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C-5342 - Design PSA for Big Canyon Reservoir Auxiliary Maintenance Yard
DESIGN PROFESSIONAL SERVICES AGREEMENT WITH DMS CONSULTANTS, INC, FOR BIG CANYON RESERVOIR AUXILIARY MAINTENANCE YARD THIS AGREEMENT O ?J ,PROFESSIONAL SERVICES ( "Agreement') is made and entered into as of this ixay of January, 2013 („Effective Date ") by and between the CITY OF NEWPORT BE" CH, a California Municipal Corporation ( "City "), and DMS CONSULTANTS, INC., a California corporation ( "Consultant'), whose address is 12371 Lewis Street, Suite 203, Garden Grove, CA 92840 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 desires to engage Consultant to provide engineering services to prepare "building permit ready" plans and specifications for the Big Canyon Reservoir Auxiliary Maintenance Yard ( "Project "). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. The principal member of Consultant for purposes of Project shall be Surender Dewan. P.E. E. 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 Effective Date, and shall terminate on December 31, 2013, unless terminated earlier as set forth herein. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work'). The City may elect to delete certain services within the Scope of Services at its sole discretion. KIINNOMAi •`ll'.1.? 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or 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 within two (2) days of the occurrence causing the delay 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 (as defined in Section 6 below) 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 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 or Progress Payments Schedule 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 One hundred thirty six thousand, seven hundred, seventy Dollars and 00 1100 ($136,770.00) 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 identified in Exhibit B to this Agreement, or specifically approved in writing in advance by City. DMS CONSULTANTS, INC. Page 2 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. --s l 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 Surender Dewart, P,E. 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. 52 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. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to the City, 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Fong Tse, P.E., Principal Civil Engineer or his/her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her designee shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7, CITY'S RESPONSIBILITIES 7.1 To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: 7.1.1 Provide access to, and upon request of Consultant, one (1) copy of all existing relevant information on file at City. City will provide all such existing relevant information 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, DMS CONSULTANTS, INC. Page 3 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 the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first - class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and 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. 8.4 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, 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 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 under this Agreement 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 DMS CONSULTANTS, INC. Page 4 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. No civil service status or other right of employment shall accrue to Contractor or its employees. 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 of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and /or his /her duly authorized designee informed on a regular basis regarding the status and progress of the Project, 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 or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. DIVIS CONSULTANTS, INC. Page 5 • . � a a a 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 subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 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. DMS CONSULTANTS, INC. Page 6 17.3 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostaticly plotted on standard twenty -four inch (24') by thirty -six inch (36 ") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As- Built' drawings and a copy of digital Computer Aided Design and Drafting ( "CADD ") and Tagged Image File Format (.tiff) 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. fiEs�iZ�7irilli� � �i�7�1 #►�1�:71 =I #�«l CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in ,dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and /or viewable with Adobe Acrobat. 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 expressly authorizes in writing the release of information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to consultant or contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. DMS CONSULTANTS, INC. Page 7 lo✓ :100I;i311T-� Consultant shall keep records and invoices in connection with the Services 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 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. 23. 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. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST 26,1 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. 26,2 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 DMS CONSULTANTS, INC. Page 8 City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES 27.1 All notices, demands, requests or approvals, including any change in mailing address, 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: Fong Tse, P.E., Principal Civil Engineer Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949 -644 -3311 Fax: 949 -644 -3318 27.2 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Surender Dewan, P.E. DMS CONSULTANTS, INC. 12371 Lewis Street, Suite 203 Garden Grove, CA 92840 Phone: 714- 740 -8840 Fax: 714 -740 -8842 28. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Agreement, 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.). 29. TERMINATION 29.1 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 DMS CONSULTANTS, INC. Page 9 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. 29.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than 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. 30. STANDARD PROVISIONS 301 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, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30.2 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. 30.3 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. 30.4 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. 30.5 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. 30.6 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. DMS CONSULTANTS, INC. Page 10 30.7 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. 30.8 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, State of California. 