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C-3673(G) - PSA for On-Call Construction Inspection Services
AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH PROJECT PARTNERS, INC.- FOR ON -CALL CONSTRUCTION INSPECTION SERVICES THIS AMENDMENT NO. 1 TO R FESSI NAL SERVICES AGREEMENT, entered into this - -day of 2007, by and between the CITY OF NEWPORT BEACH, a rrgYnici7al co poration, (hereinafter referred to as "City ") and PROJECT PARTNERS, INC. a California corporation whose address is 18301 Von Karman Avenue, Suite 340, Irvine, CA 92612 ( "Consultant'), and is made with reference to the following: RECITALS A. On August 24th, 2005, CITY and CONSULTANT entered into an On -Call Professional Services Agreement, hereinafter referred to as "Agreement', for Construction Inspection Services to assist the City in executing its Capital Improvement Program. This Agreement is scheduled to expire on June 30th, 2007. B. City desires to enter into this Amendment No. 1 to extend the term of the Agreement to June 30', 2009. G,.. 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 perform various construction inspection services pursuant to this Amendment No. 1 and according to the Request to Extend On -Call Services Agreement dated April 13, 2007, attached hereto as Exhibit A. 2. Compensation to the Consultant for for services performed pursuant to this Amendment No. 1 for all work performed from July 1, 2007 to June 30, 2009, including all reimburseable items and subconsultant fees, shall be based on the attached Schedule of Billing Rates (Exhibit B). 3. The term of the Agreement shall be extended to June 30, 2009. 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: Y Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: BY V b14V_, �0 LaVonne Harkless, City Clerk r..� CITY OF NEWPORT BEACH A Municipal C,nrporation Mayor for the City of Newp each PROJECT PARTNERS, INC. By. (P esid nt) Title: Print Name: /L— By: (Financial Officer) Title: Print Name: MAVc (VA EAissZ>A„JF. Attachment: Exhibit A — Request to Extend On -Call Services Agreement Exhibit B — Shedule of Billing Rates f:\users\pbw\shared\agreements\fy 07-08\on-call services\project partners amendment.doc 0 Project Partners Michael Sinacori Principal Civil Engineer City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 Re: Request for Extended On -Cali Services Contract Dear Mike: 0 - Partners in Building Engineering Careers and Teams" www.proieetpartners.com Exhibit A April 13, 2007 Project Partners is submitting this request to extend our On -Call Services contract and is excited about the opportunity to continue to provide the City of Newport Beach (City) with superior construction inspection services. We are a civil engineering firm that specializes in providing public sector organizations with onsite engineering and construction support services. We understand the importance of your projects and the need to ensure that careful construction observation is conducted. Project Partners is ideally suited for your projects for the following reasons. • Proven Track Record Providing Inspection Service to The City Of Newport Beach Proven Experience On A Wide Variety Of Construction Inspection Projects • Proven Experience Representing Public Sector Agencies Description of inspection Services Project Partners inspection services includes the following two areas; Construction Inspection and Construction Contract Administration. Both are explained below. Construction tnsnectfon. Construction inspection snail include the documentation, on a daily basis, the events and progress made by awarded construction contractor and the documentation of potential extra work items needed for successful construction completion. The construction inspector will also assist with coordination between with the public and other agencies affected by the construction. Construction Contract Administration. Construction Contract Administration duties will include the tracking of the project's schedule and budget, receiving and processing of change orders and assisting with change order negotiations. Duties will also include project coordination, correspondence, and the processing of progress payments. Again, I would like to thank you for considering our services and should you have any questions or desire additional information, please do not hesitate to call at any time. I will serve as the firm's principal firm contact. Sincer y, m ook, E. Project Pa rs, inc. 18301 Van Karmen Avenue Suite 340 Irvine. cA 92612 phone 999.852.9300 fax 949 852.9322 0 0 Local Staffing List No change in staff dedicated to City of Newport Beach. Project Penn II co tinue our commitment to dedicate Mr. Nick Godinez to be our primary co for the City of Newport Beach. Mr. Godinez has a well proven tra rd with the City Newport Beach. He has proven to work very effectively with all parties Involved in the City's construction process; the City's Public Works Department, the fine citizens of Newport Beach, and various contractor selected by the City. Furthermore, he has an in -depth understanding of procedures, policies and philosophy of the City and had demonstrated his ability to Implement them effectively. Our other senior inspectors are strong options as well. Their qualifications include: • Over 20 Years Of Professional Public Works Inspection • Worked extensively for Public Sector Agencies • Extensive Experience In All Aspects Of Inspection and inspection documentation • Proven Experience In Effectively Representing The Public Sector New Addition to Local Staff Listed Below please find a partial listing of our engineering and Inspection resources. All Individuals are local and could be made available for the City. We have added a new inspection resource the pool available to the City. He is Mr. Raul Garcia, a senior Inspector with over 20 year of municipal experience. Name Position Ins ection Staff Nick Godinez @avtiee Inspector Raul Garcia (New) Senior Inspector Long Nguyen Inspector Engineering Staff Kimo Look Principal Engineer Ray Hahn Senior Engineer Maryam Ramsey Senior Engineer Pwacd ftnn=ACOdt17 2 tnImmnuon Im A344ftded Coniuuuioa InspW= ScrA=3 suctron I Pogo I 0 New Advance Notice Requirements There are no new advance requirement notices. 0 Project Partners continues to have an excellent ability to meet the City of Newport Beach's inspection needs with very little notice. We not only have a full staff of inspectors, we also have stand -by inspectors who we can call to effectively meet the City's needs. Resumes of New Key Personnel Project Partners was added another senior inspection resource to our company. The resume of Mr. Raul Garcia is follows on Addendum A. Billing Rates for July 2007 through June 2009. Project Partners Billing rates are found on Addendum B. Hourly billing rates for Mr. Godinez for July 1 2007 thru June 30, 2009 will be $74.00. Project Partners Additional Information for As- Needed Construction Inspection Services Section 1 Page 2 Project Partners Summary Of Qualifications Partners in Building Innovative Project Teams" Raul Garcia Project Level Senior Public Works Inspector Qualifications • Over 20 Years Professional Experience As an Inspector • Proven Experience Working With City of Ontario • Familiar with Ontario's City Standard Plans and Specification • Extensive Familiarity of Green Book Standards • Extensive Experience Representing Municipalities in Public Works Projects • Strong Understanding Of All Track Development Inspection • Proven Experience As A Senior Public Works Inspector • Team Player Inspection Experience & Projects Over 20 years of experience performing Public Works construction inspections to ensure compliance with approved plans and specifications for all public works construction primarily within City of Santa Ana's right -of -way and for private developments, overseeing, grading operation, construction of underground utilities which include water, sewer, electrical infrastructure, storm drain infrastructures, above ground structures, equipping of sites, road construction consisting of curb, gutter, sidewalk and landscaping. Proven experience with processing conditions of approval for developed and undeveloped projects; evaluating developer construction cost estimates for bonding and permit fees; collaborate with other departments within the City, local, state, and federal government agencies, attending and updating status at necessary progress meeting. Areas of experience and expertise include: Street Improvements — Street reconstruction Concrete and Asphalt Pavement overly Slurry Seal Projects - (both long ton and short ton) Sidewalk, Driveways, Curbs, and Gutter Landscaping Underground Utilities - Sewer and Storm Sewer Project Partners Additional Information for As- Needed Construction Inspection Servioes Addendum A Page 1 0 9 Project Partners Raul Garcia Summary of Qualifications Page 2 Domestic Water Telecommunications Electrical Lighting - Both Street and Park Lighting Landscape /Irrigation - including block planters, landscaping water mains and sprinklers Traffic - Signals Stripping Encroachment & Public Utility Permits Inspection Tasks consisted of: - Onsite inspection & daily Logs - Monitoring compliance with plans specifications, Cal -OSHA and labor codes - Project record- keeping and correspondence - Change order /claims documentation and review - Progress payment generation - Interfacing with designers, outside agency, personnel, utility personnel and the public - Submittal review - Fair cost estimates - Various other managerial, administrative and engineering tasks Specific Experience Project Partners, Irvine, CA Senior Inspector Currently assisting City of Moreno Valley Development Track inspection. Responsible for over ongoing 20 active track developments throughout city. Construction activity included street construction, traffic signals, stripping, and traffic signage. City of Ontario with inspection of installation of Verizon underground conduits. Inspection included overseeing work being conducted by 31 contractor work teams thoroughout the developments in the southern section of Ontario. Copnstruction activity included directional boring, pot - holing, concrete pours, asphalt paving, and site restoration and clean up. City of Santa Ana, Santa Ana, CA Senior Inspector i 0 0 Project Partners Raul Garcia Summary of Qualifications ; Page 3 Retired from City of Santa Ana with over 20 years of inspection experience, Mr. Garcia has done considerable amount of work on a large variety of Public works projects. Education 1962 Santa Ana College & Rancho Santiago College, Santa Ana, CA Continuing Education Program in construction 0 9 Addendum B Exhibit B Project Partners' Billing Rate Standard Billing Rate July 12007 thru June 30, 2009 Engineering Title Bill Rates Engineering Entry Level Engineer $ 66.50 Assistant Engineer $ 70.75 Associate Engineer $ 77.00 Staff Engineer $ 82.50 Project Management Project Engineer $ 89.50 Associate Project Manager $ 95.25 Project Manager $ 99.75 Senior Project Manager 1 $ 105.25 Senior Project Manager 11 $ 110.00 Senior Project Manager III $ 114.75 Specialist Engineering Specialist $ 107.25 Engineering Specialist $ 109.75 Engineering Specialist $ 113.50 Program Management Program Manager $ 129.50 Program Manager 11 $ 133.75 Program Manager III $ 142.00 Inspectors Associate Inspector $ 60.25 Inspector $ 74.00 Senior Inspector $ 92.50 Engineering Tech /CADIGIS Entry Level Engineering Tech $ 53.50 Engineering Tech $ 62.50 Senior Engineering Tech - $ 70.50 CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 9 June 26, 2007 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Michael J. Sinacori, P.E. 949 - 644-3342 or msinacori @city.newport- beach.ca.us SUBJECT: APPROVAL OF AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH PROJECT PARTNERS, INC. FOR ON -CALL CONSTRUCTION INSPECTION SERVICES AND APPROVAL OF PROFESSIONAL SERVICES AGREEMENTS WITH CIVIL WORKS ENGINEERS, INC. AND TRAFFIC CONTROL ENGINEERING, INC., FOR ON -CALL ENGINEERING SERVICES RECOMMENDATIONS: • 1. Approve Amendment No. 1 to the Professional Services Agreement with Project Partners, Inc. for on -call construction inspection services and authorize the Mayor and City Clerk to execute the Amendment. 2. Approve a Professional Services Agreement with Civil Works Engineers, Inc. for on -call civil engineering services and authorize the Mayor and City Clerk to execute the Agreements. 3. Approve a Professional Services Agreement with Traffic Control Engineering, Inc., for on -call traffic control engineering services and authorize the Mayor and City Clerk to execute the Agreements. DISCUSSION: On June 28, 2005 the City Council approved a Professional Services Agreement with Project Partners, Inc. to provide as needed on -call construction inspection services regularly required for many Capital Improvement Program (CIP) projects. The on -call agreement was developed to avoid a great number of small but time- consuming Professional Services Agreements (PSA's) between the City and consultants to accomplish these on -going profe`ct tasks. .Over the last two years, this on -call PSA has proven to be very effective and efficient. Project Partners, Inc. has performed construction inspection services for numerous projects for the City over the paot two years along with oversight for many of the Encroachment Permits. The anticipated need for these services in the upcoming fiscal Approval of an Amendment to On-Call Professional Services Agreement with Project Partners And On Call Professional Services Agreement with Civil Works Engineers and Traffic Control Engineering, Inc. June 26, 2007 Page 2 year will require an Amendment to the PSA which is set to expire on June 30, 2007. This firm has provided exceptional high quality service on numerous projects. Rates included in the Amendment are competitive and in line with industry standards. In addition, it is anticipated that supplemental civil engineering and traffic control engineering services will be required to assist the department in completing the many projects over the next year. The proposed Fiscal Year 2007108 Capital Improvements Program (CIP) budget is estimated at more than $37 million and includes over 100 projects. Civil Works Engineering and TCE have also performed well previously under contracts with the City and as the designated subcontractor to design firms on larger projects. Rates included in these agreements are competitive and in line with industry standards. Staff recommends approval of the attached amendment to extend the agreement with Project Partners and authorization of new PSA's with Civil Works Engineers, Inc. and Traffic Control Engineering (TCE). The Amendment and PSA's will have two year terms and rates,will remain consistent during the time. If the scope of services exceeds $30,000, prior approval from City Council will be required. Environmental Review: Environmental clearances will be completed for each Capital Improvement Project. Funding Availability: Funds for these services will be available in each of the specific project accounts within the City Council approved Capital Improvement Program. Prepared by: Mic el J. Sinacori, P.E. Principal Civil Engineer Submitted by: m G. Badum Works Director Attachment: Amendment No. 1 with Project Partners, Inc. On -Call Professional Services Agreement with Civil Works Engineering On -Call Professional Services Agreement with Traffic Control Engineering • n LJ 0 .Amendment No. 1 with Project Partners, Inc. • AMENDMENT NO. 1 TO •PROFESSIONAL SERVICES AGREEMENT WITH PROJECT PARTNERS, INC. FOR ON -CALL CONSTRUCTION INSPECTION SERVICES THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this day of , 2007, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City") and PROJECT PARTNERS, INC. a California corporation whose address is 18301 Von Karman Avenue, Suite 340, Irvine, CA 92612 ( "Consultant'), and is made with reference to the following: RECITALS A. On August 24th, 2005, CITY and CONSULTANT entered into an On -Call Professional Services Agreement, hereinafter referred to as "Agreement ", for Construction Inspection Services to assist the City in executing its Capital Improvement Program. This Agreement is scheduled to expire on June 30th, 2007. B. City desires to enter into this Amendment No. 1 to extend the term of the • Agreement to June 30th, 2009. C. 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 perform various construction inspection services pursuant to this Amendment No. 1 and according to the Request to Extend On -Call. Services Agreement dated April 13, 2007, attached hereto as Exhibit A. 2. Compensation to the Consultant for for services performed pursuant to this Amendment No. 1 for all work performed from July 1, 2007 to June 30, 2009, including all reimburseable items and subconsultant fees, shall be based on the attached Schedule of Billing Rates (Exhibit B). 3. The term of the Agreement shall be extended to June 30, 2009. 