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HomeMy WebLinkAboutC-3854(B) - PSA for On-Call Construction Inspection and Construction Management ServicesAMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WEC CORPORATION FOR CONSTRUCTION MANAGEMENT AND INSPECTION SERVICES THIS AME MENT NO TO PROFESSIONAL SERVICES AGREEMENT, entered into this aVffJJay of nG , 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City ") and WEC Corporation, a California corporation, whose address is 27 Strathmore, Ladera Ranch, California, 92694 ( "Consultant "), and is made with reference to the following: RECITALS A. On April 11, 2006, City and Consultant entered into a Professional Services Agreement (hereinafter referred to as "Agreement ") under which Consultant was hired to provide construction management and inspection services, hereinafter referred to as the "Project." B. City required the services of the Consultant to provide construction management and inspection work for Fire Station 6 and Police facility renovation project on a part-time basis. Work includes coordination of submittals, RFI's, logs, and coordination with Police, Architect, Public Works, and Building Department. Additional construction management hours are required to complete work on the Police facility. C. City desires to enter into this Amendment No. 1 to pay Consultant for performing these additional services, which were not included in the original Agreement. D. City and Consultant mutually desire to amend Agreement, hereinafter referred to as °Amendment No. 1," as provided herein below. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall be compensated for the services performed pursuant to this AMENDMENT NO. 1 according to "Exhibit A" attached hereto. 2. Total additional compensation to Consultant pursuant to this Amendment No. 1 for all work performed in accordance with this Amendment, including all reimbursable items and subconsultant fees, shall not exceed Nine Thousand Dollars ($9,000.00). 3. 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: Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: BY: U LaVonne Harkless, City Clerk Attachment: Exhibit A CITY OF NEWPORT BEACH, A Municipal Corporation Ho er Bludau, City a er for e City of Newport Beach WEC Corporation Title:_„'; Print Name: _A,. By: _ aAL :.roan ial Officer) Title: Print Name: L4411 G � Exhibit A FEE SCHEDULE 0 At this time WEC Corporation is providing current rates for personnel immediately available for this assignment as follows: DESCRIPTION RATE Contraction Manager /Sr. Construction Inspector $95.00 / hr Kelli Tunniclift P.E. Construction Inspector $86.00 / hr Sam Ruffner Resident Engineer $ 115.00 / hr Scott D. Walker, P.E. All rates include vehicles, cell phones, computers and required safety and inspection equipment to. fully perform the management and inspection duties required for this assignment, 27 Strathmore, Ladera Ranch, CA 92694 Ph /Fax, (949) 388 -Q630 • • c -_xs (6) PROFESSIONAL SERVICES AGREEMENT WITH WEC CORPORATION FOR ON -CALL CONSTRUCTION INSPECTION & CONSTRUCTION MANAGEMENT SERVICES THIS AGREEMENT is made and entered into as of this 0--f4 day of L4 At , 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and WEC Corporation, a California corporation, whose address is 27 Strathmore, Ladera Ranch, CA 92694 ( "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 and construction management services in regards to City construction projects. C. City desires to engage Consultant to perform on -call construction inspection and construction management 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 Scott D. Walker, 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 2008, unless terminated earlier as set forth herein. • 2. SERVICES TO BE PERFORMED 11 Consultant shall provide "On -Call" Construction Inspection & Construction Management 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 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 K 0 0 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 Fifty Thousand Dollars and No Cents ($50,000.00) shall require a separate Professional Service Agreement approved by City Council 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 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 Scott D. Walker 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 3 0 0 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. 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. Bill Patapoff 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. 2 • • 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 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, 5 0 0 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 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 manner 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. F. E 14. INSURANCE 0 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. Sianature. 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 VA 9 0 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: 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. L-1 0 0 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 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 M 9 0 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. 