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HomeMy WebLinkAboutC-3854(D) - PSA for On-Call Landscape Architectural Design ServicesAMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH DAVID VOLZ DESIGN LANDSCAPE ARCHITECTS, INC., FOR ON -CALL LANDSCAPE ARCHITECTURAL SERVICES THIS AMENDMENT NO. 1 TO P OFESSIONAL SERVICES AGREEMENT, entered into this ID�h day of (irv(- , 2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City ") and David Volz Design Landscape Architects, Inc., a California corporation whose address is 151 Kalmus Drive, Suite M8, Costa Mesa, California, 92626" Consultant "), and is made with reference to the following: RECITALS A. On June 27, 2006, CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "Agreement', for On Call landscape architectural services for the City of Newport Beach, hereinafter referred to as 'Project'. This Agreement is scheduled to expire on June 30, 2008. S. City desires to enter into this Amendment No. 1 to extend the term of the Agreement to December 31, 2010. C. City and Consultant mutually desire to amend Agreement, hereinafter referred to as "Amendment No. I", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall be compensated for various services performed pursuant to this Amendment No. 1 and according to the Request to Extend On -Call Services Agreement dated May 1, 2008, attached hereto as Exhibit A. 2. Compenstaiton to the Consultant for services performed pursuant to this Amendment No. 1 for all work performed from July 1, 2008, to December 31, 2010, including all reimburseable items and subconsultant fees, shall be based on the attached Schedule of Billing Rates (Exhibit B). 3. The term of the Agreement shall be extended to December 31, 2010. 4. The agreement will now be administered by David Webb for the Public Works Department as Bill Patapoff has retired. 5. 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: City Attorney for the City of Newport Beach ATTEST: By: . LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municip Corporati n r, By: Mayor for the City of Newport Beach David Volz Design krchi ects, Inc.: • y: Corporate Officer) Title: Primo= ame: r • inancial Officer) Title: k"� Print Name: 3. V �- Attachments- Exhibit A — Request to Extend On -Call Services Agreement Exhibit B — Shedule of Billing Rates F:\Users\PBW\Shared\Agreements\FY 08 -09\0n -Call Services\Volz-Landscape-On-Call Amendment-1.doc 2 May 1, 2008 Exhibit A City of Newport Beach Michael Sinacori 3300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92658-8915 t av scape Arcktects awd Pari, Plcinmrs RE: On -Call Landscape Architecture Design Service Request for Contract Extension Dear Mr. Sinacori, www.dvolzdesign.com Home Office 151 Kalmus Drive, Suite. M8 Costa Mesa, CA 92626 phone 714.641.1300 fax 714.641.1323 Coachella Valley Office 78060 Calle Estado La Quinta, CA 92253 phone 760.580.5165 fax 760.564.0369 Thank you for requesting a contract extension from my firm, David Volz Design. We are very happy being a part of the City of Newport Beach team. Some of our previous successful projects with your city include: a feasibility study for Morning Canyon, and park design and construction observation services for Castaways and Cliff Drive Park, and our current projects at Irvine Blvd., River Avenue, and the small parkette in Newport Shores. David Volz Design is a full-service, LEED accredited, landscape architectural firm available to perform the following services for the City of Newport Beach ■ initial planning M environmental coordination N concept design services ■ construction document development ■ construction oversight and management ■ maintenance and operations analysis ■ programming ■ on -call services ■ plan checking I am eager to work with you to plan, design and see Newport Beach's projects through to their completion. I will be managing this team and act as your point of contact with my firm. I will be assisted by a team of respected landscape architects, civil and structural engineers, building designers, and support staff. The enclosed Request of Contract Extension package includes any updated information about my firm. I am looking forward to continuing a long term relationship with the City of Newport Beach. Thanks again for offering us this opportunity. Very truly yours, 1PAITIND VOLWA 101UNI N Iri 4W lz alZ/Landscape Architect #2375 LEED Accredited Professional Destgw%wg L A VAScapes that create CVMVK"vi tt� 0 0 DAVID VOLZ DESIGN HOURLY RATE AND FEE SCHEDULE (EFFECTIVE THROUGH DECEMBER, 20 10) PRINCIPALS $175- 4220/hour PROJECT MANAGERS $145- $175/hour LICENSED PROFESSIONALS $135- $175/hour PROJECT DESIGNERS $125- $155/hour TECHNICIANS $105- $125/hour INSPECTORS $100- $130/hour ADMINISTRATORS $75- $100/hour DAVID VOLZ DESIGN hourly rates are inclusive of direct costs such as vehicle usage and mileage, equipment usage (including computers). Printing, copying, and sub - consultant expenses will be billed at cost plus fifteen percent. Printing prepared in -house will be provided at market rates with no mark- up. CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 17 + June 10, 2008 t TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department I Michael J. Sinacori 949- 644 -3342 or msinacori @city.newport- beach.ca.us SUBJECT: Approval of Amendments to On -Call Professional Services Agreements and an On -Call Professional Services Agreement for Landscape Design Services t Recommendations: 1. Approve Amendment No. 1 with TCLA, Inc., for on -call landscape design services and authorize the Mayor and City Clerk to execute the Amendment. 2. Approve Amendment No. 1 with David Volz Landscape Design for on -call landscape design services and authorize the Mayor and City Clerk to execute the Amendment. 