Loading...
HomeMy WebLinkAboutC-3492 - Public Works Inspection Services0 a C Aq PROFESSIONAL SERVICES AGREEMENT FOR CONSTRUCTION SUPPORT SERVICES Sitlai;D�WaAT THIS AGREEMENT, entered into this s day of _ nje/YI er- , 2001, by and between the City of Newport Beach, a Municipal Corporation (hereinafter referred to as "City "), and Pro Source, Inc., whose address is 1221 E. Dyer Road, Suite 200, Santa Ana, CA 92705, (hereinafter referred to as "Consultant'), is made with reference to the following: RECITALS A. City is a Municipal Corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to perform construction inspection services upon the terms and conditions contained in this Agreement. C. The principal member of Consultant for purpose of this Agreement is Scott Ryan. D. 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 thea4 day of 7 d21,f4 /Z14V- 2001, and shall terminate on the 28th day of February 2002, unless terminated earlier as set 1 • i forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide Construction Inspection services. (Consultant Fact Sheet attached as Exhibit "A ".) Upon verbal request from Services Administrator, Consultant shall provide letter proposals for services requested by the City. The letter proposal shall include the estimated cost and time to complete the services, including the estimated number of hours and position for each person assigned to perform the services contained in the letter proposal. No Services shall be provided until the City has provided written acceptance of the letter proposal. Consultant shall diligently perform the duties in the approved letter proposals, in accordance with the terms and conditions of this Agreement. 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 Appendix "B" to Exhibit "A" 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 services performed in accordance with this Agreement shall not exceed the total contract price of Twenty Nine Thousand Three Hundred Seventy Six Dollars ($29,376). 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, what task the work is for and all approved incidental expenses including reproductions, computer printing, postage and mileage. 3.2 Consultant shall submit monthly progress invoices to City payable by City within thirty (30) days of receipt of invoice. 3.3 Consultant shall not receive any compensation for extra work without prior written authorization of City. Any authorized compensation shall be paid in accordance with 2 • 0 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 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 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 standards. All services shall be performed by qualified and experienced personnel who are not employed by City nor have any contractual relationship with City. Consultant represents to City that it has or shall obtain all licenses, permits, qualifications and approvals required of its profession. Consultant further represents that it shall keep in effect all such licenses, permits and other approvals during the term of this Agreement. 4.2 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, failure of City to furnish timely information or to promptly 3 approve or disapprove Consultant's work, delay or faulty performance by City, contractors, or governmental agencies, or any other delays beyond Consultant's control. 4.3 The term Construction Inspection 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. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details and means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of City only in the results of the services. N 6. COOPERATION C 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 Agreement to a Services Manager, who shall coordinate all aspects of this Agreement. This Services Manager shall be available to City at all reasonable times during term of Project. Consultant has designated Scott Ryan to be its Services Manager. 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 Consultant shall perform the services in a timely manner. The failure by Consultant to strictly perform in a timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays, which are due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for Project, each party hereby agrees to provide notice to the other parry so that all delays can be addressed. 8.1 Consultant shall submit all requests for extensions of time for performance in 5 • • writing to the Project Administrator not later than ten (10) calendar days after the start of the condition, which purportedly causes a delay, but not later than the date upon which performance is due. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays, which are beyond Consultant's control. 8.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances by telephone, fax, hand delivery or mail. 9. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT All work prepared by Consultant shall conform to applicable city, county, state and federal law, regulations and permit requirements and be subject to approval of the Project Administrator and City Council. 