. Foust, and Krys Saldivar. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms of conditions provided in this Agreement. -1- 0 0 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 date of execution, and shall terminate on the 31st day of August, 2000, 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 shall not exceed the total contract price of Sixty -nine Thousand Four Hundred dollars ($69,400). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 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 -2- 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. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 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. Retentions may be released upon satisfaction of the following: NBTAM update, Draft Traffic Study and Final Traffic Study. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultants 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 -3- 0 0 standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the tens of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of -4- 0 0 City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with 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 Terence W. Austin 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 and the services shall be performed by Consultant in accordance with the schedule specified below. The failure by Consultant to strictly adhere to the schedule may result in -5- termination of this Agreement by City, and the assessment of damages against Consultant for delay. 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 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, and 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 either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. W 0 0 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 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 -7- 0 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 employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company certified to do business in the State of California, with original endorsements, with Best's A- VII or better carriers, unless otherwise approved by City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering thins party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. 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). -8- • • 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, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 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. 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 0 more of the voting power, or twenty-five percent (25 %) or more of the assets of the corporation, partnership orjoint- 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. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: -10- 0 0 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. 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. Richard Edmonston shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his 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 -11- 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 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. -12- 9 0 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 Consultants violation of this Section. 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. -13- • All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach Attn: Public Works Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3311 Fax (949) 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Terence W. Austin Austin -Foust Associates, Inc 2020 North Tustin Avenue Santa Ana, CA 92705 -7827 (714) 667 -0496 Fax(714)667 -7952 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 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 -14- 0 0 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 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. PATENT INDEMNITY The 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 -15- 0 E 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: Robin Clauson LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: Dennis D. O'Neil, Mayor City of Newport Beach Austin -Foust Associates, Inc. By: / f:WserstPbMshared\agreementsNfy 99- Maustin -bust associates.doc -16- Dealey, Renton & Associates 600 So. Lake Avenue, Ste. 308 Pasadena CA 91106 626 - 844 -3070 Austin Foust Associates Inc 2020 North Tustin Avenue Santa Ana, CA 92705 COVERAGES OF LIABILITY IN�tANCE 10/28/99 DATE THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION 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 INSURERA: St. Paul Fire & Marine A+ XIV INSURER B: American Motorists Ins. Co. A XI INSURER c: Design Professional Ins. Co. A X INSURER D: 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 O MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUC POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. SR'. LTR TYPE OF INSURANCE IY)WCY NUMBER POLICY kFFEC7IVE POLICY RXPHIATION —..._ ATE /DD DAM IMMIQD ]LIM11IS A GENERALLUaaITY jRP06642703 08/15/99 08/15/00 hEACHOCCURRENCE fl 000, 000 �sIncluCled X COMMERCIAL GENERAL LIAR ILITY FIRE DAMAGE (Any ow.fire) — CLAIMS MADE. XI OCCUR MEDEXP (Ay orcme ) s5,000 PERSONAL & ADV INJURY $1,00 0'000 i1 (GENERAL AGGREGATE �f 2, OOO, OOO GENT AGGREG ATE LIMIT APPLIES PER:, (��29 'I L�� PRODUCTS - COMPIOPAGG 152, 0001 00 0, POLICY. PR0. LOT A AUTOMOBILE LIABILITY 'RP06642703 08/15/99 08/15/00 (COMBINED SINGLE LIMA ... �(Ea acciden0 S1r O0O, 000 ANY AUTO ALLOWNEDAUTOS .BODILY INJURY S SCHEDULED AUTOS(�r X HIRED AUTOS BODILY INJURY S X NONAWNEDAUTOS (Pe` ice) PROPERTY DAMAGE S (i!r" idw) GARAGE 1.IAB13.I1Y AUTO ONLY - EA ACCIDENT IS— OTHERTBAN EA ACC I S _ - -- ... ANY AUTO AUTO ONLY: AGG $ EXCESS LIABILITY EACH OCCURRENCE $ OCCUR jI CLAIMS MADE I AGGREGATE I S DEDUCTIBLE S RETENTION S is B WORKERS COMPENSATION AND 7CW21231603 09/01 /9909 /01 /00 XTOS STT OTH- . ER ....... ........ ....... EMPLOYERS' LIABILITY I IE.L. EACH ACCIDENT _ SILOOO,OOO IE.L.DISEASE - EAEMPLOYEE fl, OOO, OOO E.L. DISEASE - POLICY LIMB 11 0 0 0 O 0 O C OTOER Professional PL514478 03/25/99!03/25/00;$1,000,000 per claim Liability $2,000,000 annl aggr. DESCRIPTION OF OPERATIONS /[ACATTONS/VEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS Re: Transportation Modeling With respect to the general liability and auto liability, City of Newport Beach, its officers, agents, officials, employees and volunteers are named as additional insured. The Workers Compensation contains a Waiver of Subrogation against the additional insured. City of Newport Beach Attn: Shauna Oylor P.O. Box 1768 Newport Beach, CA 92658 -8915 ACORD25- S(7/97)1 of 1 #523026 ', T13E ISSUDJG ]INSURER WD.L jUWAIL3_0_ DAYS WRITTEN CERTIFICATE HOIDERNAMED TOT'HE IEFS I AUTHORIZED REPRESENTA AA.V sro 3025 JMV 0 ACORD CORPORATION 19M 0 WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA 0 KEMPER National Insurance Companies (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective: Policy No. 7CW212316 -03 Insured: Premium $$ (at audit) Austin Foust Associates Inc. Insurance Company: AMERICAN MOTORISTS IN�RANCE CQMPANY Countersigned by SCHEDULE Person or Organization Job Description City of Newport Beach, its elected officials, officers, agents, representatives and employees We have the right to recover