HomeMy WebLinkAboutC-4989 - PSA for 19th Street Tide Valve ReplacementAMENDMENT NO.ONE TO
PROFESSIONAL SERVICES AGREEMENT WITH
MORAES /PHAM & ASSOCIATES FOR
19TH STREET TIDE VALVE REPLACEMENT
THIS AMENDMENT NO. ONE TO PROFESS NAL S VICES AGREEMENT
("Amendment No. One "), is entered into as of this day o WMAM, 29rT;'
by and between the CITY OF NEWPORT BEAC a
, Califo ' MunkJbal Corporation
( "City "), and MORAES /PHAM & ASSOCIATES, a California Corporation, whose
address is 2131 Palomar Airport Road, Suite 120, Carlsbad, California 92011
( "Consultant "), and is made with reference to the following:
RECITALS:
A. On October 24, 2011, City and Consultant entered into a Professional Services
Agreement ( "Agreement ") for preparation of electrical and wiring plans and spec
services for the 19th Street Tide Valve Replacement ( "Project ").
B. City desires to enter into this Amendment No. One to extend the term of the
Agreement to December 31, 2012,
C. City and Consultant mutually desire to amend the agreement, as provided below.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
TERM
Section 1 of the Agreement, shall be amended in its entirety and replaced with the
following: The term of the Agreement shall terminate on December 31, 2012, unless
terminated earlier as provided for in Agreement.
2. INTEGRATED CONTRACT
Except as expressly modified herein, all other provisions, terms, and covenants set forth
in the Agreement shall remain unchanged and shall be in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
One on the dates written below.
APPROVEDAS TO FORM:
OFFICE THE CfTY ATTORNEY
Date:V�7
By:
Leonie Mulvihill
Assistant City Attorney
ATTEST:
Date:
By: ku "k- , -
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
A California mu icipal corporation
Date: 120
atepr)en-y7bxum
Pu is VWrks Director
CONSULTANT: MORAES/PHAM &
ASSOCIATES, a California Corporation
Date: 12 /1 R//,
By:
Joseph M. Mo e
President and Tre surer
v
PROFESSIONAL SERVICES AGREEMENT WITH
MORAESIPHAM & ASSOCIATES FOR
FOR 19TH STREET TIDE VALVE REPLACEMENT
THIS AGREEMENT fQR PROFEj9, SIONAL SERVICES ( "Agreement ") is made
and entered into as of this day of 2011 by and between the CITY OF
NEWPORT BEACH, a California Municipal Corporation ( "City "), and MORAESIPHAM &
ASSOCIATES, a California corporation ( "Consultant "), whose address is 2131 Palomar
Airport Road, Suite 120, Carlsbad, CA 92011 and is made with reference to the
following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City is replacing the existing 19th Street Tide Valve and installing a pump that will
be controlled through the City's existing SCADA system.
C. City desires to engage Consultant to provide electrical and wiring plans and
specs for the 19th Street Tide Valve Replacement ( "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 Joe Moraes.
F. City has solicited and received a proposal from Consultant, has reviewed the
previous experience and evaluated the expertise of Consultant, and desires to
retain Consultant to render professional services under the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, it is mutually agreed by and between the undersigned
parties as follows:
TERM
The term of this Agreement shall commence on the above written date, and shall
terminate on December 31, 2011 unless terminated earlier as set forth herein.
2. SERVICES TO BE PERFORMED
City and Contractor acknowledge that the above Recitals are true and correct and are
hereby incorporated by reference. Consultant shall diligently perform all the services
described in the Scope of Services attached hereto as Exhibit A and incorporated
herein by reference ( "Work" or "Services "). The City may elect to delete certain tasks of
the Scope of Services at its sole discretion.
3. TIME OF PERFORMANCE
3.1 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.
3.1.1 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.
3.2 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.
3.3 For all time periods not specifically set forth herein, Consultant shall
respond in the most expedient and appropriate manner under the circumstances, by
either telephone, fax, hand - delivery or mail.