30.9 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, age or any other impermissible basis under law. 30.10 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. 30.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] DMS CONSULTANTS, INC. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S. OFFICE Date: 1 Z/ WBAIA R. Aaron C. Karp City Attorney moo/ Vim, v„vv., - k i v „I TU� Leilani I. Brown City Clerk, o, LAI -1 FoNtLo CITY OF NEWPORT BEACH, A California mu icippl corporation Date: G ' ' By: ' 1� Keith Curry Mayor CONSULTANT: DMS CONSULTANTS, INC., a Califcynia qorporation Date: By: Surender Dewan, P.E. President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements document3 DMS CONSULTANTS, INC. Page 12 EXHIBIT A SCOPE OF SERVICES • Prepare CEQA, SWPPP, and other environmental related documents. • Prepare site demolition, removal, and grading plans. The existing buildings within the project footprint will be removed by others prior to construction and is not a part of this scope of work. • Prepare "building permit ready" construction bid documents for the construction /installation of a multi -bays 3,000 square feet ventilated masonry blocks or prefabricated steel materials storage building complete with roll -up doors and a restroom. • Prepare "building permit ready' construction bid documents for a separate 500 square feet office building with a restroom. • Prepare irrigation and landscaping plans and specifications. • Prepare a tabulation of probable costs. • Attend a minimum of eight (8) progress meetings with staff. • Attend two (2) City Council presentation meetings. • Attend two (2) presentation meetings with the neighboring communities. DMS CONSULTANTS, INC. Page A -1 EXHIBIT B SCHEDULE OF BILLING RATES DMS CONSULTANTS, INC. Page B-1 FEE PROPOSAL ~ Big Canyon Reservoir Auxiliary Maintenance Yard Contract Number C^5222 . 1. Records and Research ...... ..~...~..~.....~............. . ... . ............ .. ... ___ ..... $1,400.00 2. Survey ' Includes Aerial Sub-Consultant +10% ....... —............... ....................................... $0,320.D0 3. Site Plan ........... ^°^ ..................... . .......... ................... ............................................. %l80O,U0 4. Utilities .... ....... ............. ............................................ ............ .......................... ........ ....... $1`280,00 5. GeOteChAiral Investigations ' Sub-Consultant +10%.~ ..... ...... ~ ............................. ....... $14400/)0 6, Landscape and Irrigation Plans ' +1Q% .............. .~....~.—...~.$7150.OU 7. Architectural and Structural Plans ' Sub-Consultant +10%. .......... ......... ~..~....... .. .00 8. Grading and Drainage Pl8D. ... ........................ ................ ..... ............ .—^~~~.~—~^^884O0{0 g� CEQA Documents, VVOMP and SWPPP ............................. ...... ................................ ...... .$1K5ODJ0O 10. Project Specifications and Cost Estimates ................ . ....... .. ........... ~ ....... ......... ..... $580[i0} 11^ Project Coordination .... .......... .-.............. ..,...~.°..~.............. ...... ........ $4,880.0O 8`Project Meetings 2- City Council Meetings 2~ Neighborhood Community Meetings TOTAL DESIGN FEE FOR PROJECT: _____$136 �770.00 Y �z DMS Consultants, Inc, Big Canyon Reservoir Auxiliary Maintenance Yard Contract Number C -5222 ProjectManager ................................................................................................ ............................... $160.00 ProjectEngineer ................................................................................................ ............................... $125.00 DesignEngineer ................................................................................................ ............................... $105.00 SeniorPlan Checker ............................................................................................ ............................... $70.00 Two -Man Field Party .......................................................................................... ............................... $195.00 Three -Man Field Party ................................ ................. - ........................................................... ........ $225.00 SurveyManager ................................................................................................ ............................... $115.00 Clerical..................... .. ....... ...:.......... . ..... .... ... ... .... ..... .... .......... ............................... .............................. $55.00 81111 Architecture Principal............................................................................................................. ............................... $110.00 ProjectManager ................................................................................................ ............................... $100.00 Drafting.... ................ .............. ........................................ _ ................................................. ............ ..... $60.00 Clerical................................................................................................................. ............................... $35.00 RSSE, Inc. (Sub - Consultant) Principal............................................................................................................. ............................... $175.00 ProjectManager ................................................................................................ ............................... $140.00 Project/ Senior Engineer .................................................................................... ............................... $110.00 Design. Engineer... ................. ............................. ....... ........................... _ ............. .......................... $85.00 Drafting..... ............................................. .......... ___ ...................................... ........ ... ...... ........ .............. $65.00 Clerical... ................. ........................................................ .................. ......... ....................... _ $50.00 TMAD Taylor and Gaines (Sub - Consultant) Principal............................................................................................................. ............................... $205.00 ProjectManager ................................................................................................ ............................... $180.00 Project/ Senior Engineer.....- ............................................................................. ............................... $165.00 Engineer.............................................................................................................. ............................... $14.00 Designer............................................................................................................ ............................... $125.00 CADDOperator ................................................................................................... ............................... $90.00 SurveyManager ................................................................................................ ............................... $115.00 Construction Administrator ................................................................................ ............................... $140.00 WordProcessor ................................................................................................... ............................... $70.00 'c- CONSULTANTS. INC. C[ V l L 1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 11 Provision of 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, policies of insurance of the type and amounts described below and in a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth here. If Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 1.2 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. 1.3 Coverage Requirements. 1.3.1 Workers' Compensation Insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 1.3.1.1 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. 1.3.2 General Liability Insurance. Consultant shall maintain commercial general liability insurance, and If necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products - completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.3.3 Automobile Liability Insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 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 each accident. DMS CONSULTANTS, INC. Page C -1 1.3.4 Professional Liability (Errors & Omissions) Insurance. 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) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. 1.4 Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 1.4.1 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 from each of its subconsultants. 1.4.2 Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 1.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any insurance or self- insurance maintained by City. 1.4.4 Notice of Cancellation. All policies shall provide 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. 1.5 Additional Aqreements Between the Parties. The parties hereby agree to the following: 1.5.1 Evidence 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 and other endorsements as specified herein for each coverage. 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 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. 1.5.2 City's Right to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving the Consultant sixty (60) days advance written notice of DMS CONSULTANTS, INC. Page C -2 such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. 1,5.3 Enforcement of Agreement 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. 1.5A 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. 1.5.5 Self- insured Retentions. Any self - insured retentions must be declared to and approved by City. City reserves the right to require that self- insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. 1.5.6 Citv Remedies for Non Compliance If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Consultant's right to proceed until proper evidence of insurance is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. 1.5.7 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, and that involve or may involve coverage under any of the required liability policies. 1.5.8 Consultant's 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. DMS CONSULTANTS, INC. Page C -3 ����T|�8��T�<������U������� �~��'^^'`"�''``,�~~"""��'~�"`'``�`'�� CHECKLIST This checklist Is comprised wf requirements aaoutlined bv the City mf Newport Beach. * Date Received: 1/301 Dept8Cnniact Received From: Date Completed: Sent to: Tania By: Renee Company/Person required hz have certificate: DMS Consultants, Inc. Type of contract: All other l GENERAL LIABILITY EFFECTVE/EXP\RKOUND/Q'E: EFFECTiVE/E)[P|RAT|UNDATE: 9/4/12 to 914/13 A. INSURANCE COMPANY: Travelers y C B. A&4 BEST RATING A\-:V||nrgneated: C� ADMITTED Company (Must beCalifornia Admitted): In Company admitted mCalifornia? El Yes El No D. LIMITS (Must ba$1yWn[goeuier): What is limit provided? E. ADDITIONAL INSURED ENDORSEMENT— please attach 0Yen El No F. PRODUCTS AND COMPLETED OPERATIONS (Must include): (mitincluded? (completed Operations status does UM, %2M min for Waste Hawleno): What (o limits provided? not apply ho Waste Haulers nrRecreation) ZYes El No 8� ADDITIONAL INSURED FOR PRODUCTS AND (What ia limits pnovidod?) COMPLETED OPERATIONS ENDORSEMENT (completed F. Operations status does not apply to Waste Haulers) MYes El No H, ADDITIONAL INSURED WORDING TO INCLUDE (The City Haulers only): ZN/A FlYeo its officers, officials, employees and vo|nnbeemt|sit G� HIRED AND NON-OWNED AUTO ONLY: included? Yes No |, PRIMARY & NON-CONTRIBUTORY WORDING (Must be El NIA EjYmn 0 No included): |aitincluded? 0Yoa El No J� CAUT|[>N| (Confirm that loss nr liability ny the named insured in not limited solely by their negligence) Does endorsement include "solely by negligence' wording? E3 Yes MNo K ELECTED OCMAF COVERAGE (RECREATION ONLY): 0N/8 El Yes F1 No L NOTICE OFCANCELLATION: 0N/A EYoo El No ll AUTOMOBILE LIABILITY EFFECTiVE/E)[P|RAT|UNDATE: 9/4/12 to 914/13 A. INSURANCE COMPANY; _Tt v� Property & AK� BEST RATING K-: VII orgreater) C� ADMITTED COMPANY (Must bn California Adrnibed): |n Company admitted inCalifornia? F7You F1 No D, LIMITS -|f Employees (Must ba$I&Y min, B|&PD and $5UO`OOD UM, %2M min for Waste Hawleno): What (o limits provided? E. LIMITS Waiver of Auto Insurance / Proof of coverage (if Individual) (What ia limits pnovidod?) F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste Haulers only): ZN/A FlYeo El No G� HIRED AND NON-OWNED AUTO ONLY: El N/A FlYes MNo H. NOTICE OFCANCELLATION: El NIA EjYmn 0 No OI VVORKERS'COMPEmSATON EFFECTIVE/EXPI RATION DATE: 9/4/12 to 9/4/1 A. INSURANCE COMPANY: B. /\M BEST RATING (A':N|orgnaated: A|;XV C. ADMITTED Company (Must be California Admitted): QYes [I No D. VVORKERG^COW1PENB/QlON LIMIT: Statutory KD Yes FlNu G, EMPLOYERS' LIABILITY LIMIT (Must be$1NYnrgreater) $1,000,000 F. WAIVER DF SUBROGATION (To inolude): |s|tincluded? 0Yes Fl Nu G, SIGNED VV0RKERS'CO&YPEN8AT|DN EXEMPTION FORM: 0NV\ El Yes El No H. NOTICE OFCANCELLATION: El N/A ZYeo El No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY Y POLLUTION LIABILITY HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: rr�-^--^ Agent of/UUant Insurance Services Broker ufrecord for the City nf Newport Beach Date M NIA El Yes El No M NIA El Yes El No RISK MANAGEMENT APPROVAL REQUIRED Non-admitted carrier rated less than ; Self Insured Retention or Deductible greater than LJN/A L] Yes []Nn Reason for Risk Management mpprnVe}/eXoeptionhwaiver: Travelers Licensing not currently available on AM Best. Needs Risk Management approval. 