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HomeMy WebLinkAboutC-3379(A) - Environmental and Coastal Permit preparation and processing in conjunction with the Balboa Village project (approval recognizes that this firm has a former City employee in their employ).May 22, 2001 CITY COUNCIL AGENDA �rtnni��d ITEM NO. 12 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH EMMET BERKERY FOR BALBOA VILLAGE PROJECT MANAGEMENT SERVICES RECOMMENDATIONS: 1. Approve a Professional Services Agreement with Emmet Berkery, P.E., for a contract price of $29,500 and authorize the Mayor and the City Clerk to execute the agreement. 2. Authorize a budget amendment transferring $25,000 from Account No. 5200 -7000 and $4,500 from Account No. 5100 -7000 to Account No. 7023- C5100543 Balboa Village Plan. DISCUSSION: The Balboa Village project is very complex and time - consuming. Various tasks and time - sensitive issues need to be addressed in a timely manner. Therefore, in order to provide supplemental assistance and keep the project on schedule, staff proposes to hire Emmet Berkery, a registered civil engineer, to assist the City's Project Manager on an array of tasks. A fee of $29,500 was negotiated with Emmet Berkery to provide approximately 375 hours of work between now and October 1, 2001. SCOPE OF SERVICES: Acting under the direction of the City Project Manager for the Balboa Village Improvement Project, Emmet Berkery, P.E., shall provide project management services for the Balboa Village Improvement Project through assistance to City staff in the following general areas: 1. Assist in preparing construction and access easement agreements. Meet with property owners to discuss the easement agreements. Help prepare arrangements for entry onto private property for construction of hardscape, landscape or utility improvements. 2. Review construction documents. Perform site visits to confirm accuracy of drawing and specifications. Assist in the review of specifications as directed by the City. Review project cost estimates. 3. Contact utility companies and agencies and obtain information about existing and proposed facilities. Document all communication and coordination activities. SUBJECT: APPROVAL OF PRO�IONAL SERVICES AGREEMENT WITH EMMET BERKERY FOR BALBOA VILLAGE PROJECT MANAGEMENT SERVICES. May 22, 2001 Page 2 4. Coordinate with the Regional Water Quality Control Board and the Army Corps of Engineers for permits. 5. Assist City Staff with activities associated with forming the utility undergrounding district. 6. Attend meeting with representatives from the Balboa Inn, Balboa Theater, and business and community associations and take meeting notes. 7. Assist with activities to advertise the project. 8. Review shop- drawing submittals prepared by the selected contractor. 9. Perform miscellaneous tasks as may be requested by City Staff. There are sufficient funds available in Account No. 5100 -7000 and 5200 -7000 to fund this request. Respectfully submitted, l LIC WORKS DEPARTMENT Don Webb, Director By: Lois Thompson, Administrative Coordinator Attachment: Professional Services Agreement 0 0 PROFESSIONAL SERVICES AGREEMENT FOR PROJECT MANAGEMENT SERVICES FOR BALBOA VILLAGE IMPROVEMENTS THIS AGREEMENT, entered into this day of 2001, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City "), and Emmet Berkery, P.E., whose address is 1740 E. Garry Avenue, Ste. 112, Santa Ana California, 92705 (hereinafter referred to as "Consultant "), is made with reference to the following: RECITALS A. City is a Municipal Corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to implement the Balboa Village Improvement Project and is hereinafter referred to as "Project ". C. City desires to engage Consultant to provide project management services relative to Project's design and construction upon the terms and conditions contained in the Agreement. D. The principal member for the purpose of Project is Emmet Berkery, P.E. -1- 9 • E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the day of May 2001, and shall terminate on the 31st day of December 2001, 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 twenty -nine thousand five hundred dollars ($29,500). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is -2- E PJ 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 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 -3- 0 0 this Agreement have been substantially completed. 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by the City nor have any contractual relationship with the 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 In 0 0 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 rgsponsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only in the results of the services. 6. 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 Emmet Berkery, P.E. to be its Project Manager. 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 established by the Project Administrator -5- 0 0 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 Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. 11. PROGRESS Consultant is responsible to keep the Project Administrator and his 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 0 attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A- VII or better rating: A. Commercial general liability insurance covering third party liability risks, including without limitation, contractual liability, in a minimum amount of $500,000 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 -7- 0 shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. B. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give 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 in 0 0 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 mgans 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 0 0 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 the City. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. City will provide access to and upon request of Consultant, provide one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting, CADD plotting, copying and other services through City's reproduction company 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. Bill Patapoff 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 -10- 0 0 shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date 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 -11- 0 0 inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Project. 23. CONFLICTS OF INTEREST A. Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act "), which (1) requires such persons to disclose financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. B. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 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 6PQl • • prior written approval of City. 25. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Bob Stein, P.E. 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: Emmet Berkery, P.E. 1740 E. Garry Avenue, Ste. 112 Santa Ana, CA 92705 Phone: (949) 752-5221 Fax: (949) 853-8849 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 -13- C i 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 non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 29. INTEGRATED CONTRACT 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 -14- 0 0 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. 31. COMPUTER DELIVERABLES All written documents shall be transmitted to the City in Microsoft Word 97 and Microsoft Excel 97 and be consistent with Microsoft Office 97. 32. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney ATTEST: By: LaVonne Harkless City Clerk -15- CITY OF NEWPORT BEACH A Municipal Corporation By Garold B. Adams Mayor CONSULTANT Emmet Berkery, P.E. 2 0 0 EXHIBIT "A" SCOPE OF SERVICES Emmet Berkery, P.E. 1740 E. Garry Avenue, Ste. 112 Santa Ana, California 92705 (949) 752 -5221 (949) 852 -8849 Fax Acting under the direction of the City Project Manager for the Balboa Village Improvement Project, Consultant shall provide project management services for the Balboa Village Improvement Project through assistance to City staff in the following general areas: Assist in preparing construction and access easement agreements. Meet with property owners to discuss the easement agreements. Help prepare arrangements for entry onto private property for construction of hardscape, landscape or utility improvements. 2. Review construction documents. Perform site visits to confirm accuracy of drawing and specifications. Assist in the review of specifications as directed by the City. Review project cost estimates. 3. Contact utility companies and agencies and obtain information about existing and proposed facilities. Document all communication and coordination activities. 4. Coordinate with the RWQCB and the Army Corps of Engineers for permits. 5. Assist City staff with activities associated with forming the utility undergrounding district. 6. Attend meeting with representatives from the Balboa Inn, Balboa Theater and business and community associations and take meeting notes. 7. Assist with activities to advertise the project. 8. Review shop- drawing submittals prepared by the selected contractor. 9. Perform miscellaneous task as may be requested by City staff. Consultant proposes to provide the above described project management services on a "time and materials" basis as set forth on Exhibit "B" attached hereto. The estimated time to be available and to be spent during the period from May 8 to October 1, 2001 is 375 hours. -16- • 0 Emmet Berkery PE Consulting Civil Engineering and Project Management 1740 East Garry Avenue Suite 112 Santa Ana, California 92705 Telephone: (949) 752 -5221 Facsimile: (949) 852 -8849 FEE RATE SCHEDULE Effective January 1, 2001 Professional Services Reimbursable Expenses $80.00 per hour Travel and subsistence to locations outside Orange and Los Angeles Counties will be billed at cost. 2. Reproduction, blueprinting, photocopying, and photographing will be billed at cost. III. Outside Services Invoice costs of services and expenses charged by independent contractors or consultants, specialists, and professional or technical firms in support of services provided by Emmet Berkery PE will be billed at 1.10 times cost. f*y of Newport Beach 0 BUDGET AMENDMENT 2000 -01 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase Expenditure Appropriations PX Transfer Budget Appropriations SOURCE: from existing budget appropriations fl from additional estimated revenues from unappropriated fund balance EXPLANATION: NO. BA- 052 AMOUNT: Sz9,soo.00 Increase in Budgetary Fund Balance AND Decrease in Budgetary Fund Balance HX No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To transfer salary savings to provide for a contract civil engineer to assist with the Balboa Village Project. Prior budget amendment: A City Manager budget amendment was processed on 5 -8 -01 transferring $29,975 in salary savings from 5100 -7000 to purchase office and computer equipment. ACCOUNTING ENTRY: Amount BUDGETARY FUND BALANCE Debit Fund Account Description 010 3605 Fund Balance ' REVENUE ESTIMATES P60 1) Signed: Signed'. Signed: Approval: Administrative Administrative approval: City City Council Approval: City Clerk Credit $29,500.00 Date Da Date Fund /Division Account Description EXPENDITURE APPROPRIAT IONS ,3603) Description Division Number 5100 Public Works - Engineering Account Number 7000 Salaries - Miscellaneous $4,500.00 Division