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 Me 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 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 11 9 0 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: Bill Patapoff 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: Scott D. Walker WEC Corporation 27 Strathmore Ladera Ranch, CA 92694 Phone: 714- 875 -4714 Fax: 949 - 388 -0630 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 iPa 9 0 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. 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. 13 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: ACt".,- C . Ct,-,- Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: By UNe. LaVonne Harkless, City Clerk CITY OF NEWPORT CH A Munic' orpor i0tv By: old Don Webb Mayor for the City of Newport Beach WEC CORPORATION: By. orporat Title: PZesic!".r Print Name: n e ,!a , N4N � By: (Fina ,tial Officer) Title: Print Name: Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates f:\users\pbw\shared\agreements\fy 05-Mon-call-we6wec agreement-final.doc 14 EC Corporation EXHIBIT A May 10, 2006 Public Works Department Attn: Mr. R. Gunther Construction Engineer City of Newport Beach 3300 Newport Blvd., Building C P.O. Box 1768 Newport Beach, CA 92658 0 27 Strathmore Ladera Ranch, California 92694 Tel: (714) 875 -4714 Fax: (949) 388-0630 STATEMENT OF QUALIFICATIONS TO PROVIDE CONSTRUCTION MANAGEMENT & INSPECTION SERVICES FOR THE CITY OF NEWPORT BEACH WEC is pleased to submit this statement of qualifications to provide construction management and inspection services for the City of Newport Beach. WEC has the personnel available and ready to mobilize immediately to undertake any size public works assignment the City may have. We ap- preciate the opportunity to demonstrate our qualifications and ideas. WEC is able to provide the City of Newport Beach with Construction Management Services for building projects like the City of Newport Beach Fire and Police Station Modifications Project, which involved: • Coordinating contractor's work with police and fire departments, architects, public works and building department. • Receive, coordinate and track submittals, RFI's and change order requests. • Prepare weekly job meeting agenda, chair all meetings, and prepare meeting minutes. • Process monthly progress payments and change orders. • Inspect work of contractor for compliance with plans and specifications. Coordinate Building department Inspections and permit approvals. WEC also Is able to provide the City of Newport Beach with Professional Construction Inspection Services on projects involving bridges, retaining walls, sound walls, storm drains, gravity and force main sewers, sewer lift stations, storm water pumping stations, roadway concrete and as- phalt paving, sign structures, traffic signals, striping, landscaping and irrigation, parks, fountains, building seismic retrofits, building expansions, remodeling, and new construction, and FAA airport paving, which involve: • Quality Control Inspection of all aspects of construction. • Coordinate required field materials and soils testing in accordance with QA/QC Plan. • Keep daily reports of work and workforce on site. • Track quantities and changes to use in contractor pay requests. • Coordinate utility conflict resolutions • Inspect encroachment permit work • Provide inspection assistance on any City of Newport Beach project as needed. If there are any questions regarding this proposal please contact me at (714) 875 -4714, or by e- mail at weccorp @cox.net. We look forward to the opportunity to work with the City of Newport Beach on upcoming projects. S_ _v Scott D. Walker, P.E. Principal Construction Manager 0 FEE SCHEDULE 2006 -2007 EXHIBIT B EC CITY OF NEWPORT BEACH WEC Team Proposed Rates for Construction Management & Inspection Services WEC Team Staff Classifications REGULAR OVERTIME CLASSIFICATION RATES RATES PROJECT MANAGER Licensed Civil Engineer) $ 135.00 $ 135.00 RESIDENT ENGINEER $ 125.00 $ 125.00 Licensed Civil Engineer) STRUCTURES REPRESENTATIVE Licensed Civil Engineer) $ 115.00 $ 115.00 CONSTRUCTION MANAGER $ 100.00 $ 130.00 STRUCTURES INSPECTOR $ 93.00 $ 118.00 CIVIUBUILDING INSPECTOR $ 88.00 $ 108.00 PUBLIC WORKS ADMINISTRATOR $ 52.00 $ 64.00 PUBLIC RELATIONS COORDINATOR $ 62.00 $ 77.00 Hourly rates for inspectors are quoted as prevailing wage rates All rates include other direct costs; vehicles, cell phones, computers and required safety and inspection equipment to fully perform the construction management and inspection duties required by the City. AWORD CERTIFICATESF LIABILITY INSURANCO OP ID T DATE(MMBDNYYY) MOP 03/29/06 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Andreini & Company -South Coast ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE License 0208825 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR One MacArthur Place, Suite 100 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. South Coast Metro CA 92707 LIMITS REPRESENTATIVES. Phone:714- 327 -1400 Fax :714- 327 -1499 INSURERS AFFORDING COVERAGE NAIC# CURED INSURER A. C.N.A Insurance Com anies EACH OCCURRENCE INSURER B: Virginia Surety Co Rny, Inc- A