4. COMPENSATION TO CONSULTANT
4.1 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.
Consultant's compensation for all Work performed in accordance with this Agreement,
including all reimbursable items and subconsultant fees, shall not exceed Seven
Thousand, Five Hundred Dollars and no /100 ($7,500.00) without prior written
authorization from City. No billing rate changes shall be made during the term of this
Agreement without the prior written approval of City.
4.2 Consultant shall submit monthly invoices to City describing the Work
performed the preceding month. Consultant's bills shall include the name of the person
who performed the Work, a brief description of the Services performed and/or the
specific task in the Scope of Services to which it relates, the date the Services were
performed, the number of hours spent on all Work billed on an hourly basis, and a
description of any reimbursable expenditures. City shall pay Consultant no later than
thirty (30) days after approval of the monthly invoice by City staff.
4.3 City shall reimburse Consultant only for those costs or expenses
specifically approved in this Agreement, or specifically approved in writing in advance
by City. Unless otherwise approved, such costs shall be limited and include nothing
more than the following costs incurred by Consultant:
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4.3.1 The actual costs of subconsultants for performance of any of the
Services that Consultant agrees to render pursuant to this Agreement, which have been
approved in advance by City and awarded in accordance with this Agreement.
4.3.2 Approved reproduction charges.
4.3.3 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.
4.4 Consultant shall not receive any compensation for Extra Work performed
without the prior written authorization of City. As used herein, "Extra Work" means any
Work that is determined by City to be necessary for the proper completion of the
Project, but which is not included within the Scope of Services and which the parties did
not reasonably anticipate would be necessary at the execution of this Agreement.
Compensation for any authorized Extra Work shall be paid in accordance with the
Schedule of Billing Rates as set forth in Exhibit B.
5. PROJECT MANAGER
5.1 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 Click here to enter text.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.
5.2 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. Tom
Sandefur, Associate Civil Engineer or his designee, shall be the Project Administrator
and shall have the authority to act for City under this Agreement. The Project
Administrator or his authorized representative shall represent City in all matters
pertaining to the Services to be rendered pursuant to this Agreement.
7. CITY'S RESPONSIBILITIES
7.1 In order to assist Consultant in the execution of its responsibilities under
this Agreement, City agrees to, where applicable:
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7.1.1 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.
7.1.2 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.
7.1.3 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, shall obtain, and
shall keep in full force in effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
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.
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9. HOLD HARMLESS
9.1 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 its principals, officers, agents, employees, vendors, suppliers,
subconsultants, subcontractors, anyone employed directly or indirectly by any of them
or for whose acts they may be liable or any or all of them.
9.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Consultant to indemnify the Indemnified Parties from any Claim arising from the
sole negligence, active negligence or willful misconduct of the Indemnified Parties.
Nothing in this indemnity shall be construed as authorizing any award of attorney's fees
in any action on or to enforce the terms of this Agreement. This indemnity shall apply to
all claims and liability regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of indemnification to be provided
by the Consultant.
10. INDEPENDENT CONTRACTOR
It is understood that City retains Consultant on an independent contractor basis and
Consultant is not an agent or employee of City. The manner and means of conducting
the Work are under the control of Consultant, except to the extent they are limited by
statute, rule or regulation and the expressed terms of this Agreement. Nothing in this
Agreement shall be deemed to constitute approval for Consultant or any of Consultant's
employees or agents, to be the agents or employees of City. Consultant shall have the
responsibility for and control over the means of performing the Work, provided that
Consultant is in compliance with the terms of this Agreement. Anything in this
Agreement that may appear to give City the right to direct Consultant as to the details of
the performance or to exercise a measure of control over Consultant shall mean only
that Consultant shall follow the desires of City with respect to the results of the Services.
11. COOPERATION
Consultant agrees to work closely and cooperate fully with City's designated 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.
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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 Project, activities performed and planned, and any meetings that have been
scheduled or are desired.
14. INSURANCE
14.1 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, policies of insurance of the type and
amounts described below and in a form satisfactory to City.