our payments from anyone liable for an injury by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 25% of the California workers compensation premium otherwise due on such remuneration. Minimum Premium $100. THIS ENDORSEMENT CHANGES THE POLICY TO WHICH IT IS ATTACHED AND IS EFFECTIVE ON THE DATE ISSUED UNLESS OTHERWISE STATED. WC 04 03 06 (Ed. 04 84) Printed in the U. S. A. 0 0 GENERALENDORSEMENT In consideration of an additional premium of N/A it is hereby understood and agreed that the following applies: [ X ] ADDITIONAL INSURED is /are Additional Insured /s as respects to work done by Named Insured. City of Newport Beach, its elected officials, officers, agents, representatives and employees [ X ] PRIMARY COVERAGE With respect to claims arising out of the operation of the Named Insured, such insurance as afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the above Additional Insured /s. [ X ] WAIVER OF SUBROGATION It is understood and agreed that the Company waives the right of subrogation against the above Additional Insured /s for project described in certificate attached hereto. [ X ] CROSS LIABILITY CLAUSE The naming of more than one person, firm or corporation as Insureds under this policy shall not, for that reason alone, extinguish any rights of one insured against another, but this endorsement, and the naming of multiple Insureds, shall not increase the total liability of the Company under this policy. [ X ] NOTICE OF CANCELLATION It is understood and agreed that in the event of cancellation of the Policy for any reason other than non - payment of premium, 30 days written notice will be sent to the following by mail: City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 -8915 In the event the policy is canceled for non - payment of premium, 10 days written notice will be sent to the above. Policy No: RPO6642703 Effective Date: 8/15/99 Insurance Company: St. Paul Fire & Marine Issued to: Aktstin Foust Associates Inc. u Issue Date: 10/28/99 Authorized epresentative - JACQUELINE M. VICK OCT -27 -99 WED 03:07 PM . FAX NO, • KCAL- SURANCE CERTIFICATE OF INSURANCE CHECKLIST CTTY OF NEWPORT BEACH THIS CHECKLIST IS COMPRISED OF REQUIREMENTS AS OUTLINED ABY THE CITY OF NEWPORT BEACH. P. 02 DATE RECEIVED: /d ^Z 7^ 1 DEPARTMENT / CONTACT RECEIIVED/ FROM: " Gh d M Q (" /- DATE- COMPI.ETED: 5 1Q1��� SENT TO: ✓K BY: k C G�dr t'1 COMPANY/PERSON REQUIRED TO HAVE CERTIFICATE: A ysh `FyJ6� w �e c TiL _ GENERAL LIABILITY n '^� ' A. INSURANCE COMPA1W:� • Y �trt Y o-- yt-t B. AM BEST RATING (A VIT or grenter):_. + C. ADMITTED COMPANY: ( Must be California Admitted) Is company admitted in California'? Yes No__ D. LIMITS: (Must be 31.000,000 or grcatcr) What is limit provided ?_ �o e E. PRODUCTS AND COMPLETED OPERATIONS: (Mist Include) Is it included? Yes-v- No_ F. ADDITIONAL INSURDED WORDIN TO INCLUDE: ( The City its officers. agents, officials, employees and volunteers). Is it included? Yes No_ _ G. PRIMARY AND NON CONTRIBUTORY WORDING: (Must be included) Is it inctuded7 Yes-zNo� H. CAUTION! ( Confirm that loss or liability of the Namcd insured is not limited solely by their negligence.) Does endorsement include "solely by negligence' wording.? Yes No_-Ne�f 1. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley the City will accept the endeavor wording. TI. AUTOMOBILE LIABILITY: ��" " A. INSURANCE COMPANY: �iT• � FlrL 4 r& %KT- _ B. AM BEST RATING (A VII or grcatcr): C. ADMITTED COMPANY: (MUST 13E CALIFORNIA ADMITTED) Is company admitted? Yes No D. LIMITS: ( Must be $1.000,000 ntinimiurt BI & PD and $500,000 UM) What is limits provided ?_ jPWA 0, 0� E. ADDITIONAL INSURED WORDIN O INCLUDE: (The City its officers .agents, officials, employees and volunteers). Is it included'? Yes V No_ WO� F. PRIMARY AND NON CONTRIBUTORY RDING: (Must be included). Is it included? Ycs'V' No_ __ G. NOTIFICATION OF CANCELLATION: Allhough then; is a provision that requires notification of ranccllation by certified mail: per Lauren Farley the City will accept the endeavor wording. III. WORKERS COMPENSATION- A. A. INSURANCE COMPANY: Yy-aA VYWi01�tSi S CD . B. AM BEST RATING (A VII or grcater)�(N( �_ C. LIMITS: Statutory D. WAVIER OF SUBROGATION: (To include). Is it included'? Yes_ No — \C HAVE ALL AT3OVF REQUIREMENTS BEEN MET? Yes No —Z IF NO, WHICH ITEMS NEED TO BE COMPLETED ?fir OCT-27-99 WED 03:06 Ph! • FAX N0, • O CAL- SURANCE COMMERCIAL DEPARTMENT FAX COVER SHEET DATE: October 27,1999 TIME: TOTAL NO. OF PAGES INCLUDING COVER ( 5 ) TO FROM FAX NO.:949 -644 -3316 FAX NO.: (714) 939 4654 COMPANY: City of Newport Beach SENDER: Mark Zahoryin ATTENI ION: Shauna Oyler PHONE NO.: (714) 939 -7463 RE: Certificate of Insurance for Austin Foust Associates Inc. Dear Shauna: P. Ol Enclosed is the checked certificate of insurance on Austin Foust Associates Inc.. Please refer to the bottom of the checklist for additional requirements. In addition please note the am Best rating listed on the certificate are in error and I have listed the corrected ones on the checklist, Please call if you have any questions with this certificate, Thank You , Mark 333 City Boulevard West, Orange, CA 92868' P.O. Box 7048, Orange, CA 92863- 7048' (714)939.0800' FAX (714)939 -1654 NOV. -02 -99 TUE 06:31 PM 1,1101199 17:31 PUL &WORKS 4 917149391654 CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT P.O. BOX 1768 NEWPORT BEACH, CA 92658.8915 FAX NO. • AM QlL NO.479 Del F" COVER SHEET DATE: Aspq FAX NUMBER: 714- 030 -1054 COMPANY: CAL SURANCE ATTENTIONOF.' OLA � SUBJECT; APPROVAL OFINSURANCE DOCUMENTS hNOY 0 /9yg b DRY /N��IT FROM' SHAUNA OYLER FAXED BY: Shaun& PHONE NUMBER: (040) 644 -3311 F //AX NUMBER; (940) 644.3318 NUMBER OF PAGES INCLUDING COVER SHEET: C� COMMENTS: PLEASE APPROVE ASAP Ua% C? W/9 Please Notify Sender if Tr8n&mission Is Incomplete. 1: 1uf�ra�CCwAsharpQ�ppn1 /BC{BVr���llBH'.'al5yr�nCy (sx.10C PROFESSIONAL SERVICES AGREEMENT FOR NEWPORT CENTER PROJECT THIS AGREEMENT, entered into this day of Cc , 1999, by and between CITY OF NEWPORT BEACH , a Municipal Corporation (hereinafter referred to as "City "), and RKJK & Associates, Inc., whose address is 1601 Dove Street, Suite 290, Newport Beach, California, 92660, (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 considering an expansion of Newport Center ('Project'). C. City desires to engage Consultant to provide project management and staff support for the Traffic and Parking Studies necessary to evaluate the impacts of the proposed project upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are John Kain, Principal; Carleton Waters, Senior Associate; and Ann Cadavona, Planner. E. City has solicited and received a proposal from Consultant, has reviewed -1- the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms of 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 date of execution, and shall terminate on the 31 st day of August, 2000, 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 shall not exceed the total contract price of Fourteen Thousand Dollars ($14,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty -2- 0 • (30) days of receipt of invoice subject to the approval of City. 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. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 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. 