1/31113 Sheri Anderson Aooromed Approved: Risk Management Date * Subject to the terms of the contract. DMSCONS -01 HBCT08 a e� CERTIFICATE OF LIABILITY INSURANCE 1 DA 112212013 THIS CERTIFICATE IS 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(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endomement(s). PROWLER (- ICeDBB )'{ 0564249 (OC) Heffernan Insurance Brokers S0 Hutton Centre Drive, Suite SOD Santa Ana, CA 92707 NAME: PHONE FAX ND No EXt y 1 714 361 -7700 Agcy Noi 1(714) 361 -7701 E-MAIL ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC# INSURER A: Travelers Property Casualty Insurance Company O 25674 INSURED DMS Consultants, Inc. 12371 Lewis St., Ste 203 Garden Grove, CA 92840 INSURERS: Bea2ley Insurance Company, Inc. 375_40 INSURERC: INSURERD: INSURER E: $ 2,000,000 INSURER F: X COMMERCIAL GENERAL LIABILITY COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSIR LTR TYPE OF INSURANCE ADDL INSR SUSR W I POLICYNUMBER POLICY EF MMIDOM'YY OLOY tXP MMIDUMYY LIMITS GENERALLIABIUTY EACH OCCURRENCE $ 2,000,000 A X COMMERCIAL GENERAL LIABILITY X X 68048791.745 9/412012 9/4/2013 PREMISE ooiwce 8 1,000, -00 CLAIMSMADE FX1 OCCUR MEO EXP(Any one person) '$ 10,000 PERSONAL &ADV INJURY $ 2,060,000 GENERALAGGREGATE $ 4,000,000 GEN'L AGGREGATE LIMIT APPLI ES PER: PRODUCTS COMPIOPAGG $ 4,000,000 $ POLICY X PRP LOC AUTOMOBILE LIABILITY COMBINE SINGLE LIMIT Ea accidentl $ 2,- DD,0 -6 BODILY INJURY (Per parson) _ $ A ANYAUTO 68048791-745 9/4/2012 914/2013 BODILY INJURY (Per acudenq $ ALL OWNED SCHEDULED AUTOS NON -OWNED X HIREDAIJ70S X AUTOS PROPERTY DAMAGE PER ACCIDEN $ $ X UMBRELLA LIAR X OCCUR EACH OCCURRENCE S 3,000,000 AGGREGATE $ 3,000,006 A EXCESS LIAR CLAIMS MADE CUP7182Y224 9/4/2012 9/4/2013 DEB I I RETENTION$ $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETORIPARTNERIE XECUTIVE YIN OFFICEWMEMBER EXCLUDEDi (Mandatory in NH) NIA _ X UB712SY647 9/4/2012 9/4/2013 X WC STATU- 'OTH- TOY LIMITS � E.L EACHACCWENT _ $ 1,060,-00 EL DISEASE -EA EMPLOYE $ 1,660,660 E.L. DISEASE - POLIC-Y LIMIT $ 1,000,000 If yes, deaWn, under DESCRIPTION OF OPERATIONS below 1 B B PROFESSIONAL (LIABILITY I IV15ONT120501 V150NT120501 9/23/2012 9/2312012 9/23/2013 9/23/2013 PER CLAIM 1,000,600 !AGGREGATE 2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Adach ACORD 101, Additional Remarks Schedule, If more space is required) THE NON -OWNED AND HIRED AUTO LIABILITY LIMIT IS SUBJECT TO THE GENERAL LIABILITY PER OCCURRENCE LIMIT. Projects as on file with the insured Including but not limited to Big Canyon Reservoir Auxiliary Maintenance Yard. City of Newport Beach and its officers, officials, employees and agents are named as additional insureds and primary/non- contributory clause applies to the general liability policy and a waiver of subrogation in favor of City of Newport Beach, its elected or appointed officers, agents, officials, employees and volunteers applies to the general liability and work comp policies -see attached endorsements. City of Newport Beach Attn: Tanis Moore 3300 Newport Blvd. Newport Beach, CA 92658 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 All riahts reserved ACORD 26 (2010105) The ACORD name and logo are registered marks of ACORD POLICY NO.: 68048791-745 COMMERCIAL 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 II): Any person or organization that you agree in a "contract or agreement requiring Insurance" to include as an additional insured on this Coverage Part, but only with respect to liability for "bodily injury", "property damage" or "personal injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: a. in the performance of your ongoing operations; 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 person or organization has assumed liability in a contract 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 coverage as an additional insured specifically is added by another endorsement to this Coverage Part. e. This insurance does not apply to the rendering of or failure to render any "professional services ". f. The limits of insurance afforded to the additional insured shall be the limits which you agreed in that "contract or agreement requiring insurance" to provide for that additional insured, or the limits shown in the Declarations for this Coverage Part, whichever are less. This endorsement does not increase the limits of insurance stated in the LIMITS OF INSURANCE (Section III) 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 Coverage 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 additional insured which covers such additional 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 occurs; and (2) The "personal injury' for which coverage is sought arises out of an offense committed; after you have entered into that "contract or agreement requiring insurance ". But this insurance 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 CONDITIONS (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 insurance" with such person or organization entered into CG 03 8109 07 Cad 2007 The Travelers Companies, Inc, Page 1 of 2 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Q by you before, and in effect when, the "bodily injury" or "property damage" occurs, or the "personal injury" offense is committed. The following definition is added to DEFINITIONS (Section V): "Contract or agreement requiring insurance" means that part of any contract or agreement under which you are required to include a person or organization as an additional insured on this Coverage Part, provided that the "bodily injury" and `property damage" occurs, and the `personal injury" is caused by an offense committed: a. After you have entered into that contract or agreement; b. While that part of the contract or agreement is in effect; and c. Before the end of the policy period CG D3 8109 07 © 2007 The Travelers Companies, Inc. Page 2 of 2 Includes copyrighted material of Insurance Services Office, Inc., with its permission. �/ WORKERS COMPENSATION TRAVELERS E AND EMPLOYERS LIABILITY ENDORSEMENT WC 99 03 76 (00) POLICY NUMBER: U67125Y647 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT — CALIFORNIA (BLANKET WAIVER) We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. 