14.2 Proof of Insurance. Consultant shall provide certificates of insurance to
City as evidence of the insurance coverage required herein, along with a waiver of
subrogation endorsement for workers' compensation. Insurance certificates and
endorsement must be approved by City's Risk Manager prior to commencement of
performance. Current certification of insurance shall be kept on file with City at all times
during the term of this contract. City reserves the right to require complete, certified
copies of all required insurance policies, at any time.
14.2.1 Consultant shall procure and maintain for the duration of the
contract insurance against claims for injuries to persons or damages to property, which
may arise from or in connection with the performance of the Work hereunder by
Consultant, his agents, representatives, employees or subconsultants. The cost of such
insurance shall be included in Consultant's bid.
14.3 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.
14.4 Coverage Requirements.
14.4.1 Workers' Compensation Coverage. Consultant shall maintain
Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance
(with limits of at least one million dollars ($1,000,000)) for Consultant's employees in
accordance with the laws of the State of California, Section 3700 of the Labor Code In
addition, Consultant shall require each subconsultant to similarly maintain Workers'
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Compensation Insurance and Employer's Liability Insurance in accordance with the
laws of the State of California, Section 3700 for all of the subconsultant's employees.
14.4.1.1 Any notice of cancellation or non - renewal of all
Workers' Compensation policies must be received by City at least thirty (30) calendar
days (ten (10) calendar days written notice of non - payment of premium) prior to such
change.
14.4.1.2 Consultant shall submit to City, along with the
certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its
officers, agents, employees and volunteers.
14.5 General LiabilitV 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, blanket contractual liability.
14.6 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 accident.
14.7 Professional Liability (Errors & Omissions) Coverage. Consultant shall
maintain professional liability insurance that covers the Services to be performed in
connection with this Agreement, in the minimum amount of one million dollars
($1,000,000) limit per claim and in the aggregate.
14.8 Other Insurance Provisions or Requirements.
14.8.1 The policies are to contain, or be endorsed to contain, the following
provisions:
14.8.1.1 Waiver of Subrogation. All insurance coverage
maintained or procured pursuant to this agreement shall be endorsed to waive
subrogation against City, its elected or appointed officers, agents, officials, employees
and volunteers or shall specifically allow Consultant or others providing insurance
evidence in compliance with these requirements to waive their right of recovery prior to
a loss. Consultant hereby waives its own right of recovery against City, and shall require
similar written express waivers and insurance clauses from each of its subconsultants.
14.8.1.2 Enforcement of Contract Provisions. Consultant
acknowledges and agrees that any actual or alleged failure on the part of the City to
inform Consultant of non - compliance with any requirement imposes no additional
obligations on the City nor does it waive any rights hereunder.
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14.8.1.3 Requirements not Limiting. Requirements of specific
coverage features or limits contained in this Section are not intended as a limitation on
coverage, limits or other requirements, or a waiver of any coverage normally provided
by any insurance. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue and is not intended by any party or
insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type.
14.8.1.4 Notice of Cancellation. Consultant agrees to oblige
its insurance agent or broker and insurers to provide to City with thirty (30) days notice
of cancellation (except for nonpayment for which ten (10) days notice is required) or
nonrenewal of coverage for each required coverage.
14.9 Timely Notice of Claims. Consultant shall give City prompt and timely
notice of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement.
14.10 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 prior written authorization of City.
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17. OWNERSHIP OF DOCUMENTS
17.1 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 prior written request.
17.2 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.
17.3 All improvement and /or construction plans shall be prepared with indelible
waterproof ink or electrostaticly plotted on standard 24 -inch by 36 -inch Mylar with a
minimum thickness of three mils. Consultant shall provide to City 'As- Built' drawings,
and a copy of digital ACAD and tiff image files of all final sheets within ninety (90) days
after finalization of the Project. For more detailed requirements, a copy of the City of
Newport Beach Standard Design Requirements is available from the City's Public
Works Department.