3. Approve an On -Call Professional Services Agreement with David A. Pederson for landscape design services and authorize the Mayor and City Clerk to execute the Agreement. Discussion: On -Call Professional Services Agreements (PSA's) were developed to avoid a large volume of small but time - consuming agreements between the City and consultants to accomplish on -going project tasks for implementation of the Capital Improvement Program (CIP). On June 26, 2006, the City Council approved On -Call Professional Services Agreements with TCLA and David Volz Design (both Landscape Architects) to provide landscape design services regularly required for many CIP projects. Over the last two years, these on -call PSA's have proven to be very effective and an efficient way to conduct business. TCLA and David Volz Design have provided exceptional high quality service and completed many landscape designs for the City to supplement in -house street rehabilitation projects, such as Superior Avenue and Jamboree Road. In addition, they have completed small restoration projects in concert • with the General Services Department. Approval of Amendments to On -Call *sional Services Agreements and an On -Call Professional Services Agreement for Landscape Design Services June 10, 2008 Page 2 I The proposed Fiscal Year 2008109 CIP budget is estimated at about $68 million and includes over 92 projects. Many of these projects will require landscape architecture design services. The anticipated need for these services will require the extension of these contracts which are set to expire on June 30, 2008. Rates provided by the consultants and included in the agreements are competitive and in -line with industry standards. In accordance with Council Policy F -14, staff requested statements of qualifications from local firms. Based on the qualifications received, staff is recommending an additional landscape architect to supplement the many planned street and median improvement projects. David A. Pederson has completed many projects for the City in the past and understands the needs to accomplish the Capital Improvement Program. Staff recommends approval of the attached Amendments and On -Call PSA to facilitate implementation of the CIP. 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 Program. Prepared by: hael . Sinacori, P.E. ssistant City Engineer Submitted by: Badum s Director Attachment: Amendment No. 1 with TCLA Amendment No. 1 with David Volz Design On -Call Professional Services Agreement with David A. Pederson • U • 0 Li AMENDMENT NO. 1 . TO PROFESSIONAL SERVICES AGREEMENT WITH TOTAL CONCEPT LANDSCAPE ARCHITECTURE, INC., (TCLA, Inc.) FOR ON CALL SERVICES THIS AMENDMENT NO. 1 TO PROFESSIONAL ON -CALL SERVICES AGREEMENT, entered into this day of , 2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City ") and TOTAL CONCEPT LANDSCAPE ARCHITECTURE, INC. (TCLA, INC.), a California Corporation whose address 1340 Reynolds Avenue, Suite 103, Irvine, California, 92614 -5551 ( "Consultant'), and is made with reference to the following: RECITALS A. On June 27, 2006, CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "Agreement', for landscape architectural on -call services. This Agreement is scheduled to expire on June 30, 2008. B. City desires to enter into this Amendment No. 1 to extend the term of the • Agreement to December 31, 2010. C. City and Consultant mutually desire to amend Agreement, hereinafter referred to as "Amendment No. 1" as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall be compensated for various services performed pursuant to this Amendment No. 1 and according to the Request to Extend On -Call Services Agreement dated April 28, 2008, attached hereto as Exhibit A. 2. Compensation to the Consultant for services performed pursuant to this Amendment No. 1 for all work performed from July 1, 2008, to December 31, 2010, including all reimbursable items and subconsultant fees, shall be based on the billing rates included in Exhibit A. 3. The term of the Agreement shall be extended to December 31, 2010. 4. The City Project Administrator for the Agreement shall be Michael J. Sinacori, P.E. 5. 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. 0 0 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation LOCA Mayor for the City of Newport Beach TOTAL CONCEPT LANDSCAPE ARCHITECTURE, INC. (TCLA, Inc.): (Corporate Officer) Print Name: M (Financial Officer) Title: Print Name: Attachments: Exhibit A — Request to Extend On -Call Services Agreement F :1UsemIPBWlSharedlAgreements%FY 0"9lOn -Call SewiceSUCLA -On -Call- Amendment 1_do E • • u 0 • TCLA, Inc. Landscape Architecm c Environmental Planning ❑ Corporate Office: 27905 Smyth Drive Valencia, CA 913554304 PH 661- 702 -1011 FX 661 - 702-0293 April 28, 2008 Mr. Michael Sinacori Assistant City Engineer City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 0 EXHIBIT A Sue Vamnin ASLA CA #1737 AZ #13616 NV #206 TX #1180 Harty Kobzeff ASLA CA #1777 a l"Ine Office: 1340 Reynolds Ave. Suite 103 irvine, CA 92614 -5551 PH 949 - 250 -1615 FX 949 -250 -1801 ❑ Central Valley Office: 4600 Ashe Road Suite 319 Bakersfield Ca 93313 -2039 PH 661- 398 -9300 FX 661- 398 -9393 Subject: On -Call Landscape Architecture Services — Request for Contract Extension Dear Michael: • We are pleased to submit the following request for contract extension in respect to the City of Newport Beach. It has been our pleasure to have served the City since our original contract of June 2006. The following information will I hope satisfy your requirements to extend our current contract for another two years. 