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HomeMy WebLinkAboutC-3413(A) - Back Bay View Park (formerly Bayview Landing Park Site) - Professional ServicesDESIGN OF BAYVIEW LANDING PARK IMPROVEMENTS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH CNC ENGINEERING THIS AMENDMENT, NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this / day ofC� 2002, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY") and CNC Engineering, whose address is 17 Corporate Plaza Drive, Suite 120, Newport Beach, California, 92660, (hereinafter referred to as "Consultant"), is made with reference to the following: RECITALS: A. On May 31, 2001, the CITY and the CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT", for design services for the preparation of plans and specifications for the Bayview Landing Park Improvements, hereinafter referred to as "PROJECT". B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services not included in the AGREEMENT and to extend the term of the AGREEMENT to June 30, 2003 . C. CITY desires to compensate CONSULTANT for additional professional services needed for PROJECT. D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 1, as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. CONSULTANT shall be compensated for services performed pursuant to this AMENDMENT NO. 1 according to "Exhibit A" dated July 12, 2001, and "Exhibit B" dated January 11, 2002, attached hereto. 2. Total additional compensation to CONSULTANT for services performed pursuant to this AMENDMENT NO. 1 shall not exceed eight thousand dollars ($8,000). 3. The term of the AGREEMENT shall be extended to June 30, 2003. 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first above written. APPROVED AS TO FORM: By: City Attorney CITY OF NEWPORT BEACH, A municipal corporation BY: Ci y Manager City of Newport 4ach Consultant BY: Ali Pakzad, . Vice President F:\Users\PBW\Shared\Agreements\Fy 00-01\CNC - Bayview Landing Amendment 1.doc DESIGN OF BAYVIEW LANDING PARK IMPROVEMENTS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH CNC ENGINEERING THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this _day of August 2001, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY") and CNC Engineering, whose address is 17 Corporate Plaza Drive, Suite 120, Newport Beach, California, 92660, (hereinafter referred to as "Consultant"), is made with reference to the following: RECITALS: A. On May 31, 2001, the CITY and the CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT", for design services for the preparation of plans and specifications for the Bayview Landing Park Improvements, hereinafter referred to as "PROJECT". B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services not included in the AGREEMENT and to extend the term of the AGREEMENT to December 31, 2002. C. CITY desires to compensate CONSULTANT for additional professional services needed for PROJECT. D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 1, as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. CONSULTANT shall be compensated for services performed pursuant to this AMENDMENT NO. 1 according to "Exhibit A" dated July 12, 2001, attached hereto. 2. Total additional compensation to CONSULTANT for services performed pursuant to this AMENDMENT NO. 1 shall not exceed twenty five hundred dollars ($2,500). 2002. 3. The term of the AGREEMENT shall be extended to December 31, 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first above written. APPROVED TO FORM: By: ao — City A orney CITY OF NEWPORT BEACH, A municipal corporatio_Q,, ;:�tepnen v. tiaaum City of Newport Beach Consultant Ali Pakzad, P. Vice President F:\Users\PBW\Shared\Agreements\Fy 00-01\CNC - Bayview Landing Amendment 1.doc PROFESSIONAL SERVICES AGREEMENT` U FOR THE PREPARATION OF PLANS AND SPECFICATION RELATED TO BAYVIEW LANDING PARK IMPROVEMENTS THIS AGREEMENT, entered into this % 6-11- day of May 2001, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City"), and CNC Engineering, whose address is 17 Corporate Plaza Drive, Suite 120, Newport Beach, California, 92660, (hereinafter referred to as "Consultant"), is made with reference to the following: RFrITAI C 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 Bayview Landing Park Improvement Project at the corner of Jamboree Road and East Pacific Coast Highway ("Project") C. City desires to engage Consultant to complete the plans and specification for the construction of the Project, upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are: Sean Nazarie, P.E., Project Engineer and Ali Pakzad, P.E. Vice President and Senior Project Manager. 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 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% S� day of May 2001, and shall terminate on the 30th day of June 2002, 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 thirty three thousand, three hundred and ninety dollars and 00/100 Dollars ($33,390.00). 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, -2- 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. 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. The Consultant has designated Lynn Capouya, Inc., as the landscape architect for the Project for a not to exceed cost of $14,580. 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. 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 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 Ali Pakzad, P.E., to be its Project Manager and Sean Nazarie, P.E., as the Project Engineer. 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. -5- 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 attached Exhibit "C". The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant 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. DOE 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 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 -7- 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. 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 One Million Dollars ($1,000,000). Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, which Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing 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 W outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or co -tenant if Consultant is a partnership or joint -venture or syndicate or co -tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50%) or more of the voting power, or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived as against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such forms as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept -10- 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 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. Michael J. Sinacori, P.E., 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 -11- representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7%) per annum from the date 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 -12- 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 prior written approval of City. -13- 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: Attention Mr. Michael J. Sinacori, 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: Ali Pakzad, P.E. CNC Engineering 17 Corporate Plaza Drive Suite 120 Newport Beach, California 92660 (949) 644-1505 Fax (949) 644-2191 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 -14- (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 29. INTEGRATED CONTRACT 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. -15- 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his/her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. 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 -16- 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: B y: --- a & Robin •t Assistant City Attorney ATTEST: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: - j.. -k - Mayor City of Newport Beach CNC ENGINEERING By: Ali Pakzad, P.E. Vice President--,*' F:\Users\PBW\Shared\Agreements\Fy 00-01\CNC - Bayview Landing.doc -17- EXHIBIT A: SCOPE OF SERVICES FOR PROFESSIONAL ENGINEERING AND LANDSCAPE DESIGN OF BAYVIEW LANDING TASK 1. RESEARCH AND DATA COLLECTION This task consists of obtaining records of survey, parcels maps and other necessary documents for the field survey. This task also includes reviewing available record drawings of existing and proposed utilities adjacent to and within the site. This information will be used to identify point of service connections for the irrigation facilities and identify those utilities that need to be protected in place or relocated as required. TASK 2. DESIGN SURVEY This task includes setting, checking and closing traverse for the site and limited topographic survey. The survey will consist of cross sections along the proposed drainage ditches, existing monitoring wells, catch basin on PCH and the existing benchmark at the site. CNC will augment the topographic data to be provided by the City with these field data to prepare the base map. TASK 3. CONCEPTUAL PLAN A preliminary meeting with the Parks Beaches & Recreation (PB&R) Commission will be held to review the Scope of Work. We will prepare for a 50% presentation. This will include a rendered copy of the current plan, sections showing alternative design solutions and a plant materials board. We are also allowing for a 'Study Session' presentation of these materials to gain public input. Following receipt of comments from these two meetings, a final conceptual presentation including plan modifications, will be prepared and presented to the PBR Commission for approval. The landscape plans will be shown on the updated base map with the conceptual grading plan. The design will incorporate City guidelines and criteria plus EIR requirements to prepare plans that are responsive to all conditions, including drought tolerant plant material and water conservation issues. TASK 4. HYDROLOGY REPORT CNC will perform hydrology calculations for the site based on the approved conceptual grading plan for the site. The calculations will be based on the procedures in the latest edition of the OCPFRD hydrology manual. Results of the calculations will be presented in a report with a brief narrative and submitted to the City for review and approval. AC N C E N G I N E E R I N G TASK 5. CONSTRUCTION DOCUMENTS Following final approval of the conceptual design by the City of Newport Beach PBR Commission, we will incorporate any further changes onto the site plan. We will work in AutoCAD v 2000 at a scale no greater than 1 "=20'. The plans will incorporate the conceptual review comments, final drainage design and trail design. This effort also includes agronomic soils testing of the site to determine the depth of topsoil to be restored after re -grading the site. We anticipate the final plans for the improvements to be as follows: • Title Sheet • Horizontal Control Plan • Grading and Drainage Plan • Grading and Drainage Details • Electrical Plan for Bollard Lighting Along the Trail • Erosion Control Plan • Irrigation Plan • Planting Plan • Landscape Details The specifications may be based on CSI or APWA format and in accordance with the City's guidelines and requirements. CNC will also submit an opinion of probable construction cost. TASK 6. STORM WATER POLLUTION PREVENTION PLAN (SWPPP) CNC will prepare a SWPPP for construction of the proposed improvements to be submitted to the Regional Water Resources Control Board by the City. The document will outline Best Management practices to be used during construction to minimize discharged of sediment and pollutants to the waters of the United States during construction. Since the site exceeds 5.0 acres in area a Notice of Intent (NO[) must also be filed with the State Water Resources Control Board. CNC will prepare the NO[ and submit to the City to be filed with by the State. TASK 7. PROJECT MANAGEMENT, PROCESSING AND COORDINATION This task consists of project administration, processing construction documents and coordination with the City. TASK 8. PLOTTING AND REPRODUCTION TASK 9. MILEAGE AND DELIVERY ALCNC E N G I N E E R I N G Exclusions of CNC's Scope of Work: 1. Geological or soil testing 2. Environmental/hazardous material 3. Excavation or potholing of existing utilities. 4. New easements description and documents Assumptions: 1. Electronic files for the existing topography will be provided by the City of Newport Beach. 2. All agency fees are the responsibility of the City of Newport Beach. 3. P.O.0 for water and electricity is available adjacent to the site. 4. Proposal assumes one (1) design for site grading only. Additional design concepts will be developed and finalized on a time and materials basis. 