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