HomeMy WebLinkAboutC-3673(J) - PSA for On-Call Environmental Planning and Permitting AssistanceLJ
PROFESSIONAL SERVICES AGREEMENT WITH
J.H. DOUGLAS & ASSOCIATES
FOR
ON -CALL ENVIRONMENTAL PLANNING AND PERMITTING SERVICES
THI AGREEMENT is made and entered into as of this Lj]��day of
, 2005, by and between the CITY OF NEWPORT BEACH, a municipal
co oration ( "City"), and J.H. DOUGLAS & ASSOCIATES, a sole proprietorship whose
address is 13142 Rosalind Drive, Santa Ana, CA 92705 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 has a need for on -call assistance for environmental planning and
permitting services in regards to City construction projects.
C. City desires to engage Consultant to perform on -call environmental planning
and permitting 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 John
Douglas.
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 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
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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.
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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 John Douglas 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.
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6. ADMINISTRATION
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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.
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
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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
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
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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 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.
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.
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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
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Dollars ($1;669;698) per occurrence for bodily injury, personal
injury, and property damage, including without limitation,
contractual liability. If commercial general liability insurance or
other form with a general aggregate limit is used, either the general
aggregate limit shall apply separately to the work to be performed
under this Agreement, or the general aggregate limit shall be at
least twice the required occurrence limit.
3. Automobile Liability Coverage. Consultant shall maintain
automobile insurance covering bodily injury and property damage
for all activities of the Consultant arising out of or in connection with
work to be performed under this Agreement, including coverage for
any owned, non -owned or rented vehicles, in an amount not
less than One rillion Dollars ($r, 0) combined single limit for
each occurrence. 50D,dVV
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:
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L 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.
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
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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.
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
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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
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.
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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
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All notices, demands, requests or approvals from City to Consultant shall be
addressed to Consultant at:
J.H. Douglas & Associates
Planning Consultants
13142 Rosalind Drive
Santa Ana, Ca 92705
Phone: 714 - 628 -0464
Fax: 714- 628 -0330
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.
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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.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
the day and vear first written above.
APPROVED AS TO FORM:
Aaron C. Harp,
Assistant City Attorney
for the City of Newport Beach
ATTEST:
By� / � / • �b� %��CJL.Q�
I %1 Harkless,
City Clerk
CITY OF NEWPORT BEACH
A Municipal CorporaWn�
ector of Public Works
the City of Newport Beach
J.H. DOUGLAS & ASSOCIATES:
By: p
Title: r r- t"C�Ln", (
Print Name:.`1 k • zi t� 5
Attachments: Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
t:luserslpbwlsharedtagreements %fy 04 -Mon -call agreementsWouglas.doc
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0 EXHIBIT A
J. H. Douglas & Associates
Planning Consultants
June 17, 2005
Mr. Bill Patapoff, P.E.
City Engineer
City of Newport Beach Public Works Department
3300 Newport Blvd.
Newport Beach, CA 92658 -8915
Subject: Proposal to Provide On -Call Environmental Planning and Permitting
Assistance
Dear Mr. Patapoff:
Thank you for the opportunity to submit this proposal for on -call planning and permitting
services. My preliminary understanding of the City's needs is described below.
The City's Public Works Department is responsible for the planning, design, permitting,
construction and maintenance of major infrastructure including streets, storm drains,
sewers, and water storage and transmission facilities. In the course of carrying out its
responsibilities, the City must comply with land use and environmental laws such as the
California Environmental Quality Act (CEQA) and the National Environmental Policy Act
(NEPA), and may be required to consult with or obtain permits from other public
agencies such as the California Coastal Commission, the Department of Fish and Game
and the Regional Water Quality Control Board. In some cases, these tasks may require
specialized expertise, and it would be advantageous for the City to have on -call access
to an experienced consultant to advise or assist staff in preparing environmental
documents or coordinating with other public agencies to obtain permits when necessary.
As you know, I served as Principal Planner and Environmental Coordinator for the City
from 1991 to 1998, and since that time have assisted the City as a consultant with
numerous projects. Among the public works projects I have provided environmental
planning or permitting assistance for include the Groundwater Development Project, Big
Canyon Reservoir Cover, MacArthur Boulevard widening, the San Diego Creek Bicycle
Bridge, 32 n Street Storm Drain Replacement and Outfall, Balboa Village Parking Lot
and Street Enhancements, Bayview Landing View Park, Morning Canyon slope repair
and stabilization project, and the Back Bay Science Center.
