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Home My WebLink AboutC-4828 - On-Call Design PSA for Landscape Architectural ServicesAMENDMENT NO. ONE TO ON -CALL DESIGN PROFESSIONAL SERVICES AGREEMENT WITH TCLA, INC. FOR ON -CALL LANDSCAPE ARCHITECT SERVICES THIS AMENDMENT NO, ONE TO ON -CALL AGREEMENT FOR PROF , SI NAL SERVICES ( "Amendment No. One ") 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 TCLA, Inc., a California corporation ( "Consultant "), whose address is 1340 Reynolds Ave., Suite 103, Irvine, CA 92614 and is made with reference to the following: RECITALS A. On April 29, 2011, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for on -call assistance for landscape architecture services ("Project'). B. City desires to enter into this Amendment No. One to extend the term of the Agreement to January 31, 2015, to increase the total compensation and update insurance requirements. C. City and Consultant mutually desire to amend the agreement, as provided below NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement shall be amended in its entirety and replaced with the following: The term of this Agreement shall commence on the April 29, 2011, and shall terminate on January 31, 2015 unless terminated earlier as set forth herein. 2. COMPENSATION TO CONSULTANT Section 4 of the Agreement shall be amended in its entirety and replaced with the following: City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all Services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Fifty Thousand Dollars and 001100 ($250,000.00) 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. 3. INSURANCE Section 14 of the Agreement shall be amended in its entirety and replaced with the following: 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 B, and incorporated herein by reference. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] TCLA, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATT RNEY'S OFFICE Date: By. Aaron C. Harp City Attorney ATTEST: n �1 Date: ` 11 `. 6r �7 By. V;u h�'� Leilani I. Brown City C CITY OF NEWPORT BEACH, A Califory' Mu7icipal corporation Date: 112-j / 3 By: /Z� Keith Curry Mayor CONSULTANT: TCLA, Inc., a California corporation Date: . / �?.��/1 2, [END OF SIGNATURES] Attachments: Exhibit B — Insurance Requirements All -00171 TCLA, Inc. Page 3 EXHIBIT B 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 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. 13.1 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. 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 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 anytime. 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 i 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 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 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. CERTIFICATE OF INSURANCE CHECKLIST ii ir+ i' , This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 1/24/13 Dept. /Contaot Received From: Tania Date Completed: 1/24/13 Sent to: Tania By: Renee Company /Person required to have certificate: TCLA, Inc, Type of contract: All Oilier 1. GENERAL LIABILITY EFFECTIVE /EXPIRATION DATE: 4/14/12 to 4/14/13 A. INSURANCE COMPANY: Travelers Property Cawal Insurance Company B. AM BEST RATING (A-: VII or greater): A +� XV _ C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? 0 Yes ® No D. LIMITS (Must be $1 M or greater): What is limit provided? $2,000,000 / $4,000 000 E. ADDITIONAL INSURED ENDORSEMENT— please attach N Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) include): Is it included? (completed Operations status does (What is limits provided ?) N/A not apply to Waste Haulers or Recreation) 0 Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND Haulers only): ® N/A ❑ Yes ❑ No COMPLETED OPERATIONS ENDORSEMENT (completed HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes 0 No Operations status does not apply to Waste Haulers) ® Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No L PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No J. CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement: include "solely by negligence" wording? ❑ Yes ® No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): ® N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No 11. AUTOMOBILE LIABILITY EFFECTIVE /EXPIRATION DATE: 4/14/12 to 4/14/13 _ A. INSURANCE COMPANY: Employers' Fire Insurance Company B, AM BEST RATING (A-: Vil or greater) A; XI _ C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS - If Employees (Must be $1M min. B! & PD and $540,000 UM, $2M min for Waste Haulers): What is limits provided? $1,000,000 E LIMITS Waiver of Auto Insurance / Proof of coverage (if individual) (What is limits provided ?) N/A F. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): ® N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A ❑ Yes 0 No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No lD. VVORKERG'COK4PEN8AT0N EFFECT|\/E/EXP| RATION DATE: 1/1/13k)1/1/14 A. INSURANCE COMPANY: State Compensation Insurance Fund B. /\M BEST RATING (A^: VII orgn*ated: NotRated C. ADMITTED Company (Must bo California Adn'itbed): Q3Yes [I No D. VVORKER3'CO&4PENSAJ|ONL!