11. PROGRESS Consultant is responsible to keep the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or 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 0 0 0 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 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, which includes the "Waiver of Subrogration" clause, covering all employees and principals of Consultant, per the laws of the State of California. B. Commercial general liability insurance, including the primary and non- contributory wording, covering third party liability risks, including without 7 0 limitation, contractual liability, in a minimum amount of $1 million combined single limit per occurrence for bodily injury, personal injury and property damage. If commercial general liability insurance or other form with a general aggregate is used, either the general aggregate shall apply separately to this Project, or the general aggregate limit shall be twice the occurrence limit. C. Commercial auto liability and property insurance, including the primary and non- contributory wording, covering any owned and rented vehicles of Consultant in a minimum amount of $1 million combined single limit per accident for bodily injury and property damage. Said policy or policies shall be endorsed to state that coverage shall not be canceled by either 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 workers compensation, comprehensive general, and automotive liability insurance to either Consultant or City with respect to the services of Consultant herein, a waiver of any right of subrogation, which any such insurer of said Consultant may acquire against City by virtue of the payment of any loss under such insurance. 14. PROHIBITION AGAINST TRANSFERS Consultant shall not assign, sublease, hypothecate or transfer this Agreement or any Q 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 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. Q 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. ADMINISTRATION The Public Works Department will administer this Agreement. Robert Gunther shall be considered the Services Administrator and shall have the authority to act for City under this Agreement. The Services Administrator or his /her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 10 0 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Agreement. 22. 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. 23. 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. 11 C' 24. 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: Robert Gunther, 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: Scott Ryan Pro Source, Inc. 1221 E. Dyer Road Suite 200 Santa Ana, CA 92705 714 - 755 -4100 Fax: 714 - 755 -4104 25. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate 12 • • the Agreement forthwith by giving to the defaulting party written notice thereof. 25.1 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. 26. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 13 • 30. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. 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: Az City Attorney fiusem\pbw\shared\agreemenls \fy 01 -02\prosource.do 14 CITY OF NEWPORT BEACH A Municipal Corpgration m G. Badum Works Director Pro Source, Inc. By: / — Ll PRO SOURCE, INC BASIC AGREEMENT City of Newport Beach 0 Pro Source- No Source, Inc. Suite 200 1221 E. Dyer Road Sanla Ana, CA 92705 Voice 714 -755 -4100 Fax 714- 755-4104 In accordance with your instructions, we are assigning our employee, Nicholas Godinez to your Project in the capacity of Public Works Inspector beginning on, Monday, November 5, 2001. Confirming our verbal quotation, the Billing Rate for these services will be as follows. Straight time: $ 51.00 per hour Overtime Rate: $ 76.50 per hour The following terms will govern this assignment: Billings will be rendered weekly based upon time slips, which Pro Source, Inc. will provide to our employee that must be signed by your representative each week. Temms are payable Net 30 days. 2. This agreement is made with the understanding that City of Newport Beach will not be allowed to employ Nicholas Godinez a permanent basis without the pennission of Pro Source, Inc. at any time during or at the end of the contract for at least a (;-month period. 3. You acknowledge and confuln that our employee is working at your facility solely under your direction and supervision. We request that you sign and return a copy of this confirmation to Pro Source, Inc. Thank you for the opportunity to service your company. Pro Source Representative: Resource Specialist Pro Source, Inc 1221 E. Dyer Road, Suite 200 Santa Ana, CA 92705 Company. City of Newport Beach Authorized Signature and Tide City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 PROFESSIONAL SERVICES AGREEMENT WITH QUANTUM CONSULTING TO PROVIDE CONSTRUCTION INSPECTION SERVICES FOR THE OCEAN PIER REHABILITATION PROJECT C -3312 THIS AGREEMENT, entered into this -=�— day of, 2001, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and QUANTUM CONSULTING, whose address is 15424 South Hawthorne Boulevard, Suite 200, Lawndale, California, 90260 (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 desires to rehabilitate Balboa and Newport Piers and to improve utility and communication services to those piers ('Project'). C. City desires to engage Consultant to inspect the construction