1.0 LOCAL STAFFING LIST 1.1 Our local staffing has not changed for the last several years. Although we have available staff in our Valencia and Bakersfield offices, all work will be done within the Irvine Office. The Irvine office of TCLA, Inc. consists of the following personnel, who will be the only staff working on the City of Newport Beach's projects. e Harry H. Kobzeff ASLA, - Principal in Charge Mr. Kobzeff will be in charge of all design, construction documentation and construction observation activities. He will oversee if not perform all drawing and cost estimation. He also will be responsible for all meetings. • Chris Davis —Job Captain Mr. Davis will act as support staff. He may on occasion support graphic and/or drafting services. 2.0 ADVANCE NOTICE • 2.1. We have no new advance notice requirements for projects. We have performed on a timely basis in the past and will continue to give the City the best service we 0 0 Mr. Michael Sinacori April 28, 2008 On -Call Landscape Architecture Services — Request for Contract Extension Page 2 can. We will notify the City should we feel deadlines are on achievable prior to • accepting any new project 3.0 RESUMES OF NEW KEY PERSONNEL 3.1. We have had the same staff for the past several years. No new resumes are included herein. 4.0 FEE SCHEDULE 41. The following fee schedule will be current for the City of Newport Beach for the period from July 1, 2008 through December 31, 2010. Any project with a signed contract during this period will be held to these fee rates, even if the contract period extends past June 30, 2010. • Managing Principal $160.001hour • Principal in Charge $140.001hour • Project Manager $120.001hour • Job Captain $ 85.00 /hour • Professional Staff $ 65.00 /hour Thank you for allowing us this opportunity to extend our contract with the City of Newport Beach for another two years. Should you have any questions, please feel free to call us. Cordially, TCLA, Inc. APPROVED AND ACCEPTED: • Harry H. Kobzeff A.S.L.A. Principal NamelTitle CA#1777 Landscape Architects are regulated by the state of California. Any Questions concerning a Landscape Architect may be referred to the Landscape Architects Technical committee al: Landscape Architects Technical Committee, 400 R Street, #4000, Sacramento, CA 95814 (916) 575 -7230. P- NPB -0ncall- Extension- Dec20IUm • 0 • AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT WITH DAVID VOLZ DESIGN LANDSCAPE ARCHITECTS, INC., FOR ON LANDSCAPE ARCHITECTURAL SERVICES THIS AMENDMENT NO. 1 TO PROFESSIONAL SERVICES AGREEMENT, entered into this day of , 2008, by and between the CITY OF NEWPORT BEACH, a municipal corporation, (hereinafter referred to as "City ") and David Volz Design Landscape Architects, Inc., a California corporation whose address is 151 Kalmus Drive, Suite M8, Costa Mesa, California, 92626 "Consultant'), and is made with reference to the following: RECITALS A. On June 27, 2006, CITY and CONSULTANT entered into a Professional Services Agreement, hereinafter referred to as "Agreement', for On Call landscape architectural services for the City of Newport Beach, hereinafter referred to as "Project'. This Agreement is scheduled to expire on June 30, 2008. • B. City desires to enter into this Amendment No. 1 to extend the term of the Agreement to December 31, 2010. C. City and Consultant mutually desire to amend Agreement, hereinafter referred to as "Amendment No. I", as provided here below. NOW, THEREFORE, the parties hereto agree as follows: 1. Consultant shall be compensated for various services performed pursuant to this Amendment No. 1 and according to the Request to Extend On -Call Services Agreement dated May 1, 2008, attached hereto as Exhibit A. 2. Compenstaiton to the Consultant for services performed pursuant to this Amendment No. 1 for all work performed from July 1, 2008, to December 31, 2010, including all reimburseable items and subconsultant fees, shall be based on the attached Schedule of Billing Rates (Exhibit B). 3. The term of the Agreement shall be extended to December 31, 2010. 4. The agreement will now be administered by David Webb for the Public is Works Department as Bill Patapoff has retired. I 5. Except as expressly modified herein, all other provisions, terms, and covenants set forth in Agreement shall remain unchanged and shall be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 on the date first above written. APPROVED AS TO FORM: C City Attorney for the City of Newport Beach ATTEST: In LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH, A Municipal Corporation Mayor for the City of Newport Beach David Volz Design Architects, Inc.: EM (Corporate Officer) Print M (Financial Officer) Title: Print Name: Attachments: Exhibit A — Request to Extend On -Call Services Agreement Exhibit B — Shedule of Billing Rates 0 U F:1Usems PBWISharedlAgreements%FY 08 -09 \On -Call Services\Volz- Landscape -On -Call Amendment -i.doc 0 PA May 1, 2008 Exhibit A City of Newport Beach Michael Sinacori 3300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92658 -8915 RE: On -Call Landscape Architecture Design Service — Request for Contract Extension Dear Mr. Sinacori, wwwdvol da4P1.sem Hoilm Offift 15 Kgmw 06m.5uke. MB C9ib Mesa, CA 92626 9ha 7C4.641.t300 fax 714.641.1323 Cuachaa VaNer Ofike 78060 Calk €stado La Qoima,CA 92253 phom 760.5805165 fax 760.564.0369 Thank you for requesting a contract extension from my firm, David Volz Design. We are very happy being a part of the City of Newport Beach team. Some of our previous successful projects with your city include: a feasibility study for Morning Canyon, and park design and zonstruction observation services for Castaways