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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 in writing the release of information.
19. INTELLECTUAL PROPERTY INDEMNITY
The Consultant shall defend and indemnify City, its agents, officers, representatives and
employees against any and all 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.
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
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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 under this
Agreement. All such records and invoices shall be clearly identifiable. Consultant shall
allow a representative of City to examine, audit and make transcripts or copies of such
records and invoices 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 to Consultant under this
Agreement.
21. WITHHOLDINGS
City may withhold payment to Consultant 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 /her 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 the
law or 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
24.1 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.
24.2 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 immediate
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.
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25. NOTICES
25.1 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:
Attn: Tom Sandefur, P.E.
Public Works Department
City of Newport Beach
3300 Newport Boulevard
PO Box 1768
Newport Beach, CA 92658
Phone: 949 - 644 -3312
Fax: 949 - 644 -3318
25.2 All notices, demands, requests or approvals from CITY to Consultant shall
be addressed to Consultant at:
Attention: Joe Moraes
Moraes /Pharr & Associates
2131 Palomar Airport Road, Suite 120
Carlsbad, CA 92011
Phone: 760 - 431 -7177
Fax: 760- 431 -7179
26. CLAIMS
The Consultant and the City expressly agree that in addition to any claims filing
requirements set forth in the Contract and Contract documents, the Consultant shall be
required to file any claim the Consultant may have against the City in strict conformance
with the Tort Claims Act (Government Code sections 900 et seq.).
27. TERMINATION
27.1 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, and thereafter diligently take steps to cure the default, the non - defaulting
party may terminate the Agreement forthwith by giving to the defaulting party written
notice thereof.
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27.2 Notwithstanding the above provisions, 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, Documents and other information developed or accumulated in the
performance of this Agreement, whether in draft or final form.
28. STANDARD PROVISIONS
28.1 Compliance With all Laws
Consultant shall at its own cost and expense comply with all statutes, ordinances,
regulations and requirements of all govemmental 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,
rules, regulations and permit requirements and be subject to approval of the Project
Administrator and City.
28.2 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.
28.3 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.
28.4 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.
28.5 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.
28.6 Amendments
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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.
28.7 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.
28.8 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.
28.9 Equal Opportunitv 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.
28.10 No Attorney's Fees
In the event of any dispute or legal action arising under this Agreement, the prevailing
party shall not be entitled to attorney's fees.
28.11 Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be
deemed an original and all of which together shall constitute one and the same
instrument.
[insert name of consultant] Page 13
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the dates written below.
APPROVED AS TO FORM:
OFFICE F THr CITY ATTORNEY
Date:
By: —
Leonie Mulvihill
Assistant City Attorney
ATTEST: 10, �A I
Date:_
Leilani I. Brow �ppRT
City Clerk
A n
2
r
CITY OF NEWPORT BEACH,
A California icipal corporation
Date: V/(
By: -
Step n a a
Public Works Director
CONSULTANT: MORAES/PHAM &
ASSOCIATES, a California Corporation
Date: 9 OG lA
By:
Joseph M. Mor s
President and Tre surer
Attachments- _ T_xhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
[insert name of consultant] Page 14
m
co-
MPA MORAES /PHAM & ASSOCIATES
2131 Palomar Airport Road • Suite 120 • Carlsbad . CA 92011 • Fax (760) 431 -7179 • Tel. (760) 431 -7177
August 15, 2011
Tom Sandefur
Associate Engineer
Public Works Department
City of Newport Beach
3300 Newport Blvd.
Newport, CA 92663 -3884
,in,
SCOPE OF WORK
MPA will provide plans, specifications and a cost opinion as detailed below.
• The Plans will show a site plan and details to add a new control panel for the proposed pump.
The existing electric meter will be used and the conduit will be intercepted and rerouted to the
control panel location. Up to three new conduits will run from the control panel to the wetwell.
ACAD backgrounds will be provided by the City.
• MPA will contact SCE to inform them that the motor load will be added to the existing pedestal.