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 5.000% of the California workers' compensation premium otherwise due on such remuneration. Schedule Person or Organization ANY PERSON OR ORGANIZATION WITH WHOM YOU AGREE IN WRITING TO WAIVE YOUR RIGHT TO RECOVER AGAINST THEM. YOU MUST AGREE TO THIS WAIVER PRIOR TO THE DATE OF LOSS Job Description: Projects as on file with the insured Authorized Representative Agenda Item No. 10 January 8, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David A. Webb, Public Works Director 949 - 644-3311, dawebb @newportbeachca.gov PREPARED BY: Fong Tse, Principal Civil Engineer APPROVED: 0, u y TITLE: Approval of Professional Services Agreement with DMS Consultants, Inc., for the Design of a Storage Building at the Big Canyon Reservoir ABSTRACT: Architectural, Landscape Architectural, and Civil Engineering design services are needed for a new storage building proposed at the Big Canyon Reservoir. Staff requests approval of a professional services agreement to hire a consultant to perform the design work and prepare the construction documents. RECOMMENDATION: Approve a Professional Services Agreement (PSA) with DMS Consultants, Inc,, of Garden Grove, California, at a cost not to exceed $136,770.00 and authorize the Mayor and City Clerk to execute the Agreement. FUNDING REQUIREMENTS: There are sufficient funds in Project Account Nos. 7014- C100239, 7502- C100239, and 7541 - C100239 to fund this contract. DISCUSSION: The City's Corporate Yard located at 592 Superior Avenue and Utility Yard at 949 W, 10" Street are currently the only facilities where materials are stocked for the Municipal Operation Services Department field crews. While crews working at a nearby location can conveniently return to the Yards for the needed supplies not carried on their vehicles, it increases costs and response time if they are working at more distant locations within the easterly and southerly portions of the City such as East Bluff, Newport Coast or Corona Del Mar and need to return to one of the City Yards. Additionally, in an effort to consolidate the two existing City Yards, some additional space for material storage and lay down items will need to be provided at the reservoir location to allow for this consolidation of the two existing yards. I of 22 Approval of Professional Services Agreement with DMS Consultants, Inc. for the Design of a Storage Building at the Big Canyon Reservoir January 08, 2013 Page 2 To accommodate this need, staff has identified an area in the most westerly portion of the City's Big Canyon Reservoir property as the site where a small 3,500 SF materials storage building and material storage area can be constructed. The existing dwelling units at this site were recently removed in order to ready the site (see attached location map). The new storage building along with other site surface improvements will be designed and landscaped to fit into the surrounding area. . Staff solicited interest from five firms to submit their qualifications for the needed design work. All five firms responded and attended a job walk at the site. Staff reviewed the submitted Qualifications and invited them to propose on the project. The three firms that proposed were DMc Engineering, DMS Consultants, Inc., and W.G. Zimmerman Engineering, Inc. Staff reviewed the received Proposals and selected DMS Consultants, Inc. (DMS) as the firm most qualified to provide the City with the best overall services. Upon selection; staff noticed the fees for one of the itemized work tasks proposed by DNiS might have been entered incorrectly as it was not consistent with staffs cost estimate. DMS was asked to revisit that fee item with its subconsultant and respond to the City. DMS' final proposed fee as presented in the PSA has been accordingly revised and is consistent with market rates, Staff therefore recommends PSA approval. ENVIRONMENTAL REVIEW; Staff recommends the City Council find this project exempt from the California Environmental Quality Act ( "CEQA ") pursuant to Section 15303 (New Construction or Conversion of Small Structures) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential to have a significant effect on the environment. This exemption allows the construction of commercial buildings not exceeding 10,000 square feet in floor area in urbanized areas on sites zoned for such use, if not involving the use of significant amounts of hazardous substances, where all necessary public services and facilities are available, and where the surrounding area is not environmentally sensitive. Consistent with this exemption, the future proposed storage building would be less than 10,000 square feet in area and would be located on a developed site that is adequately served by public services and does not include sensitive resources. In addition, the storage building would not be used to store hazardous materials. NOTICING: The agenda item has been noticed according to the meeting at which the City Council considers the item). Submitted by: Davi A. Webb Public Works Director Attachments: A. Professional Services Agreement B. Location Map Brown Act (72 hours in advance of the 2 of 22 ATTACMENT A DESiGN PROFESSIONAL SERVICES AGREEMENT WiTH DMS CONSULTANTS, INC. FOR 13IG CANYON RESERVOIR AUXILIARY MAINTENANCE YARD THIS AGREEMENT FOR PROFESSIONAL SERVICES ( "Agreement ") is made and entered into as of this _ day of January, 2013 ( "Effective Date ") by and between the CITY OF NEWPORT BEACH, a California Municipal Corporation ( "City ") and DIMS CONSULTANTS, INC., a California corporation ( °Consultant "), whose address Is 12371 Lewis Street, Suite 203, Garden Grove, CA 92844 and Is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the taws 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 desires to engage Consultant to provide engineering services to prepare "building permit ready" plans and specifications for the Big Canyon Reservoir Auxiliary Maintenance Yard ( "Project "). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. The principal member of Consultant for purposes of Project shall be Surender Dewan, P.E. E. 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 Effective Date, and shall terminate on December 31, 2013, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED City and Consultant acknowledge that the above Recitals are true and correct and are hereby Incorporated by reference Into this Agreement. Consultant shall diligently perform all the services described In the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ( "Services" or "Work "). The City may elect to delete certain services within the Scope of Services at Its sole discretion. 3 of 22 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services In accordance with the schedule Included In Exhibit A. in the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or 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 within two (2) days of the occurrence causing the delay 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 (as defined In Section 6 below) 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 fax, hand - delivery or mall. 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 or Progress Payments Schedule 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 One hundred thirty six thousand, seven hundred, seventy Dollars and 001100 ($136,770.00) 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 identified in Exhibit B to this Agreement, or specifically approved in writing in advance by City. DMS CONSULTANTS, INC. Page 2 4 or 22 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 Surender Dewan, P.E. 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 withhold 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. 