5. Field survey is limited to items listed in Task 2. Additional survey will be conducted on a time and materials basis. ACNC E N G I N E E R I N G EXHIBIT B- CNC ENGINEERING PROJECT TEAM STANDARD FEE SCHEDULE Valid through July 1, 2002 CIVIL ENGINEERING SERVICES $ 125.00 President/Principal-In-Charge 115.00 Project Manager 95.00 Senior Project Engineer 90.00 Project Engineer 80.00 Design Engineer 70.00 AutoCAD Designer 60.00 Technician 35.00 Clerical FIELD SURVEY / INSPECTION SERVICES $ 90.00 Director of Surveying 155.00 Two Person Crew 70.00 Survey Technician 70.00 Construction Inspector 80.00 Senior Construction Inspector MISCELLANEOUS The following costs are billed at our cost plus 15% maximum ♦ Subcontracted Services ♦ Map check fees, permits or filing fees advanced by us ♦ Commercial delivery services including Federal Express, Express Mail and Messenger Services house delivery services billed at $.32 per mile plus labor.) ♦ Driving Time One Way ♦ Blueprint services and printing ♦ Graphic Services (In- ACNC E N G I N E E R I N G EXHIBIT B (CONTINUED) LYNN CAPOUYA, INC. STANDARD FEE SCHEDULE HOURLY RATES: fee Principal in Charge: $111.00 Project Manager: $94.00 Irrigation Designer: $83.00 Landscape Architect: $84.00 Senior Staff: $78.00 Intermediate Staff: $72.00 Administration: $43.00 * Computer use charges are included. REIMBURSABLE EXPENSES: Plotting $30.00 /sheet Digital Photographs $25.00 /disk Digital Printouts $5.00 /printout Photocopies $0.10 /sheet Laser Prints $0.25 /sheet Bluelines $3.00 /24x36 sheet 3.5" Disks $2.00 /disk Mileage $0.325 /mile CD Rom $5.00 /each These rates will remain in effect through July 1, 2002. h: \office\genoff ice\fee s99. x Is V Z 0 Z Q J W MQ WLL CO CO r Z CW C `W O = a U Ww 00 a Q O 0 aW J U wa W Z Z Z W Q LL N (') OZZ }. alFn 0 Uao T cu i N �'V co (T6 T T T N T T >, co T T m ma a m m m a m m m a m m a a a a a a a a a N to (n L(7 N (n (f) N W LU 1� N � Q1 MM W ® 2 _ C X z� W V T cu i N �'V co (T6 T T T N T T >, co T T m ma a m m m a m m m a m m a a a a a a a a a N to (n L(7 N (n (f) .N. N E E W � U a) > o Q� O (0 > a n (D n E 0Q a) w cn U co cn U) c a a U U a _ U) cn Q ii �. N M 'q L (O n co 0) N M N Q1 C (V a a O U N N a C C (O Ln OOr C c U a = m E O n C C w O U (D _m a a = 3 a 3 c 0 m m rn a> � _U O m U C > N M N ° a > an d E o a c Z Z ii o m m y . U (n (p a z Y O a m U ii Q .N. N E E W � U a) > o Q� O (0 > a n (D n E 0Q a) w cn U co cn U) c a a U U a _ U) cn Q ii �. N M 'q L (O n co 0) N M l J ENVIRONMENTAL ASSESEMENT RELATED TO V BAYVIEW LANDING PARK IMPROVEMENTS49 AMENDMENT NO. 1 'V TO PROFESSIONAL SERVICES AGREEMENT WITH THE PLANNING CENTER THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this c�3%S7'- day of August, 2001, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "CITY") and The Planning Center, whose address is 1580 Metro Drive, Costa Mesa, California, 92626, (hereinafter referred to as "Consultant"), is made with reference to the following: RECITALS: A. On May 31, 2001, the CITY and the CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "AGREEMENT", for the environmental assesement related to the Bayview Landing Park Improvements, hereinafter referred to as "PROJECT". B. CITY desires to enter into this AMENDMENT NO. 1 to reflect additional services not included in the AGREEMENT and to extend the term of the AGREEMENT to December 31, 2002. C. CITY desires to compensate CONSULTANT for additional professional services needed for PROJECT. D. CITY and CONSULTANT mutually desire to amend AGREEMENT, hereinafter referred to as "AMENDMENT NO. 1, as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. CONSULTANT shall be compensated for services performed pursuant to this AMENDMENT NO. 1 according to "Exhibit A" dated July 24, 2001 attached hereto. 2. Total additional compensation to CONSULTANT for services performed pursuant to this AMENDMENT NO. 1 shall not exceed one thousand dollars ($1,000). 2002. 3. The term of the AGREEMENT shall be extended to December 31, 4. Except as expressly modified herein, all other provisions, terms, and covenants set forth in AGREEMENT shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 on the date first above written. APPROVED S TO FORM: By: City Atto CITY OF NEWPORT BEACH, A municipal corporation to n G. Badum City of Newport Beach Consultant BY: � Wayne M ars, AMP Princi paIVIDirector of Environmental Services F:\Users\PBW\Shared\Agreements\Fy 00-01\John Douglas - Bayview Landing Amendment 1.doc THE ��V CLE NNING TER Governmental Services Memorandum Planning & Urban Design Environmental Studies Landscape Architecture Date: July 24, 2001 To: Mike Sinacori 1580 Metro Drive From: John Douglas Costa Mesa, Ca 92626 Subject: Bayview Landing - Request for Scope and Budget Amendment Phone: 714.966.9220 for Coastal Sage Scrub Planting and Monitoring Plan Fax: 714.966.9221 costamesa@planningcenter.com Mike: It's become apparent that there is a gap in the scope between what our biologist is doing and Lynn's landscape plan preparation. Lynn asked for the biologist, Kathy Keane, to provide a plant list, but Kathy feels that a restoration plan should be prepared by someone experienced in coastal sage scrub revegetation. Attached is a proposal from Trish Smith, an experienced restoration ecologist. The additional budget would be $1,000. This would provide Lynn with everything she needs to finalize the landscaping plan for the restoration area, and would satisfy the US Fish and Wildlife Service. I recommend that we retain her to do this additional work. Please call me if you have any questions. John Authorization: I hereby approve an amendment to the scope of work and budget as described above. All other provisions of the Consultant Agreement remain unchanged. Michael Sinacori, P.E. 01-07-24 Sinacori August 1, 2001 Page 2 ATTACHMENT 1 PROPOSAL TO PREPARE COASTAL SAGE SCRUB MITIGATION & MONITORING PLAN BAYVIEW LANDING PARK Approximately 0.5 acre of CSS will be removed by the proposed project, requiring the preparation and implementation of a CSS Mitigation Monitoring Program acceptable to the US Fish and Wildlife Service. In order to meet this requirement, we will prepare a mitigation plan that will include the following: 1) Discussion of existing conditions on the mitigation site, including a description of the composition of the coastal sage scrub habitat to be removed as well as conditions on the proposed mitigation site, 2) Objectives of the mitigation (replacement ratios, habitat goals, performance standards), 3) Habitat restoration implementation guidelines, including site preparation (weed control, erosion control, irrigation) and planting specifications (plant palettes and rates for seeding and container planting), 4) Restored habitat maintenance guidelines, and 5) A 5 -year monitoring program to document attainment of required performance standards. The plan will include sufficient detail to allow the project landscape architect to translate into landscape drawings and specifications. The proposed fee for the preparation of the mitigation plan is $1,000.00. This fee includes one visit to the site and attendance at up to two meetings with the project team or landscape architect. PROFESSIONAL SERVICES AGREEMENT FOR ENVIRONMENTAL ASSESEMENT RELATED TO BAYVIEW LANDING PARK IMPROVEMENTS THIS AGREEMENT, entered into this /sf day of May 2001, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City'), and The Planning Center, whose address is 1580 Metro Drive, Costa Mesa, California, 92626, (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 Bayview Landing Park Improvement Project at the comer of Jamboree Road and East Pacific Coast Highway ( "Project "). C. City desires to engage Consultant to complete the environmental assessment for the Project and complete the permit processing with the California Coastal Commission upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are John Douglas, AICP, Project Manager and Dwayne Mears, AICP, Principal Director of Environmental Services. -1- 0 • 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. dt day of May 2001, and shall terminate on the 30th day of June 2002, 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 four thousand nine hundred and 00/100 dollars ($24,900.00). 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, -2- 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. 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. 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 -3- • • 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. 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 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. 153 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 during term of Project. Consultant has designated John Douglas, AICP, 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 -5- 0 0 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 attached Exhibit "C ". The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall to 0 0 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 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 -7- 0 0 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 attomeys' 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, it's 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. 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 M 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). 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 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 -10- 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 City authorizes the release of information. 17. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of his responsibilities under this Agreement, City agrees to provide the following: A. City will provide access to and upon request of Consultant, provide one copy of all existing record information on file at City. Consultant shall be entitled to rely upon the accuracy of data information provided by City or others without independent review or evaluation. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting, CADD plotting, copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. City staff will provide usable life of facilities criteria and provide information with regards to deficient facilities. -11- 0 D. City will prepare and provide to Consultant street base digital file in AutoCAD (DWG) compatible format. 18. ADMINISTRATION The Public Works Department will administer this Agreement. Michael J. Sinacori shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or -12- r] 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. 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 -13- 0 9 of this Section. 24. SUBCONSULTANTS AND ASSIGNMENTS 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: Attention Mr. Michael J. Sinacori, 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, AICP The Planning Center 1580 Metro Drive Costa Mesa, California 92626 (714) 966 -9220 Fax (714) 966 -9221 -14- 0 0 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 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. -15- 0 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. 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. -16- 0 0 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. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: i MAIN, gmil op i ..