• MPA will coordinate with ESSCO for control panel and radio telemetry requirements. It is
assumed Essco will be providing the pump and control panel. A radio survey is not required.
• Central SCADA programming will be done by the City.
• Plans, specifications, and estimate will be submitted to the City at the 90% and 100% levels for
review.
The cost of the above work is $7,500.
Respectfully,
itGu�
Joe Moraes P.E.
Principal
EXHIBIT -B
Exhibit B
MPA MORAES /PRAM & ASSOCIATES
2131 Palomar .Airport Road • Suite 120 • Carkbad • CA 92011 • Fax (760) 431 -7179 . Tel. (700) 431 -7177
MPA 2011 Billing Rates
Principal Engineer - $160 /hr
(Joe Moraes, P.E)
Engineer - $135 /hr
(Scott Nelson, RE)
CAD - $95 /hr
(Ignacio Baiz)
MORAPRA -01 ROSEM
Ally O CERTIFICATE OF LIABILITY INSURANCE
OAT016n DrYl
10(612011
THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT. If the ,certificate holder Is an ADDITIONAL INSURED, the policy((es) must be endorsed. If SUBROGATION IS WAIVED, subject t0
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder In lieu of such endorsement(s).
PaooucER License # OE67768
IDA Insurance Services
4350 La Jolla Village Drive, Suite 900
San Diego, CA 927'12
NAME: Kelly Howell
acc °five E :(619) 57462211 a No: (Si 9) 5746286
AuDRESS: kelly.howell@ioausa.com
INSURERS) AFFORDING COVERAGE
NAICi
INSURERA:Travalers Property Casualty Company of America
25674
INSURED
Morass Pham &Associates
2131 Palomar Airport Rd., #120
Carlsbad, CA 92011
INSURERS: The Hanover American Insurance Company
36064
INSURERC:RLI Insurance Company
13056
INSURER D :
INSURERS:
$ 1,000,000
INSURERF:
X COMMERCIAL GENERAL LIPBLRY
COVERAGES CERTIFICATE NUMBER- REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOWHAVE BEEN ISSUEDTOTHE INSURED NAMEDABOVE FOR T,HEPOLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACTOR OTHER DOCUMENTWITH RESPECTTOWHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR LTR
TYPE OF INSURANCE
INISR
WVD
POLICY NUMBER
MIDOIY
MAD
LIMITS
GENERAL LIABILITY
EACH OCCURRENCE
$ 1,000,000
A
X COMMERCIAL GENERAL LIPBLRY
X
X
804882L922
91112011
911/2012
PREMISESEe..rmn.e
$ 300,000
CLAIMS -MADE KOCCUR
MED EXP(Anyom p ... nj
$ 5,000
PERSONAL B ADV INJJRY
$ 1,000,00
GENERAL AGGREGATE
$ 2,000,0
GEN'L AGGREGATE LIMIT APPLIES PER
PRODUCTS COMP /OP AGO
$ 2,000,00
$
POLICY FX7 PROT 7 LOC
AUTOMOBILE UAMITY
M f
EB accitlent
E
BODILY INJJRV (Perponon)
$
A
ANY AUTO
8048821-922
91112011
9/1/2012
ALL OWNED SCHEDULED
AUTOS AUTOS
SODILY INJJRY(Per oecdenp
$
Perecddent
$
X HIREDAUTOS X A1JTOS VIED
AUTOS
CSL= lncuided
s
X
UMBRELLADAB
X
OCCUR
EACH OCCURRENCE
$ 1,000,000
AGGREGATE
E 1,000,000
A
EXCESS UAB
CLAIMS+ DE
CUP7194Y716
911/2011
9/1/2012
DEO I X I RETENTION$
$
B
WORKERS COMPENSATION
ANDEMPLOYERS'LUBILITY
ANY PROPRIETORIPARTNETE XECUNVEYIN
OFFICERNBASER EXCLUDED?