53 if Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to the City. 6. ADMINISTRATION This Agreement will be administered by the Public Works Department. Fong Tse, P.E., Principal Civil Engineer or his /her designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or his /her designee shall represent City In all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES 7.1 To assist Consultant In the execution of Its responsibilities under this Agreement, City agrees to, where applicable: 7.1.1 Provide access to, and upon request of Consultant, one (1) copy of all existing relevant information on file at City. City will provide all such existing relevant Information 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. DMS CONSULTANTS, INC. Page 3 5 or 22 7.1.3 Provide usable life of facilities criteria and Information with regards to now 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 ail Services In a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first - class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement; all applicable federal, state and local laws; and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep In full force and effect during the term hereof, at Its sole cost and expense, all licenses, permits, qua(iflcations, 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. 8.4 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, 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 9.1 To the fullest extent permitted by taw, 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 under this Agreement or In any manner relate (directly or indirectly) to the negligence, reeldessness, 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 DMS CONSULTANTS, INC. Page 4 6 o €22 all claims and liability regardless of whether any Insurance policies are appl €cable. The policy limits do not act as a limitation upon the amount of Indemnification to be provided by the Consultant. 90. 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. No civil service status or other right of employment shall accrue to Contractor or Its employees. 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 of the Work 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 direction with City's Project Administrator in order to ensure the Project proceeds in a policies. 13. PROGRESS all matters relating to policy and Project advance of all critical decision points in manner consistent with City goals and Consultant is responsible for keeping the Project Administrator and/or his/her duty 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 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 terra of this Agreement or for other periods as specified in this Agreement, policies of Insurance of the type, amounts, terms and conditions described In the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. DMS CONSULTANTS, INC. Page 6 7 o €22 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 safe, 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. The subcontractors authorized by City, if any, to perform Work on this Project are Identified In Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor; Nothing In this Agreement shall create any contractual relationship between City and any subcontractor nor shall It create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. The City Is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and the City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 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. DMS CONSULTANTS, INC. Page 6 a or 22 17.3 All improvement and /or construction plans shall be prepared with indelible waterproof Ink or electrostaticly platted on standard twenty -four inch (24 ") by thirty -six inch (36 ") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As- Built' drawings and a copy of digital Computer Aided Design and Drafting ( "CADD ") and Tagged Image File Format (.tiff) 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. t �i i. w ! CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant, By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City In the version of AutoCAD used by the City In .dwg file format, on a CD, and should comply with the City's digital submission requirements for Improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) In .dwg file format. All written documents shall be transmitted to City In formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 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 expressly authorizes in writing the release of Information. 20. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to consultant or contractor bids or actual cost to City. 21. INTELLECTUAL PROPERTY INDEMNITY The Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and ail liability, including costs, for infringement or alleged infringement of any united States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. DIMS CONSULTANTS, INC. Page 7 9 of 22 22. RECORDS Consultant shall keep records and invoices in connection with the Services 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 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. 23. 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. 24. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional Inexperience of Consultant which result In expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this Section is Intended to limit City's rights under the law or any other sections of this Agreement. 25. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 26. CONFLICTS OF INTEREST 26.1 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. 26.2 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 DMS CONSULTANTS, INC. Page 810 of22 City for any and all claims for damages resulting from Consultant's violation of this Section. 27. NOTICES 271 All notices, demands, requests or approvals, including any change In mailing address, 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: Fong Tse, P.E., Principal Civil Engineer Public Works Department City of Newport Beach 3300 Newport Boulevard PO Box 1768 Newport Beach, CA 92658 Phone: 949- 644 -3311 Fax: 949- 644 -3318 27.2 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Surender Dewan, P.E. DMS CONSULTANTS, INC. 12371 Lewis Street, Suite 203 Garden Grove, CA 92840 Phone: 714 -740 -8840 Fax: 714 -740 -8842 28. CLAIMS Unless a shorter time Is specified elsewhere In this Agreement, before making Its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. The Consultant and the City expressly agree that In addition to any claims filing requirements set forth in the Agreement, 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.). 29. TERMINATION 29.1 In the event that either party falls 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 DIVIS CONSULTANTS, INC. Page 91 of 22 reasonably required to cure the default and the defaulting party falls 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. 29.2 Notwithstanding the above provisions, City shall have the right, at Its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than 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. 30. STANDARD PROVISIONS 30.1 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, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 30.2 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. 