Number 5200 Public Works - Transportation Devt Account Number 7000 Salaries - Miscellaneous $25,000.00 Division Number 7023 Neighborhood Enhancement Account Number C5100543 Balboa Village Plan Division Number Account Number Signed: Signed'. Signed: Approval: Administrative Administrative approval: City City Council Approval: City Clerk Credit $29,500.00 Date Da Date PROFESSIONAL SERVICES AGREEMENT FOR BALBOA VILLAGE IMPROVEMENTS THIS AGREEMENT, entered into this ! day of G' . &Gc ,— , 2000, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City "), and J.H. Douglas & Associates, whose address is 13142 Rosalind Drive, Santa Ana, California, 92705, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City is a Municipal Corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to implement Balboa Village Street Improvement Project ('Project'). C. City desires to engage Consultant to perform the tasks outlined in Exhibit "A" upon the terms and conditions contained in this Agreement. D. The principal member of Consultant are for the purpose of Project is John Douglas. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to contract with Consultant under the terms and conditions provided so • • 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 11th day of October 2000, and shall terminate on the 1 st day of June 2001, 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 four thousand eight hundred and thirty dollars ($4,830). 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. -2- LI 0 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 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- 0 0 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. 4.3 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or charge of, and shall not be responsible for Project's design, Project's contractor (hereinafter referred to as "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractor's schedules or failure to carry out the work in accordance ME with the contract documents. Consultant shall not have control over or charge of acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only in the results of the services. 6. 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 -5- • during term of Project. Consultant has designated John Douglas 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 termination of this Agreement by City and 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. Consultant shall complete Tasks 1 and 2 within 30 calendar days of the execution of this Agreement. No work shall be performed by Consultant beyond these tasks until the Project Administrator has authorized additional tasks. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant 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 Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or -7- 0 are desired. 12. HOLD HARMLESS Consultant shall indemnify, save and hold harmless City, its City Council, boards and commissions, officers and employees from and against any 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. 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. 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 E:11 0 more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 14. 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. 15. 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. 16. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this 1'Z 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. C. City staff will provide usable life of facilities criteria and provide information with regards to deficient facilities. D. City will prepare and provide to Consultant street base digital file in AutoCAD (DWG) compatible format. 17. ADMINISTRATION This Agreement will be administered by the Public Works Department. Bill Patapoff 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. Kea 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 20. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Project. 21. CONFLICTS OF INTEREST A. Consultant or its employees may be subject to the provisions of the -11- 0 E 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. 22. 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. 23. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. -12- Ll 0 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Bob Stein, P.E. 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 Douglas J. H. Douglas & Associates 13142 Rosalind Drive Santa Ana, CA 92705 (714) 628 -0464 Fax (714) 628 -0035 24. 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 parry 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. 25. City shall have the option, at its sole discretion and without cause, of -13- 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. 26. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding -14- 0 or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All drawings shall be transmitted to the City in Auto Cad version 14 in ".dwg" file format. All written documents shall be transmitted to the City in Microsoft Word 97 and Microsoft Excel 97 and be consistent with Microsoft Office 97. 31. 