of Project in accordance with the terms and conditions contained in this Agreement. D. The principal member of Consultant for purpose of Project is Frank Bigdeli, PE. E. City has reviewed the previous experience and evaluated the expertise of Consultant, has solicited and received a proposal from Consultant, and -1- Consultant, has solicited and received a proposal from Consultant, and desires to contract with Consultant under the conditions of 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 19"' day of November 2001, and shall terminate on the 31st day of December 2002, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall perform all services set forth in Consultant's Proposal of October 30, 2001, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for services in accordance with the provisions of this Section and Consultant's Proposal, Exhibit "A" attached hereto and incorporated herein. 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 Seventy Five Thousand Dollars ($75,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed solely on an hourly basis, to include incidental expenses such as reproductions, computer printing, postage, mileage, etc. -2- 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice, subject to the approval of City. 3.3 Consultant shall not receive compensation for extra work without prior written authorization of City. Authorized compensation shall be paid in accordance with the billing rates as set forth in Exhibit "A ". 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, -3- contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of 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 INSPECTOR Consultant shall assign Project to a Project Inspector, who shall coordinate all phases of Project. This Project inspector shall be available to City at all times during term of Project. Consultant has designated Arthur Warren, Jr., to be its Project Inspector. Consultant shall in not bill any personnel to Project other than Arthur Warren, Jr., 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 Project's construction schedule. The failure by Consultant to strictly adhere to said schedule may result in termination of this Agreement by City, and the assessment of damages against Consultant. Notwithstanding the foregoing, Consultant shall not be responsible for non - performance, which is due to causes beyond Consultant's reasonable control. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT 11*1 All work performed 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 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 go i • 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. All insurance policies shall be issued by an insurance company certified to do business in the State of California, with original endorsements, with Best's A -VII or better carriers, unless otherwise approved by City. 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 -7- 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. 0 i • The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be 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 I061 • 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. ADMINISTRATION This Agreement will be administered by the Public Works Department. Lloyd Dalton, PE, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. still Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Project. 22. 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 -11- hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 23. 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. 24. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 (949) 644 -3328 Fax (949) 644 -3308 Attn: Lloyd Dalton, PE. All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Quantum Consulting 15424 So. Hawthorne Blvd., Suite 200 Lawndale, CA 90260 (310) 970 -0001 Fax (310) 970 -1061 Attn: Frank Bigdeli, PE, President -12- 0 25. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 25.1 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. 26. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any 5911 L] other term, covenant or condition contained herein whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. -14- 0 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney ATTEST: in LaVonne Harkless City Clerk f: \users\pbw�shared\agreements \fy 01- 02 \quantum.do CITY OF NEWPORT BEACH A Municipal Corporation -15- By: Garold B. Adams Mayor CONSULTING n L 0 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: By: Robin Clauson Assistant City Attorney LaVonne Harkless City Clerk f' \users \pb \shared\agreements \fy 01- 02 \quantum.doc CITY OF NEWPORT BEACH A Municipal Corporation By:4*"'Cft— �+ ► Garold B. Adams Mayor QUANTUM CONSULTING -15- Frank Bigdeli, P.E. President �=-x\-k � -e'(T 0 A 0 QUANTUM CONSULTING Engineering Management Sen•ices October 30, 2001 Mr. Bill Patapoff, P.E. City Engineer Public Works Department City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 RE: Proposal For Construction Inspection Services Fee Schedule And Scope Of Services Dear Mr. Pataoff. RFC -D Via Fa.i & U.S. Mail Thank you far the opportunity to be of service to the City of Newport Beach. As per out- discussion, we are pleased to provide you with the fee schedule and the scope of work related to our services for the referenced project. Our hourly rate for Mr. Art Warren for a period beginning with your notice to proceed and ending within six months from this date is as follows: Regular rate: $64.00 per hour Overtime rate: $82.00 per our In addition, our work will be in accordance with the following scope of services: 1. Review and hecome knowledgeable of all contract documents. 