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: C' ffc-t-, Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation By: Mayor for the City of Newport Beach PROJECT PARTNERS, INC. By: (President) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachment: Exhibit A — Request to Extend On -Call Services Agreement Exhibit B — Shedule of Billing Rates • f :luserslphwlsharedtagreements \fy 07 -Mon -call serviceslproject partners amendment.doc Project Partners Michael Sinacori Principal Civil Engineer City of Newport Beach P.O. Box 1768 Newport Beach, CA 92658 Re: Request for Extended On -Cali Services Contract Dear Mike: 'Partners in Building Engineering Careers and Teams" www.projectpartners.com Exhibit A April 13, 2007 Project Partners is submitting this request to extend our On -Call Services contract and is excited about the opportunity to continue to provide the City of Newport Beach (City) with superior construction inspection services. We are a civil engineering firm that specializes in providing public sector organizations with onsite engineering and construction support services. We understand the importance of your projects and the need to ensure that careful construction observation is conducted. Project Partners is ideally suited for your projects for the following reasons. • Proven Track Record Providing Inspection Service to The City Of Newport Beach • Proven Experience On A Wide Variety Of Construction Inspection Projects Proven Experience Representing Public Sector Agencies Description of Inspection Services Project Partners inspection services includes the following two areas; Construction Inspection and Construction Contract Administration. Both are explained below. Construction inspection. Construction inspection shall include the documentation, on a daily basis, the events and progress made by awarded construction contractor and the documentation of potential extra work items needed for successful construction completion. The construction inspector will also assist with coordination between with the public and other agencies affected by the construction. Construction Contract Administration. Construction Contract Administration duties will include the tracking of the project's schedule and budget, receiving and processing of change orders and assisting with change order negotiations. Duties will also include project coordination, correspondence, and the processing of progress payments. Again, I would like to thank you for considering our services and should you have any questions or desire additional information, please do not hesitate to call at any time. I will serve as the firm's principal firm contact. Since y, m ook, .E. Project Part rs, Inc. 18301 Van Karmen Avenue suite M V% 47879 0 CJ • phone 949.852.9300 fax 949.852.9322 F. . 0 Local Staffing List No change in staff dedicated to City of Newport Beach. Project Partn qknspeX I co ue our commitment to dedicate Mr. Nick Godinez to be our prima or for th e City of Newporl Beach. Mr. Godinez has a well proven tra d with the City Newport Beach. He has proven to work very effectively with all parties involved in the City's construction process: the City's Public Works Department, the fine citizens of Newport Beach, and various contractor selected by the City. Furthermore, he has an in -depth understanding of procedures, policies and philosophy of the City and had demonstrated his ability to Implement them effectively. Our other senior inspectors are strong options as welt. Their qualifications Include: Over 20 Years Of Professional Public Works Inspection • Worked extensively for Public Sector Agencies • • Extensive Experience In All Aspects Of Inspection and inspection documentation • Proven Experience In Effectively Representing The Public Sector u New Addition to Local Staff Listed Below please find a partial listing of our engineering and inspection resources. All individuals are local and could be made available for the City. We have added a new inspection resource the pool available to the City. He Is Mr. Raul Garcia, a senior Inspector with over 20 year of municipal experience. Name Position Ins ection Staff Nick Godinez Inspector Raul Garcia (New) ISenior Inspector Long Nguyen jInspector Engineering Staff Kimo Look Principal Engineer Ray Hahn Senior Engineer Maryam Ramsey Senior Engineer Project Partnm AddiUonat tntarnadon tw A"oc&d Constfudfan InWdion Services scdian 1 Pgoo 1 New Advance Notice Requirements • There are no new advance requirement notices. Project Partners continues to have an excellent ability to meet the City of Newport Beach's inspection needs with very little notice. We not only have a full staff of inspectors, we also have stand -by inspectors who we can call to effectively meet the City's needs. Resumes of New Key Personnel Project Partners was added another senior inspection resource to our company. The resume of Mr. Raul Garcia is follows on Addendum A. Billing Rates for July 2007 through June 2009. Project Partners Billing rates are found on Addendum B. Hourly billing rates for Mr. Godinez for July 1 2007 thru June 30, 2009 will be $74.00. F_ -I L J 11 Project Partners Additional Information for As- Needed Construction Inspection Services Section 1 Page 2 Project Partners in Building Innovative Project Teams" Raul Garcia Project Level Senior Public Works Inspector Qualifications Of Qualifications • Over 20 Years Professional Experience As an Inspector • Proven Experience Working With City of Ontario • Familiar with Ontario's City Standard Plans and Specification • Extensive Familiarity of Green Book Standards • Extensive Experience Representing Municipalities in Public Works Projects • Strong Understanding Of AN Track Development Inspection • Proven Experience As A Senior Public Works Inspector • Team Player Inspection Experience & Projects Over 20 years of experience performing Public Works construction inspections to ensure compliance with approved plans and specifications for all public works construction primarily within City of Santa Ana's right -of -way and for private developments, overseeing grading operation, construction of underground utilities which include water, sewer, electrical infrastructure, storm drain infrastructures, above ground structures, equipping of sites, road construction consisting of curb, gutter, sidewalk and landscaping. Proven experience with processing conditions of approval for developed and undeveloped projects; evaluating developer construction cost estimates for bonding and permit fees; collaborate with other departments within the City, local, state, and federal government agencies, attending and updating status at necessary progress meeting. Areas of experience and expertise include: Street Improvements — Street reconstruction Concrete and Asphalt Pavement overly Slurry Seal Projects - (both long ton and short ton) Sidewalk, Driveways, Curbs, and Gutter • Landscaping Underground Utilities - Sewer and Storm Sewer Project Partners Additional information for As- Needed Construction Inspection Services Addendum A Page 1 Project Partners Raul Garcia Summary of Qualifications Page 2 Electrical Lighting — Domestic Water Telecommunications Both Street and Park Lighting Landscape / Irrigation — including block planters, landscaping water mains and sprinklers Traffic — Signals Stripping Encroachment & Public Utility Permits Inspection Tasks consisted of: — Onsite inspection & daily Logs — Monitoring compliance with plans specifications, Cal -OSHA and labor codes — Project record- keeping and correspondence — Change order /claims documentation and review — Progress payment generation — Interfacing with designers, outside agency, personnel, utility personnel and the public — Submittal review — Fair cost estimates — Various other managerial, administrative and engineering tasks Specific Experience Project Partners, Irvine, CA Senior Inspector Currently assisting City of Moreno Valley Development Track inspection. Responsible for over ongoing 20 active track developments throughout city. Construction activity included street construction, traffic signals, stripping, and traffic signage. City of Ontario with inspection of installation of Verizon underground conduits. Inspection included overseeing work being conducted by 31 contractor work teams thoroughout the developments in the southern section of Ontario. Copnstruction activity included directional boring, pot - holing, concrete pours, asphalt paving, and site restoration and clean up. City of Santa Ana, Santa Ana, CA Senior Inspector • r-I LJ Project Partners Raul Garcia Summary of Qualifications Page 3 Retired from City of Santa Ana with over 20 years of inspection experience, Mr. Garcia has done considerable amount of work on a large variety of Public works projects. Education 1962 Santa Ana College & Rancho Santiago College, Santa Ana, CA Continuing Education Program in construction Addendum B Exhibit B Project Partners' Billing Rate Standard Billing Rate July 12007 thru June 30, 2009 Engineering Title Bill Rates Engineering Entry Level Engineer $ 66.50 Assistant Engineer $ 70.75 Associate Engineer $ 77.00 Staff Engineer $ 82.50 Project Management Project Engineer $ 89.50 Associate Project Manager $ 95.25 Project Manager $ 99.75 Senior Project Manager 1 $ 105.25 Senior Project Manager II $ 110.00 enior Project Manager III $ 114.75 Specialist Engineering Specialist $ 107.25 Engineering Specialist $ 109.75 Engineering Specialist $ 113.50 Program Management Program Manager 1 $ 129.50 Program Manager II $ 133.75 Program Manager II $ 142.00 Inspectors Associate Inspector $ 60.25 Inspector $ 74.00 Senior Inspector $ 92.50 Engineering Tech1CAD /GIS Entry Level Engineering Tech $ 53.50 Engineering Tech $ 62.50 Senior Engineering Tech - $ 70.50 lU • n U Professional Services • Agreement with Civil Works Engineering • PROFESSIONAL SERVICES AGREEMENT WITH • CIVIL WORKS ENGINEERS FOR ON -CALL ENGINEERING SERVICES THIS AGREEMENT is made and entered into as of this day of 200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City"), and CIVIL WORKS ENGINEERS, Inc., a California corporation, whose address is 3151 Airway Avenue, Suite S -2, Costa Mesa, CA 92626 ( "Consultant'), and 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 has a need for on -call assistance for engineering services related to the proposed Fiscal Year 07108 and 08/09 Capital Improvement Programs. C. City desires to engage Consultant to perform on -call engineering services throughout the City on an as need basis. D. Consultant possesses the skill, experience, ability, background, certification and is knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Agreement, shall be Marie Marston, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 above written date, and shall terminate on the 30th" day of June, 2009, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" engineering services as described in the • Statement of Qualifications attached as Exhibit "A." Upon verbal or .written • request from the Contract Administrator, Consultant shall, provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the'individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Contract Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner • may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for a specific project, each parry hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Contract Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Contract Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 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. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed • basis, in accordance with the provisions of this Section and the Schedule of I Billing Rates attached hereto as Exhibit "B" and incorporated herein by • reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Contract Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and/or classification of employee who performed the work, a brief description of the services performed and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, • such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and/or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of a speck project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. • I 5. CONTRACT MANAGER Consultant shall designate a Contract Manager, who shall coordinate all phases of the Agreement. This Contract Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Marie Marston, P.E. to be its Contract Manager. Consultant shall not remove or reassign the Contract.Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to a specific project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from a specific project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete a specific project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Contract Administrator and shall have the authority to act for City under this Agreement. The Contract Administrator or his/her • authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 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 community professional standards. All services shall be performed by qualified and experienced personnel who are not 9 employed by City, nor have any contractual relationship with City. By • delivery of completed work, Consultant certifies that the work confomns to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. 9. HOLD HARMLESS • To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or the acts or .omissions of its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation • upon the amount of indemnification to be provided by the Consultant. • 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Contract Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Contract. • 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Contract Administrator in advance of all critical decision points in order to ensure the Contract proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is. responsible for keeping the Contract 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. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. • A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by • City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employers Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation • Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage • for all activities of the Consultant arising out of or in connection with 7 • work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain 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). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of .the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising • directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. • 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. ■ 15. 16. 17. F. Timely Notice of Claims. Consultant shall give City prompt and timely . notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. 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. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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 cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. SUBCONTRACTING • The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. 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 contract. Any use of completed documents for other contracts and any use of incomplete documents without specific written • authorization from Consultant will be at City s sole risk and without liability to 4 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 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. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for 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 a specific project, for the completion of a specific project by others, or for any other Contract, 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 original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All • written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. 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 and • any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date 10 of final payment to Consultant to this Agreement. All such records shall be 10- clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. 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. 22. 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 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 return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. 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 what • would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with a specific project. 25. CONFLICTS OF INTEREST The 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 any 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. 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. • 11 26. NOTICES All notices,-demands, requests or approvals to be given under the terms of 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: Michael J. Sinacori Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 -644 -3342 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: CIVIL WORKS ENGINEERS 3151 Airway Avenue, Suite S -2 Costa Mesa, CA 92626 Phone: (714) 966 -9060 is Fax: (714) 966 -9085 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting parry fails to give adequate assurance of due performance within two (2) calendar days after receipt 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. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in • draft or final form. 12 28. COMPLIANCE WITH ALL LAWS • Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Contract Administrator and City. 29. 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. 30. 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 herein. 31. CONFLICTS OR INCONSISTENCIES is In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 32. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 33. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 34. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. is 13 • 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govem this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. • • 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 14 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. • APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation By: c. L`'' By: Aaron C. Harp, Mayor Assistant City Attorney for the City of Newport Beach for the City of Newport Beach ATTEST: CIVIL WORKS ENGINEERS: 0 LaVonne Harkless, Marie Marston, P.E City Clerk Title: President Print Name: • 22 (Financial Officer) Print Name: Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates F:l userslcaflsharedlContractTempiatesPublishedon IntranetXFORMOnCallAgreementdoc 15 11 11 Civil Works Engineers June 12, 2007 City of Newport Beach Michael Sinacori, P.E. Principal Civil Engineer 3300 Newport Boulevard Newport Beach, CA 92658 Dear Mr. Sinacori: Thank you for considering Civil Works Engineers for the City's on -call civil engineering contract. We are happy to provide our attached Statement of Qualifications (SOQ) for further consideration. • Civil Works Engineers has planned and designed a wide variety of public works infrastructure projects including streets and freeways, drainage and storm water quality, as well as utilities and grading for site improvements. We provide civil engineering services over this range of disciplines at all levels of project development including initial planning, preliminary design development, final design / construction documents, and construction engineering assistance. U Our SOQ contains representative information about our firm for your review. Please call if you have any questions or if you would like additional information. Sincerely, Marie Marston, P.E. President 3151 Airway Avenue, Suite S -2 • Costa Mesa, CA 92626 P. 714.966.9060 • f. 714.966.9085 E Exhibit A Description of Services • • Civil Wwl¢ Engineers Description of Services Provided Civil Works Engineers, Inc. is a professional civil engineering consulting firm providing a broad range of planning and design services for transportation, drainage, and site civil projects. �rrawsportat%ow Our transportation engineers are specialized in both freeway system facilities working with Caltrans and on local street improvement projects working with municipalities and developers. Our staff has worked on privately- funded Caltrans facilities improvements since 1983. Our projects range from simple road rehabilitations to complex reconstruction of interchanges. We maintain proficiency in the always evolving 4 phase Caltrans project development process including Project Study Reports, Project Reports, Plans Specifications and Estimates, and construction engineering services. We also have considerable experience processing smaller state facility projects through the Caltrans encroachment permit process. in addition to the more typical planning and design for transportation projects, we have assisted numerous clients with funding assistance through research and preparation of funding applications at the local, state, and federal levels including the HBRR program. Project and program management, cost estimating, and scheduling are fundamental to these projects. site, Wr site planning and design experience involves both public and private facilities including parks, office Idings, hotels, parking structures, schools from K 12 and beyond, child care centers, retail centers, libraries, and fire stations. We prepare the precise site grading and drainage design along with the appropriate utility modifications and/or coordination for tie -ins from the offsite utility Facility to the onsite new facility. This includes water and sewer connections and coordination with electrical, phone, and gas systems. Our work includes schematic design, design development construction documents, and engineering assistance during construction. DECIEKfi Our drainage experience includes complete project preparation from the project concept, evaluation of drainage imparts and local parameters to the development of drainage plans followed by construction. Most projects involve an increase in impervious area resulting in an increase in storm water flows. Subsequently, the additional quantity, direction, and quality of flow must be evaluated to determine the appropriate means of discharge and the most suitable best management practices (BMPs). We prepare hydrology and hydraulic studies and reports, followed by implementation of the recommendations into final plans whether it consists of modifications to existing systems or entirely new drainage systems. We also have extensive experience in storm water handling including the preparation of Storm Water Data Reports as required by Caltrans, water quality management plans for permanent BMPs after construction, and Storm Water Pollution Prevention Plans (SWPPP) for temporary BMPs during construction. Civil Works Engineers provides continuous client interaction to meet the project needs for schedule, funding, and quality. We have maintained long -term clients over numerous years, demonstrating their satisfaction with Civil Works Engineers' services. Civil Works Engineers is a certified DBE/WBE/SBE 11 Section 2 - Local Staffing List Marie Marston, P.E. — Principal Engineer Francois Zugmeyer, P.E. — Senior Engineer / Drainage Engineer David Grantham, P.E. — Civil Engineer / Utility Engineer Alvaro Perez —Junior Engineer Happi Loeb — Administrative Assistant Section 3 - Advance Notice Reguirements Time commitments ultimately depend on the scope assigned to us and our current backlog. Fluctuations in workload are dependent on the timing of staff involvement, the current ongoing activity of staff, the type and duration of proposed work assignment, and correspondingly the personnel assigned (whether technical design or agency review /assistance), etc. Although all of our proposed staff members are currently committed to other projects as would be expected for any active consulting business, at this time, many of our projects are in construction or are winding down affording us the ability to take on additional work. If the City selects us for this on -call work, when the City contacts us with a specific project, we will assess our workload and staffing capability at that time along with the City's project and schedule requirements. We will inform the City if we can take on the project within our current workload. We have performed work for clients with design fees of a few thousand dollars to well over $500,000. The expected effort for the City's proposed project and the desired schedule will ultimately play the role in determining if we can take the project on. For our small firm, our reputation is highly dependent upon delivery of a quality product within the expected time frame. As such, we will be honest with the City of our ability to perform. • • MARIE MARSTON, P.E. PRINCIPAL ENGINEER .. Ciaiwa1mr„ginwm EDUCATION B.S., 1980, Civil Engineering, Oregon State University M_B.A., 1988, University of California, Irvine PROFESSIONAL DATA Registered Professional Engineer in California (#38798, 1984) PROFESSIONAL AFFILIATIONS Women's Transportation Seminar — OC President 2004 -05, OC Treasurer 20D1 -03, Member American Society of Civil Engineers — Member, 1998 Chair of OC Transportation Tech Group American Public Works Association — Member Newport Beach Arts Foundation — President, Past Treasurer EXPERIENCE OVERVIEW Marie Marston, P.E., principal of Civil Works Engineers, Inc., has 27 years of professlonai civil engineering experience. Her experience includes general infrastructure and public works improvement projects such as transportation including streets and freeways, site improvements for commercial and public facilities, hydrology and storm drains, right -of -way engineering, utility modifications, grading, retaining walls, as well as providing funding applications assistance. Her experience covers projects from inception to completion including project and program management, planning, design, and construction. She has experience in working with both the public and private . sector including cities, counties, state agencies, federal agencies, school districts, • universities, developers, and architects /engineers. PROJECT EXPERIENCE 21st Street Improvements, City of Newport Beach. Project Manager for design for the widening of 218t Street between Balboa Boulevard and Court Street. The purpose of the project was to provide two -way traffic (to an existing one -way street). The project also involved traffic signal modification, landscaping, and reconfiguration to the McFadden Place parking lot. Modifications Included reconfiguration of the parking stalls, relocation of the entrance and exit, and drainage. Although the size of the parking lot decreased due to the street widening, the project was required to maintain the same number of parking stalls. Project site is under the jurisdiction of both the City of Newport Beach and the California Coastal Commission. A permit was required from the Coastal Commission prior to starting construction. The project completed construction prior to the busy summer season of 2004 for a cost of $300,000. Mesa Drive /Irvine Avenue intersection, City of Newport Beach, County of Orange. Project Manager. Prepared alignment study, several conceptual alternatives, and the final design for intersection improvements to provide dual westbound left turn lanes from westbound Mesa Drive to southbound Irvine Avenue. Project involved restriping Mesa Drive east of Irvine Avenue and widening Mesa Drive west of Irvine Avenue. Street widening required retaining wails and the acquisition of right -of -way. Project will be included with County of Orange Irvine Avenue Widening Project. Mariners Village Improvements, City of Newport Beach, Caltrans District 12. Project Manager. City previously developed an overall four -phase concept plan for Mariners Village improvements consisting of landscaping, hardscape aesthetics, and traffic calming. Phase 1 included the proposed landscaping amenities along Coast Highway. This project involved the planting of 22 — 30 foot high Washingtonia Robusta palm trees along the north side of Coast Highway from Riverside Drive to south of Tustin Avenue. Due to the . limited public right of way, some of the trees were planted within private property. Project involved replacement of sidewalk to provide space for the trees and to place the irrigation line, relocation of traffic signal conduit, planting of trees and shrub, permanent easements from 9 property owners, and thorough utility investigation. Construction was completed in February 2004 at a cost of $250,000. Corona del Mar State Beach, RobbinsJorgensenChristopher, City of Newport Beach. Project Manager. The project included demolition of existing bathroom facilities and concession buildings, reconstruction of the entrance, ticket booth and associated landscaped islands, curb and sidewalk, two new bathroom facilities, a • new concession_ building with lifeguard facilities, and hardscape between the existing back of curb and proposed perimeter seating wall. Provided civil engineering services related to the above tasks including grading, drainage, curb & gutter, utilities and coordination with the architect. Crean Mariners Branch Library, Thirtieth Street Architects, City of Newport Beach. Project Manager. Project involved the preparation of preliminary data for use in a funding application, prepared by the architect, for library expansion. Prepared a site survey, an ALTA, utility investigation and composite plan, and a preliminary layout of the revised library with respect to the adjacent uses consisting of an elementary school, a park and softball field, a fire station, and tennis courts. Upon approval of the funding grant, we prepared the civil construction plans for the tennis courts relocation, library site and parking lot, and park improvements design including demolition, grading, drainage, horizontal control, utilities, and signage. Per the Library Bond Act Regulations, the project included three submittals, schematic design plans, design development plans and final construction documents. Also prepared the Water Quality Management Plan. Lido Island Entry, NUVIS. Proiect Manager. The Lido Isle Homeowners Association sponsored a Lido Isle Beautification Project. We supported the landscape architect responsible for the preparation of conceptual and final design plans for construction of new median islands, reconfiguration of the existing street parking layout, modification to the curb returns, and construction of new decorative roadway paving. Project also involved geotechnical investigation to determine extent of pavement rehabilitation. Coordination with the City of Newport Beach and the California Coastal Commission was required. Estimated construction cost is $385,000. State Route 62 —New Sidewalks and Raised Median Islands Project Report, Willdan, Town of Yucca Valley, Caltrans District 8. Project Manager. Preparation of a Project Report for construction of sidewalks and raised median on the SR -62, Twenty Nine Palms Highway. The scope specifically included the preparation of the text of the report, geometry exhibits, Right of Way Data Sheets, Storm Water Data Report and Location Hydraulic Study. Project was funded by TCRP program and as a result was placed on hold during the state • budget crisis. Hoag Hospital Lower Campus Project, Child Care Center, Bielski Ladowicz Architects, City of Newport Beach. Project Manager. Project involved the preparation of preliminary layout and, civil portion of the construction documents for the proposed Child Care Center. The scope included grading, drainage, horizontal control, and utilities coordination. plans. Wilson Street Pavement Rehabilitation, City of Costa Mesa. Project Manager. Preparation of final design and construction documents for pavement rehabilitation from Fountain Way East to Harbor Boulevard. This two-lane street with a center turning lane is located in a busy commercial and residential area. For this 114 mile length, the pavement is in disrepair and reconstruction was recommended. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the RAN Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.05 million. Sakioka Drive Pavement Rehabilitation, City of Costa Mesa. Project Manager. Preparation of final design and construction documents for pavement rehabilitation from Sunflower Boulevard to Anton Boulevard. This four -lane divided street with a raised median is located in a residential area and developing area. For this 1/3 mile length the pavement for three lanes is recommended to be overlaid and the pavement in one lane was recommended to be reconstructed. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the • PS&E Certification Form, the RAN Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $730,000. South Coast Drive Pavement Rehabilitation, City of Costa Mesa. Project Manager. Preparation of final • design and construction documents for pavement rehabilitation from Carmel Drive to San Leandro Lane. This two-lane street with a center turning lane is located in a residential area. The project involved complete pavement reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R/W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.30 million. Superior Avenue Pavement Rehabilitation, City of Costa Mesa. Project Manager. Preparation of final design and construction documents for pavement rehabilitation from the City limits to Anaheim Avenue. This two -lane street with a center fuming lane is located in a busy commercial area. The project involved both pavement overlay and complete reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R1W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.63 million. Kenneth Hahn Regional Park Expansion. Tatsumi and Partners, County of Los Angeles Department of Parks and Recreation. Proiect Engineer responsible for all aspects of design through final PS &E. Responsible for the coordination and preparation of the field survey, base mapping, site design and sub consultant coordination. Project involved construction of new park access road, parking stalls, pedestrian trails, restroom building, tot lot and picnic areas. The site is an undeveloped portion of the existing park. The project intent is to provide additional public use facilities while minimizing the Impact to the existing native plants and site topography. Design involved site grading, drainage, new utility services, and erosion control plans. is u a EDUCATION Civil Engineering Degree, 1972, E.N.S.AJ. Strasbourg, France PROFESSIONAL DATA Professional Engineer Registered in California (f131046, 1979) FRANQ01S ZUGMEYER, P.E. SENIOR ENGINEER • PROFESSIONAL AFFILIATIONS American Society of Civil Engineers — Member, Past Chair of Hydrology & Hydraulics Tech. Group EXPERIENCE OVERVIEW Mr. Zugmeyer has over 30 years of experience water resources, transportation, public works and site development. His experience in surface water and drainage projects includes hydrology, hydraulics, flood plain analyses, flood control, reservoir operation, storm drain design, water quality (SWPPP & BMPs), and water resources planning. His experience in transportation projects includes geometric design, drainage, grading and reports prepared to City and Caltrans standards for all phases of project development. His site development experience includes survey basemapping and coordinate control utility coordination, rough and precise grading, drainage and storm water quality mitigation, and preparation of construction plans. PROJECT EXPERIENCE Mesa Drive f Irvine Avenue Intersection, City of Newport Beads, County of Orange. Protect Engineer. Prepared improvement plans and drainage report for the Mesa Drive widening near its intersection to Irvine Avenue. Project involved restriping Mesa Drive east of Irvine Avenue and widening Mesa Drive west of Irvine Avenue. Street widening required retaining walls and the acquisition of right -of -way. Project will be included with County of Orange Irvine Avenue Widening Project. Construction Cost was $450,000. Corona del Mar State Beach, RobbinsJorgensenChristopher, City of Newport Beach. Proiect Engineer. The project included demolition of existing bathroom facilities and concession buildings, reconstruction of the entrance, ticket booth and associated landscaped islands, carp and sidewalk, two new bathroom facilities, a new concession building with lifeguard facilities, and hardscape between the existing back of curb and Proposed perimeter seating wall. Provided civil engineering services related to the above tasks including grading, drainage, curb & gutter, utilities and coordination with the architect. Crean Mariners Branch Library, Thirtieth Street Architects, City of Newport Beach Prot�eef Project involved the preparation of preliminary data for use in a funding application, prepared by the architect, for library expansion. prepared a site survey, an ALTA a utility investigation and a composite plan The scope included preparation of a preliminary layout of the revised library with respect to the adjacent uses consisting of an elementary school, a fire station, and tennis courts. Upon approval of the funding grant, cvvil construction plans were prepared for tennis courts relocation, library site and parking lot, and park improvements. The scope included demolition, grading, drainage, horizontal control, signage and utilities coordination plans. Per the Library Bond Act Regulations, the project included three submittals, schematic design plans, design development plans and final constriction documents. 3 Drainage Improvement Projects, City of Yorba Linda. Proiect Engineer, construction documents for a new 24" storm drain on Yorba Linda Boulevard, etween Avocado Avenue and and Ohio Street, to alleviate flooding of the third westbound lane during a storm event. Estimated cost $182,000. Prepared final design and construction documents for construction of rip rap and protection barrier trash rack for existing 84" inlet near Hidden Hills Road and Mission Hills Lane. The existing rip rap is broken causing erosion problems and vegetative growth. Estimated cost $70,000. Prepared final design and construction documents for new 30" and 36" storm drain in Avenida Puesta Del Sol between Via Del Rancho and Avenida Rio Del Oro to provide upstream drainage improvement to eliminate localized flooding problems in a downstream residential neighborhood. Estimated cost $160,000. • f� • 1 -15 / Palmdale Road Overcrossing, David Evans & Associates, Caltrans District 8. Protect Engineer. Prepared a combined PSR -PR and final engineering PS &E for this Minor A project for Caltrans. Project involved the addition of new sidewalk on the southbound side of Palmdale Road throughout the interchange limits. Access ramps were required across the two loop ramps. Caltrans recently constructed sidewalk and access ramps for the northbound side. Project cost is estimated at $265,000. Atlantic Boulevard Bridge Widening, PBS &J, City of Vernon, Project Engineer. Provided engineering services for the Atlantic Boulevard Bridge widening in the City of Vernon. The project included preparation of a Location Hydraulic Study required by Caltrans to evaluated potential impact to existing drainage, preparation of a Storm Water Data Report to review potential impacts to water quality, and a HEC -RAS hydraulic analysis of the Los Angeles River to evaluate the impact of pier modification due to the structure widening. Project was processed through Caltrans Local Assistance Procedures since it was funded through the HBRR program. Hoag Hospital Lower Campus Project, Child Care Center, Bielski Ladowicz Architects, City of Newport Beach. Project Engineer. Project involved the preparation of preliminary layout and civil portion of the construction documents for the proposed Child Care Center. The scope included grading, drainage, horizontal control, and utilities coordination plans. Wilson Street Pavement Rehabilitation, City of Costa Mesa. Proiect Engineer. Preparation of final design and construction documents for pavement rehabilitation from Fountain Way East to Harbor Boulevard. This two -lane street with a center turning lane is located in a busy commercial and residential area. For this 114 mile length, the pavement.is in disrepair and reconstruction was recommended. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the RrW Certification Form, the Finance Letter; and the Construction Form. The project was estimated to cost $1.05 million. Sakioka Drive Pavement Rehabilitation, City of Costa Mesa. Project Engineer. Preparation,of final design and construction documents for pavement rehabilitation from Sunflower Boulevard to Anton Boulevard. This four -lane divided street with a raised median is located in a residential area and developing area. For this 1/3 mile length, the pavement for three lanes is recommended to be overlaid and the pavement in one lane was recommended to be reconstructed. We prepared a field survey, geotechniical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R/W Certification Form, the Finance Letter, and the Construction Form.` The project was estimated to cost $730,000. • DAVID GRANTHAM, P.E. CIVIL ENGINEER • Cinl~z Engifimm EDUCATION B.S., 1996, Civil Engineering, California State Polytechnic University, Pomona, CA PROFESSIONAL DATA Registered Professional Engineer in California ( #59999, 2000) Land Surveyor -In- Training (#6401, 2002) EXPERIENCE OVERVIEW Mr. Grantham has over eleven years experience in public works improvement projects at all levels of planning, design, and construction. He has performed as project engineer on numerous site improvement projects, street and intersection improvement projects, and major transportation projects. His street experience includes pavement rehabilitation/reconstruction, realignments, widenings, intersections, storm drainage, utility modifications and coordination, and survey control. He has also served as a design engineer on several transportation projects which included the preparation of project reports, plans, specifications and cost estimates meeting Caltrans requirements. PROJECT EXPERIENCE 21st Street Improvements, City of Newport Beach. Project Engineer for widening 21" Street between Balboa Boulevard and Court Street to convert the existing one -way street to two-way traffic, traffic signal modification, and landscaping. Due to the widening of 21" Street, modification of the McFadden Place parking lot was required. Modifications included reconfiguration of the parking stalls, relocation of the entrance and exit, and • drainage. Although the size of the parking lot decreased due to the street widening, the project wasxNuired to maintain the same number of parking stalls. Project site is under the jurisdiction of both the City of Newport Beach and the California Coastal Commission. A permit was required from the Coastal Commission prior to starting construction. Cost was $285,000. Mariners Village, City of Newport Beach, Caltrans District 12. Protect Engineer. City previously developed an overall four -phase concept plan for Mariners Village improvements consisting of landscaping, hardscape aesthetics, and traffic calming. Phase 1 Included the proposed landscaping amenities along Coast Highway. This project involved the planting of 22 — 30 foot high Washingtonia Robusta palm trees along the north side of Coast Highway from Riverside Drive to south of Tustin Avenue. Due to the limited public right of way, some of the trees were planted within private property. Project involved replacement of sidewalk to provide space for the trees and to place the irrigation line, relocation of traffic signal conduit, planting of trees and shrub, permanent easements from 9 property owners, and thorough utility investigation. Construction was completed in February 2004 at a cost of $250,000. Udo Island Entry, NUVIS. Project Manager. The Lido Isle Homeowners Association sponsored a Lido Isle Beautification Project. We supported the landscape architect responsible for the preparation of conceptual and final design plans for construction of new median islands, reconfiguration of the existing street parking layout, modification to the curb returns, and construction of new decorative roadway paving. Project also involved geotechnical investigation to determine extent of pavement rehabilitation. Coordination with the City of Newport Beach and the California Coastal Commission was required. South Coast Drive Pavement Rehabilitation, City of Costa Mesa. Protect Engineer. Preparation of final design and construction documents for pavement rehabilitation from Carmel Drive to San Leandro Lane. This two -lane street with a center turning lane is located in a residential area. The project involved complete pavement reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the • Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R1W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.30 million. Superior Avenue Pavement Rehabilitation, City of Costa Mesa. Proiect Engineer. Preparation of final • design and construction documents for pavement rehabilitation from the City limits to Anaheim Avenue. This two-lane street with a center turning lane is located in a busy commercial area. The project involved both pavement overlay and complete reconstruction. We prepared a field survey, geotechnical investigation, pavement reconstruction plans, specifications and estimates, and traffic engineering. We also prepared the paperwork required by the Caltrans Local Assistance Procedures Manual for federal funding. This included the Preliminary Environmental Study, the Request for Authorization for Construction, the Roadway Data Form, the PS &E Certification Form, the R/W Certification Form, the Finance Letter, and the Construction Form. The project was estimated to cost $1.63 million. Paseo Rancho Castilla and Circle Drive, California State University, Los Angeles. Project Engineer for final design plans for pavement rehabilitation for primary access road within the University. Paseo Rancho Castilla is used by both University traffic and the public traffic. The project evaluated cost tradeoffs between short term and long term fix regarding pavement strategy. Construction cost for each street was $200,000. SR -118 f First Street & SR -118 f Erringer Road Westbound Ramps Interchange Improvements, Forest City Construction, Caltrans District 7, City of Simi Valley. Project Engineer. Project involved final design for improving the interchanges at SR -118 /First Street and SR- 118 /Erringer Road in the City of Simi Valley. The improvements were mitigation measures for the development of a new 600,000 square foot mall to the north of the SR -118. At each interchange the project involved widening the local street, widening and/or reconstructing the westbound off -ramps and the westbound loop on- ramps, installation of new traffic signals, modification of existing traffic signals, utility relocations, and coordination with the City improvements adjacent to the interchange. Fact sheets, encroachment permits, stormwater data reports, aerial deposited lead reports, initial site assessment reports, geotechnical reports and right of way documents for both interchanges were prepared and processed through the City and Caltrans. Cost estimates and specifications were also prepared. Construction cost was $3.5 million. • Kenneth Hahn Regional Park Expansion. Tatsumi and Partners, County of Los Angeles Department of Parks and Recreation. Project Engineer for construction of new park access road, parking stalls, pedestrian trails, restroom building, tot lot and picnic areas. The site is an undeveloped portion of the existing park. The project intent is to provide additional public use facilities while minimizing the impact to the existing native plants and site topography. Design involved site grading, drainage, new utility services, and erosion control plans. Mojave Park. NUVIS, City of Hesperia. Project Engineer for construction of new sports park and parking lot as part of an adjacent residential development. The project involved construction of a new surface parking lot, baseball field, soccer field, tot lot, pedestrian trails and picnic areas. Design involved site grading, drainage, parking lot improvements, new utility services, and erosion control plans. Design of project was required to be completed in two phases. California State University, Fullerton, Parking Structure No. 2. International Parking Design, City of Fullerton. Proiect Engineer responsible for all aspects of design through final PS &E. Project was a design/build involving surface parking and site reconstruction of parking lot B surrounding the new multilevel parking structure. The project involved storm drain relocations, sewer and fire water service construction, construction of new pavement sections and parking islands, compliance with ADA access requirements, and completion of a Storm Water Pollution Prevention Plan (SWPPP). Construction engineering services were also provided. Campus Road, California State University, Los Angeles. Project Engineer. Prepared final design plans for pavement reconstruction and curb and gutter installation from Paseo Rancho Castilla to Circle Drive (approximately 700 feet). Campus Road is the access roadway used by both University traffic and the public traffic. The project also evaluated cost tradeoffs between short term and long term fix regarding pavement strategy. Construction cost was $200,000. • Section 5 -Public Agency Work performed in last five years .. • Client: City of Buena Park Project: 1 -5 Far North W iBening Project Assignment: Engineering Review and Assistance Client: City of Yorba Linda Project: 3 Drainage Improvement Projects Assignment: Final Design Client: City of Corona Project: 1 -15 Cajalco Road Assignment: Final Design for Roadway Restnping Client: City of Costa Mesa Project: Sakioka Drive Assignment: Final Design for Pavement Rehabilitation Project: Wilson Street Assignment: Final Design for Pavement Rehabilitation Project: South Coast Drive Assignment: Final Design for Pavement Rehabilitation Project: Superior Avenue Assignment: Final Design for Pavement Rehabilitation Client: City of Newport Beach • Project: Mesa Drive / Irvine Avenue Intersection Improvements Assignment: Final Design for Intersection improvements Client: City of San Buenaventura Project: California Street Arts/Aesthetics Improvements Assignment: Prepare RFP for Project Client: California State University, Los Angeles Project: Hillside Drive Sidewalk Assignment: Final Design Client: California State University, Los Angeles Project: Parking Lot D Entrance Modification Assignment Final Design Client: California State University, Los Angeles Project: Campus Road Assignment: Final Design for Pavement Rehabilitation Client: California State University, Los Angeles Project: Paseo Rancho Castilla and Circle Drive Assignment: Final Design for Pavement Rehabilitation • • Section 5 - Public Agency Work performed in last five years — continued Proiects for Public Agencies with Former Firm — Same Staff Client: City of Newport Beach Project: 21st Street Improvements Assignment: Final Design for Conversion to 2 -Way Traffic Project: Mariners Village Improvements, Assignment: Final Design for Palm Trees on PCH Client: City of San Buenaventura Project: US -101 / California Street Northbound Off -Ramp Improvements Assignment: Project Report Client: City of Yorba Linda Project: Rose Drive Design Study Assignment: Design Study Client: OCTA Project: SR -91 Express Lanes, Preventive Pavement Maintenance Project Assignment: PS &E Project: SR -91 - Tustin