SEC Scott Corporation INSURER C: 2067324099 INSURER D: 05/28/06 27 Strathmore Ladera Ranch CA 92694 INSURER E. MED EXP(My one person) $10,000 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL TYPEOFRISURANCE POLICY NUMBER DATE NMID DATE MEWYY LIMITS REPRESENTATIVES. AUTHORRED 50 A I Off GENERAL LIABILITY EACH OCCURRENCE $1,000,000 A X X COMMERCIAL GENERAL LIABILITY CLAIMS MADE OCCUR 2067324099 05/28/05 05/28/06 PREMISES (Eaacr�i .w) $100,000 MED EXP(My one person) $10,000 PERSONAL 8 ADV INJURY $Excluded GENERAL AGGREGATE $2,000,000 1 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS - COMP /OP AGO $2,000,000 POLICY M PRO- LOD JECT A X AUTOMOBILE LIABILITY ANYAUTO 2067324099 05/28/05 05/28/06 COMBINED SINGLE LIMIT (Ea acdtlenry S1 DD0 r 000 r BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS X BODILY INJURY IPer awdenU $ HIRED AUTOS NON -OWNED AUTOS X PROPERTY DAMAGE (Par adder) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC AUTO ONLY: AGO $ ANY AUTO $ EXCESSNMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE $ S S DEDUCTIBLE IS RETENTION B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER%EY,ECUTIVE OFFICERRIEMBER EXCLUOEOT VSQSNP000466900 12/05/05 12/05/06 X TORYLIMITS R E E.L. EACH ACCIDENT _ $1000000 E.L. DISEASE - EA EMPLOYEE $1000 D 0D -- If yes &SUIW umor SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT $1000000 OTHER A Architects & MCA114096492 05/24/05 05/24/06 I Per Claim $1,000,000 Engineers E &O I Aggregate $1 000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT l SPECIAL PROVISIONS City of Newport Beach, it's elected and appointed officials, officers, employees and volunteers are named as AddTl Insds per the General and Auto Liability as required by written contract, per the attached Form G- 123127 -B. Insurance is primary and any insurance maintained by the City shall be non-contributory. Waiver of Subrogation will follow from WC carrier. CERTIFICATE HOLDER CANCELLATION ACORD 25 (2001108) 1 0 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 City of Newport Beach NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL Attn : R. Gunther 3300 Newport Blvd., Building C IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON TI4E INSURER, ITS AGENTS OR P.O. Box 1768 REPRESENTATIVES. AUTHORRED 50 A I Off Newport Beach CA 92658 ACORD 25 (2001108) 1 0 ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the pclicy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2007108) Mar 13 06 07:02p WEPCorporation (941b 388 -0630 p.2 �/� 8-123127 -B CIO (Ed. 12102) IMPORTANT. THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT. SEE PARAGRAPH C., OF THIS ENDORSEMENT FOR THESE DUTIES. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED ENDORSEMENT WiTH PRODUCTS- COMPLETED OPERATIONS COVERAGE BLANKET WAIVER OF SUBROGATION Architects, Engineers and Surveyors This endorsement modifies insurance provided under the following: BUSINESS ACCOUNT PACKAGE POLICY — BUSINESS LiA131LITY COVERAGE FORM BUSINESS ACCOUNT PACKAGE POLICY — COMMON POLICY CONDITIONS A WHO IS AN INSURED (Section C)'of the Business Liability Coverage Form is amended to include as an Insured arty person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement; but the written contract or written agreement must be: 1. Currently in effector becoming effective during the term of this policy; and 2. Executed prior to the 'bodily Injury,- ' properly damage; 'personal injury' or 'advertising injury.' B. The insurance provided to the additional insured is gmited as follows: 1. That person or organization is an additional Insured solely for liability due to your negligence specifically resulting from 'your work' for the additional Insured which is the subject of the written contract or written agreement No coverage applies to tiabilily resulting from the We negligence of the additional insured. 2. The Umits of Insurance applicable to the additional insured are those specified in the written contract or written agreement or in the Declarations of this policy, whichever is less. These Limits of Insurance are inclusive of, and not In addition to, the Limits of Insurance shown in the Declarations. 3. The coverage provided to the additional Insured within this endorsement and section Had DEFINITIONS — 'Insured Contract' (Section F.8) within the Business Liability Coverage Form, does not apply to 'bodily injury' or 'property damage' arising out of the 'products - completed operations hazard' unless required by the written contract or written agreement. 