�. Assistant City Attorney ATTEST: 0 City Clerk Harkless CITY OF NEWPORT BEACH A Municipal Corporation By: Mayor City of Newport Beach THE PLANNING CENTER By: Dwayne MAars,1ACIP Principa , irector of Environmental Services F: \Users \PBW\SharedWgreements\Fy 00- 01Uohn Douglas - Bayview Landing.doc Siva 0 Exibit "A" Soope of Services The Planning Center will provide project coordination services and will prepare an Initial Study containing the required elements, including a project description, environmental checklist and environmental analysis supporting the conclusions shown in the checklist. The Bayview Landing site was included in the CIOSA EIR, which was prepared in the early 1990s. It is expected that the Initial Study will rely on this previous EIR, but updated information will be necessary for some topics such as biological impacts. For purposes of this proposal, it is assumed that this review will support the preparation of an Addendum to the previous EIR. If the analysis indicates that significant environmental effects could occur that were not previously identified, a Supplemental EIR may be required and a revised scope and budget will be developed. A breakdown of proposed tasks is as follows: Task 1 - Proiect Management The Planning Center will work with the City's Project Manager to coordinate the project approval process, which will include conducting meetings and coordinating the project approval process. Products 3 meetings of the PB &R Commission or committee 1 City Council study session 1 City Council meeting General project administration /meetings with City staff and others as needed Task 2 - CEQA Comoliance The Planning Center will review the CIOSA EIR to determine the environmental impacts that were associated with the Bayview Landing site, and will prepare an analysis of how the project as currently proposed differs from the project described in CIOSA and how impacts from the project as currently proposed would differ from the EIR analysis. If this evaluation shows that none of the conditions described in CEQA Guidelines Section 15162 would require the preparation of a subsequent EIR, then an Addendum will be submitted for the City's consideration. A biological survey of the site will be conducted, including a review of existing information, documentation of the plant communities and wildlife present, and whether any habitat would be subject to jurisdiction of state and federal resource agencies. Surveys to determine whether California gnatcatchers are present will be conducted under separate contract and the results will be incorporated into the Initial Study. For purposes of this proposal it is assumed that any required technical studies other than a biological field survey and archaeological site walkover will be provided by other consultants. If the analysis determines that additional technical studies are necessary, a modification to this scope and budget will be required. This scope and budget assume that archaeological review will be limited to: 1) the review and evaluation of the proposed park project in comparison to the analysis contained in the CIOSA EIR, and 2) a field survey of the project area. The field survey will decribe on the current conditions of the property and will provide conclusions as to whether or not resources are evident on the surface. No subsurface testing is included in this level of review. Over the course of time, surface conditions can change and, if a survey was completed during preparation of the CIOSA EIR, verification of the findings or alteration to the descriptions may be necessary. i 0 Review of the previous EIR documents and the field survey may result in the identification of a previously recorded archaeological resource. Should one or more resources be recorded for the project site, a Phase II testing program will be necessary prior to any development or alteration of the property. Since it is not known whether a Phase II program will be required until after the EIR review and site walkover is completed, this is identified as an optional task in the proposed budget. A Phase II testing program would be designed to sample the resource to a level that would permit a formal evaluation of its significance (in accordance with CEQA requirements). Should a resource be determined to be significant, mitigation of adverse impacts is necessary. This would entail completion of a Phase III data recovery program that would essentially 'blear" the property for development. Since archaeological testing programs can be expensive, the City may opt to solicit competitive bids for Phase II and Phase III programs, should they be necessary. Two rounds of revisions to the draft Initial Study /Addendum are included in this scope. The Planning Center will prepare a Final Initial Study /Addendum incorporating any revisions needed in response to comments received and will be available to respond to questions at a City Council meeting (included in Task 1). Additional meeting attendance, if required, will be provided on a time and materials basis. The Planning Center will prepare and file any notices required by CEQA. It is assumed that any publication of notices in the newspaper or direct mailing of notices, if required, will be handled by the City. It should be noted that CEQA does not require circulation of an EIR addendum for public review, but the City Council and Coastal Commission must consider the information contained in the Addendum prior to making a decision on the project (CEQA Guidelines Sec. 15164). Products 1 Screencheck Initial Study /Addendum (3 copies) 1 Draft Initial Study /Addendum (3 copies) 1 Public Review Draft Initial Study /Addendum (3 copies) 1 Final Initial Study /Addendum (3 copies) Task 3 - Coastal Commission Permit Processing The Planning Center will prepare and submit a coastal development permit application to the California Coastal Commission and will coordinate with Commission staff on processing the application. It is assumed that the City will provide copies of all plans and specifications required as part of the application package. One meeting with Coastal Commission staff and attendance at one Coastal Commission hearing is assumed. Additional meetings with Coastal Commission staff or attendance at additional Coastal Commission hearings can be provided on a time and materials basis. Products Preparation and submittal of Coastal Commission application package 1 Coastal Commission staff meeting 1 Coastal Commission hearing 0 0 Exhibit "B" BUDGET ESTIMATE BAYVIEW LANDING PARK TASK COST PROFESSIONAL SERVICES 500 Task 1. Project Management 300 3 PB &R meetings 1,500 1 City Council study session 500 1 City Council meeting 500 Project administration 5,000 Subtotal 7,500 Task 2. Environmental Analysis Biological survey and analysis (excluding natcatcher survey) 2,000 Archaeological review and field survey 3,500 Archaeological testing program design and implementation Optional Preparation of Screencheck & Draft IS /Addendum 6,000 Preparation of Final IS /Addendum 500 Subtotal 12,000 Task 3. Coastal Commission processing Application package preparation & coordination with Coastal Comm. staff 2,500 1 Meeting with Coastal Comm. staff 500 1 Coastal Commission hearing 1,500 Subtotal 4,500 Total - Professional Services $24,000 REIMBURSABLE Reproduction/graphics 500 Milea e/Travel* 300 Fax/Postage/Deliveries 100 Subtotal $900 TOTAL $24,900 * Assumes the Coastal Commission hearing will be held in Long Beach. Additional time and travel expenses would occur if the hearing is located elsewhere. 0 0 Exhibit "C" TENTATIVE SCHEDULE* BAYVIEW LANDING PARK TASK DATE Receipt of Authorization and Project Plans (plans sufficient for defining "project" for CEQA purposes) May 11, 2001 PB &R Commission - select preferred concept plan June 15 City Council study session Jul PB &R Commission - approve final design August 15 Submit Screencheck Draft IS /Addendum for Review August 20 Internal City Review of screencheck August 20 - 30 IS /Addendum Revisions September 1 - 7 Submit Draft IS /Addendum for Review September 7 Internal City Review of draft September 14 City Council meeting September 25 File Notice of Determination d September 26 Submit Coastal Permit a lication /EIR addendum Se tember 26 Coastal Commission coordination September 26 - November 30 Coastal Commission hearing/permit approval December * Assumes that an Addendum to the CIOSA EIR will be adequate. ACORD CERTIFICA_M OF LIABILITY INSU CF, OPID T DATE(MM DD YY) ANN -1 05/04/01 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION John Burnham S. Co. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE formerly Bowman Co. Ins. Svs . HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P.O. Box 2410 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE Newport Beach CA 92658 -0269 Phone:949- 833 -2462 Fax:949 -833- 27-- _-- - -: _-- INSURED {" INSURER : ASBurance Company of America INSURER CNA Insurance Co. FIRE DAMAGE (Any one fire) The Planning Center I 0 rZ001 1580 Metro Drive Costa Mesa CA 92626 ! INSURERC: INSURER q: .. INSURER $1,000,000 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN I UEO�O THE1NSlIREDTAMEOABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANV CONTRAk OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE DATE (MMIDDrM POLICY N DATE MWD LIMITS • GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE ❑X OCCUR PPS035165530 07/01/00 07/01/01 EACH OCCURRENCE $1,000,000 FIRE DAMAGE (Any one fire) $50,000 MED EXP(Any one Person) $5,000 PERSONAL S ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN -L AGGREGATE LIMIT APPLIES PER 17 POLICY PRO- LOC JECT PRODUCTS - COMP/OPAGG $2,000,000 • AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULEDAUTOS HIRED AUTOS NON - OWNEDAUTOS PPS035165530 07/01/00 07/01/01 �eB�INFD SINGLE LIMIT ) $1,000,000 X BODILY INJURY (Perperson) S X BODILY INJURY (Per accident) S X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ $ A EXCESS LIABILITY 7 OCCUR E] CLAIMS MADE DEDUCTIBLE RETENTION $ PPS035165530 07/01/00 07/01/01 EACH OCCURRENCE $4,000,000 AGGREGATE s 5 $ $ WORKERS COMPENSATION AND EMPLOYERS LIABILITY I WC 5 I7 TORY LIMITS ER E.L. EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYE $ E.L. DISEASE - POLICY LIMIT S B OTHER Professional Liability MCE114003308 3 YR TAIL AVAILABLE 07/01/00 07/01/01 Per Claim 1,000,000 Ann Aggre 1,000,000 DESCRIPTION OF OPERAMONSILOCATIONSIVEHICLES /EXCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS See additional insured endorsement attached: CERTIFICATE HOLDER I N I ADDITIONAL INSURED; INSURER LETTER: CANCELLATION CNENPOR SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of Newport Beach DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30— DAYSWRITTEN Public works Department NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL Attn: Michael Sinacori PE P. O. Box 1768 IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER ITS AGENTS OR Newport Beach CA 92658 -8915 REPRESENTATIVES. A)MINPRIZED REPRESENTATIVE e ACORD 254 (7197) 0 ® ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25S (7797) GENERAL ENDORSEMENT 0 In consideration of an additional premium of N/A it is hereby understood and agreed that the following applies: [ X ] ADDITIONAL INSURED City of Newport Beach, its elected officials, officers, agents, representatives and employees [ ] 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. [ ] 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. [ ] 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. [ ] 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. The City of Newport Beach, Attn: Michael Sinacori PE, P. O. Box 1768, Newport Beach, CA In the event the policy is canceled for non - payment of premium, 10 days written notice will be sent to the above. Policy No.:PPS035165530 Insurance Company: Assurance Co of America Issued to: The Planning Center, Inc Aoiorized Repr sentative Form No. CG2010 (10/93) Effective Date: 07 -01 -00 Issue Date: 05 -04 -01 ACORD CERTIFICA H /MMf OF LIABILITY INSU NC OP ID T DATE I 00 Y1) 3 ANN -1 04/30/01 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION John Burnham & Co. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE formerly Bowman Co. Ins. Svs . HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR P.O. Box 2410 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. IMPOSE NO OBUGATION OR UIBILITY OF ANY WND UPON THE INSURER, ITS AGENTS OR Newport Beach CA 92658 -0269 Phone:949- 833 -2462 Fax :949- 833 -0127 INSURERS AFFORDING COVERAGE INSURED INSURER A: Fremont Compensation CO. INSURER B: MED EXP (Any one person) INSURER C: Planning Center Inc 1580 Metro Drive Costa Mesa CA 92626 INSURERD: INSURER E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR TYPE OF INSURANCE POLICY NUMBER DATE MMJDD DATE MMlDD/YY LIMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE 11-1 OCCUR IMPOSE NO OBUGATION OR UIBILITY OF ANY WND UPON THE INSURER, ITS AGENTS OR Newport Beach CA 92658 -8915 REPRESENTATIVES. EACH OCCURRENCE S FIRE DAMAGE (Any one fire) $ MED EXP (Any one person) $ PERSONAL& ADV INJURY S GENERAL AGGREGATE $ GEN'L AGGREGATE LIMIT APPLIES PER: POLICY JECT LOC PRODUCTS - COMP/OP AGG $ AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIREDAUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT (Ea acada U S BODILY INJURY (Per person) S BODILY INJURY (Per eccIdent) $ PROPERTY DAMAGE (Per a dent) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGG $ $ EXCESS LIABILITY OCCUR CLAIMS MADE DEDUCTIBLE RETENTION S EACH OCCURRENCE $ AGGREGATE S S S S A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY WNOO- 761902 -02 07/01/00 07/01/01 g I TORYLIMITS I I ER E.L. EACH ACCIDENT $ 10000DO E.L. DISEASE - EA EMPLOYE $1000000 E.L. DISEASE - POLICY LIMIT $1000000 OTHER DESCRIPTION OF OPERATIONSILOCATIONSNEHICLES /EXCLUSIONS ADDED BY ENDORSEMENTISPECULL PROVISIONS In the event the policy is canceled for non - payment of premium, 10 days written notice will be Bent. CERTIFICATE HOLDER N ADOaTONAL INSURED; INSURER LETTER: CANCELLATION CNEWPOR SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION City of Newport Beach DATE THEREOF, THE ISSUING INSURER WILL ENDEAVORTO MAIL _10_DAYSWRIT7EN Public Works Department NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO 50 WALL Attn: Michael Sinacori P8 P. O. Box 1768 IMPOSE NO OBUGATION OR UIBILITY OF ANY WND UPON THE INSURER, ITS AGENTS OR Newport Beach CA 92658 -8915 REPRESENTATIVES. AUTHORIZED REPRESENTATIVE ACORD 25S (7197) ® ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25S (7/97) ' ACORD CERTIFICAIWOF LIABILITY INSU CIS;�i T °"05;0 0: MDUCER THIS CERT F CATS IS ISSUED A5 A MATTER OF INFORMATION John Burnham & Co. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE 'ormerly Bowman Co. Ins. Sva . HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND OR ?.0. Box 2410 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Iavport Beach CA 92658 -0269 Phone:949- 833 -2462 Pax:949- 833 -0127 INSURERS AFFORDING COVERAGE 1580 Planaing Mat o Center Drive Inc 1560 Matra Drive Coats Mesa CA 92626 1 COVERAGES B: M THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RE6PECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 16 SUBJECT TO ALL THE TERMS, EXLUSIONS AND CONDITIONS OF SUCH POLICIES, AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS, LTR TYrt DV INSURANCE POLICY NUMBER 04 RwD OATS MI6O OMITS GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CLAIMS MADE ❑ OCCUR EACH OCCURRENCE S FIRE DAMAGE {Any sere fie) 6 MED W ("one person) S PERSONAL S AW INJURY S GENERAL AGGREGATE S GENL AGGREGATE LIMIT APPLIES PER: POLICY JPFL0, F7 LOC PRODUCTS - COMPJOP AGG 6 AUTOMOmLE LIABILITY AhTY AUTO ALL OWNED AUTOS SCHEDULEDAUTOS HIRED AUTOS KON.OWNEJ AUTOS COMBINED �MB�ament) SINGLE OMIT 6 BODILY INJURY (PWPereRR) _ Booty PWRY (P" 80odgem 6 PROPERTYDAMAGE (vn udGA) S GARAGE LIABILITY ANYAUTO AUTO ONLY. EA ACCIDENT 6 OTHER THAN FA ACC AUTO ONLY: AGE S S E(CESS UABILRY OCCUR F7 CLAIMS MADE DEDUCTIBLE RETENTION f EACH OCCURRENCE S AGGREGATE 6 S S S A WORKERS COMPENSATION AND EMPLOYERS LIABILITY WNOO- 761902 -02 07/01/00 07/01/01 Z DRY LIMITS ER E.L. EACH ACCIDENT 61000000 EL DISEASE -EA EMPLOYEE $1000000 EL. DISEASE- POLICY LIMIT 91000000 OTHER DESCRIPTION OF OPERATIONSILOCAT IONSW)QCLZS I=LUSIONSADDED BT EN DORSEM6MTA5PECIAL PROVISIONS In the avant the policy is canceled for non - payment of premium, 10 days Written notice will be Bent. CERTIFICATE HOLDER N I ACOMO14AL INSURED: INSURER LETTER:_ CANCELLATION C .CDR SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATR)N City of Newport Beach DATE THEREOF. THE I66UNG INWRERWILL ENOEAVORTO MAIL _1Q_uAYSWNTrEN Public Works Department NOTICE TO THE CERTINCATE MOLDER NAMED TO THE LEFT. BUT FAILURE TO 00 GO SHALL 1 Attn: Michael Sinacari PE IMPOSE HO OBLIGATION OR LIABILITY OF ANY VEND UPON THE INSURER, ITS AGENTS OR P. O. sox 1768 Newport Beach CA 92658-8915 REPRESENTATIVES._ E8 /ZB 3JVd WVIIN21fa NHOt 4616EESM ":61 TBBZ /91/50 ti WORKERS COMPF4rM AND EMPLAYIERS LUWULrTY INSWCE POLICY ©FREMONT COMPENSAYION FREMONT FREMONT PACIFIC INSURANCE COMFANY ❑ INDEMNITY COMPANY ❑ INSURANCE COMFANY PIIYNUMBER: WN00- 761902 -02 ENDORSEMENT NUMBER: 7 REVISED POLICVPERIOD: 07 -01-00 to 07 -01 -01 ISSUEOATE: May lIr 2001 INSURED: PLANNING CENTER INC. EFFECTNE aaTE: 07 -01 -00 The information above is required only when this endorsement is issued subsequently to preparation of the policy. WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT —CALIFORNIA 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 applies only to the elrtent that you perform work under a written contract that requires you to obtairi this agreement from us.) You must maintain payroll records accurately segregaling the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 10 %at the California workers' compensation premium otherwise due on such remuneration. Schedule Persgn or Orogniratig_n City of Newport :Beach .Jo 2W&jDtion All Operations Usual To The Named Insured This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. PRODUCER: John Burnham 6 Co CODE: 2204 WD 04 03 06 cz — GLENDALE. CALIFORNIA COUNTERSIGNED BY: Allyson B. Simpson, Secretary E9 /EB 39dd WtlWN ff *10f LZL6EE8606 Bt+ Si 108Z /91/SB C 3� 13 PROFESSIONAL SERVICES AGREEMENT FOR THE PREPARATION OF PLANS AND SPECFICATION RELATED TO BAYVIEW LANDING PARK IMPROVEMENTS THIS AGREEMENT, entered into this S� day of May 2001, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City "), and CNC Engineering, whose address is 17 Corporate Plaza Drive, Suite 120, 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 planning to implement the Bayview Landing Park Improvement Project at the comer of Jamboree Road and East Pacific Coast Highway ( "Project "). C. City desires to engage Consultant to complete the plans and specification for the construction of the Project, upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are: Sean Nazarie, P.E., Project Engineer and Ali Pakzad, P.E. Vice President and Senior Project Manager. E. City has solicited and received a proposal from Consultant, has reviewed -11- 0 0 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 �2 The term of this Agreement shall commence on the Ly 1 64 day of May 2001, and shall terminate on the 30th day of June 2002, 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 thirty three thousand, three hundred and ninety dollars and 00/100 Dollars ($33,390.00). 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, -2- 0 0 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. 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. The Consultant has designated Lynn Capouya, Inc., as the landscape architect for the Project for a not to exceed cost of $14,580. 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. 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 -3- 0 9 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 M2 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 Ali Pakzad, P.E., to be its Project Manager and Sean Nazarie, P.E., as the Project Engineer. 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. Citys 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. -5- 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 attached Exhibit "C ". The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant 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. 0 0 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 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 -7- 0 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. 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 M 0 0 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). Said policy or policies shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, which Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing 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 W ' • • outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived as against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such forms as City may require, furnish reports concerning the status of services required under this Agreement. 16. CONFIDENTIALITY The information, which results from the services in this Agreement, is to be kept -10- 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 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. Michael J. Sinacori, P.E., 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 -11- s • representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date 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 -12- 0 • 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 prior written approval of City. -13- 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: Attention Mr. Michael J. Sinacori, 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: Ali Pakzad, P.E. CNC Engineering 17 Corporate Plaza Drive Suite 120 Newport Beach, California 92660 (949) 644 -1505 Fax (949) 644 -2191 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 -14- • • (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 29. INTEGRATED CONTRACT 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. -15- 0 0 30. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. 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 -16- 0 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: ,t LaVonne Harkless City Clerk 2) CITY OF NEWPORT BEACH A Municipal Corporation Mayor City of Newport Beach CNC ENGINEERING Ali Pakz d, P.E. Vice Pregickmt- FAUwmXPB1MShared1Agreements \Fy 00 -01 \CNC - Bayview Landing.doc -17- 0 0 EXHIBIT A: SCOPE OF SERVICES FOR PROFESSIONAL ENGINEERING AND LANDSCAPE DESIGN OF BAYVIEW LANDING TASK 1. RESEARCH AND DATA COLLECTION This task consists of obtaining records of survey, parcels maps and other necessary documents for the field survey. This task also includes reviewing available record drawings of existing and proposed utilities adjacent to and within the site. This information will be used to identify point of service connections for the irrigation facilities and identify those utilities that need to be protected in place or relocated as required. TASK 2. DESIGN SURVEY This task includes setting, checking and closing traverse for the site and limited topographic survey. The survey will consist of cross sections along the proposed drainage ditches, existing monitoring wells, catch basin on PCH and the existing benchmark at the site. CNC will augment the topographic data to be provided by the City with these field data to prepare the base map. TASK 3. CONCEPTUAL PLAN A preliminary meeting with the Parks Beaches & Recreation (PB &R) Commission will be held to review the Scope of Work. We will prepare for a 50% presentation. This will include a rendered copy of the current plan, sections showing alternative design solutions and a plant materials board. We are also allowing for a 'Study Session' presentation of these materials to gain public input. Following receipt of comments from these two meetings, a final conceptual presentation including plan modifications, will be prepared and presented to the PBR Commission for approval. The landscape plans will be shown on the updated base map with the conceptual grading plan. The design will incorporate City guidelines and criteria plus EIR requirements to prepare plans that are responsive to all conditions, including drought tolerant plant material and water conservation issues. TASK 4. HYDROLOGY REPORT CNC will perform hydrology calculations for the site based on the approved conceptual grading plan for the site. The calculations will be based on the procedures in the latest edition of the OCPFRD hydrology manual. Results of the calculations will be presented in a report with a brief narrative and submitted to the City for review and approval. ACNC E N G I N E E R I N G 0 0 TASK 5. CONSTRUCTION DOCUMENTS Following final approval of the conceptual design by the City of Newport Beach PBR Commission, we will incorporate any further changes onto the site plan. We will work in AutoCAD v 2000 at a scale no greater than 1 " =20'. The plans will incorporate the conceptual review comments, final drainage design and trail design. This effort also includes agronomic soils testing of the site to determine the depth of topsoil to be restored after re- grading the site. We anticipate the final plans for the improvements to be as follows: • Title Sheet • Horizontal Control Plan • Grading and Drainage Plan • Grading and Drainage Details • Electrical Plan for Bollard Lighting Along the Trail • Erosion Control Plan • Irrigation Plan • Planting Plan • Landscape Details The specifications may be based on CSI or APWA format and in accordance with the City's guidelines and requirements. CNC will also submit an opinion of probable construction cost. TASK 6. STORM WATER POLLUTION PREVENTION PLAN ( SWPPP) CNC will prepare a SWPPP for construction of the proposed improvements to be submitted to the Regional Water Resources Control Board by the City. The document will outline Best Management practices to be used during construction to minimize discharged of sediment and pollutants to the waters of the United States during construction. Since the site exceeds 5.0 acres in area a Notice of Intent (NOI) must also be filed with the State Water Resources Control Board. CNC will prepare the NOI and submit to the City to be filed with by the State. TASK 7. PROJECT MANAGEMENT, PROCESSING AND COORDINATION This task consists of project administration, processing construction documents and coordination with the City. TASK 8. PLOTTING AND REPRODUCTION TASK 9. MILEAGE AND DELIVERY ACNC E N G I N E E R I N G 0 Exclusions of CNC's Scope of Work: 1. Geological or soil testing 2. Environmental /hazardous material 3. Excavation or potholing of existing utilities. 