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 -3- personnel required to perform the services required by this Agreement and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to l� 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 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 John Kain 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. B. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement -5- 0 0 and the services shall be performed by Consultant in accordance with the schedule specified below. The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City, and the assessment of damages against Consultant for delay. 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 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, and 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 either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project U 0 0 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 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 -7- 0 0 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 employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company certified to do business in the State of California, with original endorsements, with Best's A- VII or better carriers, unless otherwise approved by City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. Professional errors and omissions insurance which covers the services to be performed in connection with this Agreement in the minimum amount of In 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, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 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. 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 ME r� 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 orjoint- 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. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this -10- 0 0 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. 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. Richard Edmonston 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 -11- 0 0 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 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. 5VA 0 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. 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. -13- 0 0 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach Attn: Public Works Department 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3311 Fax (949) 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: John Kain RKJK & Associates, Inc. 1601 Dove Street, Suite 290 Newport Beach, CA 92660 (949) 474 -0809 Fax (949) 474 -0902 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of -14- 0 0 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 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. 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. -15- E 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Irow M011(itiq Assistant City Attorney ATTEST: LaVonne Harkless City Clerk WS \Pb S r.dWgroeme Vy99Wgjk.gmxrntd. -16- CITY OF NEWPORT BEACH A Municipal Corporation ` By. d Mayor City of Newport Beach RKJK & Associates, Inc. ACORD. CERTIFICWE OF LIABILITY IN�RANCE 1 / 6/99 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Dealey, Renton & Associates ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 600 S. Lake Avenue, Suite 308 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Pasadena, CA 91106 626 8 4 4 - 3 0 7 0 INSURERS AFFORDING COVERAGE INSURED ._ _. ..... _.. :ALimcER A: St. Paul Fire & Marine RKJK & Associates Inc IN -- _.. I _. 1601 Dove St., Suite 290 INSURERS American Motorists Ins. Co. Newport Beach, CA 92660 INSURERc:Design Professional Insurance Co. 1 INSURER D: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FORTHE POLICY PERIOD INDICATED. NOTWITHSTANDIN ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED Of MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 1S SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUC POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INER. _.._.___— ......BER LTR TYPE OF INSURANCE POLICY NUMBER DATEfM FDD/YY) IPoLICYBIVIADD ION - _.. .._..__.. __ _...... .. DATE /DD DATE /DD/Y LIMITS • GENERAL LIABILITY RP06655966 10/14/99 10/14/00 EACH OCCURRENCE S1, OJ_000 _ -- X COMMERCLM.GE NER_ . sIncluded FIRE DAMAGE (An- . rcfre) . .... CLAIMS E X OCCUR MED EXI_(Any orc rwn) _ 15 , 0 0.0 PERSONAL & ADV INJURY S1, 000y000 GENERAL AGGREGATE f2, 000, 000 G ENL AGG R EG ATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG S2, 000. L 000 .. PR0. ...., POLICY' E LOC _ .. ._ .. . • AUTOMOBILE LIABILITY RP06655966 10/14/99 10/14/00 COMBINED SINGLE LIMIT !f1,000 (Ea xcidenp , 000 ANY AUTO ALL OWNED .AUTOS BODILY INJURY S SCHEDULED AUTOS (Per Person) X HIREDAUTO$ BODILY INJURY S X NON- OWNEDAUTOS ;(Per.cidenl) PROPERTY DAMAGE S (Perweidenq GARAGE LIABILITY AUTO ONLY - EA ACCIDENT S ANY AUTO:. i . OTHER THAN EA ACC $ AUTO ONLY: AGO S EXCESS LIABILITY i EACHOCCURRENCE S OCCUR CLAIMS MADE AGGREGATE DEDUCTIBLE f RETENTION S .S B WORISERSCOMPENSATIONAND 7CW30541701 10/14/99 10/14/00 -X T RsTATU -$_ —_ OER . —_.- EMPLOYERS' LIABILITY . E.L. EACH ACCIDENT S 1,10 0 0, 0 0 0 E.LiDISEASE -EA EMPLOYEE. S1, 000, 000 . E.L. DISEASE - POLICY LIMIT' 51 , 0 0 0 , 0 0 0 C OTHER Professional PL51435201 10/14/99110 /14/00 $1,000,000 per claim Liability $1,000,000 annl aggr. DESCRIPTION OF OPERATIONS / LOCATIONS /VF,IDCLES/EXCLUSIONS ADDED BY ENDORSEMENT /SPECIAL PROVISIONS City of Newport Beach, its officers, agents, officials, employees and volunteers are named as an additional insured as respects general and auto liability for claims arising from the operations of the named insured. The workers compensation policy contains a waiver of subrogation against the additional insured. L"MMIGILMV19 City of Newport Beach Attn: Shauna Oyler Public Works Dept P.O. Box 1768 Newport Beach, CA 92658 -8915 ACORD25•S(7 /97) 1 of 1 #522844 LID ANYOFME ABOVE DESCRIBED POLCES BE CANCELLED BEFORE THE EXPIRATION TMREOF, TIE ISSUING INSURER WILLENDEAVOR TOMAD.3 0___, DAYS WR ,N ETOME CERTIFEATE HOLDERNAMED TOME LEFT, BUTFAILURE TODOSOSHALL SE NO OB LIGATION OR LIABILHYOF ANYIDND UPON THE INSURER,II'S AGENTS OR REPRESENTATIVE 800 JLS 0 ACORD CORPORATION 198E 0 0 GENERALENDORSEMENT In consideration of an additional premium of N/A it is hereby understood and agreed that the following applies: [ X ] ADDITIONAL INSURED is/are Additional Insured /s as respects to work done by or for Named Insured. City of Newport Beach, its officers, agents, officials, employees and volunteers [ X ] PRIMARY COVERAGE With respect to claims arising out of the operation of the Named Insured, such insurance as afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the above Additional Insured /s. [ X ] WAIVER OF SUBROGATION It is understood and agreed that the Company waives the right of subrogation against the above Additional Insured /s for project described in certificate attached hereto. [ X ] CROSS LIABILITY CLAUSE The naming of more than one person, firm or corporation as Insureds under this policy shall not, for that reason alone, extinguish any rights of one insured against another, but this endorsement, and the naming of multiple