4. The Insurance provided to the additional insured does not apply to 'bodily Injury; 'property G- 12312743 (Ed. I WM damage,' "personal injury' or 'advertising injury' arising out of an architect's, engineer's, or surveyors rendering of or failure to render any professional services including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surreys, field orders, change orders or drawings and specifications by any architect, engineer or surveyor performing services on a project of which you serve as construction manager; or b. Inspection, supervision, quality control, engineering or archltecturar services done by you on a project of which you serve as construction manager. S. This insurance does not apply to 'bodily injury,' 'property damage; 'personal injury' or 'advertising injury' arising out of e. The construction or demolition work while you are acting as a construction or demolition contractor. This exclusion does not apply to work done for or by you at your promises. C. GENERAL CONDITIONS — Duties In The Event of Occurrence, Offense, Claim or Suft (Section E2) of Me Business Liability Coverage Form is amended to add the following: An additional insured under tills endorsement will as soon as practicable: 1. Give written notice of an occurrence or an offense to us which may result in a claim or 'suit' under Oft Insurance; 2. Tender the defense and Indemnity of any dakn or 'suit' to us for a loss we cover under this Coverage Parr Page 1 of 2 filar 13 06 07:03p WEC #rporation 3. Tender the defense and indemnity of any claim or 'suit, to any other insurer which also has insurance for a loss we cover under this Coverage Part; and 4. Agree to make available any other insurance which the additional insured has for a loss we cover under this Coverage Part. We have no duty to defend or indemnity an additional insured under this endorsement until we receive written notice of a claim or 'suit, from the additional Insured D. OTHER INSURANCE (Section H. 2 & 3) of the Common Policy Conditions are deleted and replaced with the following: 2. is insurance is excess over arty other insurance naming the additional insured as an insured whether primary, excess, contingent or an any other basis unless a written contract or written agreement specifically requires that this Insurance be either primary or primary and noneontribulki the adddionaf insureds own coverage. is Insurance is excess over any other insurance to which the additional insured has been added as n additional insured b r�endorsement 3. en this insurance is excess, we will have no duty under Coverages A or B to defend the additional insured against any 'suit' if any other insurer has a duty to defend the additional insured against that 'suit' If no other Insurer defends, we will undertake to do so, but we will be entitled to (94988 -0630 p.3 G•123127 -8 (Ed. 12112) the additional insureds rights against all those other insurers. When this insurance is excess over other Insurance, we will pay only our share of the amount of the loss, if any, that exceeds the sum of (a) The total amount bunt all such other insurance would pay for the loss in the absence of this insurance; and (b) The total of all deductible and sett-Insured amounts under all that other insurance. We will share the remaining loss, if any, with arty other insurance that is not described in this Excess Insurance provision and was not bought specifically to apply in excess of the Limits of Insurance shown in the Declarations of this Coverage Part. E TRANSFER OF RIGHTS OF RECOVERY AGAINST OTHERS TO LIS (section J.2) of the Common Policy Conditions is deleted and replaced with the following: 2. We waive any right of recovery we may have against any person or organization against whom you have agreed to waive such right of recovery in a written contract or agreement because of payments we make for injury or damage arising out of your ongoing operations or your work' done under a contract with that person or organization and included within the 'products - completed operations hazard.' The City of Newport Beach, it's elected and appointed officials, officers, employees and volunteers are named as Additional Insureds per the General Liability and Auto Liability as required by writtehr contract, per Form G -123- 127 -B. Waiver of Subrogat'io'n applies. G- 123127 -B Page 2 of 2 (Ed. 12102) MAR -28 -2006 11:31 rral' 40 uo u r : uar. CNA ANDREINI AND CO wcu ,grpurar.imr P.03/04 ta';Awao-uaJu F.0 G- 123127 -8 (Ed. 12102) IMPORTANT. THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT. SEE PARAGRAPH C., OF THIS ENDORSEMENT FOR THESE DUTIES. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED ENUMEMENT WITH PRODUCTS - COMPLETED OPERATION COVERAGE BLANKET WAIVER OF SUBROGATION Architects, Engineers and Surveyors This endorsement modirm s insurance provided under tho following: BUSINESS ACCOUNT PACKAGE POLICY — BUSINESS LIABILITY COVERAGE FORM BUSINESS ACCOUNT PACKAGE POLICY — COMMON POLICY CONDITIONS A. WHO IS AN INSURED (Section C) of the Business damages 'parsenal injury+ or 'advertising hqury' Liahtllty Covarage Form Is amended to include as an arising out of an archRecrs, englueet% or insured any person or organisation whom you are surveyors rendering of or failure to render any required to add as an additional insured on this policy professional services including: under a wrifleh contract or written agreement; but the a. The preparing, approving, or lailing to prepa +ram.. M�ror1.v uenren unrnurruM �..d {e. re STOPPED Company: Virginia Surety Company Inc Policy Period: 12105/2005- 12/0512006 Endorsement No.: 0002 ATTACHED TO AND ENDORSEMENT EFFECTIVE INSURED FORMING A PART OF POLICY NUMBER (Standard Time) WEC CORPORATION Month /Day /Year 12:01 a.m. Noon PRODUCER AND CODE VS- QS -WP- 0004669 -00 12105/2005 M ILLINOIS MIDWEST INSURANCE AGENCY, LLC. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: WORKERS COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT We have the right to recover our payments from anyone liable for an Injury'covered by this policy. we will not enforce our right against the person or organization named In the Schedule. This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us. This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule Schedule CITY OF NEWPORT BEACH 3300 NEWPORT BLVD., BUILDING C P.O. BOX 1768 NEWPORT BEACH, CA 92658 ATTN: R. GUNTHER, PUBLIC WORKS CONSTRUCTION ENGINEER CITY OF NEWPORT BEACH WORKS INSPECTION SERVICES & POLICE DEPARTMENT MODIFICATIONS WC CPG 7 (3/02) APR -12 -2006 09:33 FROM* ,I TO:819496443318 t #: P.1�1 Fax S `t t) &qy— A t' • CERTIFICATE OF INSURANCE CHECKLIST City of Newport Reach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: Q Dept./Contact Received From: � tAU nom. � 4tt-I. -- Date Completed: Sent to: u r �GW ft r- By: � A� �Ati X Company/Person required to have certificate: Wt-C Dr�ria 0 n GENERAL LIABILITY .t � A. INSURANCE COMPANY: r� A- • • 1 y Yt t' 6!?!QP �-k-S B. AM BEST RATING (A: VII or greater)_ A x C. ADMITTED Company (Must be California Admitted): Is Company admitted In California? Yes Q No D. LIMITS (Must be $1 M or greater): What is limit provided? n,; R +4 4 wu/ o(,t E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? es No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City Its officers, officials, employees and volunteers): Is it included? es Q No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? Yes [2 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 [llNo I. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will aocept the endeavor wording. 11. AUTOMOBILE LIABILITY 1�) f ! A. INSURANCE COMPANY: C ' I ' 4 ' 4 h d4u ra n cy (A n'i t sr.rG B. AM BEST RATING (A: VII or greater): A XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? 94es ❑ No D. LIMITS (Must be $1M min. BI & PD and $500,000 UM): What is limits provided? it Yl.. t• I+. ADDITIONAL INSURED WORDING TO INCLUDE (The City its �,..,,/� officers, officials, employees and volunteers): Is it Included? L7 res Q No F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only : Is it included? /- ❑ 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. Ell. WORKERS' COMPENSATION , I ]� A. INSURANCE COMPANY: 1/ IYGji h 1 G 44 B. AM BEST RATING (A: VII or greater): 3- X C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is It included? 1b �j(ev PIemu' ❑ Yes tYJ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? r Q Yes No IF ND, WHICH ITEMS NEED TO BE COMPLETED? ��4Wb (IGW ACORD_ CERTIFICAT F LIABILITY INSURAN OPIp DATE(m`VD YYYY) WECCO -1 05116/06 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Andreini & Company -South Coast ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE LiT ense 0208825 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR one MacArthur Place, Suite 100 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. South Coast Metro CA 92707 3300 Phone:714- 327 -1400 Fax:714- 327 -1499 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A: Virginia surety Company, ir,c. $$1,000,000 INSURER B: C.N.A Insurance Companies X WEC Scott Corporation Scott F> -alker 27 Strathmore Ladera Ranch CA 92694 INSURER C: Continental Caevalty company 05/24/06 INSURER D: PREMISES (Ee=urence NSURER E: MED EXP(My one person) $$10,000 COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR INSIR TYPE OF INSURANCE POLICY NUMBER DATE (MMI DATE MMIDD/ LIMITS 3300 GENERAL LIABILITY IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER. ITS AGENTS OR P.O. BOX 1768 EACH OCCURRENCE $$1,000,000 B X X COMMERCIAL GENERAL LIABILITY CLAIMS MADE OCCUR 2067324099 05/24/06 05/24/07 PREMISES (Ee=urence $$100,000 MED EXP(My one person) $$10,000 PERSONAL S ADV INJURY $Excluded GENERAL AGGREGATE $$1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS - COMPnP AGG $$2,000,000 POLICY PRO- LOC JECT B X AUTOMOBILE LIABILITY ANY AUTO 2067324099 05/24/06 05/24/07 Eaa�dem >INaLELIMIT $$1,000,000 BODILY INJURY (Per PeFIO'I) $ ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per a =ide ) S X HIRED AUTOS NON -OWNED AUTOS X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN EAACC $ ANY AUTO $ AUTO ONLY: AGO EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR E� CLAIMS MADE AGGREGATE S E E DEDUCTIBLE S RETENTION $ A WORKERS COMPENSATION AND EMPLOYERS! IETORILIT'( ANYCrRIM EBERIPARTNEWEXECUTNE VSQSWP000466900 12/05/05 12/05/06 X TORY LIMITS ER E.L. EACH ACCIDENT $1000000 E.L. DISEASE - EA EMPLOYEE $100000 OFFICER/MEMBER EXCLUDED? M yyu, deeeribe under I SPECUILPROVISIONS balm E.L. DISEASE - POLICY LIMIT $1000000 OTHER C Architects & MCA114096492 05/24/06 05/24/07 Per Claim $1,000,000 Engineers E &O I Aggregate $1,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I EXCLUSIONS ADDED BY ENDORSEMENT I SPECIAL PROVISIONS City of Newport Beach, it's elected and appointed officials, officers, employees and volunteers are named as Add'1 insds per the General and Auto Liability as required by written contract, per the attached Form G- 123127 -B. Insurance is primary and any insurance maintained by the City shall be non - contributory. Waiver of Subrogation applies. CERTIFICATE HOLDER CANCELLATION ACORD 