4. New easements description and documents Assumptions: 1. Electronic files for the existing topography will be provided by the City of Newport Beach. 2. All agency fees are the responsibility of the City of Newport Beach. 3. P.O.0 for water and electricity is available adjacent to the site. 4. Proposal assumes one (1) design for site grading only. Additional design concepts will be developed and finalized on a time and materials basis. 5. Field survey is limited to items listed in Task 2. Additional survey will be conducted on a time and materials basis. ACNC E N G I N E E R I N G 0 0 EXHIBIT B- CNC ENGINEERING PROJECT TEAM STANDARD FEE SCHEDULE Valid through July 1, 2002 CIVIL ENGINEERING SERVICES $ 125.00 President/Principal -In- Charge 115.00 Project Manager 95.00 Senior Project Engineer 90.00 Project Engineer 80.00 Design Engineer 70.00 AutoCAD Designer 60.00 Technician 35.00 Clerical FIELD SURVEY / INSPECTION SERVICES $ 90.00 Director of Surveying 155.00 Two Person Crew 70.00 Survey Technician 70.00 Construction Inspector 80.00 Senior Construction Inspector MISCELLANEOUS The following costs are billed at our cost plus 15% maximum ♦ Subcontracted Services ♦ Map check fees, permits or filing fees advanced by us ♦ Commercial delivery services including Federal Express, Express Mail and Messenger Services. (In- house delivery services billed at $.32 per mile plus labor.) ♦ Driving Time One Way ♦ Blueprint services and printing ♦ Graphic Services ACNC E N G I N E E R I N G • EXHIBIT B (CONTINUED) LYNN CAPOUYA, INC. STANDARD FEE SCHEDULE HOURLY RATES: fee Principal in Charge: $111.00 Project Manager: $94.00 Irrigation Designer: $83.00 Landscape Architect: $84.00 Senior Staff: $78.00 Intermediate Staff: $72.00 Administration: $43.00 Computer use charges are included. REIMBURSABLE EXPENSES: Plotting $30.00 /sheet Digital Photographs $25.00 /disk Digital Printouts $5.00 /printout Photocopies $0.10 /sheet Laser Prints $0.25 /sheet Bluelines $3.00 124x36 sheet 3.5 Disks $2.00 /disk Mileage $0.325 /mile CD Rom $5.00 /each These rates will remain in effect through July 1, 2002. h:b m%geno "Ve sWxls U s �... i _.: W r: lo! m v r. N Di N: ice: I N (D N_ V. Q Zq _W N Q Q � ° a U) rn m f" i 3 Z LU ° H 2 E O c W � U w A a i Z CL Q o o c E a c o E- c m E w Wwn d z n y m m U c y u 3 W Q a. U m O d d Q U °� .� y a N ° N N ir C V N> F N C d dLL N 2° W 4 c� a O n % m ¢ J V E) ° ZIf C m m c m c E n LL v U) c5 N ro � W Z I O � c p E �E U) m n c c 4 W 4L Z Ip� O y U N W q q V O O W O N 9 1 Z Q W Z Y O a a IL IL ¢ U fA y ¢ ly Z Z rO CM FC9p0 W '� i in i0 j1° IIp il� aD iA '� I� in I AC004D CERTIFICAT&OF LIABILITY INSU Ck DATE(MWDDNY) ICBN 1 06/06/01 PRODUCER _ - _: Wood - Gutmann Insurance Brok ers ERTIFICATE IS ISSUED AS A MATTER OF INFORMATION D CONFERS NO RIGHTS UPON THE CERTIFICATE License #0679263 .. HOLD R. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 14192 Franklin Ave., Suits 200 ALTS THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE Tustin CA 92780 -7044 Phone:714 -505 -7000 Fax:714 -57 INSURED INSURERA Golden Eagle Insurance CO INSURER B: Cypress Insurance Company $1,000,000 American Home Assurance CNC Hngineeria5 Co. "' -� INSURER D: 17 Corporate Plaza Newport Beach CA 92660 INSURER E COVERAGES THE POUCIESOF tH9URANCE LISTED BELOW HAVE BEEN ISSUED TO THE MSURED NAMED ABOVE FORTHE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER PO EFFEC DATE M YPXPIRATION DATE MIWD LIMITS • GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY CLAIMS MADE OCCUR X (I.C.P) Indep. CCP668372 -02 05/25/01 05/25/02 EACH OCCURRENCE $1,000,000 FIRE DAMAGE (Any one fire) $50,000 MED EXP(Any ale person) $5,000 PERSONAL BADVINJURY $1,000,000 Contractors Prot. GENERAL AGGREGATE s2,000,000 GEHL AGGREGATE LIMIT APPLIES PER POLICY JEFCT LOC PRODUCTS - COMPIOP AGG $1,000,000 • AUTOMOBILE LIABILITY ANY AUTO ALL OW NED AUTOS SCHEDULEDAUTOS NO N- AUTOS NON-0WNED AUTOS CCP668372 -02 This supers 05 /25/01 Certific des All 05/25/0.1 to Qthers COMBINED SINGLE U MIT (Ea accident) S1,000,000 X BODILY INJURY (Pa lemon) $ (Pa accident) $ PROPERTY DAMAGE (Per accident) $ - GARAGE LIABILITY ANY AUTO Previously Issued AUTO ONLY -FA ACCIDENT S OTHER THAN FA ACC AUTO ONLY: AGG $ S A EXCESS LIABILITY K OCCUR F_] CLAIMSMADE DEDUCTIBLE RETENTION $ EXC552067 -02 05/25/01 05/25/02 EACH OCCURRENCE $5,000,000 AGGREGATE $5,000,000 S $ $ B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY W1103554 01/01/01 01/01/02 R TORYLIMITS ER E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 C OTHER Professional Liab 5638274 05/25/01 05/25/02 He Claim $5,000,000 Ana. Agg. $5,000,000 DESCRIPTION OF OPERATIONSILOCATIONSNEMCLESIE XCLUSIONS ADDED BY ENDORSEMENTISPECIAL PROVISIONS *10 Days notice of cancellation for non payment of premium. City of Newport Beach, its officals, officers, agents, volunteers and employees are named as additional insured per attached GECG601 and primary wording applies to GL per attached GBCG827. Auto additional insured applies per attached GECA700. WC waiver has been requested and will follow. CERTIFICATE HOLDER I Y I ADDITIONAL INSURED; INSURER LETTER: CANCELLATION NICWP O 17 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN City Of Newport Beach NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL Public Works Department 3300 Newport Blvd. IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR Newport Beach CA 92658 -8915 REPRESENTATIVES. James E. Gutman ACORD 25S (7/97) /' 'j ® ACORD CORPORATION 194V IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(Ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endosement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does It affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25S (7/97) GOLDEN EAGLE INSURANCE CORPORATION P.O. BOX 85826. SAN DIEGO, CA. 92186x826 ADDITIONAL INSURED - OWNERS, LESSEES Policy No: CCP668372 -02 OR CONTRACTORS (FORM B) _ THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY_ This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule, but only with respect to liability arising out of "your work" for that insured by or for you. The coverage afforded the additional insured does not apply to any project on which "your work" was completed prior to the effective date of this endorsement SCHEDULE City of Newport Beach, its officers, officers, agents, volunteers and employees Pi GOLDEN EAGLE INSURANCE CORPORATION P.O. BOX 85826 - SAN DIEGO, CA 92186 -5826 PRIMARY INSURANCE ENDORSEMENT Policy No: CCP668372 -02 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies the following policy coverage forms: COMMERCIAL GENERAL LIABILITY COVERAGE FORM PRODUCTS /COMPLETED OPERATIONS LIABILITY COVERAGE FORM Endorsement No. (If issued after the effective date): Endorsement Effective: 05/25/01 (At 12:01 A.M. Standard Yma) Named Insured: CNC Engineering Co. The insurance provided by this policy for the benefit of the Additional Insured shown in the Schedule shall be primary insurance, and any other insurance maintained by the additional insured shall be excess and noncontributory with the insurance provided by this policy, but only as respects any claim, loss or liability arisinb out of the ongoing operations of the named insured or its subcontractors, and only if such claim, loss or liability is determined to be solely the neglifencu or responsibility of the named insured. SCHEDULE Name of Person or Organization: City of Newport Beach, its officials, officers, agents, volunteers and employees GECG82710819711GECP08971 GOL O jEAGLE I:d3UI2ANCE CO OATION P.O. BOX 85826 - SAN DIEGO, CA 92186 -5826 EAGLE PLUS - AUTO ENDORSEMENT THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM SECTION 11 - LIABILITY COVERAGE A. COVERAGE 1. WHO IS AN INSURED The following is added: d. Anv organization, other than a partnership or joint venture, over which you maintain ownership or a majonty interest on the effective date of this Coverage Form, if there is no similar insurance available to that organization. c. Any organization you newly acquire or form other than a partnership or-Joint venture. and over which you maintain ownership of a majority interest. However, coverage under this provision does not apply: (1) If there is similar insurance available to that organization; or (2) To "bodily injury" or property damage" that occurred before you acquired or formed the organization. f. Any volunteer or employee of ,yours while using a covered "auto" you do not own, hire or borrow in your business or your personal affairs. Insurance provided by this endorsement is excess over any other insurance available to any volunteer or employee. g. Any person, organization, trustee, estate or government entity with respect to the operation, maintenance or use of a covered "auto" by an insured, if: (1) You are obligated to add that person, organization, trustee, estate or government entity as an additional insured to this policy by: (a) an expressed provision of an "insured contract ", or written agreement; or (b) an expressed condition of a written permit issued to you by a governmental or public authority. (2) The "bodily injury" or "property damage" is caused by an "accident" which takes place after: (a) You executed the "insured contract" or written agreement; or (b) the permit has been issued to you. 2. COVERAGE EXTENSIONS GECA 7001101981 a. Supplementary Payments. Subparagraphs (2) and (4) are amended as follows: (2) Up to S2500 for cost of bail bonds (including bonds for related traffic law violations) required because of an "accident" we cover. We do not have to furnish these bonds. (4) All reasonable expenses incurred by the "Insured" at our request, including actual loss of earning up to $500 a day because of time off from work. Agent's Copy Page 1 of 4 B. EXCLUSIONS , • Paragraph 5. is replaced by the following: 5. FELLOW EMPLOYEE 'Bodily injury" to any fellow employee of the "Insured" arising out of and in the course of the fellow employee's employment. However, we will cover 'bodily injury" caused by your employee to his or her fellow employee if the "bodily injury" results from the use of a covered "auto" you own or hire. This coverage is excess over any other collectible insurance. SECTION III - PHYSICAL DAMAGE COVERAGE A. COVERAGE The following is added: 5. Hired Auto Physical Damage a. Any "auto" you lease, hire, rent or borrow from someone other than your employees or partners or members of their household is a covered "auto' for each of your physical damage coverages. b. The most we will pay for "loss" in any one "accident" is the smallest of: (1) $50,000. (2) The actual cash value of the damaged or stolen property as of the time of the "loss "; or (3) The cost of repairing or replacing the damaged or stolen property with other property of like kind and quality. If you arc liable for the "accident ", we will also pay up to 5500 per "accident" for the actual loss of use to the owner of the covered "auto ". c. Our obligation to pay for, repair, return or replace damaged or stolen property will be reduced by an amount that is equal to the amount of the largest deductible shown for any owned "auto" for that coverage. However any Comprehensive Coverage deductible shown in the Declarations does not apply to "loss" caused by fire or lightning. d. For this coverage, the insurance provided is primary for any covered "auto" you hire without a driver and excess over any other collectible insurance for any covered "auto" that you hire with a driver. 6. Rental Reimbursement Coverage We will pay up to $75 per day for up to 30 days, for rental reimbursement expenses incurred by you for the rental of an "auto" because of "loss" to a covered "auto ". We will also pay up to 5500 for reasonable and necessary expenses incurred by you to remove and replace your materials and equipment from the covered "auto ". If "loss" results from the total theft of a covered "auto' of the private passenger type, we will pay under this coverage only that amount of your rental reimbursement expenses which is not already provided under paragraph 4. Coverage Extension. 7. Customized Furnishings Coverage We will pay with respect to a covered "auto" for 'loss' to custom furnishings including, but not limited to: a. Special carpeting and insulation; b. Height- extending roofs; c. Custom murals, paintings, or other decals or graphics. GECA 700 110M) Page 2 of 4 Our limit of haht. *Os to custom furnishings shall be the 1, .� a. Actual cash value "of the stolen or damaged property as of the time of the loss; or b. The amount necessary to repair or replace the property; or c. $500. This covera_c does not apply to electronic equipment. 