Insureds, shall not increase the total liability of the Company under this policy. [ X ] NOTICE OF CANCELLATION It is understood and agreed that in the event of cancellation of the Policy for any reason other than non - payment of premium, 30 days written notice will be sent to the following by mail: City of Newport Beach Attn: Shauna Oyler Public Works Dept P.O. Box 1768 Newport Beach, CA 92658 -8915 In the event the policy is canceled for non - payment of premium, 10 days written notice will be sent to the above. Policy No: RP06655966 Effective Date: 10114/99 Insurance Company: St. Paul Fire & Marine Issue to: / / RKJK & Associates Inc. w Issue Date: 10/27/99 Authorized Representative - Norah L. S. Small WORKERS COMPENSATION AND KEMPER EMPLOYERS LIABILITY INSURANCE POLICY WAIVER OF OUR RIGHT TO RECOVER FORM OTHERS ENDORSEMENT - CALIFORNIA (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 10/14/99 Policy No. 7CW30541701 Endorsement No. Insured RKJK & Associates Inc Premium $ AT AUDIT Insurance Company AMERICAN MOTORISTS INSURANCE COMPANY Countersigned by 1/ SCHEDULE Person or Organization Job Description City of Newport Beach, its officers, agents, officials, employees and All Operations volunteers We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applied only to the extent that you perform work under a written contract that required you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The addition premium for this endorsement shall be 2% of the California workers compensation premium otherwise due on such remuneration. Minimum Premium: $100. THIS ENDORSEMENT CHANGES THE POLICY WHICH IT IS ATTACHED AND IS EFFECTIVE ON THE DATE UNLESS OTHERWISE STATED. WC 04 03 06 (Ed. 04 84 Printed in U.S.A. OCT -27 -99 WED 10:10 AM • FAX NO, • P. 02 KCAL- SURANCE CERTIFICATE OF INSURANCE CHECKLIST CITY OF NEWPORT BEACH THIS CHECKLIST IS COMPRISED OF REQUIREMENTS AS OUTLINED ABY THE CITY OF NEWPORT BEACH. DATE RECEIVED: -pI�' DEPARTMENT /CONTACT RECEIVED FROM: MAUAJ a LF DATE CCMPLETED: /,%/a71g9 SENTTO:_ .s1f B BY: 1"M COMPANY/PERSON REQUIRED TO HAVE CERTIFICATE: __ ,JK4J�%FS GENERAL LIABILITY: A. INSURANCE COMPANY:_ S1: PAUL, FlRF M&W B. .4,M BEST RATING (A VI(ar greater): : a'17 _ C. ADMII -rE-D COMPANY: ( Must be California Admitted) Is company admitted in California? Ycs , NO- D. LIMITS: (Must be 51,000,000 or greater) What is limit provided? 1 E. PRODUCTS AND COMPLETED OPERATIONS: (Must Include) Is ff include l Yes No F. ADDITIONAL INSURDED WORDING TO INCLUDE: ( The City its officers, agents, officials, employees and volunteers). Is it included'? Yes_ No � G. PRLNL4RY AND NON CONTRIBUTORY WORDING: (Must be included) Is it included'.' Yes ✓ No H. CAUTION! (Confirm that loss or liability of the Named insured is not limited solely by their negligence.) Does endorsement include "solely by negligence" wording? Yes_,_,_, No I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation b% certified mail; per Lauren Farley the City will accept the endeavor wording. TI. AUTOMOBILE LIABILITY: A. INSURANCE COMPANY: 6r. E, MHRIMF B. AM BEST RATING (A VII or greater): ¢ .9 C. ADMITTED COMPANY: ( MUST BE CALIFORNIA ADMITTED) Is company admitted? Yes ✓ No D. LIMITS: ( Must be $1.000,000 minimum BI & PD and $500,000 UM) What is limits provided? �i 000, � E. ADDITIONAL INSURED WORDING TO INCLUDE: (The City its officers ,agents. officials, cmptoyccs and volunteers). 1s it included.? Yes _ No F. PRIMARY AND NON CONTRIBUTORY WORDING: (Must be included). is it included? Yes No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail, per Lauren Farley the City v.911 accept lbc endeavor wording. III. WORKERS COMPENSATION A. INSURANCE COMPANY: B. AM BEST RATING (A VII or greater)__ .XV C. LIMITS: Statutory D. WAVIER OF SUBROGATION: (To include). Is it included? Yes ✓ No_ HAVE ALL ABOVE REQUIREMENTS BEEN MET? Yes No 9PL>1176A)f1 L IN509FD'/ AFXR THE wHIYfl?, UF SW791)rW71PI-I Opt/ 7?/2F- �RTIFlCi7T� -02 -99 TUE 06:29 PM FAX N0, P, 01 11A01199 17:39 PUB KS 4 91714`)J`Jnbn4 • ••- -- - -- CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT P.O. BO; 1768 NEWPORT BEACH, CA 92658 -8915 FAX COVER SHEET DATE: 9 FAXNUMBER: 714 - 939 -t8tf4 COMPANY: CAL ${TRANCE ATTENTION O CELIA REC�I QE F. D SUBJECT: APPROVAL OF INSU�QOCUMENTS Nov 1969 ;'AhnrjyjN 11IVIT FROM: SHAUNA OYLER FAXED BY: Shaun PHONE NUMBER: (949) 644 -3311 FAX NUMBER: (949) 644 -3718 NUMBER OF PACES INCLUDING COVER SHEET: COMMENTS: PLEASE APPROVE ASAP cC Plsese Notify Sender If Transmission Is Incomplete. I /ar,doc C -3M- • October 25, 1999 CITY COUNCIL AGENDA ITEM NO. APPRGULJ TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: APPROVAL OF CONSULTANT AGREEMENTS FOR TRAFFIC ENGINEERING SERVICES IN CONJUNCTION WITH THE NEWPORT CENTER PROJECT RECOMMENDATIONS: Approve a Professional Services Agreement with Austin -Foust Associates, Inc. for updating the traffic model and preparing the traffic study for inclusion in the Newport Center General Plan update EIR. • 2. Approve a Professional Services Agreement with RKJK & Associates, Inc. for project management and traffic engineering services. DISCUSSION: It is recommended that 2 consulting firms be retained by the City in order to ensure the timely completion of the traffic studies required for the Newport Center Project EIR. Austin -Foust Associates, Inc., will update the City's traffic model and perform both short and long range traffic analyses for the project. The short-range analysis will be based upon the recently revised Traffic Phasing Ordinance. RKJK & Associates, Inc. will provide project management and supplemental traffic engineering services as required. The 4 project proponents, who are also funding the EIR, will pay the cost of both contracts on a proportional basis and other costs associated with the project through a cost - sharing agreement, previously approved by the City Council. Actual payments to the consultants will be made from a Deposit Account set up for this purpose. Austin -Foust Associates, Inc. Agreement The consulting firm of Austin -Foust Associates, Inc. has been chosen to update the City's traffic model and perform the traffic studies required for the Newport Center Project EIR. This firm has maintained the Newport Beach Traffic Analysis Model (NBTAM) for over 15 years. This update is required to address local and regional • changes to land use and circulation since the last update in 1996. This firm has also SUBJECT: Approval of Consultar> eements for Traffic Engineering Services in Conju with the Newport Center Project October 25, 1999 Page 2 performed traffic studies for several major projects within the City in the past and is well • qualified to perform the traffic and parking analyses needed for this project. The Professional Services Agreement with Austin -Foust Associates, Inc. has a cost of $69,400. The NBTAM update will cost $13,400 and the Newport Center Traffic Study will cost $56,000. The attached Agreement includes additional details on the Scope of Work to be performed by this consultant. RKJK & Associates. Inc. Agreement In order to assist staff with the timely completion of the model update and the traffic studies for the Newport Center Project, it is recommended that the firm of RKJK & Associates, Inc., be hired. This