Avenue to SR -55 Auxiliary Lane Addition Assignment: PSR • r1 U Section 6 — References Municipal Caltrans Mr. Ray Bragg Mr. Jim Biery Mr. Steve Badum Community Svcs Director Public Works Director Public Works Director City of Fontana City of Buena Park City of Newport Beach 8353 Sierra Avenue 6650 Beach Blvd. 3300 Newport Blvd. Fontana, CA 92335 Buena Park, CA 90622 Newport Beach, CA 92658 (909) 350 -7697 (714) 562 -3676 (949) 644 -3311 (909) 481 -5750 (949) 251 -9909 Mr. Bill Moms Mr. John Ballas Mr. Mohammad Mostahkami Director of Public Services City Engineer Engineering Manager City of Costa Mesa City of Industry City of South Gate 77 Fair Drive 15651 E. Stafford Street 8650 California Avenue Costa Mesa, CA 92626 Industry, CA 91744 South Gate, CA 90280 (714) 754 -5298 (626) 333 -2211 (323) 563 -9582 Caltrans Consultants Ms. Cindy Quon Mr. Fekade Mesfin District Director Sr. Transportation Engr Caltrans, District 12 Caltrans, District 7 3337 Michelson Dr. #380 100 S. Main Street Irvine, CA 92612 Los Angeles, CA 90012 (949) 440 -3440 • (213) 897 -0096 Suite #300 Consultants Developers Mr. Richard Hart Ms. Leslee Temple Mr. Wei Koo Vice President Principal, Vice President PBS&J David Evans & Associates NUVIS 625 The City Drive South 800 N. Haven Avenue 3151 Airway Ave., Suite J-3 Suite #200 Suite #300 Costa Mesa, CA 92626 Orange, CA 92868 Ontario, CA 91764 (714) 7547311 (714) 750 -7275 (909) 481 -5750 (949) 251 -9909 Developers Mr. Jon Cantrell Mr. Doug Cleary Mr_ Sam Veltri Project Manager Project Manager Suncal Companies Forest City Construction Eclipse Development 2392 Morse Avenue 43812 Buena Vista Way 17802 Skypark Circe Irvine, CA 92614 Lancaster, CA 93536 Suite #200 (949) 7774000 (661) 816 -1259 Irvine, CA 92614 (949) 251 -9909 s Exhibit B 0 Fee Schedule • Civil M;& Engineers RATE SCHEDULE PROFESSIONAL SERVICES Principal Project Manager Senior Engineer Engineer / Sr. Designer Jr. Engineer/ Designer CADD Designer / Technician Clerical / Admin Support REIMBURSABLE EXPENSES Reproduction Consultant Services Automobile Transportation Computer Plots Delivery, Freight, Courier Agency Fees Commercial Travel / Subsistence 3151 Airway Avenue Suite S -2 Costa Mesa, CA 92626 HOURLY RATE ($) $150.00 $140.00 $125.00 $105.00 $ 90.00 $ 80.00 $ 55.00 Cost Cost plus 100/0 $0.485 / mile $ 1.501 SF Bond $ 2.00 / SF Vellum $ 3.00 / SF Color $ 4.00 / SF Mylar Cost Cost Cost 11 • U n L.J Professional Services • Agreement with Traffic Control Engineering • PROFESSIONAL SERVICES AGREEMENT WITH • TRAFFIC CONTROL ENGINEERING, INC. FOR ON -CALL TRAFFIC CONTROL ENGINEERING SERVICES THIS AGREEMENT is made and entered into as of this day of , 200_, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and TRAFFIC CONTROL ENGINEERING, INC., a California corporation, whose address is 231 E. Imperial Highway, Suite 241, Fullerton, CA 92835 ( "Consultant"), and 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 Gary on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has a need for on -call assistance for traffic control engineering services related to the proposed Fiscal Year 07108 and 08/09 Capital Improvement Programs. C. City desires to engage Consultant to perform on -call traffic control engineering services throughout the City on an as need basis. • D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of this Agreement, shall be David Kuan, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 above written date, and shall terminate on the 30th day of June, 2009, unless terminated earlier as set forth herein. • • 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" traffic control engineering services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Contract Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Contract Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE • Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. • Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for a specific project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Contract Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Contract Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 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. 2 4. COMPENSATION TO CONSULTANT • City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Contract Administrator. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by per Council Policy F -14. 4.1 Consultant shall submit monthly invoices to City "describing the work performed the preceding month. Consultant's bills shall include the name of the person and/or classification of employee who performed the work, a brief description of the services performed and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City • staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of a specific project, but which is not included within the Letter • Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. CONTRACT MANAGER Consultant shall designate a Contract Manager, who shall coordinate all phases of the Agreement. This Contract Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated David Kuan, P.E. to be its Contract Manager. Consultant shall not remove or reassign the Contract Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to a specific project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from a specific project any of its personnel assigned to the performance of services upon written request of City.. Consultant warrants that it will continuously furnish the necessary personnel to complete a specific project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION • This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the Contract Administrator and shall have the authority to act for City under this Agreement. The Contract Administrator or his/her authorized representative shall represent City in all matters pertaining to the services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 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 4 Agreement, and that it will perform all services in a manner • commensurate with 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. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or the acts or omissions of its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of • attorney's fees in any action on or to enforce the terms of this Agreement. This yr ■ • indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated • Contract Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Contract. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Contract Administrator in advance of all critical decision points in order to ensure the Contract proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Contract 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. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during • the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. 0 A. Certificates of Insurance. Consultant shall provide certificates of . insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employers Liability • Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. • 7 • 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain 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). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. • 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either • party except after thirty (30) calendar days (10 calendar days 15. 16. 17 written notice of non - payment of premium) written notice has been • received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. 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. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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 cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant • pursuant to this Agreement are not intended or represented to be suitable for O • reuse by City or others on any other contract. Any use of completed documents for other contracts 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 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. 18. COMPUTER DELIVERABLES CADD data delivered to.City shall include the professional stamp of the engineer or architect in charge of or responsible for 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 a speck project, for the completion of a specific project by others, or for any other Contract, 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 original drawings shall be • submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City s digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. RECORDS • Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and in accurate records with respect to the costs incurred under this Agreement and • any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. 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. 22. 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 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 return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 23. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with a specific project. 25. CONFLICTS OF INTEREST The 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 any 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. 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 11 any and all claims for damages resulting from Consultant's violation of this Section. 26. NOTICES All notices, demands, requests or approvals to be given under the terms of 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: Michael J. Sinacori Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3342 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: • Traffic Control Engineering, Inc. 231 E. Imperial Highway, Suite 241 Fullerton,CA 92835 Phone: (714) 447 -6077 Fax: (714) 447 -6081 27. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt 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. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination • for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information 12 28 29. 30. 31. 32. 33. developed or accumulated in the performance of this Agreement, whether in draft or final form. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Contract Administrator and City. 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. INTEGRATED CONTRACT n U 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 herein. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. CIA LJ • 34. INTERPRETATION • • The terms of this Agreement shall be- construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 14 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on • the day and year first written above. APPROVED AS TO FORM: CITY OF NEWPORT BEACH A Municipal Corporation By: By: Aaron C. Harp, Mayor Assistant City Attomey for the City of Newport Beach for the City of Newport Beach ATTEST: Traffic Control Engineering, Inc.: By: By: LaVonne Harkless, David Kuan, P.E. City Clerk Title: President Print Name: • (Financial Officer) Title: Print Name: Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates F:lusersl catl sharedlContradTemplatesPublishedonlntranetlFORMOnCallAgreement .doc 15 11 Exhibit A June11,2007 Mr. Mike Sinacori City of Newport Beach 3300 Newport BI. Newport Beach, CA 92659 Fax: (949) 644 -3318 Re: Traffic Control Planning Consultant Services Dear Mike: Thank you for the opportunity to propose our services for traffic control design of City's future construction projects. We are very interested in participating in the preparation of traffic control plan. Traffic Control Engineering, Inc. is a certified MBE and specializes in traffic control planning and design for various construction projects. Attached please find a copy of our firm's recent projects. Our cost is very competitive and we are recommended engineering firm for preparing traffic detour and control plans by many public agencies . and prime contractors throughout Southern California. Also enclosed is a list of references, their affiliations and phone numbers. Traffic Control Engineering has a substantial track record in preparing Traffic Control Plans. Our familiarity with local government requirements will be the greatest asset in- assuring a timely and cost effective product. All traffic control design will be reviewed and prepared by Mr. David Kuan. Prior to our design, we will review the proposed project and provide the City with the estimated design fee and time required to complete the design. We will do everything within our power to expedite our design in order to meet the City' schedule. would like to thank you for considering us for this work. If there are any questions, please feel free to call me at your convenience. Sincerely, TRAFFIC CONTROL ENGINEERING, INC. • David Kuan, P.E., President Professional Qualifrcationsof David Kuan, P.E. 0 Mr. Kuan is President of the firm Traffic Control Engineering, Inc., which was organized in 1989. Prior to organizing his own consulting firm, he served the City of Orange as the City Transportation Engineer from 1984 to 1989. During his tenure with the City, he conducted traffic and safety studies including traffic warrant studies, street striping layouts, and other traffic control planning. He was also directly in charge of developing the City's General Plan Circulation Element as well as a new circulation master plan for a 7100 acre planning area. He later gained new responsibility of serving the Citys Transportation Planning Committee, responsible for a broad range of traffic and transportation projects. Mr. Kuan was also the City of Orange's Transportation Demand Management Coordinator, responsible for formulating and implementing traffic reduction measures for the City and major employers in the City. Mr. Kuan has worked on numerous state and federal grants and funding programs, including OTS, HES, OCUTT, FETSIM, AHFP, and FAU. While with the City of Orange, Mr. Kuan had a close working relationship with Caltrans and other governmental transportation agencies including OCTC, OCTD, Transportation Corridor Agency, etc.. He represented the City working with Caltrans in developing.) -5 wideningfinterchange altematives, He has also served on the Rt. 55 Car -Pool Lane Technical Advisory Committee. Mr. Kuan's experience and familiarity with various governmental agencies is a valuable asset in providing expedient project approval process. • Prior to 1984, . Mr. Kuan was engaged by the firm of PRC Voorhees. During the years he was with that firm, he was responsible for numerous trafficttransportation projects including impact analysis, access studies, parking studies, traffic signal coordination, circulation master plan and general plan in Los Angeles, Orange, San Bernardino, Riverside, San Diego Counties as well as northern California Bay Area. Since 1981, Mr. Kuan has been responsible for all aspects of traffic engineering and transportation planning projects throughout Southern California. Mr. David Kuan holds a Masters Degree in Transportation Engineering from the University of California at Berkeley, has served as the Chairperson of Orange County Traffic Engineering Council (OCTEC), is a member of the Institute of Transportation Engineers (ITE), and is also registered as a Professional Engineer (Traffic) in the State of California. • • REFERENCES Mr. Tony Brine, Traffic Engineer City of Newport Beach, (949) 644 -3344 Ms. Shirley Land, Transportation Engineer City of Mission Viejo, (949) 470 -3069 Mr. Dave Sorge, Traffic Engineer City of Costa Mesa, (714) 754 -5180 Chris LaFace, Traffic Engineer City of Orange, (714) 532 -6427 Mr. John Lower, City Traffic Engineer City of Anaheim, (714) 765 -5183 Mr. Taher Jalai, Traffic Engineer City of Anaheim, (714) 765 -5183 Berry Greenstein, Traffic Engineering • City of Irvine, (714) 724 -6464 I.G. Ochoa, P.E., Manager, Traffic Engineering County of Orange, (714) 834 -3483 T.C. Sutaria P.E., City Traffic Engineer City of Santa Ana, (714) 647 -5604 Vinh Nguyen, Traffic Engineer City of Santa Ana, (714) 647 -5612 Doug Anderson, Transportation Engineer City of Tustin, (714) 383 -4952 Alan Oswald, City Traffic Engineer City of San Juan Capistrano, (949) 493 -1171 Terry Elliot P.E., Traffic Engineer City of Huntington Beach, (714) 536 -5580 Warren Siecke, P.E., City Traffic Engineer City of Brea, (714) 990 -7742 • RELATED PUBLIC AGENCY WORK o. Balboa Village Phase I, Phase II and Phase III o. West Newport Street(Alley Rehab. o. Industrial Way Water Main Replacement Project o. Irvine Terrace Valve Replacement o. Newport Lexus off site improvement r 1 U • r 1 U • • n U FEE SCHEDULE January 1, 2007 EMPLOYEE Exhibit B HOURLY RATE Principal (Project Manager) ............. ............................... $195.00 Transportation Engineer (Project Engineer) ........................$125.00 Design Engineer ............................. ..............................$ 95.00 CAD Technician ............................... ..................:...........$ 75.00 Word Processor ............................... ..............................