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 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation By: 1 By: Rd in auson Assistant City Attorney AT 0 LaVonne Harkless City Clerk CONSULTANT J.H. Douglas & Associates By f: \users\pbw\shared\balboa village\agreements\ h douglas & associates neg dec 092100.doc -16- 0 0 J. H. Doudas & Associates Planning Consultants EXHIBIT "A" SCOPE OF SERVICES and BUDGET Balboa Village Streetscape Improvements September 7, 2000 Task 1— Project Initiation Task 1 includes a kick -off meeting with City staff to review the project plans, identify issues, establish project management protocols, clarify the respective roles of City staff and the consultant, refine the scope of work, and prepare a tentative project schedule. Products ♦ Kick -off meeting with City staff ♦ Identification of key issues ♦ Establishment of project management protocols ♦ Refined scope of work ♦ Tentative project schedule ♦ Assemble reference materials Budget: 4 hrs. @ $85/hr. = $340 Task 2 — Initial Study/Negative Declaration Task 2 includes the preparation of the draft Initial Study and Negative Declaration, distribution list including Responsible and Trustee Agencies, and interested parties. Preparation of one screencheck draft and one public review draft is budgeted. The Negative Declaration package will be reproduced, posted, filed and distributed by the consultant. Graphic exhibits such as the Vicinity Map and Project Plans will be provided by the City. After the close of the public review period, the consultant will prepare Responses to Comments and a Mitigation Monitoring Program for review and approval by the City. One round of revisions is included in this budget. If desired by the City, additional assistance can be provided as optional tasks as listed below on a time -and- materials basis. The consultant will also prepare the Department of Fish and Game Notice of Fee Exemption (if applicable) and will copy, distribute and post all required copies, including the Notice of Determination. All required filing fees will be billed as reimbursable expenses. Products ♦ Draft Initial Study/Negative Declaration and distribution list ♦ Responses to comments on the Negative Declaration ♦ Mitigation Monitoring Program ♦ Department of Fish and Game Fee Exemption (if applicable) ♦ Notice of Determination 13142 Rosalind Drive, Santa Ana, CA 92705 Tel: 714.628.0464 E -mail jhdassoc @aol.com Scope of Services and Budget Balboa Village Streetscape Improvements September 7, 2000 Budget: 24 hrs @ $85/hr = $2,040 Optional Tasks The following tasks are optional items and can be provided on a time - and - materials basis if desired. Task 3 — City Council Hearings If requested, the consultant will prepare applicable sections of City Council staff reports and attend City Council meetings to respond to questions regarding the Negative Declaration/Initial Study. Budget: $510.00 —time and materials @ $85/hr + expenses Task 4 — Public Outreach /Coordination If requested, the consultant will assist the City in preparing a public outreach program and/or responding to public inquiries in addition to the Negative Declaration response to comments. Budget: $510.00 — time and materials @ $85/hr + expenses Task 5 — Coastal Development Permit Processing If requested, the consultant will assist the City in obtaining project approval by the California Coastal Commission. This task may include the following items: ♦ Preparation of CDP application package ♦ Coordination between City staff and Coastal Commission staff ♦ Representation of the City at Coastal Commission hearing(s) Budget: $680.00 — time and materials @ $851hr + expenses Reimbursable Expenses Mileage Reproduction Fax Telephone toll charges Postage /delivery County filing fees Estimated expenses - $750 $0.325 /mile Actual cost $0.50 /page Actual cost Actual cost Actual cost 2 0 0 Scope of Services and Budget Balboa Village Streetscape Improvements September 7, 2000 Budget Summary Task 1 $340 Task 2 $ 2,040 Task 3 $510 Task 4 $510 Task 5 $680 Reimbursable expenses $750 Total Budget $4,830 October 10, 2000 CITY COUNCIL AGENDA ITEM NO. 7 APPROVED TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: PREPARATION OF A NEGATIVE DECLARATION FOR THE BALBOA VILLAGE IMPROVEMENT PROJECT- APPROVAL OF PROFESSIONAL SERVICES AGREEMENT RECOMMENDATION: Approve a Professional Services Agreement with J.H. Douglas & Associates, for Environmental and Coastal Permit preparation and processing in conjunction with the Balboa Village project. The approval recognizes that this firm has a former City employee in their employ. DISCUSSION: The City is in the process of preparing construction documents for the Balboa Village Street Improvement project. In order to construct the street improvements, the preparation of a Negative Declaration is necessary. J.H. Douglas & Associates, has submitted a proposal to prepare and process the environmental documents for a fee of $4,830. This fee includes processing the Coastal Development Permit through the California Coastal Commission. The Public Works Department will award the work to J. H. Douglas & Associates, if the City Council grants approval as required by City Council Policy F -20. City Council Policy F -20 requires City Council approval of awarding work to a prior City employee. John Douglas, of J.H. Douglas & Associates, was employed by the City and terminated his employment approximately two years ago. Staff recommends that the City Council grant approval for J. H. Douglas & Associates to provide professional services for this project. spectfully submitted, P BLIC WORKS DEPARTMENT Don Webb, Director By: ill Patapoff qJ City Engineer Attachment: Agreement 0 i PROFESSIONAL SERVICES AGREEMENT FOR BALBOA VILLAGE IMPROVEMENTS THIS AGREEMENT, entered into this day of 2000, by and between the City of Newport Beach , a Municipal Corporation (hereinafter referred to as "City "), and J.H. Douglas & Associates, whose address is 13142 Rosalind Drive, Santa Ana, California, 92705, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City is a Municipal Corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City is planning to implement Balboa Village Street Improvement Project ('Project'). C. City desires to engage Consultant to perform the tasks outlined in Exhibit "A" upon the terms and conditions contained in this Agreement. D. The principal member of Consultant are for the purpose of Project is John Douglas. E. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and -1- 0 0 desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the 11th day of October 2000, and shall terminate on the 1st day of June 2001, 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 four thousand eight hundred and thirty dollars ($4,830). 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. -2- 0 0 desires to contract with Consultant under the terms and conditions provided in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the 11th day of October 2000, and shall terminate on the 1 st day of June 2001, 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 four thousand eight hundred dollars ($4,830). 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. -2- 0 E 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice subject. 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 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. -3- 0 0 4. STANDARD OF CARE 4.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement and that it will perform all services in a manner commensurate with the community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents and warrants that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 4.3 The term Construction Management or Construction Manager does not imply that Consultant is engaged in any aspect of the physical work of construction contracting. Consultant shall not have control over or charge of, and shall not be responsible for Project's design, Project's contractor (hereinafter referred to as "Contractor"), construction means, methods, techniques, sequences or procedures, or for 13 9 0 any health or safety precautions and programs in connection the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractor's schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or charge of acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only in the results of the services. 6. 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. -5- 0 0 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 Douglas 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 termination of this Agreement by City and 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 S� 0 provide notice to the other party so that all delays can be addressed. Consultant shall complete Tasks 1 and 2 within 30 calendar days of the execution of this Agreement. No work shall be performed by Consultant beyond these tasks until the Project Administrator has authorized additional tasks. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant 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 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. -7- 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 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. Insurance policies with original endorsements indemnifying Project for the following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A- VII or better rating: A. Commercial auto liability and property insurance covering any owned and rented vehicles of Consultant in a minimum amount of $300.000 combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give 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 M 0 0 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 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 still • • 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: 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 SEE will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. City staff will provide usable life of facilities criteria and provide information with regards to deficient facilities. D. City will prepare and provide to Consultant street base digital file in AutoCAD (DWG) compatible format. 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. Bill Patapoff 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 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. -12- 0 0 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. 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 -13- 0 E 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. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Bob Stein, P.E. City of Newport Beach 3300 Newport Boulevard P. O. Box 1768 Newport Beach, CA, 92658 -8915 (949) 644 -3311 -14- 0 Fax (949) 644 -3318 0 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: John Douglas J. H. Douglas & Associates 13142 Rosalind Drive Santa Ana, CA 92705 (714) 628 -0464 Fax (714) 628 -0035 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 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. -15- 0 0 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. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. -16- 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All drawings shall be transmitted to the City in Auto Cad version 14 in ".dwg" file format. All written documents shall be transmitted to the City in Microsoft Word 97 and Microsoft Excel 97 and be consistent with Microsoft Office 97. 32. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. -17- 0 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: By: Robin Clauson Assistant City Attorney ATTEST: By: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation 0 Mayor City of Newport Beach CONSULTANT J.H. Douglas & Associates M f: users\pbMshared\balboa village\agreements�h douglas & associates neg dec 092100.doc IM J. H. Douglas & Associates Planning Consultants EXHIBIT "A" SCOPE OF SERVICES and BUDGET Balboa Village Streetscape Improvements September 7, 2000 Task 1 — Project Initiation Task 1 includes a kick -off meeting with City staff to review the project plans, identify issues, establish project management protocols, clarify the respective roles of City staff and the consultant, refine the scope of work, and prepare a tentative project schedule. Products ♦ Kick -off meeting with City staff ♦ Identification of key issues ♦ Establishment of project management protocols ♦ Refined scope of work ♦ Tentative project schedule ♦ Assemble reference materials Budget: 4 hrs. @ $85/hr. = $340 Task 2 — Initial Study/Negative Declaration Task 2 includes the preparation of the draft Initial Study and Negative Declaration, distribution list including Responsible and Trustee Agencies, and interested parties. Preparation of one screencheck draft and one public review draft is budgeted. The Negative Declaration package will be reproduced, posted, filed and distributed by the consultant. Graphic exhibits such as the Vicinity Map and Project Plans will be provided by the City. After the close of the public review period, the consultant will prepare Responses to Comments and a Mitigation Monitoring Program for review and approval by the City. One round of revisions is included in this budget. If desired by the City, additional assistance can be provided as optional tasks as listed below on a time -and- materials basis. The consultant will also prepare the Department of Fish and Game Notice of Fee Exemption (if applicable) and will copy, distribute and post all required copies, including the Notice of Determination. All required filing fees will be billed as reimbursable expenses. Products ♦ Draft Initial Study/Negative Declaration and distribution list ♦ Responses to comments on the Negative Declaration ♦ Mitigation Monitoring Program ♦ Department of Fish and Game Fee Exemption (if applicable) ♦ Notice of Determination 13142 Rosalind Drive, Santa Ana, CA 92705 Tel: 714.628.0464 E -mail jhdassoc @aol.com Scope of Services and Budget • Balboa Village Streetscape Improvements September 7, 2000 Budget: 24 hrs @ $85/hr = $2,040 Optional Tasks The following tasks are optional items and can be provided on a time - and - materials basis if desired. Task 3 — City Council Hearings If requested, the consultant will prepare applicable sections of City Council staff reports and attend City Council meetings to respond to questions regarding the Negative Declaration/Initial Study. Budget: $510.00 —time and materials @ $85/hr + expenses Task 4 — Public Outreach/Coordination If requested, the consultant will assist the City in preparing a public outreach program and/or responding to public inquiries in addition to the Negative Declaration response to comments. Budget: $510.00 —time and materials @ $85/hr + expenses Task 5 — Coastal Development Permit Processing If requested, the consultant will assist the City in obtaining project approval by the California Coastal Commission. This task may include the following items: ♦ Preparation of CDP application package ♦ Coordination between City staff and Coastal Commission staff ♦ Representation of the City at Coastal Commission hearing(s) Budget: $680.00 — time and materials @ $85/hr + expenses Reimbursable Expenses Mileage Reproduction Fax Telephone toll charges Postage /delivery County filing fees Estimated expenses - $750 $0.325 /mile Actual cost $0.50 /page Actual cost Actual cost Actual cost 2 • • Scope of Services and Budget Balboa Village Streetscape Improvements September 7, 2000 Budget Summary Task 1 $340 Task 2 $ 2,040 Task 3 $510 Task 4 $510 Task 5 $680 Reimbursable expenses 750 Total Budget $4,830 0 0 J. H. Douglas & Associates Planning Consultants EXHIBIT "B" STANDARD CONTRACT PROVISIONS 1. FEES FOR PROFESIIONAL SERVICES AND EXPENSES Fixed Fee Contracts. If the contract represents a fixed fee proposal, professional services described in the attached Scope of Services shall be provided for the fixed fee noted in the project budget. All other professional services are considered extra services, and shall be provided for on a time and expense basis at hourly rates as specified in the contract. Out of pocket expenses are included within the budget of the fixed fee proposal. Hourly Contracts. If the contract represents an hourly plus expenses proposal, professional services described in the Scope of Services shall be provided on a basis of current rates as specified in the contract. Out -of- pocket expenses shall be reimbursed at cost plus 5% and are not included in hourly fees for professional services. Estimates as to the amount of time required to accomplish any task and the fees and costs thereof are best estimates only. The Consultant will make every effort to comply with the estimates provided, but is not responsible for any changes of scope during the course of the project or inaccuracies due to factors beyond its control. The estimated budget will not be exceeded, however, without prior approval of the Client. Expenses. Out -of- pocket expenses may include, but are not limited to, costs of: 1) reproduction of reports and graphics furnished or prepared in connection with the contract; 2) clerical services; 3) preparation of graphic exhibits; 4) long- distance telephone or fax charges; 5) courier services; 6) any travel, subsistence, vehicle rental and lodging out of the local area required in connection with the contract; 7) purchase of specific technical documents required in connection with the contract; 8) fees of other consultants retained with approval of the client; and 9) automobile mileage at a rate of $0.31 per mile. Travel time will be charged on an hourly basis at the same rate specified for professional services. BILLING RATES Professional work is billed at $85 per hour. 13142 Rosalind Drive, Santa Ana, CA 92705 Tel: 714.628.0464 E -mail jhdassoc @aol.com