8. Lease Gap Coverage If a long -term leased "auto" is a covered "auto' and the lessor is named as an Additional Insured - Lessor, in the event of a total loss, we will pay your additional legal obligation to the lessor for any difference between the actual cash value of the "auto" at the time of the loss and the "outstanding balance" of the lease. "Outstanding balance" means the amount you owe on the lease at the time of loss less any amounts representing taxes; overdue payments; penalties, interest or charges resulting from overdue payments; additional mileage charges; excess wear and tear charges; and lease termination fees. B. EXCLUSIONS The following is added to Paragraph 3 The exclusion for "loss" caused by or resulting from mechanical or electrical breakdown does not apply to the accidental discharge of an airbag. Paragraph 4 is replaced with the following: 4. We will not pay for 'loss" to any of the following: a. Tapes, records, disks or other similar audio, visual or data electronic devices designed for use with audio, visual or data electronic equipment. b. Equipment designed or used for the detection or location of radar. c. Any electronic equipment that receives or transmits audio, visual or data signals. Exclusion 4.c does not apply to: (1) Electronic equipment that receives or transmits audio, visual or data signals, whether or not designed solely for the reproduction of sound, if the equipment is permanently installed in the covered "auto' at the time of the "loss" and such equipment is designed to be solely operated by use of the power from the "auto's" electrical system, in or upon the covered "auto "; or (2) Any other electronic equipment that is: (a) Necessary for the normal operation of the covered "auto" or the monitoring of the covered "auto's" operating system; or (b) An integral part of the same unit housing any sound reproducing equipment described in (1) above and permanently installed in the opening of the dash or console of the covered "auto" normally used by the manufacturer for installation of a radio. D. DEDUCTIBLE The following is added: No deductible applies to glass damage if the glass is repaired rather than replaced. GECA 700 (10/98) Page 3 of 4 I SECTION IV. BUSINESS AUTO CONDITIONS • A. LOSS CONDITIONS ?.a. Is replaced with the following: a. In the event of "accident ", claim, "suit" or "loss" you must promptly notify us. Your duty to promptly notify us is effective when any of your executive officers, partners, members, or legal representatives is aware of the "accident ", claim, "suit ", or "loss ". Knowledge of an "accident ", claim, "suit ", or "loss" by other employee(s) does not imply you also have such knowledge. Notice to include: (I) How, when and where the "accident" or "loss" occurred; (2) The 'insured's" name and address; and (3) To the extent possible, the names and addresses of any injured persons and witnesses. The following is added to 5. We waive any right of recovery we may have against any additional insured under Coverage A. 1. Who Is An Insured g., but only as respects loss arising out of the operation, maintenance or use of a covered "auto" pursuant to the provisions of the "insured contract ", written agreement, or permit. B. GENERAL CONDITIONS 7. e. is added: e. All parts of the world for an "auto" you hire for less than 30 consecutive days, if the insured's responsibility to pay damages is determined in a "suit" on the merits in the territory described in 7. a - 7. d. 9. is added: S. UNINTENTIONAL FAILURE TO DISCLOSE HAZARDS Your unintentional failure to disclose any hazards existing at the effective date of your policy will not prejudice the coverage afforded. However, we have the right to collect additional premium for any such hazard. COMMON POLICY CONDITIONS A. 2.b. is replaced by the following: b. 60 days before the effective date of cancellation if we cancel for any other reason. GECA 700 110!961 Agent's Copy Pape 4 of 4 JUN -13 -2001 11:39 CNC ENGINEERING • • 949 644 2191 P.01i01 Fax To: Wood- Gutman Insurance Date: June 13, 2001 14192 Franklin Avenue Suite 200 Tustin, CA 92780 No. Pages: 1 Cc: Shanna Oyler City of Newport Beach Fax: 949 - 644 -3318 Subject: Wavier of Subrogation From: Sharon Yates Fax: 714 - 573 -1770 Business Development Please add a "Wavier of Subrogation" to our current Workmen's Compensation Policy Certification for the City of Newport Beach and fax a copy to Shanna Oyler at 949 -644 3318 and then mail hard copies. Thanks! I ! ! TOTRL P.01 JUN -06 -2001 WED 08:00 AM FAX NO. P. 02 �(SCAL- SURANCE CERTIFICATE OF INSURANCE CHECKLIST CITY OF NEWPORT BEACH: THUS CHECKLIST IS COMPRISED OF REQUIREMENTS AS [JTLI D ABY THE CITY OF NEWPORT BEACH. DATE RECEIVED: 06 Ll6 Ol DEPARTM DATE COMPLETED: OG AtOol SENT COMPANYIPERSON REQUIRED TO HAVE GENERAL LIABILITY: A. INSURANCE COMPANY: rL B. AM BEST RATING (A VII or gt C. ADMITTED COMPANY: (Mus D. LIMITS: (Muss be 51,000,000 r E, PRODUCTS AND COMPLE 1 F. ADDITIONAL INSURDED 0 volutnecn). Isitincluded? C G. PRIMARY AND NON CO H. CAUTION) (Corm that loss Does endorwz=t include "solel: I. NOTIFICATION OF CANCELL certified mail; per Laurm Farley r BY: MIJR mittod) Is oompnny �]dm!ined in Calufomia? Yes ✓ No limit provided? 1, 00000 (Must Include) Is it Ind 07 Yos ✓ No^ .JDE: ( The City its officers, agents, officials, employees and WRING: (Must be included) Is it included? Ycs_ No ✓ h arced insured is not hmital solely by their negligence.) x' rding? Yes No ough there is a provision that requires notification of cancellation by accept the endeavor wording. 11. AUTOMOBILE LIABILITY: A. )NSURANCL COMPANY: 60_ WAI t tC iMI uc- B. AM BEST RATING (A VII or greater): f : " C. ADMITTED COMPANY: ( MUST BE CALIFORNIA ADMITTED) Is company admitted? Yes ✓ No� D. LIMITS: ( Must be $1.000,000 minimum BI & PD and S500,000 UM) What is limits provided ?,� D0e MD E. ADDITIONAL INSURED WORDING TO INCLUDE: (The City its officers ,agents, officials, employees and volunlce . Is it included'? Yes_ No ✓ F. PRIMARY AND NON CONT'RIBUT'ORY WORDING: (Must be included). Is it included? Yes_ No ✓ G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certifiLd mail; per Lauren Farley the City will accept the endeavor wording. 111. WORKERS COMPENSATION A. INSURANCE COMPANY: 6VAPE89 WJU,RRAX Mkp —%i, tf B. AM BEST RATING (A V1I or grealer)_A -,x1 C. LIMITS: Statutory D. WAVIER OF SUBROGATION: (To include). Is it included? Yes_ No_)e HAVE ALL ABOVE REQUIREMENTS BEEN MET? Yes No IF NO, WHICH ITEMS NEED TO BE COMPLETED? )At' —M49L I NS I /s TO: Mayor and Members of the City Council FROM: Public Works Department April 24, 2001 CITY COUNCIL AGENDA ITEM NO. 9 SUBJECT: BAYVIEW LANDING PARK SITE — CONTRACT NO. 3413 APPROVAL OF PROFESSIONAL ENVIRONMENTAL SERVICES AGREEMENT WITH THE PLANNING CENTER AND PROFESSIONAL SERVICES AGREEMENT WITH CNC ENGINEERING RECOMMENDATIONS: 1. Approve a Professional Environmental Services Agreement with The Planning Center, of Costa Mesa, for preparation of environmental documentation and Coastal Commission Permitting assistance for the Bayview Landing View Park site for a contract price of $24,900 and authorize the Mayor and City Clerk to execute the Agreement. This approval recognizes that The Planning Center employee John Douglas is a former City Employee. 2. Approve a Professional Engineering Services Agreement with CNC Engineering for preparation of plans and specifications for the construction of the Bayview Landing View Park for a contract price of $33,390 and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: The 12 -acre upper Bayview Landing site at the corner of East Coast Highway and Jamboree Road was identified as open space in the 1993 Circulation Improvement and Open Space Agreement (CIOSA) with the Irvine Company. In September 1999 the City Council authorized Staff to apply for matching funds through the Federal Transportation Enhancement Activities (TEA) Program, first authorized under the Intermodal Surface Transportation Act (ISTEA) of 1991 and subsequently reauthorized under the Transportation Equity Act for the 215` Century in 1998. During that process Staff prepared the attached conceptual plan for the park site. This plan provides for site grading that will lower the grade to provide a view of the Upper Newport Bay from Coast Highway. The City was unsuccessful in qualifying for matching funds. The review staff for the funding program cited concerns about the project, in particular the fact that the necessary environmental clearances and construction documents had not yet been prepared. Projects that are clearly ready for SUBJECT: BAYVIEW LANDING SITE - APPROVAL OF PROFESSIONAL ENVIf ENTAL SERVICES AGREEMENT WITH THE PLANNIN eNTER AND PROFESSIONAL SERVICES AGREE NT WITH CNC ENGINEERING April 24, 2001 Page 2 construction get a higher scoring in the competitive grant funding process. This year the City Council approved the capital project to complete the environmental clearances and to prepare the plans and specifications. SCOPE OF SERVICES AND SELECTION PROCESS: Proposals were solicited from two firms to complete the necessary environmental documentation for the project: • The Planning Center Dave Bartlett and Associates Both firms have worked on City projects and are experienced in obtaining environmental clearances and have completed many Coastal Development Permits for the City. The Planning Center, led by the project manager and former City Staff member John Douglas, was selected to complete the necessary environmental documentation for the Bayview Landing project, which will include the environmental checklist and the anticipated mitigated negative declaration. In addition, the Planning Center will be responsible for preparing the Coastal Development Permit and the associated coordination efforts with the Commission staff. Mr. Douglas has first -hand experience with the CIOSA Agreements and the June 1992 CIOSA Environmental Impact Report. His experience as a City Staff member and with the Planning Center makes him uniquely qualified to complete the required environmental services. Approval of the contract with The Planning Center recognizes that they employee a former City employee and that this requires City Council approval to conform with City Council Policy F -20. Staff requested proposals from four different firms to complete the necessary Civil Engineering and Landscape plans and specifications for the project: • EPT Landscaping Nuvis Landscape Architecture • CNC with Lynn Capouya • The Planning Center Each firm was requested to prepare a proposal for the park design services. Upon review by the Director, City Engineer, and Project Manager, it was determined that CNC had the best project team for this specific project. CNC is small firm located in Newport Beach. Their landscape subconsultant, Lynn Capouya, recently completed the Arches Interchange landscaping design. Staff met with both The Planning Center and CNC to define specific scopes of services. Since each will have to interact with the other, the meeting was held together. Attached for Council consideration are the professional services agreements for each firm. SUBJECT: BAYVIEW LANDING PA'ITE - APPROVAL OF PROFESSIONAL ENVIRO AL SERVICES AGREEMENT WITH THE PLANNING CE TER AND PROFESSIONAL SERVICES AGREEMEI177TT''WITH CNC ENGINEERING April 24, 2001 Page 3 RECOMMENDATION AND FUNDING The current Capital Project Account Nos. of 7021- C5100562 and 7432- C5100592 have sufficient funds to cover the environmental and design services for the Bayview Landing View Park. The construction funding will be requested in next fiscal year's Capital Improvement Program. If funding is not approved, Staff will apply for other grants as they become available. Staff recommends approval of the professional services agreement to prepare the preliminary design study, plans, and specifications for the project. M suS DEPARTMENT Don Webb, Director By: M' hael J. Sinacori, P.E. Utilities Engineer & Project Manager Attachments: Professional Environmental Services Agreement with The Planning Center Professional Engineering Services Agreement with CNC Engineering 0 0 DRAFT PROFESSIONAL SERVICES AGREEMENT WITH THE PLANNING CENTER FOR THE ENVIRONMENTAL ASSESEMENT RELATED TO THE BAYVIEW LANDING PARK IMPROVEMENT PROJECT THIS AGREEMENT, entered into this 24th day of April 2001, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City"), and The Planning Center, whose address is 1580 Metro Drive, Costa Mesa, California, 92626, (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 Bayview Landing Park Improvement Project at the comer of Jamboree Road and East Pacific Coast Highway ( "Project "). C. City desires to engage Consultant to complete the enviromental assessment for the Project and complete the permit processing with the California Coastal Commission upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are John Douglas, AICP, Project Manager and Dwayne Mears, AICP, Principal Director of Environmental Services. -1- 0 0 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 24th day of April 2001, and shall terminate on the 30th day of June 2002, 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 four thousand nine hundred and 00/100 dollars ($24,900.00). 