26 (2001/08) 0 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 City of Newport Beach NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO DO SO SHALL Attn: R. Gunther 3300 Newport Blvd., Building C IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER. ITS AGENTS OR P.O. BOX 1768 REPRESENTATIVES. AUTHOR Newport Beach CA 92658 ACORD 26 (2001/08) 0 ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. AUUFN Z5 (MIM5) 6NA GA23127 -B (Ed. 12/02) IMPORTANT: THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDITIONAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE, CLAIM OR SUIT. SEE PARAGRAPH C., OF THIS ENDORSEMENT FOR THESE DUTIES. THiS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BLANKET ADDITIONAL INSURED ENDORSEMENT WITH PRODUCTS - COMPLETED OPERATIONS COVERAGE BLANKET WAIVER OF SUBROGATION Architects, Engineers and Surveyors This endorsement modifies insurance provided under the following: BUSINESS ACCOUNT PACKAGE POLICY— BUSINESS LIABILITY COVERAGE FORM BUSINESS ACCOUNT PACKAGE POLICY — COMMON POLICY CONDITIONS A. WHO IS AN INSURED (Section C)'of the Business Liability Coverage Form is amended to include as an Insured any person or organization whom you are required to add as an additional insured on this policy under a written contract or written agreement; but the written contract or written agreement must be: 1. Currently in effect or becoming effective during the term of this policy; and 2. Executed prior to the 'bodily injury,' 'property damage; 'personal injury' or 'advertising Injury.' B. The insurance provided to the additional insured is limited as follows: 1. That person or organization Is an additional Insured solely for liability due to your negligence specifically resulting from 'your work' for the additional Insured which Is the subject of the written contract or written agreement. No coverage applies to liability resulting from the sole negligence of the additional insured. 2. The Limits of Insurance applicable to the additional insured are those specified in the written contract or written agreement or in the Declarations of this policy, whichever is less. These Limits of Insurance are Inclusive of, and not in addition to, the Limits of Insurance shown in the Declarations. 3. The coverage provided to the additional insured within this endorsement and section titled DEFINITIONS — "Insured Contract" (Section F.8) within the Business Liability Coverage Form, does not apply to 'bodily injury' or 'properly damage' arising out of the 'products- oompieted operations hazard' unless required by the written contract or written agreement. 4. The insurance provided to the additional insured does not apply to 'bodily injury,' 'property G- 12312743 (Ed. 12/02) damage,' 'personal injury' or °advertising injury' arising out of an architects, engineer's, or surveyor's rendering of or failure to render any professional services including: a. The preparing, approving, or failing to prepare or approve maps, shop drawings, opinions, reports, surveys, field orders, change orders or drawings and specifications by any architect, engineer or surveyor performing services on a project of which you serve as construction manager; or b. Inspection, supervision, quality control, engineering or architectural services done by You on a project of which you serve as construction manager. 5. This Insurance does not apply to 'bodily Injury,' 'properly damage,' 'personal injury' or 'advertising Injury' arising out of; a. The construction or demolition work while you are acting as a construction or demolition contractor. This exclusion does not apply to work done for or by you at your premises. C. GENERAL CONDITIONS — Duties in The Event of Occurrence, Offense, Ciabn or suit (Section E2) of the Business Liability Coverage Form is amended to add the following: An additional insured under this endorsement wfil as soon as practicable: 1. Give written notice of an occurrence or an offense to us which may result in a claim or 'suft' under this insurance; 2. Tender the defense and indemnity of any claim or 'suit' to us for a loss we cover under this Coverage Part; Page 1 of 2 E c 0 3. Any person while employed in or otherwise engaged in performing duties related to the conduct of an "auto business ", other than an "auto business" you operate; 4. The owner or lessee (of whom you are a sublessee) of a "hired auto" or the owner of a "non -owned auto" or any agent or "employee" of any such owner or lessee; or S. Any person or organization with respect to the conduct of any current or past partnership or joint venture that is not shown as a Named Insured in the Declarations. V. SECTION D. LIMITS OF INSURANCE Is replaced by the following: SECTION D. LIMITS OF INSURANCE Regardless of the number of: a. Insureds; b. Claims made or "suits" brought; C. Persons or organizations making claims or bringing "suits "; or d. "Autos", the Hired Auto and Non -Owned Auto Liability Each Occurrence Limit shown In the Declarations is the most we will pay for damages under SECTION A. COVERAGES because of all "bodily injury" or "property damage" arising out of the maintenance or use of a: 1. "Hired auto" by you or your "employees" in the course of your business; or 2. 