and Cliff Drive Park, and our current projects at Irvine Blvd., River Avenue, and the small parkette in Newport Shores. David Volz Design is a full- service, LEED accredited, landscape architectural firm available to perform the following services for the City of Newport Beach ■ initial planning ■ environmental coordination ■ concept design services Y construction document development ■ construction oversight and management ■ maintenance and operations analysis ■ programming ■ on -call services ■ plan checking I am eager to work with you to plan, design and see Newport Beach's projects through to their completion. I will be managing this team and act as your point of contact with my firm. I will be assisted by a team of respected landscape architects, civil and structural engineers, building designers, and support staff. The enclosed Request of Contract Extension package includes any updated information about my firm. I am looking forward to continuing a long term relationship with the City of Newport Beach. Thanks again for offering us this opportunity. Very truly yours, VOLE 063►YGN Volz Print aULandscape Architect #2375 LEED Accredited Professional 1XS4KU%.9 LaH6UX" that efta t c4Nt KkKith • DAVID VOLZ DESIGN HOURLY RATE AND FEE SCHEDULE (EFFECTIVE T14ROUGH DECEMBER, 2010) PRINCIPALS $1754220/hour PROJECT MANAGERS $145- $175/hour LICENSED PROFESSIONALS $135 - $175 /hour PROJECT DESIGNERS $125 -$t55 /hour TECHNICIANS $105- $125/hour INSPECTORS $100- $130/hour ADMINISTRATORS $75- $100/hour • DAVID VOLZ DESIGN hourly rates are inclusive of direct costs such as vehicle usage and mileage, equipment usage �: w= (including computers). Printing, copying, and sub - consultant expenses will he billed at cost plus fifteen percent. Printing prepared in -house will be provided at market rates with no mark- up. E 0 . PROFESSIONAL SERVICES AGREEMENT WITH DAVID PEDERSON, INC., FOR ON -CALL ON CALL LANDSCAPE ARCHITECTURAL SERVICES THIS AGREEMENT is made and entered into as of this day of 12008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and DAVID PEDERSON, INC., a Nevada corporation, whose address is 20271 Acacia, Newport Beach, California, 92660 ( "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 Califorrid and the Charter of City. B. City has a need for on -call assistance for Landscape Architectural Design Services. C. City desires to engage Consultant to perform on -call landscape architectural design services throughout the City on an as need basis ( "Project "). 0 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 David A. Pedersen. 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 315 day of December, 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED • Consultant shall provide "On -Call" landscape architectural design services as described in the Statement of Qualifications attached as Exhibit "A." Upon 0 0 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; and D. The time needed to finish the specific 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 "A" and incorporated herein by • reference. 7 ■ 0 iNo 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 Project Administrator. 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 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. K' 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 David A. Pedersen 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 thf-a Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Michael J. Sinacori, P.E. shall be the 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 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. By n • delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS • To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or the acts or omissions of its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This 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. • 5 • 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. 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 V 9 0 City's Risk Manager prior to commencement of performance or issuance • of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and 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 Employers Liability Insurance in accordance with • the laws of the State of California for all of the subcontractors employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 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 7 any owned, hired, non -owned or rented vehicles, in an amount not • less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers the services to be performed in connection with this Agreement in the minimum amount of one million . dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: 1. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any • self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. E i 0 • F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 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 I 0 9 Consultant. Further, any and all liability arising out of changes made to • Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. COMPUTER DELIVERABLES CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Piuject 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. 10 • 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 U 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. 11 0 0 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: Michael J. Sinacori, P.E. Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA, 92658 -8915 Phone: 949 -644 -3342 Fax: 949 - 644 -3318 All notices, demands, requests, or approvals from City to Consultant shall be • addressed to Consultant at: David A. Pedersen, Inc. 20271 Acacia, Suite 120 Newport Beach, CA 92660 Phone: 949 -251 -8999 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 12 termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 29. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 31. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations • and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 32. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 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. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by • 13 E 11 reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 36. 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. 37. 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: By: A r^-- -' C- Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Edward Selich Mayor for the City of Newport Beach David Pedersen, Inc.: By:_ Title: (Corporate Officer) Print Name: 0 (Financial Officer) Title: Print Name: Attachments: Exhibit A - Statement of Qualifications F :1Users%PBMSharedlAgreemenlslFY 08 -0910n -Call Services \Pederson- On Call- Landscape.doc 14 • CJ r 1 U • 0 Exhibit A • David A. Pedersen 20271 Acacia, Suite 120 Newport Beach, CA 92660 May 2, 2008 City of Newport Beach Public Works Department 3300 Newport Blvd. P.O.Box 1768 Newport Beach, CA 92658 -8915 Dear Mr. Sinacori and to whom it may concern, I am a self employed, licensed and insured Landscape Architect working alone in my Newport Beach office. I have been working for twenty years and I am very conscientious. My business is based upon my reputation for being responsible and reliable. I answer my own phone and therefore am available upon request for last minute issues that come up as well as planned • meetings and consulting. My fees vary based upon each individual job and depends on whether I am being hired for an hourly consulting fee or a flat fee based upon a large ongoing project. My hourly fee is $95.00 per hr. Printing fees are $10.00 first plot (the original) and then $2.75 per sheet. I a happy to e -mail PDF files to the City so you can run your own prints. If you have any questions regarding my services, please feel free to contact me. Sincerely, David A. Pedersen • E 1] 0 David A. Pedersen, Inc. 20271 Acacia, Suite 120 Newport Beach, CA 92660 (949) 251 -8999 Education: Orange Coast College A.A. Horticulture Cal Poly Pomona B.S. Landscape Architecture 1987 Skills & License California L.A. License 3895 Computer Aided Drafting Career Highlights *Self employed for over 20 years *Experience working with various city Building Departments and Public Work Depts. including the City of Newport Beach *Experience worMfig with private community associations *Landscape Ardbitecture for Custom Residences and Commercial Properties *F ace worldng with the Coastal Commission Recent Public Works Agency Work: • 1. Mesa Birch Park 2. Mariners Park Restroom Building Landscape Changes 3. Joint use project in Santa Ana Heights O.C.F.0 D. chantt4n%�"#emmce parcel and temporary equestrian facility 4. CDM me4an Landscape fighting 5. Newport es 6Ud St. green belt areas 6. Newport Beach Public Library Main Branch Improvement Landscape Plan References: Available upon request and Newport Reach City Employees as follows: 1. Randy Kearns 2. Fong Tse 3. Michael Sinaeori • .I PROFESSIONAL SERVICES AGREEMENT WITH DAVID VOLZ DESIGN. FOR ON -CALL LANDSCAPE ARCHITECTURAL DESIGN SERVICES HIS AGREEMENT is made and entered into as of this 43 day of —, 2006, by and between the CITY OF NEWPORT BEACH, a municipal corporation ( "City "), and David Voltz Design., a California corporation, whose address is 17050 Bushard Street, Suite 300, Fountain Valley, CA 92708 ( "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 landscape architectural design services in regards to City construction projects. C. City desires to engage Consultant to perform on -call landscape architectural design 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 David J. Volz. 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 Consultant shall provide "On -Call" Landscape Architectural Design 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 2 • • 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. 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 David Volz 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 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. 0 0 • 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, r • 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. • • 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 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 One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed 7 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. M 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 E 18. M 20. 21 22. 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. 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. 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. 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. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and 10 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 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: David Volz David Volz Design 17050 Bushard Street, Suite 300 Fountain Valley, Ca 92708 Phone: 714 - 593 -3300 Fax: 714- 593 -3330 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 12 0 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: C Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: '�VB , LaVonne Harkless, City Clerk CITY OF NEWPORT B A Municipal -QZrporatioj Don We6b Mayor for the City of Newport Beach DAVID VOLZ DESIGN *(Corporate Officer) Title:fP�i -- Print Name.14,pVIGL �1 . \r 61Z– By:' 4 (Financial Officer) Title: &, weiy 11 Print Name: Aa ].U-1 ' Attachments: Exhibit A – Statement of Qualifications Exhibit B – Schedule of Billing Rates f:\users\pbw\shared\agreements\fy 05-06\on-call services\volzdandscape.doc 14 • May 24, 2006 City of Newport Beach Michael Sinacori 3300 Newport Boulevard Post Office Box 1768 Newport Beach, CA 92658 -8915 RE: On -Call Landscape Architecture Design Services Dear Mr. Michael; 0 -a' Thank you for requesting a statement of qualifications from my firm, David Volz Design.. Providing on -call services is a major part of my fan's busi- ness. We have provided hundreds of task orders under our on- going, on- call service agreements with several Southern California cities. Currently, we provide on -call services to the cities of Mission Viejo, Anaheim, Los Alamitos, Long Beach, Sacramento, Palm Desert, La Quinta, Rancho Palos Verdes Estates, Dana Point and the County of Los Angeles. EXHIBIT A We are excited about the potential for once again, being a part of the City of Newport Beach team. Our previ- ous successful projects with your city include: a feasibility study for Morning Canyon, and park design and construction observation services for Castaways and Cliff Drive Park. David Volz Design is a full- service landscape architectural firm available to perform the following services: r initial planning W environmental coordination ■ concept design services ■ construction document development ■ construction oversight and management ■ maintenance and operations analysis ■ programming ■ on call services ■ plan checking I am eager to work with you to plan, design and see Newport Beach's projects through to their completion. I will be managing this team and act as your point of contact with my firm. I will be assisted by a team of re- spected landscape architects, civil and structural engineers, building designers, and support staff. The enclosed Statement of Qualifications demonstrates our - multi - disciplinary capabilities and experience and provides an overview approach to the service delivery points we feel are important to note right from the start. I am looking forward to presenting our qualifications in further detail, as well as forming a long term relation- ' ship with the City of Newport Beach. Thanks again for' considering my firm. Very truly yours, 111AX1D �vOLZ DBS�6N 4ftinci :0:dscape , Architect #2375 EXHIBIT B 10VID On -Call Landscapchttedure Design Services C(tv of Newport beach DAVID VOLZ DESIGN FEE SCHEDULE (EFFECTM THROUGH JUNE 30, 2006) PRINCIPALS $152- $184/hour PROJECT MANAGERS $121- $147/hour LICENSED PROFESSIONALS $121- $147/hour PROJECT DESIGNERS $100- $126/hour TECIINICIANS $90- $110/hour INSPECTORS $90- $110/hour ADMINISTRATORS $65480/hour DAVID VOLZ DESIGN hourly rates are inclusive of direct costs such as vehicle usage and mileage, equipment usage (including computers). Printing, copying, and sub - consultant expenses will be. billed at cost plus fifteen percent. Printing prepared in -house will be provided at market rates with no mark- up. X""ce Office of America, Inc, WA OA Insurance. Services Om` ftrk Plaza, Suite 600 IrVine, CA 0614 mFm DaVid V61z fie-sign Landscape. 17650 BusharId, #300 Fountain Valley, CA 92709 LITY 0ATS(mmy" 14AIC it Tw- ANY' POUINE& WS OF INSURANCE LISTED BELbW HAW BEEN ISSUED TO.THE INSURED NAMED AVQ FOR THE POLICY PERIOD INDIQATO. NOrMTH$TANDING WkEMWT. TER1A OR CQT40MON OF ANY HAVE. OR OTHER 00CUMEW.WiTH RESPECT Tommki THIS MRTJF='TR MAY 6EASSUED 09 THE INsIJAMCE AFFONDn BY THE POLICIES DEWNSEDgtrN it SUBJECT TO ALL THE Ttgms, EXCLUSIONS AND CONDITIONS OF SUbp AGGREGATE 0MT"R6IiVN MAY HAVE BEEN REDUCED BY PAID U&JWS. Pd "R IN14",tZO N A QWAVRAL LIABILITY -ROKLEIENEM"ILFI-Y 'T COME :�:JQLAIMIIMAm Fx1 4xI;,uR A -1 Insured MGM PER FORM r-17937 -G99 6 VYIN/00F E14NOCCURRENCE I Ono .000 WE— Swmromm —1 Soo, I; IQ,-Oo( -09WIMAL&AWINAMI 3 1 GENT AGGREGATE UMT APPLIES PER. --I P am F—I M F-1 Loc PRODUCTS - COPAPIOP AGG S 2 000 M ANYALtra 2079 849802 03/14/2006 03,n4l,2.0107 EINOt> LllIT S ',wow Fky 7f AM X DEDUCTIBLE 4mTE"-r"- 4 5 C AN .="AP PROPRIETOMPARTNEWECUTUP =170 E*E`R 03/0/zo 03A4112"? A-1 E.L. EACH ACCIDENT S 1,OB0, 00 E&.,pXWEn`11 11 Ij olm Eiuo L 10 =vuw 11, I D. -TLoa ssiQRal Liability im Made LAAMMIt? T3—,/14/ZON 01/14/2M7 $1; 040,,Vou per tlaifff S2,-OQ0,0GO in the aggregate tows I WCATIONS I VMCL71 ==ACCIg EN . .. A 6 1 'Tectd r appointilid- WiCti-S, OffiCiaIE16 ellploye&S, n lityi The City 6 rtSoe eiltiI and volunteers are an additional insured per the attach6d'EnOorseftlebt. Auto, Liability: '�orkers' C s t W iver" f "sub, , ati 0 City of Newport Beach is an additional insured.. o.mpeh ion a o rog ori p014.4 per the attached Worse"". .A tko (IQ) nOtite,of cancellation for non - payment of premium. C1 of Newport Beach 1c. ' . ` 6epirtill6nt At V Bill Pataoff 3*tN0wpori-Bqulvvprd m0owt Beath; .CA 92658 -5915 SHQUUkAWj)F7tM AOVO DE W90 POLICIES 119 9MCOUED EIEFQJFIeTKr; 5MR9jTpW:pAft14IMr4W41#tI!! MOP WUWqWMI1 OOM=R TO M ' ft (049)644-3318 1*000,009POMmo i ... IMPORTANT If the certificate holder is an ADDITIONAL INSURED, The paticy(fes.) must be endorsed. A statement on'this Certificate does:not bonier "his to the certificate holder in Neu of such endorsenidht(s): If SUBROGA7110N. IS WAIVED, subjertto.the terms 7and conditions of the policy, oerteln.polfidesmay feclulro an endorsement. A statement on this certificate does not confer rights to the. certificate holder in Neu of such endorsement(o). DISCLAIMER The Certificate of Insurifte on the reverse side o(thii form does not owslituie a:m)tract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it aftmatliM or negatively amend, V*W or the coverage, � ed'byth pollo!"Wlitadilherem. y