Establishing an on -call relationship would allow City staff to obtain immediate assistance
with environmental planning and permitting issues without having to go through the time -
consuming process of executing a consulting contract for relatively minor projects, and
would be similar to having an in -house expert available at all times without the expense
of a full -time staff member.
13142 Rosalind Drive, Santa Ana, CA 92705
Tel: 714.628.0464 Fax: 714.628.0330 e-mail: JDPlanning @comcast.net
0
ATTACHMENT
EXHIBIT B
SCOPE OF SERVICES
ON -CALL ENVIRONMENTAL PLANNING AND PERMITTING ASSISTANCE
J.H. Douglas & Associates will provide on -call environmental consulting and permitting
services and related assistance to staff as needed, including but not limited to the
following:
• Identify applicable CEQA/NEPA and land use planning requirements and
procedures for public works projects;
• Identify permit requirements for public works projects;
• Prepare CEQA/NEPA documents for public works projects;
• Filing CEQA/NEPA notices with the appropriate government agencies;
• Prepare Requests for Proposals and assist City staff in reviewing proposals for
specialized consulting assistance when necessary;
• Review CEQA/NEPA documents prepared by others for regulatory compliance;
• Provide assistance in preparing staff reports and related documents and respond
to questions at public hearings;
• Provide assistance in public outreach related to public works projects;
• Assist City staff in coordinating with other public agencies and obtaining permits
and approvals, as necessary (e.g., Coastal Commission, Regional Water Quality
Control Board)
Fees
Services will be provided on a time & materials basis at an hourly rate of $125 plus
reimbursement for related expenses.
6/17/05
A CORD TM
Date (MWDDMYYY)
L 09/09/04
PRODUCER
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
Leatzow & Associates, Inc.
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
415 Taft Avenue
ALTER THE COVERAGE AFFORDED BY THE POLICY BELOW.
COMPANIES AFFORDING COVERAGE
Glen Ellyn, IL 60137
COMPANY
A New Hampshire Insurance Company
630 858 -9500
INSURED
COMPANY
J.H. Douglas & Associates
B
COMPANY
13142 Rosalind Drive
Santa Ana, CA 92705
c
COMPANY
D
COVERAGES
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
CO
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TYPE OF INSURANCE
POLICY NUMBER
POLICY EFFECTIVE
DATE (MM /DD/YY)
POLICY EXPIRATION
DATE (MMIDONY)
LIMBS
GENERAL LIABILITY
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BODILYINJURYOCC
$
BODILYINJURYAGG
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DESCRIPTION OF OPERATIONS /LOCATIONSNEHICLES /SPECIAL ITEMS X�eiR* FAR LLiW
Re: Morning Canyon / S;/6
DATE RISK MANAGER
HOLDER CERTIFICATE
City of Newport Beach SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
Attn: Shauna Oyler - Public Works EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL
3300 Newport Blvd 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF
Newport Beach, CA 92658 -8915 ANY KIND UPON THE COMPANY, ITS AGENTS OR REPRESENTATIVES.
AUTHORIZED REPRESENTATIVE
LEATZOW & ASSOCIATES, INC
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PRODUCE" THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ARMSTRONG /ROBITAILLE INS SERV /PHS ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HLDER. THIS CERTIFICATE DOES NOT 180672 P:(866)467-8730 F:(877)905-0457 ALTER THE C VERAGEAFFORDEDBYYTHEPOLLIICESBELOW.
P. O. BOX 33015
SAN ANTONIO TX 78265 I INSURERS AFFORDING COVERAGE
INSURED INS2R A:
JOHN DOUGLAS DBA JOHN DOUGLAS AND NSURER B:
ASSOCIATES
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13142 ROSALIND DR. IN4DRFR D.
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THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING
ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR
MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH
POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INS"
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TYPE OF INSURANCE
POLICY NUMBER MALTW EFFECTIVE
DATE MM /OD/YY
POLICY EXPIRATION
DATE MM OD Y
LIMITS
A
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COMMERCIAL GENERAL I
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09/01/04
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DESCRIPTION OF OPEIIATONSILACATIONS /VEHICLES /EXCLUSIONS ADDED BY ENOORSEMENT /SPECIAL PROVISIONS
Those usual to the Insured's Operations.