'Non-owned auto" by any person other than you in the course of your business, and arising out of any "occurrence ". The limit of this endorsement applies separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after G -t 10730 -8 (Ed. 02197) U -11 U [W-tf (Ed. 02197) issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for purposes of determining the Limit of Insurance. VI. Condition H. Other Insurance, of the Businessowners Common Policy Conditions, is replaced by the following: H. Other Insurance. This insurance is excess over any other valid and collectible insurance available to you. VII, Definition 8. "Insured contract" (SECTION F. DEFINITIONS) is amended by the addition of the following: g. That part of any contract or agreement entered Into, as part of your business, pertaining to the rental or lease, by you or any of your "employees ", of any "auto ". However, such contract or agreement shall not be considered an "Insured contract" to the extent that it obligates you or any of your "employees" to pay for "property damage" to any "auto" rented or leased by you or any of your "employees". VIII.The following definitions (SECTION F. DEFINITIONS) are added: "Auto business" means the business or occupation of selling, repairing, servicing, storing or parking "autos ". "Hired auto" means any "auto" you lease, hire, rent or borrow which is used in connection with your business. This does not include any "auto" you lease, hire, rent or borrow from any of your "employees ", your partners or your "executive offioars", or members of their households, but only while used In your business or your personal affairs. "Non-owned auto" means any "auto" you do not own, lease, hire, rent or borrow which is used in connection with your business. This includes "autos" owned by your "employees ", your partners or your "executive officers", or members of their households, but only while used in your business or your personal affairs. City of Newport Beach 3300 Newport Slvd., tuilding c P.O. Box 1768 Newport Beach CA 92658 1noWes copyrighted material of Insurance Servrars Ofte, tnc. with Us permbsM. Page 2 of 2 Copyright, Insurance earvicee Oltice. Inc., 1993. CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 17 June 27, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY FROM: Public Works Department Robert Gunther, P.E. 949 - 644 -3311 or rgunther @city.newport- beach.ca.us Jud 2 7 209 SUBJECT: GEOTECHNICAL AND MATERIALS TESTING AND EVALUATION, INSPECTION AND CONSTRUCTION MANAGEMENT, AND LANDSCAPE DESIGN SERVICES - APPROVAL OF ON -CALL PROFESSIONAL SERVICES AGREEMENTS RECOMMENDATIONS: 1. Approve Professional Services Agreements with Arroyo Geotechnical and LaBelle Marvin Inc for on -call geotechnical and materials testing and evaluation services and authorize the Mayor and City Clerk to execute the Agreements. 2. Approve a Professional Services Agreement with WEC Corporation for on -call inspection and construction management services and authorize the Mayor and City Clerk to execute the Agreements. 3. Approve Professional Services Agreements with TCLA, Inc and David Volz Design for on -call landscape design services and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: City Council approved the use of On -Call Professional Services Agreements (PSAs) on the November 26, 2002, December 9, 2003, and June 26, 2005 agendas. These on- call PSAs have proven to be very effective and efficient. Prior to this, a number of PSAs were executed between the City and selected consultants each time services were required to support smaller, regular tasks needed for Capital Improvement Program (CIP) projects. A request for qualifications for on -call services was mailed to seven firms. Staff recommends executing PSAs with five of the firms as listed above, that is - two geotechnical and materials evaluation firms, one inspection and construction management firm, and two landscape design firms. To reduce time and effort required to prepare individual PSAs for each CIP project, staff is recommending approval of on- call agreements with these select consultants to provide "as needed" services. Terms Soils a &tedals Evaluation, Inspection and Construction Moment, and Landscaping Services — Approval of On -Call Professional Services Agreements June 27, 2008 Page 2 for services to be performed can be further negotiated upon receipt of letter proposals as requested. Should anticipated work exceed $50,000, staff will conform with the requirements of Council Policy F -14 pertaining to Service Contracts and will prepare individual PSAs as needed. The CIP budget for FY 2006107 totals over $40 million. Many of the construction projects in the CIP will require professional geotechnical, inspection and landscape services. Funding for these services is typically included in the respective budget for each project. On -Call Soils and Materials Evaluation Firms: Arroyo Geotechnical has performed geotechnical and materials testing services and has shown a'high quality of work when interacting with the City of Newport Beach and other public agencies. The firm recently completed well - performed pipe- testing services for the City on the Irvine Avenue Water Main project. LaBelle