afford 0 AC ORD 25 (2001MO) IMPORTANT: THIS ENDORSEMENT CONTAINS DUTIES THAT APPLY TO THE ADDIT16NAL INSURED IN THE EVENT OF OCCURRENCE, OFFENSE;-CLAIM OR SUIT. SEE PARAGRAPH C.1. or- THIS ENDORSEMENT FOR THESE DUTIES,. ALSO, THIS. ENDORSEMENT CHANGES THE CONTRACTUAL LIABILITY COVERAGE WITH RESPECTS TO THE "BODILY INJURY" OR "PROPERTY DAMAGE,, ARISING OUT OF THE "PRODUCTS-COMPLETED OPERATIONS HAZAftll' SEE PARAGRAPH. B.B. OF THIS ENDORSEMENT FOR THIS COVERAGE CHANGE. THIS ENDORSEMENT CHANGES THE POLICY. PLEASE REM.' ) IT CAREFULLY. CONTRACTOR'S SCHEDULED AND BLANKET ADDITIONAL INSURED ENDORSEMENT WITH Ll . MITED PRODUCTS - COMPLETED OPERATIONS COVERAGE This endollsarneot modifles Insurance provid6d under Me tollpwing: COMMERCIAL GENERAL LIABILITY COVERA08 PART WMEDULE Name Of Person or Organization: 0e.signated-projort. I ue-oxy0fNewpor'll: Boom, its elected or9ppbinted ofters, .volunteers 3300 NewportBoulavard Newport Beach,,CA 92858-891153 (Coveiragembdor thirs:6ndorsentent Is. notaffbicited by an entry ortack of entry In thaSobodule above.) A. 9WJ0 IS.A.N INSURED (Section 10 is amendod' written mw told or. written -agreement or In the include Vie . an insured arty person or organlz4pn, R iarafl as of ftr policy, whichever Is law; Inctilclin wn in 1,hesa LIMft of InsUrance am inclusive of, and .9 any person or organization sho ilia 00*416 above, "(called .additional ingure(i),wbom not in addition to,'Ahe Limits of,insurence shown you Oro required tin. add as: an additional Insured on laths 150arefiorilk. this policy under a written contract or written 3. The coverage provided to the additional insured agreement; but the written contract or written by this endorsement and paragraph f. of the 6greerneint must be: C"niijon *f uinsvmd contract, under ci 1: eurmhuy in effect or becoming effective during f%FINIflONq (Sa ion V) do not apply to the term of this poloy; and Z Executed prior to the 'bodily Injury,' "property damage," or "personal and advertising injury* B. The insurance provided to the additional insured It limited as follows: 1. That person or Organization is an additional Insured solely for liability due to.your negligence and specificilly resulting from "your work" for the:ackl06641insured which. is the tubject,of the written contract or 'written agreement. No coverage applies 16 liability fesuking from the We r"Ilgence of the additional insured. 2. The Uinits. of insurance applicable. to (tie oddlitiortal Insured, are those spedified, in the G-17m-m (Ed. 101j ' Mquily injury".ar property amag -11-Mu of the m0rbdiidti--6D property operations hazard" unloss re , qUired by the written Contract Or written a '6es-rneft When coverage does apply to , g "bodily #jititr or -praperiy damage" arising out of the mprodttoft-completed operations hazard" such coverage meill,not apply beyond; a. The period of Ilrha required by the written contractor written agreement; or b. 5 years from the GOMPIstlOn Of 0 our work' lact of the written tten ognt , ract or wriften agreement whichever Is less.. Fags I of 2 4. The ng4t0rfde provided to the additional insured does not apply to "bodily Injury, ° "property damage," or "personal and advertising injury" ads-Mg out of an atohitect's, engineer's, or surveyor's rendering of or -fallure to render any professional services including: a. The preparing, approving, or falling to prepare or approve maps, shop drawings, opinions, reports; surveys, field orders, change orders or drawings and speolfications; and In. Supervisory, or inspection activities performed as part of any related architectural or enyiheering activities. C. Asz respects the eoverbge provided under this en ado, 6ECTIQA N — GONMERGAL 4eL LIA81LITY COWDIT[l)4§ are amended as follows: 1. The following is, added to the . Duties in The Event of Occurrence, Offense, Claim or Seat Condition: e. An adddipnal insured under this ndorse..trierit virill:a &.too aspractiGabte: (1) Diva wriden: Tiotice ;PNn: occurrence or on rsfFense to .us which may result in a olaim.or "salt" under this insurance; (2) Tender the :defense. and indemnity ref any shim or "swe to us: for a, b&% wo cover under thio.0overege Partf (S) Tender the defense and irtrlemnity of afsy cl8itii cr °shit° to anji other insurer winch also teas insurance for a lose v;6 cover.under this.C„overage Part; and (4) i4g[ee fo rriAke mcegable any other Insurance whlali the additional insured has for a loss we cover under this Covetega:Part. L We have no duty: tit cl*nd'gr indemnify an addiTfor'Cai ihsutid under this aN,brsement unfit Ova mooivvi3 tarihen notice of a claim or ;siilt" frc+rri .the- addidbiial, insuretl. G_17857�1899 (Ed. 1t3M) 2. Paragraph 4.b. of the Other Insurance Conditton is deleted and replaced with the following: 4. Other Insurance b. Excesslnstirance This insurance Is excess over any other Insurance naming the addittonal insured as an insured whether prim", excess, contingent or on .any other basis irniess a written contract or written agreement specifically requires that this insurance be either primary or primary and noncontributing to the additional insured's .own coverage This Insurance is excess over any other insurance to which the additional .insured` has,beon added as an .addR(onat insured 'by endefsemBht. When this insurance: is excess: we. will have no duty under Coverages A or B to defend theaddi{tonal insured against any "suit" if any other 1nsW6r't-rasa:duty to defend the addltionef Muiad �-garnst that " suit.' if iro other itfsUW d0lMdS, we will undertake to do so,.,put " Will ba entitled to the Wddfitonat Insured's rights against all those.otherinsureTs. When this thsurance _Is e9009s jww 1. other Insurance, we will. pay o�ty -dur share of .the amoun{ Q# tfrl,. krss, ra4y, that exceeds the sum 90 (1) The total amount 11hat•all sudr #tiler insurance would pay for the toss in the absence of this insttlanca; and (2) The total of all deduct1016 WW- self- insured amour is undeY all that other insurance We will share the remalhing loss, bony, with any other InsiAnot3 diet is not described in this Excess MutaffEe provision and was not bought specifically to apply in' eirtess of the Limits of Insuranoal sh6ft in the Declarations of this Coverage Part. Page,2 01`2 WORKERS COMPENSATION A PLOYERS LIABILITY INSURANCE Play WC 04 03 06 (Ed. 4.8.4) David Vola Design Landscape Archikecture 2088568443 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT — CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this poltby.. 