30.3 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and ail 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. 30.4 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, 30.5 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. 30.6 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. DMS CONSULTANTS, INC. Page 1012 of 22 30.7 ,Severablilty. if any term or portion of this Agreement is hold 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. 30.8 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, State of California. 30.9 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, age or any other Impermissible basis under law. 30.10 No Attorney's l=ees. In the event of any dispute or legal action arising under this Agreement; the prevailing party shall not be entitled to attorney's fees. 30.11 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] DDS CONSULTANTS, INC. Page 1113,f22 IN WITNESS WHEREOF, the patties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE A California municipal corporation Date: 12,N717' Date: By., t �T i t By: Aaron C. Harp — Keith Curry City Attorney l t Mayor ATTEST: CONSULTANT: DMS CONSULTANTS, Date: INC., a California corporation Date: By. Lellani 1. Brown City Clerk Attachments: documant3 By: Surender Dewan, P.E. President [END OF SIGNATURES] Exhibit A — Scope of Sentices Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements DMS CONSULTANTS, INC, Page 1214 of 22 EXHIBIT A SCOPE OF SERVICES • Prepare CEQA, SWPPP, and other environmental related documents. • Prepare site demolition, removal, and grading plans. The existing buildings Within the project footprint will be removed by others prior to construction and is not a part of this scope of wort. • Prepare "building permit ready" construction bid documents for the constructionlinstallation of a multi -bays 3,000 square feet ventilated masonry blocks or prefabricated steel materials storage building complete with roll -up doors and a restroom, • Prepare "building permit ready" construction bid documents for a separate 500 square feet office building with a restroom. • Prepare Irrigation and landscaping plans and specifications. • Prepare a tabulation of probable costs. • Attend a minimum of eight (8) progress meetings with staff. • Attend two (2) City Council presentation meetings. • Attend two (2) presentation meetings with the neighboring communities. DMS CONSULTANTS, INC. Page A-1'5 of 22 EXHIBIT B SCHEDULE OF BILLING RATES - - 16 of 22 MKA r KIOJ It �ANIr o Wrl Pana R -1 T y t FEEPROPOSAL Big Canyon Reservoir Auxiliary Maintenance Yard Contract Number C -5222 1. Records and Research ...................................................... ............................... ......................$1,400.00 2. Survey- facludesAerfai Sub- Consultant+ 10% ................. ............................... ......................$9,320,00 $5,800.00 3. Site Plan ............................................................................ ............................... ......................$2,800.00 8- Project Meetings 4. Utilities ............................................................................... ............................... ......................$1,200.00 5, Geotechnical Investigations - Sub-Consultant + 10% ........ ............................... .....................$14,400.00 12. Reproductions- Allowance ................................................ ............................... ......................$6,000.00 6, Landscape and brigailon Plans - Sub-Consultant + 10% ... ............................... ......................$7,150.00 7. Architectural and Structural Plans - Sub-Consultant +101/6 .............................. .....................$66,000.00 8. Grading and DralnagePlan ............................................... ............................... ......................$6,400.00 9. CEQA Documents, WQMP and SWPPP .......................:.. ............................... .....................$10,500.00 10. Project Specifications and Cost Estimates., ........................................................................... $5,800.00 11. Project Coordination .......................................................... ............................... ........:.............$4,800.00 8- Project Meetings 2 • City Council Meetings 2- Neighborhood Community Meetings 12. Reproductions- Allowance ................................................ ............................... ......................$6,000.00 TOTAL DESIGN FEE FOR PROJECT: $136,770.00 CONSK NTS. INC. CIVIL &NOIN6BR8 ��� €tV/'4trytt ilA�l; DMS Consultants, Inc. Big Canyon Reservoir Auxiliary Maintenance Yard Contract Number C•5222 ProjectManager ................................................................................................ ............................... $160.00 ProjectKngineer .................... r.,.,.,.,.....,.....,....,.......,......................................,,., ,..,........................... $125:00 DesignEngineer ..........................................................................»....,,......,.,...,., ............................... $105.00 SeniorPlan Checker ..,.....,... r,..,...,.» .................................................................... ............................... $70,00 Two -Man Field Party.................... ...................... -- ............ ........................... ,.................................. $195.00 Three -Man Field Party ....................................................... ............................... $225,00 SurveyManager... ....................................................».......,........ .,.........,...,...........,... .................,.....$115.00 Cter% al ............................... », »,,.... ».....<., . .. <..,,.... „..,.,....,...,,,.... ............»., $55.00 RM .Architecture Principal....................... .......:...... r....,,..,.,.,,..,....,...................,.......,.......,,.....,,...,, ..,,...,.,,.,.................. $110.00 ProjectManager ....................... ............. .................................................. .......... .......r,.,.,,...,,..,.....,,., $100.00 Drafting„...................................... --- .................... ........................ ............. .,,,., ............ ,............,.,.. $60.00 Clerical..........................................,.»...,..,......,........................,..............,...,.,...,.. ............................... $35.00 RSSE, Inc. (Sub - Consultant) Principal............................................................................................................ ....................».....,.... $175,00 ProjectManager- ... ........ ....................... ............ ............. ........ ............ ....... .... -- $140.00 .............................................................. ..............:...............: $110,00 DesignEngineer,.. „ ... ............. ............... .......... ....... .,,..,.,„.,..,..,,. ........... .......... ,.......... ............ ..,», $85,00 Draftirtg,.,,,.,.» .............................................................„....... ,, ...... . .... ,.,,.,.,,, .... ,,.,, ..... .,....,,...,....,......... $65.00 TMAD Taylor andGaines (Sub - Consultant) Principal............................................................................................................. ............................... $205.00 ProjectManager .............. ...................................... .... ,. ............................... ,........ ,........................... $180.00 Project/ Senior Engineer .................................................................................... ............................... $165.00 Engineer.............................................................................................................. ............................... $14.00 Designer,.......... • . ........................ r.,..... ........................,...... ......................, . $125,00 CADDOperator ...................................»..,...,............,:.....,...................,.:............. ............................... $90,00 Survey Manager .... ... ..... ........... r,,...... ..................... ...,,,.,-, ...... .,.,..,,..,. ....,.. ».,,,..,......,......... - , ».. „.... $115,00 Construction Administrator .....................................».»...,,...........,.,.............,.... ...................».,..,..,,.. $14000 WordProcessor— ...... - . .... .... ..... ................ ...... --- .... . ..... ....................... .......... $70.00 `Y CONS TAN7'S.INC. exvx>, aNaxxneax EXHIBIT C 1. INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 1.1 Provision of 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, policies of insurance of the type and amounts described below and In a form satisfactory to City. Consultant agrees to provide insurance in accordance with requirements set forth hero, if Consultant uses existing coverage to comply and that coverage does not meet these requirements, Consultant agrees to amend, supplement or endorse the existing coverage. 1.2 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 Vil (or larger) in accordance with the latest edition of Bests Key Ratting Guide, unless otherwise approved by the City's Risk Manager. 1.3 Coverage Requirements. 1.3.1 Workers' Compensation insurance. Consultant shall maintain Workers' Compensation Insurance, statutory limits, and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000) each accident for bodily injury by accident and each employee for bodily injury by disease in accordance with the laws of the State of California, Section 3700 of the Labor Code. 1.31.1 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. 1.3.2 General Liability Insurance. Consultant shall maintain commercial. general liability Insurance, and if necessary umbrella liability insurance, with coverage at least as broad as provided by Insurance Services Office form CG 00 01, in an amount not less than one million dollars ($1,000,000) per occurrence, two million dollars ($2,000,000) general aggregate. The policy shall cover liability arising from premises, operations, products - completed operations, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract) with no endorsement or modification limiting the scope of coverage for liability assumed under a contract. 1.3.3 Automobile Liability insurance. Consultant shall maintain automobile insurance at least as broad as Insurance Services Office form CA 00 01 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 each accident, . - 19 of 22 nhAC t" nNi.c € €i TIIA€TC €RIi`.... Parip C -1 1.3.4 Professional Liability (Errors & Omissions)—Insurance. 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) per claim and in the aggregate. Any policy inception date, continuity date, or retroactive date must be before the effective date of this agreement and Consultant agrees to maintain continuous coverage through a period no less than three years after completion of the services required by this agreement. 1.4 Other insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 1.4,1 Waiver of Subroaation. 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 from each of Its subconsultants. 1.4.2 Additional Insured Status. All liability policies Including general liability, excess liability, pollution liability, and automobile liability, but not including professional liability, shall provide or be endorsed to provide that City and its officers, officials, employees, and agents shall be included as insureds under such policies. 1.4.3 Primary and Non Contributory. All liability coverage shall apply on a primary basis and shall not require contribution from any Insurance or self-insurance maintained by Clty. 1.4.4 Notice of Cancellation. All policies shall provide City with thirty (34) days notice of cancellation (except for nonpayment for which ten (10) days notice is required) or nonrenewal of coverage for each required coverage. 1.5 Additional Agreements Between the Parties. The parties hereby agree to the following: 1.5.1 Evidence 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 and other endorsements as specified herein for each coverage. 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 Agreement. City reserves the right to require complete, certified copies of all required Insurance policies, at any time. 1.5.2 City's Right to Revise Requirements. The City reserves the right at any time during the term of the Agreement to change the amounts and types of Insurance required by giving the Consultant sixty (60) days advance written notice of 20 of 22 nAlm rnaret It TAKITC ttitr Pane C -2 such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. 1.5.3 Enforcement of Agreement 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. 1.5:4 equirements 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 he all inclusive, or to the exclusion of other coverage, or a waiver of any type. 1.5.5 Self-insured Retentions. Any self - insured retentions must be declared to and approved by City, City reserves the right to require that self - Insured retentions be eliminated, lowered, or replaced by a deductible. Self- insurance will not be considered to comply with these requirements unless approved by City. 1.5.6 City Remedies for Non Compliance If Consultant or any subconsultant fails to provide and maintain insurance as required herein, then City shall have the right but not the obligation, to purchase such insurance, to terminate this agreement, or to suspend Consultant's right to proceed until proper evidence of Insurance Is provided. Any amounts paid by City shall, at City's sole option, be deducted from amounts payable to Consultant or reimbursed by Consultant upon demand. 1.5.7 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, and that involve or may involve coverage under any of the required liability policies. 1.5.8 Consultant's 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. zi of 22 MA nMWQIHTAKMQ Mir' Pane C-3 l 1 IN mlil 1!� 22 of 22