Loading...
HomeMy WebLinkAboutC-4055 - PSA for On-Call Capital Improvement Project Consultant Services• • C -`o% PROFESSIONAL SERVICES AGREEMENT WITH GABLE ENGINEERING, INC. FOR ON -CALL CAPITAL IMPROVEMENT PROJECT CONSULTANT SERVICES THIS AGREEMENT is made and entered into as of this /04, day of 2008, by and between the CITY OF NEWPORT BEACH, a Municipa /) Corporation ( "City "), and GABLE ENGINEERING, INC., a California corporation, whose address is 1048 Irvine Avenue, #441, Newport Beach, California 92625 ( "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 project consultant services in connection with the design and construction of various capital projects. C. City desires to engage Consultant to perform on -call engineering services throughout the City on an as need basis ( "Project"). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Mark Reader, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31 day of March, 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call" Project Management, Construction Administration, and Civil Engineering Design consultant services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written 0 0 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. 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 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. 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 Mark Reader to be its Project Manager. Consultant shall not remove or reassign the Project 0 0 Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. David Webb 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 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 0 0 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 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 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. 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 11 12. 13 employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. CITY POLICY Consultant shall discuss and review all n direction with City's in order to ensure and policies. PROGRESS Project Administrator in he Project proceeds in atters relating to policy and project advance of all critical decision points a manner consistent with City goals Consultant is responsible for keeping the Project Administrator duly authorized designee informed on a regular basis regarding progress of the work, activities performed and planned, and any have been scheduled or are desired. 14. INSURANCE and /or his/her the status and meetings that Without limiting Consultant's indemnification of City, and Prior to commencement of work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and 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) 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 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:. 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. 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. 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 orjoint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 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. 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 0 0 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. 21. 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. 22. 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. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. 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. 25. NOTICES 0 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: David Webb Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949 - 644 -3328 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Mark Reader Gable Engineering, Inc. 1048 Irvine Avenue, #441 Newport Beach, CA 92660 Phone: 949 - 981 -5260 26. 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. 27. 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. 28. 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. 29. 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. 30. 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. 31. 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. 32. 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. 33. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 34. 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. 35. 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: 0.1-6-A�--- Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: B . '6 �-M. y LaVonne Harkless, City Clerk � ca 0" CITY OF NPORT BEACH A Munici I oraoratio-R Mayor " for the City of Newport Beach CONSULTANT: By, -� (Corporate Officer) Title: FtE-S i DE; -,'J Print Name: M Al2-4 �� A P t- Z, (Financial Officer) Title: Print Name: Attachments: Exhibit A - Scope of Services and Billing Rates f:\users\pbw\shared\agreements\fy 07-08\on-call services\Gable Engineeringt-on call.doc • GABLE ENGINEERING INC* 1048 Irvine Avenue #441 Newport Beach CA 92660 mreader@city.newport-beach.ca.us Phone: 949 - 981 -5260 March 22, 2008 Mr. David Webb City of Newport Beach Public Works Dept. 3300 Newport Blvd. Newport Beach, California RE: On -Call Contract Dear Mr. Webb: I have thoroughly enjoyed assisting the City of Newport Beach to assure successful completion of the various projects assigned to me. 1 look forward to a continued business relationship with the City and I am requesting an extension to my existing contract which will expire on June 30, 2008. Currently I am providing project management/ engineering services on the following projects: 1. Big Canyon Creek Restoration 2. Marina Park 3. CYC Rehab 4. Irvine Terrace 5. Little Corona Restroom 6. Central Library Friends of the Bookstore Remodel 7. City Hall Per our conversation you stated that the terra of the new on -call contract should start July 13t 2008 and expire on March 31st, 2010, a period of 19 months which I find acceptable. Given my current project work load. I am assuming I will need to work an average of 30 hours per week of professional engineering services and 10 hours per week of administrative assistant services to manage these projects. All work conducted under this contract will be billed per the following billing rates: Professional Engineer .......... $115/ Hr. Administrative Assistant ......... $65/ Hr Gable Engineering Inc. will provide requested services on an as- needed basis and will submit itemized invoices detailing services provided associated to each project as has been done in the past. As the smaller projects listed above become completed, Gable Engineering Inc. would be available for new project assignments to complete the term of this agreement. I look forward to assisting you and the city of Newport Beach toward a successful completion of the various projects I have the opportunity to be involved with. Sincerely, p Mark S. Reader, PE President, Gable Engineering Inc. Exly bit .4 • i CERTIFICATE OF EXEMPTION FROM WORKERS' COMPENSATION INSURANCE I hereby certify that in the performance of the work for which this Agreement is entered into, I shall not employ any person in any manner so as to become subject to the Workers' Compensation Laws of the State of California. Executed on this 17 day of T U L y , 20 0 a , at NewPaz -T Be -6 c 14 , California. MA 9-1( S . Ft-y'f 0 tV-.1 F?-ES /ACrAJT [Add Consultant's name and title] f:\usem \pbw\shared\agreements \master templates\waiver -wc exempt.doc Fax #: • s CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 7/16/08 Date Completed: 7/16/08 Dept. /Contact Received From: Shauna Oyler Sent to: Shauna Oyler By: Jessica Scherer Company /Person required to have certificate: Gable Engineering, Inc 1. GENERAL LIABILITY A. INSURANCE COMPANY: Hartford Casualty Insurance Company B. AM BEST RATING (A: VII or greater): A +XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? N Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? $1 M Each Occ/$2M Agg E. PRODUCTS AND COMPLETED OPERATIONS (Must ® Yes ❑ No include): Is it included? F. ADDITIONAL INSURED WORDING TO INCLUDE (The ® Yes ❑ No City its officers, officials, employees and volunteers): Is it included? G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be N Yes ❑ No included): Is it included? H. CAUTION! (Confirm that loss or liability of the named ❑ Yes N No insured is not limited solely by their negligence) Does endorsement include "solely by negligence" wording? 1. 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: Hartford Insurance B. AM BEST RATING (A: VII or greater) A +XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? D. LIMITS (Must be $1M min. BI & PD and $500,000 UM): What is limits provided? E. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): Is it included? N/A N Yes ❑ No $1,000,000 N Yes ❑ No ❑ 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. • • III. WORKERS' COMPENSATION A. INSURANCE COMPANY: Not Included B. AM BEST RATING (A: VII or greater): C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ❑ No HAVE ALL ABOVE REQUIREMENTS BEEN MET? I ❑ Yes ® No IF NO, WHICH ITEMS NEED TO BE COMPLETED? Auto: AdditigttiaaN,sured ep emer not included. WC: coveraee not included on certificate. ��� • • • CITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. ii June 10, 2008 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL �J ` FROM: Public Works Department , V David Webb 949 - 644 -3328 or dawebb @city.newport- beach.ca.us SUBJECT: Approval of an On -Call Professional Services Agreement for Project Management, Construction Administration, and Civil Engineering Design Services with Gable Engineering, Inc. Recommendation: Approve an On -Call Professional Services Agreement with Gable Engineering, Inc., for project management, construction administration, and civil engineering design services and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: On February 13, 2007, the City Council approved a Professional Services Agreement (PSA) with Gable Engineering, Inc., to provide management services for miscellaneous capital improvement projects. Gable Engineering, (Gable) Inc., was selected to render consulting services to the City in accordance with Council Policy F -14. Since the initial PSA approval, Council has approved two amendments to the contract on August 13, 2007, and March 25, 2008, respectively, to modify scope of work and terms of the Agreement. Over the last one and a half years, the PSA with Gable has proven to be very effective and efficient. Gable is currently assisting and providing necessary support to manage several projects including rehabilitation of the Community Youth Center, Little Corona Restroom Facility Remodel, Big Canyon Creek Restoration, and Marina Park. The proposed Fiscal Year 2008/09 Capital Improvements Program (CIP) budget is estimated at about $68 million and includes over 92 projects. The anticipated on -going need for services from Gable in the upcoming fiscal year will require a new agreement as the current one is set to expire on June 20, 2008. To date, Gable has provided consistently high quality service on the numerous assigned projects. The rates included in the proposal are competitive and in line with industry standards. For the reasons mentioned above, staff recommends approval of the attached On -Call PSA with Gable. The On -Call PSA was developed to avoid the need to process a great number of small, but time - consuming PSA's between the City and a consultant to 00 Professional Services Agreement for Project Manoenl, Construction Administration, and Civil Engineering Design services with Gable Engineering, Inc. June 10, 2008 Page: 2 accomplish numerous on -going design and management tasks on different projects. The PSA will have a two -year term and billing rates will remain consistent during the term of the agreement. Per the PSA terms, Council approval will be required if the scope of services for a particular project exceeds the $50,000 threshold. Environmental Review: Environmental clearances will be completed for each Capital Improvement Project. Funding Availability: Funds for these services will be available in each of the specific project accounts within the City Council approved Capital Improvement Program. Prepared by: _.,�Ocj David Webb, P.E. Deputy Public Works Director /City Eng Submitted m G. Badum Works Director • Attachment: On -Call Professional Services Agreement • E 0 E • PROFESSIONAL SERVICES AGREEMENT WITH GABLE ENGINEERING, INC. FOR ON -CALL CAPITAL IMPROVEMENT PROJECT CONSULTANT SERVICES THIS AGREEMENT is made and entered into as of this day of 2008, by and between the CITY OF NEWPORT BEACH, a Municipal Corporation ( "City "), and GABLE ENGINEERING, INC., a California corporation, whose address is 1048 Irvine Avenue, #441, Newport Beach, California 92625 ( "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 project consultant services in connection with the design and construction of various capital projects. C. City desires to engage Consultant to perform on -call engineering services • throughout the City on an as need basis ('Project "). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project shall be Mark Reader, P.E. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31 day of March, 2010, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED • Consultant shall provide "On -Call' Project Management, Construction Administration, and Civil Engineering Design consultant 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; 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. • 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 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. 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 Mark Reader to be its Project Manager. Consultant shall not remove or reassign the Project 0 0 Manager or any personnel listed in Exhibit A or assign any new or replacement • personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. David Webb 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 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 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 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. 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 hisiher duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an 11 I� LJ 0 • 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) 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 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: 0 0 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 shah 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. 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 Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 19. 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. 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. 21. 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. 22. 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. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. 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. • 25. 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: David Webb Public Works Department City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92663 Phone: 949- 644 -3328 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Mark Reader Gable Engineering, Inc. . 1048 Irvine Avenue, #441 Newport Beach, CA 92660 Phone: 949 - 981 -5260 26. 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 is developed or accumulated in the performance of this Agreement, whether in draft or final form. 0 27. 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. 28. 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. 29. 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. 30. 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. 31. 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, 32. 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. 33. INTERPRETATION The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by • reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. • 11 L J Ll 34. 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. 35. 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,,� Aaron C. Harp, Assistant City Attorney for the City of Newport Beach ATTEST: 0 LaVonne Harkless, City Clerk CITY OF NEWPORT BEACH A Municipal Corporation Mayor for the City of Newport Beach CONSULTANT: By: (Corporate Officer) Title: Print Name: By: (Financial Officer) Title: Print Name: Attachments: Exhibit A — Scope of Services and Billing Rates tkuserslpbwlsharedlagreementsW 07 -Mon -call services\Gable Engineeringt -on cali.doc E GABLE ENGINEERING INC. 1048 Irvine Avenue #441 Newport Beach CA 92660 • mreader@ciiy.newport-beach.ca.us Phone: 949 - 981 -5260 March 22, 2008 Mr, David Webb City of Newport Beach Public Works Dept. 3300 Newport Blvd. Newport Beach, Caiifornia RE: On -Call Contract Dear Mr. Webb: have thoroughly enjoyed assisting the City of Newport Beach to assure successful completion of the various projects assigned to me. I look forward to a continued business relationship with the City and I am requesting an extension to my existing contract which will expire on June 30, 2008. Currently 1 am providing project management/ engineering services on the following projects: 1. Big Canyon Creek Restoration 2. Marina Park 3. CYC Rehab 4. Irvine Terrace • 5. Little Corona Restroom 6. Central Library Friends of the Bookstore Remodel 7. City Hall Per our conversation you stated that the term of the new on -call contract should start July 1" 2008 and expire on March 31st, 20.10, a period of 19 months which 1 find acceptable. Given my current project work load. I am assuming 1 will need to work an average of 30 hours per week of professional engineering services and 10 hours per week of administrative assistant services to manage these projects. All work conducted under this contract will be billed per the following billing rates: Professional Engineer .......... $115/ Hr. Administrative Assistant ......... $651 Hr Gable Engineering Inc. will provide requested services on an as- needed basis and will submit itemized invoices detailing services provided associated to each project as has been done in the past. As the smaller projects listed above become completed, Gable Engineering Inc. would be available for new project assignments to complete the term of this agreement. I look forward to assisting you and the city of Newport Beach toward a successful completion of the various projects I have the opportunity to be involved with. Sincerely, Mark S. Reader, PE President, Gable Engineering Inc. e xlhibt -F A