firm has done project traffic studies for the City and is very familiar with the City's requirements. They are also recognized as one of the leading traffic modeling firms in the County and are well suited to provide the additional services needed to expedite this project. The Agreement with RKJK & Associates, Inc. is for $14,000. RespectfOryLk submitted, PUBLIC WORKS DEPARTMENT Don Webb, Director By: e4:t�o�&V,r.,do._- Richard Edmonston, P.E. Transportation.and Development Services Manager Attachments: Professional Services Agreement, Austin -Foust Associates, Inc. Professional Services Agreement, RKJK & Associates, Inc. \ \MIS_1 \SYS\ Users \PBW\Shared\COUNCIL \Fy99-00 \October- 25\Ccnsultent Agmt. Newport Ctr..doc i • • 0 0 PROFESSIONAL SERVICES AGREEMENT FOR NEWPORT CENTER PROJECT THIS AGREEMENT, entered into this day of 1999, by and between CITY OF NEWPORT BEACH , a Municipal Corporation (hereinafter referred to as "City"), and RKJK & Associates, Inc., whose address is 1601 Dove Street, Suite 290, Newport Beach, California, 92660, (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 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 considering an expansion of Newport Center ( "Project'). C. City desires to engage Consultant to provide project management and staff support for the Traffic and Parking Studies necessary to evaluate the impacts of the proposed project upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are John Kain, Principal; Carleton Waters, Senior Associate; and Ann Cadavona, Planner. E. City has solicited and received a proposal from Consultant, has reviewed -1- the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms of conditions provided in 0 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 date of execution, and shall terminate on the 31 st day of August, 2000, 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 shall not exceed the total contract price of Fourteen Thousand Dollars ($14,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty -2- Q • 0 0 (30) days of receipt of invoice subject to the approval of City. is 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. is B. Approved computer data processing and reproduction charges. • I S 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. 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. 4. STANDARD OF CARE 4.1 AN of the services shall be performed by Consultant or under Consultants supervision. Consultant represents that it possesses the professional and technical -3- • • personnel required to perform the services required by this Agreement and that it will perform all services in a manner commensurate with the community professional • standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control • or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to is M1 0 0 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 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 John Kain 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 M1 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. S. TIME OF PERFORMANCE Time is of the essence in the performance of the services under this Agreement -5- 0 0 and the services shall be performed by Consultant in accordance with the schedule specified below. The failure by Consultant to strictly adhere to the schedule may result in • termination of this Agreement by City, and the assessment of damages against Consultant for delay. 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 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, and 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 either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project 51 9 • 0 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 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 -7- • 0 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 employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company certified to do business in the State of California, with original endorsements, with Best's A- VII or better carriers, unless otherwise approved by City Risk Manager. A. Worker's compensation insurance covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1. • million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. D. Professional errors and omissions insurance which covers the services to be performed in connection with this Agreement in the minimum amount of Na • 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, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a • waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 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. 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 fU C 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, fumish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this -10- ,2 • • • 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. • 18. ADMINISTRATION • This Agreement will be administered by the Public Works Department. Richard Edmonston 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 -11- • • 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 is 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 of withholding of any amounts found to have been improperly withheld. i 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 bome 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. • -12- • 1 • 23. CONFLICTS OF INTEREST 0 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. • 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. -13- 0 0 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3311 Fax (949) 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: John Kain RKJK & Associates, Inc. 1601 Dove Street, Suite 290 Newport Beach, CA 92660 (949) 474 -0809 Fax (949) 474 -0902 i 26. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions • hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of -14- e i 0 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 • I 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. 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. -15- 0 s 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: Robin Clauson Assistant City Attorney ATTEST: By: LaVonne Harkless City Clerk fAusers\pbwVedmonstonlnewport centeftjk agreement.doc Al -16- CITY OF NEWPORT BEACH A Municipal Corporation Bv: Mayor City of Newport Beach RKJK & Associates, Inc. • • • • • � J R K JK & ASSOCIATES INC. October 13, 1999 Mr. Rich M. Edmonston, P.E. CITY OF NEWPORT BEACH P.O. Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 OCT 1 41999 I Subject: Newport Center Traffic Study Review / NBTAM Update City Staff Support (Revised) Dear Mr. Edmonston: INTRODUCTION The firm of RKJK & ASSOCIATES, INC. (RKJK) is pleased to submit this proposed Agreement to provide City staff support functions for the Newport Center Expansion and NBTAM Update. The AFA traffic study will provide a Traffic Phasing Ordinance (TPO) short-range cumulative development analysis and General Plan build -out analysis of the proposed project to identify potential mitigation requirements to meet both short -range requirements and build -out issues related to a General Plan Amendment. The AFA traffic study will be based upon the NBTAM Update, and it will include the following conditions: • Build -Out (for existing General Plan) • Build -Out (for existing General Plan plus Project) • Build -Out (for existing + project + pending general plan amendments) • Short-Range (for existing + committed projects) • Short-Range (for existing + committed plus project) Under your direction, RKJK will review inputs to the NBTAM Update, and generally serve as an extension of City of Newport Beach staff. SCOPE OF WORK The following tasks will be performed by RKJK as requested by City staff: Meet with representatives of the City (and the applicant if directed by the City) as needed to discuss traffic issues. 