2. Attend construction meetings. Review and maintain construction schedule wish contractor and Engineer. 3. Review and ensure that the contractor's safet: program is in place and maintained at all times in compliance with OSHA standards. 4. Provide construction inspection in accordance with construction documents to ensue that the work is performed with the construction document'. 5. Provide daily logs indicating such things as weather conditions, contractor's activities, and any, deviation to the contract. 6. Prepare constructions status reports. 7. Meet with contractor, City Staff, and others to answer questions and resolve conflicts. 15424 So. Hawthorne Blvd., Suite 200. Lawndalc, CA 90200 (310) 970 -0001 -PAX (310) 970 -1061 Email: Quancon(Waol.com i Mr. Bill Patapoff, P.E. Inspection Proposal October 30, 2001 Page 2 C 8. Verify pay quantities developed by contractor. 9. Process and track Requests For Information (RIF), submittals, shop drawings, and plan revisions. 10. Prepare field change orders .for review by Engineer, and implement approved change order. 11. Maintain construction files. 12. Review preliminary 30 -day notice log by the subcontractors. 13. Develop punch list commencing at 80% completion to prevent long punch period by allowing the contractor to address deficient items concurrently with the project. 14. Pen form quality assurance reviews on a regular basis and recommend changes. 15. Prepare notice of substantial completion and beneficial occupancy notices. 16. Review as -built drawings for accuracy. 17. Conduct final job walk(s) and prepare "punch list". 18. Provide construction inspection for other work as directed by Engineer. Should you need any additional information or have any questions do not hesitate to contact me at, (310) 970 -0001. Thank you for you time and attention. Sincerelyll (� e tFrank Bigdeii P.L President FB. jb Quantum Consulting �33N3) C -2)-M a November 13, 2001 -- -.. Cl IY- CQU NCIL.AG E N DA TO: Mayor and Members of the City Council qtr ! FROM: Public Works Department APPRO4'1D SUBJECT: APPROVAL OF PROFESSIONAL SERVICES AGREEMENT FOR PUBLIC WORKS INSPECTION SERVICES bR -Oa2- RECOMMENDATIONS: 1. Approve a Professional Services Agreement for Inspection Services with Quantum Consulting for $75,000. Authorize the Mayor and the City Clerk to execute the Agreement. 2. Authorize a Budget Amendment appropriating $150,000 to 5100 -8080 (Services — Professional & Technical) from General Fund unappropriated surplus fund balance. DISCUSSION: Currently the inspection demands on the City's three full -time inspectors far exceeds their capacity. There are approximately 16 projects in various stages of construction at this time and an additional 5 projects scheduled to be awarded before January 1, 2002. From January 1, 2002 through July 1, 2002 Staff anticipates the award of an additional 20 construction projects. Our inspection staff needs to be increased by two contract inspectors as soon as possible to be able to provide necessary inspections for current and future construction projects as well as Encroachment Permit inspections. The first inspector is needed to provide inspection of the Newport and Balboa Piers Rehabilitation Project. The Quantum Consulting proposal in the amount of $75,000 offers the services of an inspector with over 35 years of Public Works experience and ocean - related project experience with the City of Los Angeles Ports and Harbors Department. The second inspector is needed to inspect various CIP construction projects scheduled to begin shortly. Staff is communicating with several other firms to find this inspector. It is anticipated an additional $75,000 will be needed for these services and another Agreement will be brought to Council for consideration at a future meeting. SCOPE OF SERVICES: Acting under the direction of the Public Works Construction Engineer, the contract inspectors will be assigned to the Pier Rehabilitation and various other construction projects with the following general scope of work: SUBJECT: Approval of Professionaloices Agreement for Public Works Inspection Servie Date: November 13, 2001 Page 2 1. Inspect construction work for assigned projects on a daily basis. Insure work done is per contract specifications and plan drawings. 2. Coordinate the Contractor's work with residents, businesses, other City Departments, and utility companies on a regular basis. 3. Prepare item quantity estimates with Contractor's Superintendent to submit to Construction Engineer for monthly progress payments. 4. Inform Construction Engineer of potential project changes. Obtain Contractor cost estimates for suggested changes and for approval by Construction Engineer. 5. Perform final inspections and prepare punch lists. 