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- 0 E 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. 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 inured by Consultant in the performance of this Agreement. 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. 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 Q 0 0 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 Citys 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 161 • • during term of Project. Consultant has designated John Douglas, AICP, 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 attached Exhibit "C ". The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby 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 12 0 E 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 are desired. 12. HOLD HARMLESS Consultant shall indemnify, defend, save and hold harmless City, its City Council, -7- • • boards and commissions, officers and employees from and against any and all loss, damages, liability, claims, allegations of liability, suits, costs and expenses for damages of any nature whatsoever, including, but not limited to, bodily injury, death, personal injury, property damages, or any other claims arising from any and all negligent acts or omissions of Consultant, its employees, agents or subcontractors in the performance of services or work conducted or performed pursuant to this Agreement, excepting only the active negligence or willful misconduct of City, its officers or employees, and shall include attorneys' fees and all other costs incurred in defending any such claim. Nothing in this indemnity shall be construed as authorizing, any award of attorneys' fees in any action on or to enforce the terms of this Agreement. 13. INSURANCE Without limiting consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain and provide and maintain at its own expense during the term of this Agreement policy or policies of liability insurance of the type and amounts described below and satisfactory to City. Certification of all required policies shall be signed by a person authorized by that insurer to bind coverage on its behalf and must be filed with City prior to exercising any right or performing any work pursuant to this Agreement. Except workers compensation and errors and omissions, all insurance policies shall add City, its elected officials, officers, agents, representatives and employees as additional insured for all liability arising from Consultant's services as described herein. Insurance policies with original endorsements indemnifying Project for the 19 a 0 following coverages shall be issued by companies admitted to do business in the State of California and assigned Best's A- VII or better rating: A. Worker's compensation insurance 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 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 0 • • 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 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 -10- • 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: 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 -11- 0 E 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. S. Provide blueprinting, CADD plotting, copying and other services through City's reproduction company for each of the required submittals. Consultant will be required to coordinate the required submittals with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. City staff will provide usable life of facilities criteria and provide information with regards to deficient facilities. D. City will prepare and provide to Consultant street base digital file in AutoCAD (DWG) compatible format. 18. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be -12- 0 0 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 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. -13- 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 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, -14- 0 0 postage prepaid, first Gass mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attention Mr. Michael J. Sinacori, 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, AICP The Planning Center 1580 Metro Drive Costa Mesa, California 92626 (714) 966 -9220 Fax (714) 966 -9221 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 -15- 0 0 nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 26.1 City shall have the option, at its sole discretion and without cause, of terminating this Agreement by giving seven (7) days' prior written notice to Consultant as provided herein. Upon termination of this Agreement, City shall pay to Consultant that portion of compensation specified in this Agreement that is earned and unpaid prior to the effective date of termination. 27. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 29. INTEGRATED CONTRACT 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 -16- 0 0 Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in responsible charge of the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. 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 -17- E 0 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: in LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: Mayor City of Newport Beach THE PLANNING CENTER M Dwayne Mears, ACIP Principal, Director of Environmental Services F: \Users\PBW\SharedWgreements\Fy 00- OlUohn Douglas - Bayview Landing.doc so 0 0 Exibit 'W' Soope of Services The Planning Center will provide project coordination services and will. prepare an Initial Study containing the required elements, including a project description, environmental checklist and environmental analysis supporting the conclusions shown in the checklist. The Bayview Landing she was included in the CIOSA EIR, which was prepared in the early 1990s. It is expected that the Initial Study will rely on this previous EIR, but updated information will be necessary for some topics such as biological impacts. For purposes of this proposal, it is assumed that this review will support the preparation of an Addendum to the previous EIR. If the analysis indicates that significant environmental effects could occur that were not previously identified, a Supplemental EIR may be required and a revised scope and budget will be developed. A breakdown of proposed tasks is as follows: Task 1 - Proiect Manaoement The Planning Center will work with the City's Project Manager to coordinate the project approval process, which will include conducting meetings and coordinating the project approval process. Products 3 meetings of the PB &R Commission or committee 1 City Council study session 1 City Council meeting General project administration /meetings with City staff and others as needed Task 2 - CEQA Compliance The Planning Center will review the CIOSA EIR to determine the environmental impacts that were associated with the Bayview Landing site, and will prepare an analysis of how the project as currently proposed differs from the project described in CIOSA and how impacts from the project as currently proposed would differ from the EIR analysis. If this evaluation shows that none of the conditions described in CEQA Guidelines Section 15162 would require the preparation of a subsequent EIR, then an Addendum will be submitted for the City's consideration. A biological survey of the site will be conducted, including a review of existing information, documentation of the plant communities and wildlife present, and whether any habitat would be subject to jurisdiction of state and federal resource agencies. Surveys to determine whether California gnatcatchers are present will be conducted under separate contract and the results will be incorporated into the Initial Study. For purposes of this proposal it is assumed that any required technical studies other than a biological field survey and archaeological site walkover will be provided by other consultants. If the analysis determines that additional technical studies are necessary, a modification to this scope and budget will be required. This scope and budget assume that archaeological review will be limited to: 1) the review and evaluation of the proposed park project in comparison to the analysis contained in the CIOSA EIR, and 2) a field survey of the project area. The field survey will decribe on the current conditions of the property and will provide conclusions as to whether or not resources are evident on the surface. No subsurface testing is included in this level of review. Over the course of time, surface conditions can change and, if a survey was completed during preparation of the CIOSA EIR, verification of the findings or alteration to the descriptions may be necessary. 0 0 Review of the previous EIR documents and the field survey may result in the identification of a previously recorded archaeological resource. Should one or more resources be recorded for the project site, a Phase II testing program will be necessary prior to any development or alteration of the property. Since it is not known whether a Phase II program will be required until after the EIR review and site walkover is completed, this is identified as an optional task in the proposed budget. A Phase II testing program would be designed to sample the resource to a level that would permit a formal evaluation of its significance (in accordance with CEQA requirements). Should a resource be determined to be significant, mitigation of adverse impacts is necessary. This would entail completion of a Phase III data recovery program that would essentially "clear" the property for development. Since archaeological testing programs can be expensive, the City may opt to solicit competitive bids for Phase II and Phase III programs, should they be necessary. Two rounds of revisions to the draft Initial Study /Addendum are included in this scope. The Planning Center will prepare a Final Initial Study /Addendum incorporating any revisions needed in response to comments received and will be available to respond to questions at a City Council meeting (included in Task 1). Additional meeting attendance, if required, will be provided on atime and materials basis. The Planning Center will prepare and file any notices required by CEQA. It is assumed that any publication of notices in the newspaper or direct mailing of notices, if required, will be handled by the City. It should be noted that CEQA does not require circulation of an EIR addendum for public review, but the City Council and Coastal Commission must consider the information contained in the Addendum prior to making a decision on the project (CEQA Guidelines Sec. 15164). Products 1 Screencheck Initial Study /Addendum (3 copies) 1 Draft Initial Study /Addendum (3 copies) 1 Public Review Draft Initial Study /Addendum (3 copies) 1 Final Initial Study /Addendum (3 copies) Task 3 — Coastal Commission Permit Processing The Planning Center will prepare and submit a coastal development permit application to the California Coastal Commission and will coordinate with Commission staff on processing the application. It is assumed that the City will provide copies of all plans and specifications required as part of the application package. One meeting with Coastal Commission staff and attendance at one Coastal Commission hearing is assumed. Additional meetings with Coastal Commission staff or attendance at additional Coastal Commission hearings can be provided on a time and materials basis. Products Preparation and submittal of Coastal Commission application package 1 Coastal Commission staff meeting 1 Coastal Commission hearing 0 0 Exhibit "B" BUDGET ESTIMATE BAYVIEW TASK I COST PROFESSIONAL SERVICES 500 Task 1. Project Management 300 3 PB &R meetings 1,500 1 City Council study session 500 1 City Council meeting 500 Project administration 5,000 Subtotal 7,500 Task 2. Environmental Analysis Biological survey and analysis (excluding natcatcher sure 2,000 Archaeological review and field survey 3,500 Archaeological testing program design and implementation Optional Preparation of Screencheck & Draft IS /Addendum 6,000 Preparation of Final IS /Addendum 500 Subtotal 12,000 Task 3. Coastal Commission processing Application package preparation & coordination with Coastal Comm. staff 2,500 1 Meeting with Coastal Comm. staff 500 1 Coastal Commission hearing 1,500 Subtotal 4,500 Total - Professional Services $24,000 REIMBURSABLE EXPENSES Reproduction/graphics 500 Milea e/Travel* 300 Fax/Postage/Deliveries 100 Subtotal $900 TOTAL $24,900 * Assumes the Coastal Commission hearing will be held in Long Beach. Additional time and travel expenses would occur if the hearing is located elsewhere. 