$ 55.00 TRAVEL : $.60 /MILE OR ACTUAL COST EXPENSES : ACTUAL COST PLUS 15% HOURLY RATE INCLUDES LABOR, PAYROLL BURDEN, OVERHEAD AND PROFIT. MINIMUM OF THREE HOURS FOR MEETING ATTENDANCE. DK:dr 0 PROFESSIONAL SERVICES AGREEMENT WITH PROJECT PARTNERS FOR ON -CALL CONSTRUCTION INSPECTION SERVICES THIS AGREEMENT is made and entered into as of this a !'"day of 2005, by and between the CITY OF NEWPORT BEACH, a municipal cor ration ( "City "), and PROJECT PARTNERS, a California corporation whose address is 18301 Von Karman Avenue, Suite 340, Irvine, CA 92612 ( "Consultant "), and 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 has a need for on -call assistance for construction inspection services in regards to City construction projects. C. City desires to engage Consultant to perform on -call construction inspection services in various locations and for various City construction projects ( "Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member[s] of Consultant for purposes of Project, shall be Kimo Look, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 above written date, and shall terminate on the 30th day of June 2007, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" [insert type of services] services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Project Administrator, Consultant shall provide a letter proposal 0 0 for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include only the following: (a) A detailed description of the services to be provided; (b) The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; (c) The estimated number of hours and cost to complete the services; (d) The time needed to finish the project. No services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 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 that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 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. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of Billing rates attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Public Works Department. Any Letter Proposal that sets forth fees in excess of Thirty Thousand Dollars and No Cents ($30,000.00) shall require a separate Professional Service Agreement approved by City Council per Council Policy F -14. 2 0 0 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and/or classification of employee who performed the work, a brief description of the services perforated and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Kimo Look to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 3 0 0 If Consultant is performing inspection or construction management services for City, the Project Manager and any other assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City staff. Consultant's Nextel Direct Connect I.D. number will be provided to City to be programmed into City Nextel units, and vice versa. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Gunther shall be 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. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 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 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. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. 2 Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. 8.4 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 be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor'), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are 61 10. 11 12. 13. 14. 0 0 applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. COOPERATION Consultant agrees to work Project Administrator and interest in the work to be Consultant on the Project. CITY POLICY closely and cooperate fully with City's designated E ny other agencies that may have jurisdiction or performed. City agrees to cooperate with the Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. PROGRESS Consultant is responsible for keeping 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. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance 2 0 of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which 7 15. • Cl covers the services to be performed in connection with this Agreement in the minimum amount of One Million Dollars ($1,000,000). D. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by City. A. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. B. Additional Insurance. 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. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or 9 • • subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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 cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. 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 speck 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 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. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for 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 N a • Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and 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. 22. 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 and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. 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. 23. 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 as a result of such withholding. Consultant shall have 10 ! • 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 return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 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. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The 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 any 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. 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of 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 Public Works Department City of Newport Beach ' 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 -644 -3311 Fax: 949 - 644 -3318 11 0 0 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Kimo Look Project Partners 18301 Von Karman Avenue Irvine, CA 92612 Phone: 949- 852 -9300 Fax: 949 - 852 -9322 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt 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. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 12 31. 32. 33. 34. 35. q4 0 0 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 herein. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. it n U IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: c,,....-_ C_ ( 14' - Aaron C. Harp, Assistant City Attorney for the City of Newport Beach CITY OF NEWPORT BEACH A Municipal Corporation (12e7a2um ctor of Public Works the City of Newport Beach LaVonne Harkless, City Clerk PROJECT PARTNERS: in Officer) Print Name: X" I. A- B (Financial Officer) Title: CIFV Print Name: 1'14egiyA 9ZA tssDAnlA Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates f lusers\pbwlshared\agreements\fy 04 -05bn -call agreements \project partners.doc 14 "Partners Oding Engineering Careers and Teams" www.projectpartners.com 1 Project Partners EXHIBIT A Robert Gunther June 2, 2005 City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 Re: Proposal for As- Needed Construction Inspection Services Dear Gunther: Project Partners is pleased to submit this proposal and is excited about the opportunity to continue to provide the City of Newport Beach (City) with excellent construction inspection services. We are a civil engineering firm that specializes in providing public sector organizations with onsite engineering and construction support services. We understand the importance of your projects and the need to ensure that careful construction observation is conducted. Project Partners is ideally suited for your projects for the following reasons. • Proven Track Record Providing Inspection Service to The City Of Newport Beach • Proven Experience On A Wide Variety Of Construction Inspection Projects • Proven Experience Representing Public Sector Agencies All these reasons are explained in detail in this proposal. Description of Inspection Services Project Partners inspection services includes two area, construction inspection and construction contract administration. Both are explained below. Construction Inspection - Construction inspection shall include the documenting, on a daily basis, the events and progress made by awarded construction contractor and the documenting of potential extra work items needed for successful construction completion. The construction inspector will also assist with coordination with the public and other agencies affected by the construction. Construction Contract Administration - Construction Contract Administration duties will include the tracking of the project's schedule and budget, receiving and processing of change orders, assisting with change order negotiations. Duties will also include project coordination, correspondence, and the processing of progress payments. Again I would like to thank you for considering our services and should you have any questions or desire additional information, please do not hesitate to call at anytime. I will serve as the principal firm contact. Si erely, imo Look Project Part rs, Inc. 98301 Von Kaman Avenue phone 949.852.9300 Suite 340 Irvine, CA 92812 1 1 fax 949 852.9322 • • EXHIBIT B Project Partners' billing rate for Construction Inspectors range from $49.77 for an Inspector I to $76.83 for a supervising senior lead inspector. (See table below). Rate will apply for work preformed on a standard 40 hours per week schedule. Included in this rate is a cell phone provided to our personnel. Mileage and other approved expenses are not included in this rate. Project Partners Hourly Billing Public Works Inspectors 2005 Rates Title Hourly Bill Rate Associate Inspector $49.77 Mid Level Inspector $60.33 Senior Inspector $67.95 Senior Lead Inspector $75.83 Project Partners Statemen! or Qualifications for As- Weeded construction Inspection Services Section 2 Pagel 11:35 FROM: 7149391654 TO:949 644 3318 P.1 /1 �g� lv�ly -'��8 • CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. 1_ _ Date Received: O _ 8 0 � Dept.lCardact Received From: 07Gi, in a 0� Date Completed: 2-[O-QE Sent to: �T himi n a By: Mot a C Company/Person required to have certificate: xr0 ecf Ply I- GENERAL LIABILITY f' f ,n! r 5 T'de r A. INSURANCE COMPANY: (( _Y'cLi U f 2 j� t1 B. AM BEST RATING (A: VII or greater): fl7 x V C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? D. LIMITS (Must be $1M or greater): What is limit provided? E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? C� IF ffiln�s r"Al" 2 Yes ❑ No ❑ Yes OR NO H. CAUTIONI (Confirm that loss or liability of the named insured Is not limited solely by their negligence) Does endorsement include "solely by ,�' negligence' wording? (:)Yes 2 0 1. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City VAN accept the endeavor wording. T1. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: B. AM BEST RATING (A: VII or greater): i4i`Xy C. ADMITTED COMPANY (Must be California Admitted): //`` Is Company admitted in California? ia? Yes ❑ No D. LIMITS (Must be $1M min. 61 & PD and $500,000 UM): What is limits provided? A` J K< S, ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? []'Yes [] No F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): Is it included? L) ❑ Yes No G. NOTIFICATION OF CANCELLATION: Although there Is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. M. WORKERS' COMPENSATION R y A. INSURANCE COMPANY: — A-m u`I caA �1TA1 L W �1' If Lnr to B. AM BEST RATING (A: VII or greater): A -xv C_ LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is it included? 2<0s [ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? © Yes No IF NO, WHICH ITEMS NEED TO BE COMPLETED? Gem L f a6 ✓t fftk w2V j p* 1k _1 -nwn kfl' n..1 �� CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 16 June 28, 2005 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Robert Gunther, P.E. 949 - 644 -3311 rgunther@city.newport-beach.ca.us SUBJECT: GEOTECHNICAL, SURVEYING AND MAPPING, ARCHEOLOGICAL, INSPECTION, AND ENVIRONMENTAL PLANNING /PERMITTING ON- CALL SERVICES - APPROVAL OF PROFESSIONAL SERVICES AGREEMENTS RECOMMENDATIONS: 1. Approve Professional Services Agreements with Harrington Geotechnical and Leighton and Associates for on -call geotechnical services and authorize the Mayor and City Clerk to execute the Agreements. 2. Approve Professional Services Agreements with Coast Surveying, Advance Survey Concepts, and Walden & Associates for on -call professional surveying and mapping services and authorize the Mayor and City Clerk to execute the Agreements. 3. Approve a Professional Services Agreement with LSA and Associates for on -call archeological services and authorize the Mayor and City Clerk to execute the Agreement. 4. Approve a Professional Services Agreement with Project Partners for on -call supplemental public works inspection services and authorize the Mayor and City Clerk to execute the Agreements. 5. Approve a Professional Services Agreement with J.H. Douglas & Associates for on- call environmental planning and permitting assistance and authorize the Mayor and City Clerk to execute the Agreements. DISCUSSION: Prior to the City Council meeting of November 26, 2002, geotechnical, survey, archeological, and supplemental inspection services were regularly required for many Capital Improvement Program (CIP) projects and a great number of small but time - consuming Professional Services Agreements (PSA's) were executed between the City SUBJECT: Geotechnical, Surveying And Mapping, Archeological, And Inspection On -Call Services - Approval Of Professional Services Agreements June 28, 2005 Page 2 and selected consultants to accomplish these on -going tasks. On November 26, 2002, City Council approved the use of on -call PSA's with one soils firm and with three surveying firms. Then on December 9, 2003, Council approved on -call PSA's for the use of eight firms, (two soils, three survey, one archeological and two inspection firms). These PSA's all expire on June 30, 2005. Over the last few years, these on -call PSA's have proven to be very effective and efficient. A request for qualifications was mailed to twelve firms to submit proposals and eight firms responded. Staff now recommends executing new PSA's with these eight firms as listed in the above recommendations, that is - two geotechnical firms, three surveying and mapping firms, one archeological firm, one supplemental public works inspection firm, and one environmental planning /permitting firm. To reduce time in preparing individual PSA's for each CIP project, staff is recommending negotiating with these select consultants to provide "as needed" services. Any other firms that may be used would have individual PSA's prepared for their work and if greater than $30,000 they would be brought to City Council for approval per Council Policy F -14. The City Council approved a Fiscal Year 2005/06 Citywide CIP, which totals over $30,000,000. More than 100 projects within the CIP will require some sort of geotechnical and survey services as well as occasional archeological, supplemental public works inspection services, or environmental permitting service. These services are funded for from the individual project budgets. On -Call Geotechnical Firms Harrington Geotechnical and Leighton and Associates have performed geotechnical services for more than 20 projects for the City over the past two years. The fee for their services is typically under $5,000 to perform either soil and base compaction or asphalt testing for a particular project. The firms have provided quality services to the City in the past. On -Call Surveying and Mappinq Firms: Similar on -call Professional Services PSA's are recommended for surveying and mapping services. The three recommended firms provide unique specialized services that can be tailored to the City's individual projects, and have provided the City with excellent services on previous projects. The City currently employs only one licensed surveyor who utilizes other City staff to complete survey requests. The City Surveyor is also involved with mapping, GIS coordination, and parcel map reviews, as well as other duties. With the renewal of the on -call survey services PSA's many of these services will be contracted with one of the above survey companies. On -Call Archeological Services: Archeological inspection and reports are required on a number of projects involving excavation, particularly on projects in coordination with Caltrans. LSA has provided timely inspections and reports on previous projects with the City. SUBJECT: Geotechnical, Surveying And Mapping, Archeological, And Inspection On -Call Services - Approval Of Professional Services Agreements June 28, 2005 Page 3 On -Call Supplemental Public Works Inspection Firms: Over the last four years staff has had to use two supplemental inspectors due to the heavy project loads on our three full -time staff inspectors. Project Partners has provided inspection services to the City for four years. Although the City's proposed new budget includes an additional staff Inspector, it will take some time to hire the new inspector and occasional use of a contract inspector may still be required. On -Call Environmental Planning and Permitting Service: Environmental permitting and planning assistance are often required in conjunction with the CIP because the City must comply with land use and environmental laws such as CEQA, and may be required to obtain permits from other public agencies. J.H. Douglas & Associates has provided timely services and assistance on previous projects with the City. Standard On -Call Professional Services Agreement: Attached is the standard PSA that was recently updated by the City Attorney's Office. The On -Call PSA with the geotechnical, survey, archeological, inspection, and environmental services firms is identical to the new standardized PSA's with the exception of Section 2 (Services to be Provided) and Section 4 (Compensation to the Consultant). These sections have been drafted to allow the consultant to provide services for multiple projects. The proposed On -Call PSA's would be effective through June 30, 2007. Funding Availability: Funds for these services are available in each of the specific project accounts within the City Council approved Capital Improvement Programs. Environmental Review: Environmental clearances will be completed for each Capital Improvement Project. Prepared by: ,a. Z" RGunther, P.E. Construction Engineer Submitted Stephen G. Badum Public Works Director Attachment: Draft On -Call Professional Services Agreement PROFESSIONAL SERVICES AGREEMENT WITH [INSERT NAME OF PERSON /COMPANY] FOR ON -CALL SERVICES FOR [INSERT PROJECT NAME] THIS AGREEMENT is made and entered into as of this day of , 2005, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and [INSERT COMPANY NAME], a [insert type of business, i.e., an individual, a partnership, a joint venture, a corporation or some other business entity] whose address is [insert address], California ( "Consultant "), and 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 [insert description of what is being planned]. C. City desires to engage Consultant to perform on -call [insert type of service Consultant provides i.e., geotechnical, engineering, etc.] services in various locations and for various City construction projects ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal members] of Consultant for purposes of Project, shall be [insert name of Consultant]. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth 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 above written date, and shall terminate on the June day of 30th, 2007, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" [insert type of services] as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal request from the Project Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include a detailed description of services to be provided, the estimated cost and the time to complete the services, the estimated number of hours and the position of each person to be assigned to perform the services. No services shall be provided until the Public Works Department Director has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 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 that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 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. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of Billing rates attached hereto as Exhibit "B" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter E Proposal, as approved by the Public Works Department. A Letter Proposal fee shall not exceed $30,000 without City Council approval. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and /or classification of employee who performed the work, a brief description of the services performed and /or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated [Insert Contact Name] to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 3 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. [Optional Provision] If Consultant is performing inspection or construction management services for City, the Project Manager and any other assigned staff shall be equipped with a Nextel Plus type cellular /direct connect unit to communicate with City staff. Consultant's Nextel Direct Connect I.D. number will be provided to City to be programmed into City Nextel units, and vice versa. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. [Insert Staff Person] shall be 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. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 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 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. 11 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. 8.4 [Optional Provision] 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 be in charge of and shall not be responsible for the project's design, City's project contractor ( "Contractor"), construction means, methods, techniques, sequences or procedures, or for any health or safety precautions and programs in connection with the work. These duties are and shall remain the sole responsibility of the Contractor. Consultant shall not be responsible for the Contractors' schedules or failure to carry out the work in accordance with the contract documents. Consultant shall not have control over or be responsible for acts or omissions of City, Design Engineer, Contractor, Subcontractors, or their Agents or employees, or of any other persons performing portions of the work. 9. HOLD HARMLESS [OPTION A: For Use In All Contracts Except Those With Architects, Engineers And Surveyors] To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. [OPTION B: For Use With Design Professionals (Engineers, Surveyors And Architects)] To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims'), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 11 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a mariner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping 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. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance 7 of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain 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). D. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by City. A. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. B. Additional Insurance. 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. 0 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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 cotenant if Consultant is a partnership or joint-venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. 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 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. 19. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with 10 (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 original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and 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. 22. 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 and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection of all work, data, documents, 11 proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 23. 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 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 return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 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. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The 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 any 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. 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of 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 12 hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: R. Gunther Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3311 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: [Insert Name of Consultant] [Insert Address] [City and Zip Code] Phone: Fax: 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt 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. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 13 30. 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. 31. 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 herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. &I 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: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: in LaVonne Harkless City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Stephen G. Badum, Public Works Director for the City of Newport Beach [Name of Consultant] la Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates f:\ users \CAnshared%agreement \on -call agreement template.doc 15 C- 36`13�G PROFESSIONAL SERVICES AGREEMENT WITH PROJECT PARTNERS FOR ON -CALL CONSTRUCTION INSPECTION SERVICES THIS AGREEMENT is made and entered into as of this °� day_ of �("City"), , 2004, by and between the CITY OF NEWPORT BEACH, a municipal corporation and Project Partners, Inc.a corporation, whose address is 18301 Von Karman Avenue, Suite 340, Irvine, California, 92612, ( "Consultant "), and 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 an approximate $30 million dollar Capital Improvement Program. C. City desires to engage Consultant to perform on -call construction inspection services in conjunction with this program. D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Kimo Look F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: TERM The term of this Agreement shall commence on the day of 7r%A 2004, and shall terminate on the 30th day of June, 2005, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" Inspection Services as described in the Statement of Qualifications attached as Exhibit "A ". Upon verbal request from the Project Administrator, Consultant shall provide a Letter Proposal for services requested by the City. The Letter Proposal shall include a detailed description of 4. 0 services to be provided, the estimated cost and the time to complete the services, the estimated number of hours and the position of each person to be 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. Upon approval, consultant shall diligently perform the duties in the approved letter. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 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 that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. COMPENSATION TO CONSULTANT City shall pay Consultant for services rendered 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 the City. Consultant's compensation for services performed in accordance with this Agreement shall not exceed the approved fees identified in the Letter Proposals. A Letter Proposal fee shall not exceed $30,000 without City Council approval. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and/or classification of employment who performed the work, a brief description of the services performed and /or the specific task in the Letter Proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 2 61 ,dA 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and/or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Kimo Look to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key p'eMhnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Gunther shall be 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. 3 71 -- ...... ........ ... ......... Is CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon. request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. STANDARD OF CARE 8.1 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 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. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents El 10. and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and/or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 5 12. 13. 14. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. PROGRESS Consultant is responsible for keeping 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. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all E. Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain 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). Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self - insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 7 15. 16. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. 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. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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 cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. • 0 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. 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 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. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for 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 original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. N 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and 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. 22. 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 and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. 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. 23. 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 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 return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 10 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. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The 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 any 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. 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of 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 Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92663 Phone: 949 - 644 -3325 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attention: Kimo Look Project Partners, Inc. 18301 Von Karman Avenue, Suite 340 Irvine, CA 92612 Phone: 949 - 852 -9300 Fax: 949 - 852 -9322 11 • 0 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt 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. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. 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 herein. lit 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Letter Proposal or any other attachments attached hereto, the terms of this Agreement shall govern. 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 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 for the City of Newport Beach CITY OF NEWPORT BEACH A Municipal Corporation By: ` Mayor for the City of Ne ort Beach A EST: - PROJ=TNERS,C. By. � By: LaVonne arkless CITY Clerk Attachments: Exhibit A — Statement of Qualificatio Exhibit B — Schedule of Billing Rates 13 Partners i0uilding Innovative Project Teams" Project Partners November 19, 2003 Robert Gunther Construction Engiener City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 Re: Proposal for As- Needed Construction Inspection Services Dear Gunther: www.projectpartners.com Exhibit "A" Project Partners is pleased to submit this proposal and is excited about the opportunity to continue to provide the City of Newport Beach (City) with excellent construction inspection services. We are a civil engineering firm that specializes in providing public sector organizations with onsite engineering and construction support services. We understand the importance of your projects and the need to ensure that careful construction observation is conducted. Project Partners is ideally suited for your projects for the following reasons. • Proven Experience Of Working Well With The City Of Newport Beach • Proven Experience On A Wide Variety Of Construction Inspection Projects • Proven Experience Representing Public Sector Agencies All these reasons are explained in detail in this proposal. Description of Inspection Services Project Partners inspection services includes two area, construction inspection and construction contract administration. Both are explained below. Construction Inspection. Construction inspection shall include the documenting, on a daily basis, the events and progress made by awarded construction contractor and the documenting of potential extra work items needed for successful construction completion. The construction inspector will also assist with coordination with the public and other agencies affected by the construction. Construction Contract Administration. Construction Contract Administration duties will include the tracking of the project's schedule and budget, receiving and processing of change orders, assisting with change order negotiations. Duties will also include project coordination, correspondence, and the processing of progress payments. Again I would like to thank you for considering our services and should you have any questions or desire additional information, please do not hesitate to call at any time. I will serve as the 18301 Von Karmen Avenue I H Phone 949.952.9300 Suite 340 Irvine, CA 92612 far 949.852.9322 principal firm contact. si E. Project Partners, Inc. rJ ® Exhibit "B" Project .Partners' billing rate for Construction Inspectors range from $45.25 for an Inspector I to $69.85 for a supervising senior lead inspector. (see table below). Rate will apply for work preformed on a standard 40 hours per week schedule. Should overtime be required, additional compensation will be necessary and which will amount to a standard 1.5 times the billing rate. Included in this rate is a cell phone provided to our personnel. Mileage and other approved expenses are not included in this rate. Project Partners Hourly Billing Rates Public Works Inspectors 2004 Title Hourly Bill Rate Associate Inspector $45.25 Mid Level Inspector B`illing Rates` $62.38 Senior Lead Inspector $69.85 h� r Project .Partners' billing rate for Construction Inspectors range from $45.25 for an Inspector I to $69.85 for a supervising senior lead inspector. (see table below). Rate will apply for work preformed on a standard 40 hours per week schedule. Should overtime be required, additional compensation will be necessary and which will amount to a standard 1.5 times the billing rate. Included in this rate is a cell phone provided to our personnel. Mileage and other approved expenses are not included in this rate. Project Partners Hourly Billing Rates Public Works Inspectors 2004 Title Hourly Bill Rate Associate Inspector $45.25 Mid Level Inspector $54.85 Senior Inspector $62.38 Senior Lead Inspector $69.85 Project Partners Proposal for As- Needed Construction Inspection Services Section 2 Page 1 JAN -09 -2004 FRI (1r0:15 AM � Fax #: Q9- (P`iKrrttrS1)R FAX N0, CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. P. 01 Date Received: f %--L LI Dept. /Contact Received From: acl a i Date Completed: 1 �- p Sent to: c5 r� Ct t po BY! Company /Person required to have certificate; yU`t C t A j0(r�4 GENERAL LIABILITY A. INSURANCE COMPANY: S 2y 1 B. AM BEST RATING (A: VII or greater): C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? t(Yes ❑ No D. LIMITS (Must be $11M or greater); What is limit provided? a eia ± E. PRODUCTS AND COMPLETED OPERATIONS (Must include): is it included? J�rYes ❑ No F, ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): is it included? WYes ❑ No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? Yes ❑ No H. CAUTIONI (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? Q Yes 0740 I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. II. AUTOMOBILE LIABILITY A. INSURANCE COMPANY_ B. AM BEST RATING (A: VII or greater): C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? XYes ❑ No D. LIMITS (Must be $1 M min. BI & PD and $500,000 UM): What is limits provided? hA a,, E. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? XYes ❑ No F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): is it included? N ❑ Yes ❑ No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. M. WORKERS' COMPENSATION A. INSURANCE COMPANY: B. AM BEST RATING (A: VII or greater): C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is it included? HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NOS WHICH ITEMS NEED TO BE COMPLETED? t,J L " yw(5S i 1�9 ❑ Yes ❑ No ❑ Yes �(No CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 21 December 9, 2003 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department Robert Gunther, P.E. 949 - 644 -3311 rgunther@city.newport-beach.ca.us SUBJECT: GEOTECHNICAL, SURVEYING AND MAPPING, ARCHEOLOGICAL, AND INSPECTION ON -CALL SERVICES - APPROVAL OF PROFESSIONAL SERVICES AGREEMENTS RECOMMENDATIONS: Approve Professional Services Agreements with Harrington Geotechnical and Leighton and Associates for on -call geotechnical services and authorize the Mayor and City Clerk to execute the Agreements. 2. Approve Professional Services Agreements with Coast Surveying, Duca- McCoy, and Advanced Survey Services for on -call professional surveying and mapping services and authorize the Mayor and City Clerk to execute the Agreements. 3. Approve a Professional Services Agreement with LSA and Associates for on -call archeological services and authorize the Mayor and City Clerk to execute the Agreement. 4. Approve a Professional Services Agreements with Project Partners and Hubell Technical Services for on -call supplemental public works inspection services and authorize the Mayor and City Clerk to execute the Agreements. DISCUSSION: Prior to the Council meeting of November 26, 2002, geotechnical, survey, archeological and supplemental inspection services were regularly required for many projects and a great number of small but time - consuming Professional Services Agreements (PSA's) were executed between the City and selected consultants to accomplish these on -going tasks. On November 26, 2002, Council approved the use of on -call PSA's with one soils firm and with three surveying firms. Those Agreements have expired. Due to the tremendous efficiencies of using the on -call PSA's, staff now recommends executing SUBJECT: Geotechnical, Surveying And Mapping, Archeological, And Inspection On -Call Services - Approval Of Professional Services Agreements December 9, 2003 Page 2 new agreements with an expanded list of firms as listed in the Recommendations Section above, that is - two geotechnical firms, three surveying and mapping firms, one archeological firm, and two supplemental public works inspection firms. To reduce time in preparing individual agreements for each CIP project, staff is recommending negotiating with these select consultants to provide "as needed" services. Any other firms that may be used would have individual agreements prepared for their work and if greater than $30,000 they would be brought to Council for approval. The City Council approved a Fiscal Year 2003/04 City Wide Capital Improvement Program (CIP), which totals over $33,000,000. More than 100 projects within the CIP will require some sort of geotechnical and survey services as well as occasional archeological or supplemental public works inspection services. These services are paid for from the individual project budgets. On -Call Geotechnical Firms: Harrington Geotechnical and Leighton and Associates have performed geotechnical services for more than 20 projects for the City over the past two years. The fee for their services is typically under $5,000 to perform either soil and base compaction or asphalt testing for a particular project. The firms have provided quality services to the City in the past. On -Call Surveying and Mapping Firms: Similar on -call Professional Services Agreements are recommended for surveying and mapping services. All three recommended firms provide unique specialized services that can be tailored to the City's individual projects, and have provided the City with excellent services on previous projects. The City currently employs only one licensed surveyor who utilizes other City staff to complete his survey.party. In house City survey is only done for selected projects with critical schedules and limited scope of work. The City surveyor is also involved with mapping, GIS coordination, and parcel map reviews, as well as other duties. With the renewal of the On -Call Survey Services Agreements, many of these services will be contracted with one of the above survey companies. On -Call Archeological Services: Archeological inspection and reports are required on a number of projects involving excavation, most recently on the Newport Boulevard - Balboa Boulevard Rehabilitation project and most projects in coordination with Caltrans. LSA has provided timely inspections and reports on previous projects with the City. On -Call Supplemental Public Works Inspection Firms: Over the last two years staff has had to use two supplemental inspectors due to the heavy project loads on our three full -time staff inspectors. Both inspection firms proposed are recommended and Project Partners has provided inspection services to the City in the last year. SUBJECT: Geotechnical, Surveying And Mapping, Archeological, And Inspection On -Call Services - Approval Of Professional Services Agreements December 9, 2003 Page 3 Standard On -Call Professional Services Agreement: This is the standard agreement form that was recently updated by the City Attorney's Office. The On -Call PSA with the geotechnical, survey, archeological and inspection services firms is identical to the new standardized Professional Services Agreements with the exception of Section 2 (Services to be Provided) and Section 4 (Compensation to the Consultant). These sections have been drafted to allow the consultant to provide services for multiple projects. Note - any services requiring expenditures more than $30,000 for an individual project will require a separate City Council action in accordance with Policy F -14. The proposed On -Call PSA attached to this item, would be effective through June 30, 2005. Fundina Availability: Funds for these services are available in each the specific project accounts within the City Council approved Capital Improvement Programs. Environmental Review: Environmental clearances will be completed for each Capital Improvement Project. Prepared by: Submitted by: R: Gunther, P.E. S h G. Badum Construction Engineer Publi.�Works Director Attachment: Sample Standard On -Call Professional Services Agreement SAMPLE PROFESSIONAL SERVICES AGREEMENT WITH FOR ON -CALL SERVICES THIS AGREEMENT is made and entered into as of this day of , 2003, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and , a corporation whose address is , CA ( "Consultant'), and 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 an approximate $30 million dollar Capital Improvement Program for FY03 /04. C. City desires to engage Consultant to perform on -call in various locations and for various City projects. services D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the day of 2003, and shall terminate on the _ day of 20_, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call' Support Services as described in their Statement of Qualifications, attached as Exhibit "A ". Upon verbal request from Contract 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. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 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 that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by either telephone, fax, hand - delivery or mail. 4. 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 services performed in accordance with this Agreement shall not exceed the approved fees identified in the letter proposals. A letter proposal fee shall not exceed $30,000.00 without City Council approval. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and /or classification of employment who performed the work, a brief description of the services performed and /or the specific task in the Scope of Services to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay 2 Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in this Agreement, or specifically approved in advance by City. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Robert Gunther shall be the Project Administrator and shall have the authority to act for 3 7 [M 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. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution Agreement, City agrees to, where applicable: A. Provide access to, and upon request existing relevant information on file at materials in a timely manner so as not work schedule. of its responsibilities under this of Consultant, one copy of all City. City will provide all such to cause delays in Consultant's B. Provide blueprinting and other services through City's reproduction company for bid documents. Consultant will be required to coordinate the required bid documents with City's reproduction company. All other reproduction will be the responsibility of Consultant and as defined above. C. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. STANDARD OF CARE 8.1 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 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. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 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. W 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents and employees (collectively, the "Indemnified Parties') from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to any work negligently performed or services provided under this Agreement (including, without limitation, defects in workmanship or materials and /or design defects [if the design originated with Consultant]) or Consultant's presence or activities conducted on the Project (including the negligent and /or willful acts, errors and /or omissions of Consultant, its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or 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 approval for 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 means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or 5 12. 13. irl interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. PROGRESS Consultant is responsible for keeping 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. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. B. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. C. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. D. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. E. Coverage Requirements. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each Q subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than Two Million Dollars ($2,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than One Million Dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain 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). F. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: i. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. ii. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess 7 insurance only and not contributory with the insurance provided hereunder. iii. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. iv. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. V. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. vi. , The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) days written notice has been received by City. G. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. H. Additional Insurance. 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. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: 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 cotenant if Consultant is a partnership or joint- venture or syndicate or cotenancy, which shall result in changing the control of Consultant. 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. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written 0 consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultants expense, provide such Documents to City upon written request. 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 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. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for 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 original drawings shall be submitted to City in the version of AutoCAD used by City in ".dwg" file format on a CD, and should comply with the City's digital submission requirements for Improvement Plans. The City will provide AutoCAD file of City Title Sheets. All written documents shall be transmitted to City in the City's latest adopted version of Microsoft Word and Excel. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. a 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents his 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. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and 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. 22. 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 and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. 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. 23. 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 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 return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 24. 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 what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or 10 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. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST The 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 any 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. 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. 27. NOTICES All notices, demands, requests or approvals to be given under the terms of 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: R. Gunther Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 - 644 -3325 Fax: 949 - 644 -3318 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Company: Address: Phone: Fax: 11 28. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, 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) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt 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. Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. 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. 31. 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 herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 12 33. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 34. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 35. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 36. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 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 for the City of Newport Beach ATTEST: M LaVonne Harkless CITY Clerk CITY OF NEWPORT BEACH A Municipal Corporation M CONSULTANT 0 Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates f: \users\pbwJshared \agreements \blank -on -call services.doc 13