6. Perform miscellaneous tasks as may be requested by City Staff. Staff is requesting Council to authorize a total of $150,000 to the Public Works /Engineering Operations budget to facilitate the payment of these services throughout the fiscal year. Although this expenditure is initially being authorized in the General Fund as an operating expenditure, at year -end, these expenditures will be allocated back to the specific CIP's the inspection services were utilized for. The General Fund will be reimbursed if the inspection services were utilized for CIP's funded by sources other than the General Fund. Respectfully sub itted, �, j PUBLIC WORKS DEPARTMENT Stephen G. Badum, Director By: �G �w:rr/2Eti R. Gunther, P.E. Construction Engineer Attachment: Agreement 0 0 PROFESSIONAL SERVICES AGREEMENT WITH QUANTUM CONSULTING TO PROVIDE CONSTRUCTION INSPECTION SERVICES FOR THE OCEAN PIER REHABILITATION PROJECT C -3312 THIS AGREEMENT, entered into this day of , 2001, by and between CITY OF NEWPORT BEACH, a Municipal Corporation (hereinafter referred to as "City "), and QUANTUM CONSULTING, whose address is 15424 South Hawthorne Boulevard, Suite 200, Lawndale, California, 90260 (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 desires to rehabilitate Balboa and Newport Piers and to improve utility and communication services to those piers ( "Project'). C. City desires to engage Consultant to inspect the construction of Project in accordance with the terms and conditions contained in this Agreement. D. The principal member of Consultant for purpose of Project is Frank Bigdeli, PE. E. City has reviewed the previous experience and evaluated the expertise of Consultant, has solicited and received a proposal from Consultant, and -1- E • Consultant, has solicited and received a proposal from Consultant, and desires to contract with Consultant under the conditions of 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 19th day of November 2001, and shall terminate on the 31s` day of December 2002, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall perform all services set forth in Consultant's Proposal of October 30, 2001, attached hereto as Exhibit "A" and incorporated herein by reference. 3. COMPENSATION TO CONSULTANT City shall pay Consultant for services in accordance with the provisions of this Section and Consultant's Proposal, Exhibit "A" attached hereto and incorporated herein. 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 Seventy Five Thousand Dollars ($75,000). 3.1 Consultant shall maintain accounting records of its billings which includes the name of the employee, type of work performed, times and dates of all work which is billed solely on an hourly basis, to include incidental expenses such as reproductions, computer printing, postage, mileage, etc. 512 9 11 3.2 Consultant shall submit monthly invoices to City payable by City within thirty (30) days of receipt of invoice, subject to the approval of City. 3.3 Consultant shall not receive compensation for extra work without prior written authorization of City. Authorized compensation shall be paid in accordance with the billing rates as set forth in Exhibit "A ". 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, -3- 0 0 contractors, or governmental agencies, or any other delays beyond Consultant's control or without Consultant's fault. 5. INDEPENDENT PARTIES City retains Consultant on an independent contractor basis and Consultant is not an employee of City. The manner and means of conducting the work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute Consultant or any of Consultant's employees or agents to be the agents or employees of City. Consultant shall have the responsibility for and control over the details in means of performing the work provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement which may appear to give City the right to direct Consultant as to the details of the performance of the services or to exercise a measure of control over Consultant shall mean that Consultant shall follow the desires of 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 INSPECTOR Consultant shall assign Project to a Project Inspector, who shall coordinate all phases of Project. This Project inspector shall be available to City at all times during term of Project. Consultant has designated Arthur Warren, Jr., to be its Project Inspector. Consultant shall !� 0 0 not bill any personnel to Project other than Arthur Warren, Jr., 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 Project's construction schedule. The failure by Consultant to strictly adhere to said schedule may result in termination of this Agreement by City, and the assessment of damages against Consultant. Notwithstanding the foregoing, Consultant shall not be responsible for non - performance, which is due to causes beyond Consultant's reasonable control. 9. CITY POLICY Consultant will discuss and review all matters relating to policy and project direction with the Project Administrator in advance of all critical decision points in order to ensure that the Project proceeds in a manner consistent with City goals and policies. 