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.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The addidonal premium for this endorsement shall be: of the California workers' compensation premium otherwise due on such remuneration. Schedule :Person or Organization The City vtNewport Beach, its officers, agents, Employees and volunteers Job Description Worse performed lot City. This endorserriant changes the policy to which it is adached and is erfedira on the date 13$00d rfni00 ofhenvtsa sta led. (The Inbxmation below is requited only when this endorsement is issued.subsequenl fo preparaftbn or"Polio.) Endorsement Effective PoirkyW0:2088668443 enrkrsemenvmo. Insured David Vok Design Landscape Architecture Premium $c .4 je) Inswam:e company countersigned b `11e 040,306 ta.4 -04) CM MW 1W G-14053-A David Volz Delp LandoMe Aroll'iftedure Z 70840814 (Ed. OBK14) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. CANCELLATION PROVISION OR COVERAGE CHANGE ENDORSEMENT ThIs endorsement modifies insurance *Vlded under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM TRUCKERS COVERAGE FORM Thisandorsernaht changes the pollcy effective on the inception date of the policy unless another data is indicated below: Endorsement Effective 7161015 Policy Number 2008608443 I Ner ned Insured 13 vi Volz Deli _qn Wndscape Architecture. Inc, Countersigned by (Aullhorked 30 days before this policy is cancelled or materially changed to reduce or restrict coverage we will mail notice of the cancollation.ot chanoe-tv, The City of Newport O its o ff lopt$, at% employees and volunteers Publi.o Woft 1$epai lath ATT.N: SIR PaTff 3300 Nevmprt�b, 4. Ne"ortgearh, CA 0908-6916 4144$,%,A P"q 4 of 1. (Ed. 0601) POLICY NUMBER: 20798498 • COMMERCIAL AUTO CA 20 48 02 99 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this-endorsement, the provisions of the Coverage Form apply unless modified bythis endorsement. This endorsement identifies person(s) or organization(s) who are "insureds "under the. Who Is An Insured Provision of the Coverage Form. This endorsement does not after coverage-provided In the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is Indicated below. Endorsement Effective: Courtt.. igned By: 716/06 Named.lnsure Q vid Wig Qegliffn L apdrgqgpe Architecture, na "tlidrfzed Representative $0HEDOLE Name Of POMW(S) or Orgahizati0n(s): j The.City of Newport Reach, Its officers, agents, employees.-and volunteers i Public works Department ATTN: Bill Petopoff s woo, k6woott Blvd. Newport Beach, CA 82 "8-8915 (If no entry appears above, information required to complete this endorsement will be shown in the Declarations es applicable to the endorsement.) Each person or organization shown in the Schedule is An "insured" for Liability Coverage, but :only to the extent that.person or organization qualifies as an °'losurW under the Who Is�An Insured Provision contained in Section ll "of the Coverage Form. CA2048.02 -90 Copyright, InsuranosServices Office, Inc., 1 9919 Page 1 of 1 AUG -03 -2006 THU 01:17 PM Bro= Brown Inc FAX N0. 7144 221 4192 P. 01 /01 Fix #; _ "uq _�qq - 33 18 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Reach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: _ iZ Dept.IContact Received From: � -- Data Completed: w sent to: 4a(AgAn. By: Il/oAat'o ,c a Company /Person required to have certificate: ^J�yPQ� YbI Z- &.Cliu 1. GENERAL LIABILITY A. INSURANCE COMPANY: B. AM BEST RATING (A: VII or graatar): a VV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? Yes ❑ No D. LIMITS (Must be $1M or greater): What Is limit provided? 2N / bu, . E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? Q Yes Mlo F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): is it included? 02 Yes ❑ No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it Included? Yes ❑ No H. CAUTION] (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by � negligence" wording? ❑ Yes ®No L 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. 11, AUTOMOBILE LIABILITY A. INSURANCE_ COMPANY: I ravts B. AM BEST RATING (A: VII or greater): A R V C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted In California? OXYGS [] No D. LIMITS (Must be $1M min. BI & PD and $500,000 UM): What is limits provided? 4 11 MA,./ E, ADDITIONAL INSURED WORDING TO INCLUDE (The City its Q officers, officials, employees and volunteers): Is It included? Yos No F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Hauler only): Is it Included? © Yes ❑ No G. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. id6 WORKER &' COMPENSATION A. INSURANCE COMPANY: 7�t-r- B. AM BEST RATING (A: VII or greater): _ C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): is it included? HAVE ALL ,COVE REQUIREMEN I S BEEN MET? ! Id0 W ICN iTF S$ NEED 10 BE COMPLETED? [P ea 0 No CIA's 0 No 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