0 Exhibit "C" TENTATIVE SCHEDULE* 13AYVIEW LANDING PARK TASK DATE Receipt of Authorization and Project Plans (plans sufficient for defining "project" for CEQA purposes) May 11, 2001 PB &R Commission - select preferred concept plan June 15 City Council study session Jul PB &R Commission - approve final design August 15 Submit Screencheck Draft IS /Addendum for Review August 20 Internal City Review of screencheck August 20 - 30 IS /Addendum Revisions September 1 - 7 Submit Draft IS /Addendum for Review September 7 Internal City Review of draft September 14 City Council meeting September 25 File Notice of Determination September 26 Submit Coastal Permit a lication /EIR addendum September 26 Coastal Commission coordination September 26 - November 30 Coastal Commission hearing/permit approval December * Assumes that an Addendum to the CIOSA EIR will be adequate. 0 DRAFT PROFESSIONAL SERVICES AGREEMENT WITH CNC ENGINEERING FOR THE PREPARATION OF PLANS AND SPECFICATION RELATED TO THE BAYVIEW LANDING PARK IMPROVEMENT PROJECT THIS AGREEMENT, entered into this 24th day of April 2001, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City"), and CNC Engineering, whose address is 17 Corporate Plaza Drive, Suite 120, 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 planning to implement the Bayview Landing Park Improvement Project at the comer of Jamboree Road and East Pacific Coast Highway ( "Project"). C. City desires to engage Consultant to complete the plans and specification for the construction of the Project, upon the terms and conditions contained in this Agreement. D. The principal members of Consultant are for purpose of Project are: Sean Nazarie, P.E., Project Engineer and Ali Pakzad, P.E. Vice President and Senior Project Manager. -1- 0 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 24th day of April 2001, and shall terminate on the 30th day of June 2002, 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 thirty three thousand, three hundred and ninety dollars and 00 /100 Dollars ($33,390.00). -2- C� • 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. 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. The Consultant has designated Lynn Capouya, Inc., as the landscape architect for the Project for a not to exceed cost of $14,580. 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 -3- 0 0 Agreement. 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. 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 Cs 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 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 during term of Project. Consultant has designated Ali Pakzad, P.E., to be its Project Manager and Sean Nazarie, P.E., as the Project Engineer. 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 -5- • • 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 attached Exhibit "C ". The failure by Consultant to strictly adhere to the schedule may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by go 0 0 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 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 -7- 0 0 active negligence or willful misconduct of City, its officers or employees, and shall include attomeys' 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. Workers 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 [a 0 0 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). Said policy or policies shall be endorsed to state that coverage shall not be canceled by either parry, except after thirty (30) days' prior notice has been given in writing to City. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of Consultant's operation hereunder. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. Consultant agrees that in the event of loss due to any of the perils for which it has agreed to provide comprehensive general and automotive liability insurance, which Consultant shall look solely to its insurance for recovery. Consultant hereby grants to City, on behalf of any insurer providing comprehensive general and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a 0 0 0 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 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 -10- • 0 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 will be required to coordinate the required submittals with City's -11- 0 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. Michael J. Sinacori, P.E., shall be considered the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. -12- 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 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. 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- E 0 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: Attention Mr. Michael J. Sinacori, 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 -14- 0 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Ali Pakzad, P.E. CNC Engineering 17 Corporate Plaza Drive Suite 120 Newport Beach, California 92660 (949) 644 -1505 Fax (949) 644 -2191 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 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. 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. 31. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer -16- CJ E 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 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: Robin Clauson Assistant City Attorney ATTEST: LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Mayor City of Newport Beach CNC ENGINEERING By: Ali Pakzad, P.E. Vice President F:1Users\PBMSharedWgreements \Fy 00-01 \CNC - Bayview Landing.dm M EXHIBIT A: • SCOPE OF SERVICES FOR PROFESSIONAL ENGINEERING AND LANDSCAPE DESIGN OF BAYVIEW LANDING TASK 1. RESEARCH AND DATA COLLECTION This task consists of obtaining records of survey, parcels maps and other necessary documents for the field survey. This task also includes reviewing available record drawings of existing and proposed utilities adjacent to and within the site. This information will be used to identify point of service connections for the irrigation facilities and identify those utilities that need to be protected in place or relocated as required. TASK 2. DESIGN SURVEY This task includes setting, checking and closing traverse for the site and limited topographic survey. The survey will consist of cross sections along the proposed drainage ditches, existing monitoring wells, catch basin on PCH and the existing benchmark at the site. CNC will augment the topographic data to be provided by the City with these field data to prepare the base map. TASK 3. CONCEPTUAL PLAN A preliminary meeting with the Parks Beaches & Recreation (PB &R) Commission will be held to review the Scope of Work. We will prepare for a 50% presentation. This will include a rendered copy of the current plan, sections showing alternative design solutions and a plant materials board. We are also allowing for a 'Study Session' presentation of these materials to gain public input. Following receipt of comments from these two meetings, a final conceptual presentation including plan modifications, will be prepared and presented to the PBR Commission for approval. The landscape plans will be shown on the updated base map with the conceptual grading plan. The design will incorporate City guidelines and criteria plus EIR requirements to prepare plans that are responsive to all conditions, including drought tolerant plant material and water conservation issues. TASK 4. HYDROLOGY REPORT CNC will perform hydrology calculations for the site based on the approved conceptual grading plan for the site. The calculations will be based on the procedures in the latest edition of the OCPFRD hydrology manual. Results of the calculations will be presented in a report with a brief narrative and submitted to the City for review and approval. ACNC E N G I N E E R I N G 0 0 TASK 5. CONSTRUCTION DOCUMENTS Following final approval of the conceptual design by the City of Newport Beach PBR Commission, we will incorporate any further changes onto the site plan. We will work in AutoCAD v 2000 at a scale no greater than 1"=20'. The plans will incorporate the conceptual review comments, final drainage design and trail design. This effort also includes agronomic soils testing of the site to determine the depth of topsoil to be restored after re- grading the site. We anticipate the final plans for the improvements to be as follows: • Title Sheet • Horizontal Control Plan • Grading and Drainage Plan • Grading and Drainage Details • Electrical Plan for Bollard Lighting Along the Trail • Erosion Control Plan • Irrigation Plan • Planting Plan • Landscape Details The specifications may be based on CSI or APWA format and in accordance with the City's guidelines and requirements. CNC will also submit an opinion of probable construction cost. TASK 6. STORM WATER POLLUTION PREVENTION PLAN ( SWPPP) CNC will prepare a SWPPP for construction of the proposed improvements to be submitted to the Regional Water Resources Control Board by the City. The document will outline Best Management practices to be used during construction to minimize discharged of sediment and pollutants to the waters of the United States during construction. Since the site exceeds 5.0 acres in area a Notice of Intent (NOI) must also be filed with the State Water Resources Control Board. CNC will prepare the NOI and submit to the City to be filed with by the State. TASK 7. PROJECT MANAGEMENT, PROCESSING AND COORDINATION This task consists of project administration, processing construction documents and coordination with the City. TASK 8. PLOTTING AND REPRODUCTION TASK 9. MILEAGE AND DELIVERY ACNC E N G I N E E R I N G Exclusions of CNC's Scope of Work: 1. Geological or soil testing 2. Environmental /hazardous material 3. Excavation or potholing of existing utilities. 4. New easements description and documents Assumptions: I* 1. Electronic files for the existing topography will be provided by the City of Newport Beach. 2. All agency fees are the responsibility of the City of Newport Beach. 3. P.O.0 for water and electricity is available adjacent to the site. 4. Proposal assumes one (1) design for site grading only. Additional design concepts will be developed and finalized on a time and materials basis. 5. Field survey is limited to items listed in Task 2. Additional survey will be conducted on a time and materials basis. ACNC E N G I N E E R I N G 0 0 EXHIBIT B- CNC ENGINEERING PROJECT TEAM STANDARD FEE SCHEDULE Valid through July 1, 2002 CIVIL ENGINEERING SERVICES $ 125.00 President/Principal -In- Charge 115.00 Project Manager 95.00 Senior Project Engineer 90.00 Project Engineer 80.00 Design Engineer 70.00 AutoCAD Designer 60.00 Technician 35.00 Clerical FIELD SURVEY / INSPECTION SERVICES $ 90.00 Director of Surveying 155.00 Two Person Crew 70.00 Survey Technician 70.00 Construction Inspector 80.00 Senior Construction Inspector MISCELLANEOUS The following costs are billed at our cost plus 15% maximum ♦ Subcontracted Services Map check fees, permits or filing fees advanced by us ♦ Commercial delivery services including Federal Express, Express Mail and Messenger Services. (In- house delivery services billed at $.32 per mile plus labor.) ♦ Driving Time One Way ♦ Blueprint services and printing ♦ Graphic Services .ACNC E N G I N E E R I N G a 0 EXHIBIT B (CONTINUED) LYNN CAPOUYA, INC. STANDARD FEE SCHEDULE HOURLY RATES: �t^ Principal in Charge: $111.00 Project Manager: $94.00 Irrigation Designer: $83.00 Landscape Architect: $84.00 Senior Staff: $78.00 Intermediate Staff: $72.00 Administration: $43.00 * Computer use charges are included. REIMBURSABLE EXPENSES: Plotting $30.00 /sheet Digital Photographs $25.00 /disk Digital Printouts $5.00 /printout Photocopies $0.10 /sheet Laser Prints $0.25 /sheet Bluelines $3.00 /24x36 sheet 3.5" Disks $2.00 /disk Mileage $0.325 /mile CD Rom $5.00 /each These rates will remain in effect through July 1, 2002. Muff e%genofrmVe 99.xis / � Q . . . . .. §� ■ ¥ �:.... . . \ . . \. } . . ..\.. .\ - o J a w a ) $ f ; LU \ L § - o { - I a _ c § ! 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