10. CONFORMANCE TO APPLICABLE REQUIREMENT -5- 0 All work performed 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 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 in L] 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. All insurance policies shall be issued by an insurance company certified to do business in the State of California, with original endorsements, with Best's A -VII or better carriers, unless otherwise approved by City. 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 -7- 0 9 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. N 0 0 The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or co- tenant if Consultant is a partnership or joint- venture or syndicate or co- tenancy, which shall result in changing the control of Consultant, shall be construed as an assignment of this Agreement. Control means fifty percent (50 %) or more of the voting power, or twenty -five percent (25 %) or more of the assets of the corporation, partnership or joint-venture. 15. OWNERSHIP OF DOCUMENTS Each and every report, draft, work product, map, record and other document reproduced, prepared or caused to be prepared by Consultant pursuant to or in connection with this Agreement shall be the exclusive property of City. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived as against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. Consultant shall, at such time and in such forms as City may require, furnish reports 0 0 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. ADMINISTRATION This Agreement will be administered by the Public Works Department. Lloyd Dalton, PE, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 18. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City during normal business hours to examine, audit and make transcripts or copies of such records. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 19. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work for a period of thirty (30) days from the date of withholding as a result of such withholding. -10- L] 0 Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of seven percent (7 %) per annum from the date of withholding of any amounts found to have been improperly withheld. 20. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or a restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 21. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other consultants in connection with Project. 22. 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 -11- • • hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 23. 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. 24. NOTICES All notices, demands, requests or approvals to be given under this Agreement shall be given in writing and conclusively shall be deemed served when delivered personally or on the third business day after the deposit thereof in the United States mail, postage prepaid, first class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 (949) 644 -3328 Fax (949) 644 -3308 Attn: Lloyd Dalton, PE. All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Quantum Consulting 15424 So. Hawthorne Blvd., Suite 200 Lawndale, CA 90260 (310) 970 -0001 Fax (310) 970 -1061 Attn: Frank Bigdeli, PE, President -12- • • 25. TERMINATION In the event either part hereto fails or refuses to perform any of the provisions hereof at the time and in the manner required hereunder, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) days, or if more than two (2) days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) days after receipt by defaulting party from the other party of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the nondefaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 25.1 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. 26. COMPLIANCES Consultant shall comply with all laws, state or federal and all ordinances, rules and regulations enacted or issued by City. 27. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any -13- E other term, covenant or condition contained herein whether of the same or a different character. 28. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions hereon. Any modification of this Agreement will be effective only by written execution signed by both City and Consultant. 29. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his /her judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to contractor bids or actual cost to City. 30. PATENT INDEMNITY Consultant shall indemnify City, its agents, officers, representatives and employees against liability, including costs, for infringement of any United States' letters patent, trademark, or copyright infringement, including costs, contained in Consultant's drawings and specifications provided under this Agreement. SCE 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: 0 LaVonne Harkless City Clerk f: \users\pbw\shared\agreements \fy 01- 02 \quantum.doc CITY OF NEWPORT BEACH A Municipal Corporation M Garold B. Adams Mayor QUANTUM CONSULTING -15- Frank Bigdeli, P.E. President QUANTUM CONSULTING Engineering Management Services October 30, 2001 Mr. Bill Patapoff, P.E. City Engineer Public Works Department City of Newport Beach 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA 92658 -8915 RE: Proposal For Construction Inspection Services Fee Schedule And Scope Of Services Dear Mr. Pataoff.