2. Meet with Austin -Foust Associates, Inc. (AFA) to review results of the short-range and build -out traffic forecasts. TRANSPORTATION PLANNING • CIS • TRAFFICIACOUSTICAL ENGINEERING 1601 Dove Street, Suite 290 • Newport Beach, CA 92660 • Phone: (949) 474 -0809 • Fax: (949) 474 -0902 Exhibit "A" 0 • Mr. Richard M. Edmonston, P.E. CITY OF NEWPORT BEACH • October 13, 1999 Page 2 3. Review intersection approach lane data for study area intersections. 4. Review short-range traffic projections and levels of service with and without the project. 5. Review potential capacity deficiencies (under TPO criteria) for short -range conditions. 6. Review build -out traffic projections and levels of service with and without the project. 7. Review capacity deficiencies for build -out conditions. 8. Review mitigation measures for locations where deficiencies are identified (under terms of the TPO for both short-term and build -out conditions. 9. Review project description refinements (if available) that could avoid triggering unfeasible mitigation requirements (for both short-term and long -term conditions). 10. Review project recommendations and the overall mitigation /project refinement • program. 11. Prepare written comments regarding the above review items as needed. PROFESSIONAL FEES The fee for the work outlined in this proposal is based upon personnel charges plus direct expenses as indicated in the attached Exhibit A. The "not to exceed" fee to accomplish the above Scope of Work is $14,000. Monthly billings from RKJK will be based upon the attached Exhibit A - BILLING RATES FOR RKJK & ASSOCIATES, INC. QUALIFICATIONS RKJK & ASSOCIATES, INC. is located in Newport Beach, California and specializes in transportation planning and traffic /acoustical engineering for governmental agencies and the business community. The firm principals and associates have over 100 years of combined engineering and planning experience throughout Southern California at the regional, local and individual project levels. The experience of the firm's personnel in :n • 0 • Mr. Richard M. Edmonston, P.E. CITY OF NEWPORT BEACH October 13, 1999 Page 3 transportation planning and traffic/acoustical engineering provides the special skills necessary for determining practical and meaningful traffic solutions. This letter can serve as a Memorandum of Agreement and our authorization to proceed. Please sign one copy and return it to us for our files. We are looking forward to serving you on this project. This proposal is valid for sixty days, if signed by the client. If you have any questions regarding this proposal, please do not hesitate to give me a call at (949) 474 -0809. Respectfully submitted, RKJK & ASSOCIATES, INC. o n Main, AICP r' cipal JK:kgd /8918 • JN:0559 -98 -02 Attachments • I CONTRACT APPROVAL: Approved by: Title: Firm: CITY OF NEWPORT BEACH Date: • • BILLING RATES FOR RKJK & ASSOCIATES, INC. • Compensation for Services The Consultants Billing rates for services are as follows: Position Hourly Rate Principal 120.00 Senior Associate 95.00 Associate 85.00 Senior Engineer /Planner 75.00 Engineer /Planner /Senior Designer 65.00 Assistant Engineer /Planner 55.00 Senior Technician 50.00 Engineering Technician II 40.00 Engineering Technician 1 35.00 Engineering Aide 30.00 Administrative Assistant 40.00 Administrative Aide 35.00 Clerical Aide 30.00 General (1) Reimbursable direct costs, such as reproduction, supplies, messenger service, long- distance telephone calls, travel and traffic counts will be billed at cost plus ten (10) percent. (2) Client payment for professional services is not contingent upon the client receiving payment from other parties. April 20, 1999 • Exhibit B 2ti • • • 0 PROFESSIONAL SERVICES AGREEMENT THIS AGREEMENT, entered into this day of 1999, by and between CITY OF NEWPORT BEACH , a Municipal Corporation (hereinafter referred to as "City "), and Austin -Foust Associates, Inc., whose address is 2020 North Tustin Avenue, Santa Ana, California, 92705 -7827, (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 considering an expansion of Newport Center ( "Project "). C. City desires to engage Consultant to update the Newport Beach Traffic Analysis Model (NBTAM) and prepare both short and long range traffic analysis of the proposed project and alternatives to the project upon the terms and conditions contained in this Agreement. D. The principal members of Consultant for purpose of Project are Terence W. Austin, Joe E. Foust, and Krys Saldivar. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant and desires to contract with Consultant under the terms of conditions provided in this Agreement. 0 L 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 date of execution, and shall terminate on the 31st day of August, 2000, 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 shall not exceed the total contract price of Sixty-nine Thousand Four Hundred dollars ($69,400). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed on an hourly basis and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject to the approval of City. 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 • .^ -2- • 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. Approved computer data processing and reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 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. Retentions may be released upon satisfaction of the following: NBTAM update, Draft Traffic Study and Final Traffic Study. 4, STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultants • supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement and that it will perform all services in a manner commensurate with the community professional • • standards. All services shall be performed by qualified and experienced personnel who • are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. • 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of • -4- 0 0 • City only with respect to the results of the services. 6. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator, and any other agencies which may have jurisdiction or interest in the work to be performed. City agrees to cooperate with 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 Terence W. Austin 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 and the services shall be performed by Consultant in accordance with the schedule • specified below. The failure by Consultant to strictly adhere to the schedule may result in i -5- 0 9 termination of this Agreement by City, and the assessment of damages against . Consultant for delay. 