(MandMory In NH)
NIA
X
rFI19126D
W112011
91112012
X VJCSTATU- OTH-
TORY LIMBS ER
E L. EACH ACCIDENT
$ 1,000,000
EL. DISEASE- EA EMPLOYEE
$ 1,000,000
IF s. desaibeuncer
DESCRIPTION OF OPERATIONS bolos
E.L. DISEASE - POLICY LIMIT
$ 1,000,000
C
Professional Llab
RDPOOD3067
121912010
12/9/2011
$2,000,000 Per Claim
C
$10,000 Deductible
RDPOOD3067
1219/2010
121912011
$2,000,000 Aggregate
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (AI ACORD 101, Addeloned R.marhs Schedule, If mom spec. Is raq.1m l)
Re: 19th Street Tide Valve Replacement
City of Newport Beach, its elected or appointed officers, amployess, agents and volunteers is additional insured as par the attached endorsement
Waiver of Subrogation applieslo the Workers Compensat ion. Primary and Non -Contributory applies.
30 Days Notice of Cancellation with 10 Days ,Notice of Non - Payment of premium in accordance with the policy provisions
City of Newport Beach
3300 Newport Boulevard
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
dr aU� A
ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD
INSORANCE'OFFICE OF AMERICA
Re: Certificates of Insurance
Enclosed is a certificate of insurance, as requested. If you have any questions or require
changes, please feel free to contact our office at (619) 574 -6220, or by fax at (619) 574 -6288.
In September 2009, ACORD revised the certificate of insurance form and use of the new form
became mandatory on October 1, 2010. Use of the older certificate version would violate
ACORD's licensing agreement. One of the major changes was the removal of the cancellation
notice provision. We are unable to modify the current form for the following reasons:
• Notice 'of cancellation has always been a policy right to the first named insured only
regardless of what the -certificate of insurance said. Most insurance carriers are unable to
provide the desired cancellation notice because in some circumstances it would be
impossible for them to provide adequate notice. For example, if a policy holder cancels
the policy they can do so immediately — yet the certificate holder requires 30 days notice.
• Our agency is prohibited from agreeing to send notice of cancellation for the same reason
noted above. In addition, it could be alleged to constitute a misrepresentation or fraud
which could subject our agency to serious civil and criminal penalties.
We appreciate your understanding of the legal restrictions imposed upon our agency and the
insurance industry as a whole.
Thank you.
IOA Insurance Services
4350 La Jolla Village Drive, Suite 900, San Diego, CA 92122
Phone: 619- 574 - 6220 *Fax:619 - 574-6288.
Wel'site: www.ioausa.com
.....................
WAIVER OF OUR RIGNI' TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA
We have the right to recover our payments from anyone liable for an injury covered by this policy. We will
not enforce qur ;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 additional premium for this endorsement shall be 3' of the California workers' compensation premium
otherwise due on such remuneration.
Schedule
Person or Organization
AS PER CONTRACT
Job Description
AS PER CONTRACT
This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise
stated.
(The information below is required only-when this endorsement is issued subsequent to preparation of the policy.)
Endorsement Effective: 9/1/2011 PolicyNo.: WZF9196260 EndorsementNo.:
Insured: Moraes Pham & Associates Premium $
Insurance Company: The Hanover American Ins. Countersigned by: /V1
WC 04 03 06
(Ed. 4 -84) Copyright 1998 by the Workers' Compensation Insurance Rating Bureau of California. All rights reserved.
From the WCIRB's California Workers' Compensation Insurance Forms Manual Copyright 2001.
COMMERICAL GENERAL LIABILITY
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
BLANKET ADDITIONAL INSURED
(ARCHITECTS, ENGINEERS AND SURVEYORS)
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
A. The following Is added to WHO IS AN INSURED
(Section 11):
Any person or organization that you agree in a
"contract or agreement requiring insurance" to in-
clude as an additional insured on this Coverage
Part, but only "with respect to liability for "bodily in-
jury", "property damage" or "personal Injury'
caused, in whole or In part, by your acts or omis-
sions or the acts or omissions of those ailing on
your behalf:
a. In the performance of your ongoing opera-
tions;
b. In connection with premises owned by or
rented to you; or
c. In connection with "your work' and included
within the "products- completed operations
hazard".