- RCGF'"`r--D OCT 3 0 2001 L_ F:J6UC VdCJ;:KS NEV &ORT BEECH, CI L:r: Via Fax & U.S. Mail Thank you for the opportunity to be of service to the City of Newport Beach. As per our discussion, we are pleased to provide you with the fee schedule and the scope of work related to our services for the referenced project. Our hourly rate for Mr. Art Warren for a period beginning with your notice to proceed and ending within six nhwuhs from this date is as follows: Regular rate: $64.00 per hour Overtime rate: $82.00 per out- In addition, our work will be in accordance with the following scope of services: 1. Review and become knowledgeable of all contract documents. 2. Attend construction meetings. Review and maintain construction schedule with contractor and Engineer. 3. Review and ensure that the contractor's safety program is in place and maintained at all times in compliance with OSHA standards. 4. Provide construction inspection in accordance with construction documents to ensure that the work is performed with the construction documents. 5. Provide daily logs indicating such things as weather conditions, contractor's activities, and any deviation to the contract. 6. Prepare construction status reports. 7. Meet with contractor, City Staff, and others to answer questions and resolve conflicts. 15424 So. Hawthorne Blvd., Suite 200, Lawndale, CA 90260 (310) 970- 0001 -FAX (310) 970 -1061 Email: QuanconCaaol.cwm Mr. Bill Patapoff, P.E. Inspection Proposal October 30, 2001 Page 2 8. Verify pay quantities developed by contractor. 9. Process and track Requests For Information (RIF), submittals, shop drawings, and plan revisions. 10. Prepare field change orders for review by Engineer, and implement approved change order. 11. Maintain construction files. 12. Review preliminary 30 -day notice log by the subcontractors. 13. Develop punch list commencing at 80% completion to prevent long punch period by allowing the contractor to address deficient items concurrently with the project. 14. Perform quality assurance reviews on a regular basis and recommend changes. 15. Prepare notice of substantial completion and beneficial occupancy notices. 16. Review as -built drawings for accuracy. 17. Conduct final job walk(s) and prepare "punch list". 18. Provide construction inspection for other work as directed by Engineer. Should you need any additional information or have any questions do not hesitate to contact me at, (310) 970 -0001. Thank you for you time and attention. Sincerely j. r/ y t �t frank Big c-E .E President FB. jb L Quantum Consulting #ty of Newport Beacio BUDGET AMENDMENT 2001 -02 CT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates X Increase Expenditure Appropriations Transfer Budget Appropriations SOURCE: from existing budget appropriations from additional estimated revenues X from unappropriated fund balance EXPLANATION: NO. BA- 022 AMOUNT: $150,000.00 Increase in Budgetary Fund Balance AND X Decrease in Budgetary Fund Balance No effect on Budgetary Fund Balance This budget amendment is requested to provide for the following: To appropriate $150,000 from unappropriated surplus fund balance to the Public Works, Professional Technical Services account for contract inspection services. ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account General Fund 010 3605 •ENUE ESTIMATES (3601) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: • Signed: Signed: Description Budgetary Fund Balance Description Description 5100 Public Works - Engineering 8080 Professional Technical Services Approval: Administrative Services Director Administrative Approval: City Manager City Council Approval: City Clerk Amount Debit Credit $150,000.00 ' Automatic $150,000.00 //- 7 -U/ Date Date Date *ty of Newport Beach* NO. BA- 022 BUDGET AMENDMENT 2001 -02 AMOUNT: $150,000.00 EFFECT ON BUDGETARY FUND BALANCE: Increase Revenue Estimates Increase in Budgetary Fund Balance X Increase Expenditure Appropriations AND Decrease in Budgetary Fund Balance Transfer Budget Appropriations No effect on Budgetary Fund Balance SOURCE: BY THE C17( CCUNI,:L .. from existing budget appropriations from additional estimated revenues PX . from unappropriated fund balance f r EXPLANATION: " --Ar PRQVED This budget amendment is requested to provide for the following: ....................... To appropriate $150,000 from unappropriated surplus fund balance to the Public Works, Professional Technical Services account for contract inspection services. Account Number Division Number ACCOUNTING ENTRY: BUDGETARY FUND BALANCE Fund Account General Fund 010 3605 REVENUE ESTIMATES (360 1) Fund /Division Account EXPENDITURE APPROPRIATIONS (3603) Description Budgetary Fund Balance Description Signed: Services Director Signed: Signed: <Jw Ud /Ov- / // . / Z" City Council Approval: City Clerk Amount Debit Credit $150,000.00 Automatic $150,000.00 Date Date Date Description Division Number 5100 Public Works - Engineering Account Number 8080 Professional Technical Services Division Number Account Number Division Number Account Number Division Number Account Number Division Number Account Number Signed: Services Director Signed: Signed: <Jw Ud /Ov- / // . / Z" City Council Approval: City Clerk Amount Debit Credit $150,000.00 Automatic $150,000.00 Date Date Date