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 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, and 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 either telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. ee -6- 0 0 • 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 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 rti -7- F. Ll 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 employees as additional insured for all liability arising from Consultant's services as described herein. All insurance policies shall be issued by an insurance company certified to do business in the State of California, with original endorsements, with Best's A- VII or better carriers, unless otherwise approved by City Risk Manager. A. Worker's compensation insurance covering all employees and:sprincipals of Consultant, per the laws of the State of California. B. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $1 • million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. 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). • -8- Ll • 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, that Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a • waiver of any right of subrogation which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 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. 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 ,,, -9- 0 more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership orjoint- 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. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept confidential unless the release of information is authorized by City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: z� -10- • • • a° 0 0 • 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. • 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. Richard Edmonston shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his 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 -11- 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- ivlanager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. • 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 bome 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. • -12- 34 0 0 • 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. 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. -13- 0 0 All notices, demands, requests or approvals from Consultant to City shall be • addressed to City at: City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3311 Fax (949) 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Terence W. Austin Austin -Foust Associates, Inc 2020 North Tustin Avenue Santa Ana, CA 92705 -7827 (714) 667 -0496 Fax(714)667 -7952 26. TERMINATION • In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 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 • H -14- 0 0 • 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. is 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 hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 30. PATENT INDEMNITY The 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 -15- • 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: Robin lauson Assistant City Attorney ATTEST: 0 LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation 0 Dennis D. O'Neil, Mayor City of Newport Beach Austin -Foust Associates, Inc. f:Wsers\pbvAshared\agreements \fy 99- 00\austin -foust assodates.doe s -16- • 0 • ®� ®AUSTIN -FOUST ASSOC /AYES, INC. `'`' 2 • TRAFFIC ENGINEERING AND TRANSPORTATION PLANNING • 2020 NORTH TUSTIN AVENUE • SANTA ANA, CALIFORNIA 92705 -7827 • TELEPHONE (714) 667 -0496 FAX (714) 667 -7952 August 17, 1999 City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 ATTENTION: Mr. Rich Edmonston, P.E. SUBJECT: PROPOSAL • NBTAM UPDATE Dear Mr. Edmonston: Austin -Foust Associates, Inc. (AFA) is pleased to propose a scope of services for the update and refinement of the Newport Beach Traffic Analysis Model (NBTAM). The work tasks to be undertaken for the model refinement are as follows: 1. Tralfic Data - The City traffic count program and current counts completed earlier this year can provide citywide traffic count data. It is assumed here that no additional traffic count data is needed and this work item will largely comprise a compilation of the existing data for inclusion into the technical document (see Task 3). 2. Traffic Model Preparation- The refinements in this task are being carried out to bring the long -range version of the model up to full operational capability. Initial information from this refinement process has been shared with City Staff. This task will involve finalization of that work effort. The product will be a refined long -range version of NBTAM suitable for use in the Newport Center Expansion traffic study and to satisfy OCTA consistency requirements. Suitable documentation of the model update and validation will be prepared. The model will be validated for peak hour and ADT conditions using the count information obtained from Task 1 above. 96tamupdatempd Exhibit "A" 0 0 Mr. Rich Edmonston, City of Newport Beach • Page 2 August 17, 1999 3. Documentation - A stand -alone traffic report will be prepared for the description and validation of the updated model. 4. Meetings/Presentations - Time is allotted in the cost estimate for AFA Staff to attend work sessions with City Staff or their representatives (up to three meetings in total). City Staff will assist in establishing an appropriate existing and long -range land use and infrastructure database. This work will be carried out on a time and materials basis with estimated costs as summarized in Table 1. If you should have any questions or comments, please give me a call or Terry Austin when he gets back from vacation on August 24. Very truly yours, Fe Krys G. Saldivar Transportation Planner cc: John Kain, RKJK 6 o 9nblamupdat wpd C� J • 0 ni 9 9 Table 1 COST ESTIMATE 1. Traffic Data $ 500 2. Model Refinements 8,000 3. Documentation 2,500 4. Meetings 2_ 400 TOTAL 13 400 9nWt uNde.wpd Sep 22 99 04:29p Bustin -Foust 0 (714) 667 -7952 p.2 . ®r ®AVST /N -fOUST ASSOCIATES, INC, TRAFFIC ENGINEERING AND TRANSPORrAr /ON PLANNING 2020 NOFTH TUSTIN AVENUE • SANTA ANA, CALIFORNIA 92705 -7827 TELEPHONE (714) 667-0496 FAX (714) 667.7952 Email: mall *aus8nfoustmm September 22, 1999 City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 ATTENTION: Mr. Rich Edmonston, P.E. SUBJECT: PROPOSAL - NEWPORT CENTER EXPANSION TRAFFIC ANALYSIS Dear Mr. Edmonston: i Austin -Foust Associates, Inc. (AFA) is pleased to present this revised scope of services for a traffic analysis of the proposed expansion of Newport Centcr. Based on your memo of September 21,1999, we have updated the previous proposal, and the attached scope of work outlines our proposed work effort and estimated Cost. . If you should have anyquestions or comments, please call and meanwhile, we look forward to assisting the City in this important traffic study. Very tr yours, Terence W. Austin • 9mMw tclrGxp.vvpd 'S Exhibit °A° Sep 22 99 04 :29p Austin -Foust 0 • NEWPORT CENTER EXPANSION SCOPE OF WORK (714) 667 -7952 p.3 • The following is a scope of work to carry out a comprehensive traffic impact analysis for the proposed expansion of Newport Center. The analysis will be prepared for inclusion into the EIR being prepared for this project and will have four