Such person or organization does not qualify as
an additional insured for "bodily injury", "property
damage" or "personal injury for which that per-
son or organization has assumed liability in a con-
tract or agreement.
The Insurance provided to such additional insured
is limited as follows:
d. This insurance does not apply on any basis to
any person or .organization for which cover-
age as an additional insured specifically is
added by another endorsement to this Cover-
age Part.
e. This insurance does not apply to the render-
ing of or failure to render any "professional
services".
f. The limits of insurance afforded to the addi-
tional insured shall be the limits which you
agreed in that "contrail or agreement requir-
ing Insurance" to provide for that additional
Insured, or the limits shown in the Declara-
tions for this Coverage Part, whichever are
less. This endorsement.does not increase the
limits of insurance stated in the LIMITS OF
INSURANCE (Section 111) for this Coverage
Part,
B. The following is added to Paragraph a. of 4.
Other Insurance in COMMERCIAL GENERAL
LIABILITY CONDITIONS (Section IV):
However, if you specifically agree In a "contract or
agreement requiring insurance" that the insurance
provided to an additional insured under this Cov-
erage Part must apply on a primary basis, or a
primary And non - contributory basis, this insurance
is primary to other insurance that is available to
such additlorial insured Which covers such addi-
tional insured as a named Insured, and we will not
share with the other insurance, provided that:
(1) The °bodily injury' or "'property damage" for
Which coverage is.sought oocurs; and
(2) The "personal ihjitry" for which 'coverage is
sought arises out of an offense committed;
after you have entered into that "contract or
agreement requiring insurance ", But its insur-
ance still is excess over valid and collectible other
insurance, whether primary, excess, contingent or
on any other basis, that is Available to the insured
when the insured is an additional insured under
any other Insurance,
C. The following is added to Paragraph 8. Transfer
Of Rights Of Recovery Against Others To Us
in COMMERCIAL 'GENERAL LIABILITY CON-
DITIONS (Section IV):
We waive any rights of recovery we may have
against any person or organization because of
payments we make for "bodily Injury", "property
damage' or "personal injury" arising out of "your
work" performed by you, or on your behalf, under
a "contract or agreement requiring insurance" with
that person or organization. We waive these
rights only where you have agreed to do so as
part of the "contract or agreement, requiring insur-
ance" with such person or organization entered
into by you before, and in effect when, the "bodily
CG D3 8109 07 152001 The Travelers companies, Inc. Page 1 of 2
Includes the copyrighted material of Insurance Services Office, Inc., with its permission.
COMMERICAL GENERAL LIABILITY
injury" or "property damage" occurs, or the "per- erage Part, provided that the "bodily injury" and
sohal injury" offense is committed. "property damage" occurs, and the "personal in-
D. The following definition is added to DEFINITIONS jury" is caused by an offense committed:
(Section v): a. After you have entered Into that contract or
"Contract or agreement requir(ng Insurance" agreement;
means that part of any contract or agreement un- b. While, that part of the contract or agreement is
der which you are required to include a person or in effect; and
organization as an additional insured on this Cov- c. Before the end of the policy period.
.Page 2 of 2 ® 2001 The Travelers Companies, Inc. .CG D3 8109 Oi
Includes the copyrighted materialyf Insumnra Services Office, Inc., with its perrnission.