CERTIFICATE HOLDER I I AOOITIONAL INSHREM INBIIREB IE .- CANCFI I ATIAld
AWRU Zb-s I /IV YI C ACORD CORPORATION 1988
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL
30 DAYS WRITTEN NOTICE (TO DAYS FOR NON - PAYMENT) TO THE CERTIFICATE
CITY OF NEWPORT BEACH
HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO
3300 NEWPORT BEACH BLVD
OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR
REPRESENTATIVES.
NEWPORT BEACH, CA 92658
rAUTHORIZED REPMENTWUYE
AWRU Zb-s I /IV YI C ACORD CORPORATION 1988
®21st Century rance * INSURE" DOPY *N
21st.com 1- 800 - 211 -SAVE RENEWAL DECLARATION OFFER
EFFECTIVE 02/12/05
AUTOMOBILE POLICY DECLARATION PAGE IN THE EVENT PAYMENT IS NOT RECEIVED
BY THE RENEWAL EFFECTIVE DATE NOTED
12:01 A.M. PACIFIC TIME AVI VE, YOUR POLICY BECOMES NULL AND
AP 1056088 IFRom 02 /12/05 IrD OB /1 /OS VOID.
NAMED INSURED AND ADDRESS LOSS PAYEE AND /OR ADDITIONAL INSURED ADDRESSESEE REVERSE)
j
VEH 1 NEWPORT BEACH FCU
425 N NEWPORT BLVD #A
JOHN H DOUGLAS NEWPORT BEACH CA 92663
13142 ROSALIND DR
SANTA ANA CA 92705
** EVIDENCE OF INSURANCE **
CITY OF NEWPORT BEACH
3300 NEWPORT BLVD
NEWPORT BEACH CA 92656
When attached to the Personal Auto Policy, these declarations complete 1 te policy and represent the current status of your coverages and limits at liability.
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nrMdh Avenue Woodland Hills. California 91367
Oyler, Shauna
From: Farley, Lauren
Sent: Tuesday, August 16, 2005 1:56 PM
To: Oyler, Shauna
Subject: RE: CJ Construction
Approved on Colony Ins. Co.
approved Douglas and sent it back to you yesterday.
- - - -- Original Message---- -
From: Oyler, Shauna
Sent: Tuesday, August 16, 2005 1:49 PM
To: Farley, Lauren
Subject: C) Construction
I just received approval of the above insurance documents. The
General Liability provider is Colony Insurance Company. They are not
admitted, but have an AVIII rating. Will you accept them?
Also, have you talked with John Douglas and approved his insurance?
I dropped a copy of his insurance off with Mia last week.
1
C 3� A
C_�t�73
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. 16
June 28, 2005
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY CO
BY 7HE CTrY COUNCI
CITY OF NEWPORT SEA
FROM: Public Works Department
Robert Gunther, P.E. SuNa�1.J0�
949 -644 -3311
rgunther@cfty.newport-beach.ca.us APPRnvFr
SUBJECT: GEOTECHNICAL, SURVEYING AND MAPPING, ARCHEOLOGICAL,
INSPECTION, AND ENVIRONMENTAL PLANNINGIPERMITTING 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.
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.
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, Su And Mapping, Archeological, And Inspection On- Wnrices - Approval Of Professional
Services Agreeme
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 2005106 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 Mapping 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 Is
timely inspections and reports on previous projects with the City.
SUBJECT: Geotetlmical, Su g And Mapping, Archeological, And Inspection Or f Services - Approval Of Professional
Services Agreern*
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:
".z,
R. Gunther, P.E.
Construction Engineer
Submitted
Stephen G. Badum
Public Works Director
Attachment: Draft On -Call Professional Services Agreement
0 0
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.
•
0 0
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
2
y�
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. 0
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 [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.
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.
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.
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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.
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
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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.
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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 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.
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.
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
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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. Acceotable 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 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.
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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 speck language:
L 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
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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 orjoint- 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.
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
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(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,
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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.
0 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 ail 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
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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.
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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
executed by bot h
Attorney.
34. SEVERABILITY
may be modified or amended only by a written document
Consultant and City and approved as to form by the City
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.
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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, Stephen G. Badum,
Assistant City Attorney Public Works Director
for the City of Newport Beach for the City of Newport Beach
ATTEST: [Name of Consultant]
By: By:
LaVonne Harkless
City Clerk
Attachments: Exhibit A — Statement of Qualifications
Exhibit B — Schedule of Billing Rates
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