basic components: a. Short -Range Impact Analysis (proposed project) b. Long -Range Impact Analysis - Proposed Project and two alternatives C. Traffic Data for Non-Development Scenarios (baseline, no-build, and two alternatives) d. Parking Analysis Item "a" will use the City's standard Traffic Phasing Ordinance (TPO) procedure, and Items "b" and "c" will be carried out with the updated long -range version of the City of Newport Beach Traffic Analysis Model (NBTAM). The parking study in item "d" will involve a comprehensive • analysis of parking in Newport Center. Part of the impact analysis work will involve an evaluation of potential neighborhood intrusion into the residential area east of MacArthur Boulevard. The work tasks to be undertaken for the traffic analysis are as follows: 1. Project Definition and Trip Generation - In this task the proposed projects and project alternatives will be defined and trip generation estimates agreed upon with City Staff. Issues will be addressed such as incremental trip generation changes, current entitlement versus currently built development and special trip generation characteristics of specific uses (e.g., luxuryoffice). The results will provide a description of the traffic characteristics of the project being analyzed and of the project alternatives. 2. Short -Range Analysis - To identify short -range project impacts, the proposed short -range project (i.e., within five years) will be analyzed using the City's TPO procedure, Current General Plan entitlements will be considered as part of the background traffic, and impacts of the project added traffic will be determined. Potential mitigation measures will be is identified as appropriate. 9nawp0A 4F W.MTJ 0 Sep •22 99 04:29p Austin -Foust • (714) 667 -7952 p,¢ 3. Long -Range Impact Analysis - In this task, the long -range version of NBTAM will be used to analyze project impacts. Traffic forecasts will be prepared for the proposed project and the two project alternatives, with both ADT and peak hour intersection data being prepared. Level of service analyses will be carried out for each of the analysis scenarios and project impacts determined accordingly. A traffic improvement program will then be developed which addresses project impacts and mitigation. Levels of service will be calculated for the mitigation, and an overall traffic improvement plan will be prepared. Project responsibilities will be defined as part of this program. Individual work items to be carried out are as follows: a. Traffic Forecasts b. Level of Service Analysis C. Mitigation Measures d. Improvement Program Work sessions will be held with City Staff to discuss the results and determine a suitable • transportation improvement program. 4. Non - Development Scenarios - Traffic forecast data and level of service information will be prepared for non- development scenarios. Use will be made of the long -range version of NBTAM, and data to be prepared will include ADT volumes, peak hour intersection volumes and levels of service. The non - development scenarios will include a no -build alternative, a baseline (current GP) and two alternatives. S. Parking Analysis - A comprehensive parking analysis will be carried out. It will involve a weekday parking survey for all parking areas and parking buildings in Newport Center, and will show utilization throughout the day by location. The results will then be equated to existing land use and trip generation to identify current usage patterns. A detailed parking evaluation will then be carried out, including the following: 2 6A 9=¢ q'O tetrExp.upd 0 Sep 22 99 04:30p r 1 �J 0 0 Ar Austin -Foust 0 (714) 667 -7952 p.5 • a. An evaluation of existing parking standards and recommendations for new parking standards. The standards will identify the number of parking spaces to be supplied center -wide while ensuring the provision of adequate parking for all uses. The parking rates will take into consideration uses that have different and /or similar peak hour demand, and special uses such as luxury office uses and their parking demand will be addressed and part of the overall parking needs assessment. b. Shared parking concepts will be evaluated, and where applicable used to minimize the total number of parking spaces supplied center -wide while ensuring the provision of adequate parking for all uses at all necessary times.General guidelines will be provided regarding maximum distances and location of parking areas and structures from their intended uses, C. Parking strategies that encourage alternative parking arrangements such as decentralized parking, peripheral parking structures close to businesses, and maximizing the use of shared parking will be identified. d. Methods of transportation demand management and promotion of the use of public transportation will be identified. The results will be prepared in a detailed parking report, describing the current parking characteristics, and outlining the various recommendations for a comprehensive parking plan. 6.. Neighborhood Traffic Impacts - A special evaluation will be made of potential neighborhood traffic impacts on the residential area immediately east of MacArthur Boulevard. A work session will be held with staff and other appropriate participants to discuss the issue, and then existing conditions and future conditions with the proposed project will be addressed. Potential mitigation measures will be identified so that a special contingency plan can be implemented if evidence of neighborhood intrusion occurs in the future. 3 9newpo1ctrExp.w1,d Sep,22 99 04:30p Austin -Foust (714) 667 -7952 p.g 7. Traffic Report - A comprehensive traffic report will be prepared summarizing the results of the traffic analysis. It will be prepared in a format suitable for incorporation into the EIR and will form a technical appendix to the EIR. Regular work sessions will be held with the City or their representatives to discuss issues such as TPO findings, trip generation and mitigation measures and to report on progress (up to seven meetings in total). COST ESTIMATE This work will be carried out on a time and materials basis with estimated costs as summarized. in Table 1. +.Si 9nmp.w WtrExp..N. 0 CJ SeF 22 99 04:30p • s 0 4'1 Austin -Foust is Table 1 COST ESTIMATE 1. Project Definition and Trip Generation 2. TPO Analysis 3. Long -Range Impact Analysis 4. Non - Development Scenarios 5. Parking Analysis 6. Neighborhood Traffic Impacts 7. Traffic Report/Mcctings TOTAL 5 (7141 667 -7952 s $2,500 5,000 15,000 8,000 12,000 $5,500 H_ 000 G . 111 9newro 1dr1, xp.v,N p.7 0 • Exhibit "B" At E lr, u Table I CAST ESTIMATE 1. COST SCHEDULE Classiftmlion Rate Hours Cost Principal $135 80 $10,800 Transportation Planner $85 200 17,000 Transportation Analyst $80 140 11,200 Techniml/Qerical $55 230 12,650 Direct Costs• $4350 TOTAL 556.000 II. COST BREAKDOWN BY TASK TASK 1. Project Definition and Trip Generation $ 2,500 TASK 2. TPO Analysis 5,000 TASK 3. Long -Range Impact Analysis 15,000 TASK 4. Non - Development Scenarios 8,000 TASKS. Parking Analysis 12,000 TASK 6. Neighborhood Traffic Impacts 5 ,500 TASK 7. Traffic Report/Meetings 8.000 TOTAL $56_000 *Includes 54,000 for Traffic Data Services for Parking Survey Exhibit "B" At E lr, u