CERTIFICATE OF INSURANCE
CHECKLIST
City of Newport Beach
This checklist is comprised of requirements as outlined by the City of Newport Beach. *
Date Received: 10 -06 -11 Dept. /Contact Received From: Tania Moore
Date Completed:
10 -19 -11
Sent to: Tania By:
Company /Person required to have certificate: Mores Pham & Associates
Type of contract: All Other
Joel
GENERAL LIABILITY
EFFECTIVE/EXPIRATION DATE: 9-01- 1119.01 -12
A. INSURANCE COMPANY: Travelers Property Casualty Company
B. AM BEST RATING (A-: VII or greater): A: XV
C. ADMITTED Company (Must be California Admitted):
Is Company admitted in California? E Yes ❑ No
D. LIMITS (Must be $1 M or greater): What is limit provided?
1,000,000
E. ADDITIONAL INSURED ENDORSEMENT — please attach
® Yes ❑ No
F. PRODUCTS AND COMPLETED OPERATIONS (Must
INSURANCE COMPANY: Travelers Property Casualty Company
include): Is it included? (completed Operations status does
B.
not apply to Waste Haulers or Recreation)
E Yes ❑ No
G. ADDITIONAL INSURED FOR PRODUCTS AND
ADMITTED COMPANY (Must be California Admitted):
COMPLETED OPERATIONS ENDORSEMENT (completed
Operations status does not apply to Waste Haulers)
E Yes ❑ No
H. ADDITIONAL INSURED WORDING TO INCLUDE (The City
LIMITS (Must be $1M min. BI & PD and $500,000 UM, $2M min
its officers, officials, employees and volunteers): Is it
included?
E Yes ❑ No
1. PRIMARY & NON - CONTRIBUTORY WORDING (Must be
included): Is it included?
E Yes ❑ No
J. CAUTION! (Confirm that loss or liability of the named insured
F.
is not limited solely by their negligence) Does endorsement
include `solely by negligence" wording?
❑ Yes E No
K. ELECTED SCMAF COVERAGE (RECREATION ONLY):
E N/A ❑ Yes ❑ No
L. NOTICE OF CANCELLATION:
❑ NIA E Yes ❑ No
11. AUTOMOBILE LIABILITY
EFFECTIVEIEXPIRATION DATE: 9- 01- 1119 -01 -12
A.
INSURANCE COMPANY: Travelers Property Casualty Company
B.
AM BEST RATING (A-: VII or greater) A: XV
C.
ADMITTED COMPANY (Must be California Admitted):
Is Company admitted in California?
E Yes ❑ No
D.
LIMITS (Must be $1M min. BI & PD and $500,000 UM, $2M min
for Waste Haulers): What is limits provided? Included in GL Policy
E
LIMITS Waiver of Auto Insurance / Proof of coverage (if individual)
(What is limits provided ?)
F.
PRIMARY & NON - CONTRIBUTORY WORDING (For Waste
Haulers only): ® NIA
❑Yes ❑ No
G.
HIRED AND NON -OWNED AUTO ONLY: ❑ WA
E Yes ❑ No
H.
NOTICE OF CANCELLATION: ❑ WA
0 Yes ❑ No
III. WORKERS' COMPENSATION
EFFECTIVE /EXPIRATION DATE: 9-01- 1119 -01 -12
A. INSURANCE COMPANY: Hanover American Insurance Company
B. AM BEST RATING (A-: VII or greater): A: XIV
C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No
D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No
E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) $1,000,000
F. WAIVER OF SUBROGATION (To include): Is it included? E Yes ❑ No
G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No
H. NOTICE OF CANCELLATION: ❑ NIA ® Yes ❑ No
ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED
IV. PROFESSIONAL LIABILITY
V POLLUTION LIABILITY
V BUILDERS RISK
❑ WA ® Yes ❑ No
® WA ❑ Yes ❑ No
® N/A ❑ Yes ❑ No
HAVE ALL ABOVE REQUIREMENTS BEEN MET? ® Yes ❑ No
IF NO, WHICH ITEMS NEED TO BE COMPLETED?
Approved:
Agent of Alliant Insurance Services
Broker of record for the City of Newport Beach
10 -19 -2011
Date
RISK MANAGEMENT APPROVAL REQUIRED (Non - admitted carrier rated less than _;
Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No
Reason for Risk Management approval /exceptionhvaiver:
Approved:
Risk Management
* Subject to the terms of the contract.
Date