Marvin provides materials testing and evaluation services, typically pavement evaluation, and has provided quality services on numerous pavement projects for the City in the past. On -Call Inspection and Construction Management Firm: WEC recently provided a roadway inspector to assist with two City pavement resurfacing projects that were completed in the areas of Newport Shores and West Newport/Seashore Drive. Currently, a part-time inspector /construction manager from WEC is assisting Public Works with a police station renovation project. WEC's services have been excellent. The Public Works Department is currently recruiting a new full - time inspector to replace a Senior Inspector which was vacated March 30 due to a retirement. The process, however, takes time and some training time will be necessary Once the position is filled again. Occasional use of a contract inspector or construction manager will still be required. On -Call Landscaping Design Firms: TCLA Inc., has worked on the landscape design for two recent successful projects with the City, the CDM Medians and the medians for the Jamboree Road paving project. David Volz Design provided the design services for the City's Castaways Park and Cliff Drive Park projects and many other local agency landscape projects. Standard On -Call Professional Services Agreement: The standard PSA that was approved for on -call agreements in June 2005 by the City Attorney's Office is attached. The On -Call PSA is identical to the standardized PSA used by the City with the exception of Section 2 (Services to be Provided) and Section 4 (Compensation to the Consultant). These sections have been modified to allow the consultant to provide services for multiple projects. The proposed On -Call PSAs would be effective for a two year period through June 30, 2008. 0 J E 0 Soils Oviaterials Evaluation, Inspection and construction hkement, and Landscaping Services — Approval of On-Call Professional Services Agreements June 27, 2006 Page 3 Environmental Review: Environmental clearances will be completed for each Capital Improvement Project. Funding Availability: Funds for these services are available in each of the specific project accounts within the City Council approved Capital Improvement Programs. Prepared by: Submitted by: R. Gu er, RE. w en . Badum Construction Engineer ubfic Works Director Attachment: On -Call Professional Services Agreement 0 0 PROFESSIONAL SERVICES AGREEMENT WITH [INSERT NAME OF PERSON/COMPANY] FOR ON -CALL [INSERT TYPE OF SERVICES] SERVICES 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 California [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 has a need for on -call assistance for [insert description] in regards to City construction projects. 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 [insert day] day of [insert month], 20 unless terminated earlier as set forth herein. 0 0 0 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 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; (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. VA 0 0 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 Fifty Thousand Dollars and No Cents ($50,000.00) shall require a separate Professional Service Agreement approved by City Council 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 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. 3 • • i 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. 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. 9 i • 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 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. LI 4` 0 0 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 0 0 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 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 manner consistent with City goals and policies. 0 7 0 0 0 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 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 Reouirements. 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 0 waive all rights of subrogation against City, its officers, agents, 51 i • 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. • 0 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 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. 10 17 it-]I 19 OWNERSHIP OF DOCUMENTS 9 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. 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. 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. 0 11 0 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 12 0 0 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: [Insert name of Project Administrator] 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: 13 0 0 0 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. 14 RYA 33. i11 35. 36. 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. 15 E 0 0 0 r� 0 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the day and year first written above. APPROVED AS TO FORM: 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: Steve Badum Director of Public Works for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Statement of Qualifications Exhibit B — Schedule of Billing Rates f :lusers%CA71sharedlagreementlon -call agreement template.doc 16