/N|'[ Statutory ZYes FlNo E EMPLOYERS' LIABILITY 0NY)T(yWustbe$1WYur8nauter) $1,000,000 F� WAIVER [>F SUBROGATION (To |nc|udo):}sitinu|uded7 N Yes FlNo G. SIGNED VVDRKERS'COKNPENS8T|ON EXEMPTION FORM: MN/8 FJYem El No H. NOTICE OFCANCELLATION: Fl N/A 0 Yes FlNo ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? � ^`rrr-^~~' }/l5/3 Agent nfA||iant Insurance Services Duby Broker nf record for the City of Newport Beach E N/A El Yes El No El Yes 0 No RISK MANAGEMENT APPROVAL REQUIRED Non'adnoitted carrier rated less than Self Insured Retention or Deductible greater than El NTA Yes LJ No Reason for Risk Management approval/exception/waiver: General Liability - AM Best says licensing information is not available, Will need Risk Managements Approvgl, 1/24/13 Received approval from Sheri Anderson UOTIN =F Risk Management Date * Subject to the terms of the contract. Moore, Tama From: Anderson, Cheryl Sent: Thursday, January 24, 2013 1:39 PM To: 'Renee McRaven; Moore, Tania Cc: Delorme, Lucie Subject: RE: TCLA Inc. Insurance Risk Management approves the carrier status. Thanks, j°fcet�l rr�'/tetd ° p/Eadetson Human Resources Supervisor City of Newport Beach Phone (949) 644 -3307 Fax (949) 723 -3509 THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAWS, If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering the message to the intended recipient, you are hereby notified that any dissemination, distribution, forwarding, or copying of this communication is strictly prohibited. If you have received this communication in error, please notify the sender immediately by e-mail or telephone, and delete the original message immediately. Thank you. From: Renee McRaven rmailto:rmcraven@alliant.com Sent: Thursday, January 24, 2013 1:23 PM To: Moore, Tania; Anderson, Cheryl Cc: Delorme, Lucie Subject: RE: TCLA Inc. Insurance Hi Tania, I just need Sheri to approve this because AM Best says the licensing isn't available for the Auto and General Liability Carriers. Then I can approve. Please let me know if you have any questions. Thanks, Renee McRaven, AIS, AIMS Account Representative Public Entity Group Alliant Insurance Services, Inc. 1301 Dove Street, Suite 200 Newport Beach, CA 92660 949- 660 -5932 Direct Line 619- 699 -0907 Fax rmcravg.ri0alliant.com License #OC36661 www.alliant.com * *Please note my email address and our company website address have changed. ** POLICYHOLDER COPY SC P.O. BOX 8192, PLEASANTON, CA 94588 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 01 -23 -2013 CITY OF NEWPORT BEACH PO BOX 1768 NEWPORT BEACH CA 92658 -8915 GROUP POLICY NUMBER: 1153939 -2013 CERTIFICATE 10: lag CERTIFICATE EXPIRES: 01 -01 -2014 01- 01- 2013/01 -01 -2014 Sc JOB:ON -CALL LANDSCAPE ARCHITECT SERVICES 3300 NEWPORT BOULEVARD NEWBORT BEACH CA 92658 -8915 This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon 30 days advance written notice to the employer. We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms, exclusions, and conditions, of such policy. e,o4q 4._ Authorized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE. ENDORSEMENT #1600 - JOSEPH A. VARONIN P,S T - EXCLUDED. ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 01 -01 -2004 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. - EMPLOYER TOTAL CONCEPT LANDSCAPE ARCHITECTURE INC. 27905 SMYTH OR VALENCIA CA 91355 SC [P19,SC] M1 -2012) - PRINTED : 01 -23 -2013 WAIVER OF SUBROGATION NOTICE Enclosed is your copy of a certificate of insurance on which the certificate holder required a waiver of subrogation: 1. Please be advised that a waiver of subrogation requires that a 3% surcharge will be applied by State Fund ONLY to the premium assessed on the payroll of your employees earned while engaged in work for that certificate holder who requested the waiver. (Note: if you have no employee payroll on that job, then there is no charge.) 2. To apply the 3% surcharge, you must also agree to maintain accurately segregated payroll records for employees engaged in work on jobls for the certificate holder who has the waiver. The payroll records are subject to verification by an auditor. Payroll for job: Sample Rate: Regular Premium equals: Surcharge: Additional Waiver charge: Total premium equals $5,000.00 13.30% $ 665.00 3.00% $ 19.95 $ 684.95 (665.00 + 19.95) TCLAINC -01 YOUSHI CERTIFIC,P TE F LIA L.ITY INSURANCE DATE (MMIDDI'YWY} _ 1/24/2013 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 INSURERS), 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 endorsement(s). PRODUCER License # 0564249 9 OC) Heffernan Insurance Brokers Hutton Centre Drive, Suite 500 Santa Ana, CA 92707 NAME:CT Sherry Young PHONE F Ac we a1:1 {714) 361 -7700 uc Noy: 1 {714) 361 -7701 E -MAIL ADDRESS: INSURER(B. AFFORDING COVERAGE NAICA INSURERA,Travelers Property Casualty Insurance Company o 25674 INSURED TCLA, Inc. 27905 Smyth Drive Valencia, CA 91355.4304 INSURER 9: Employers' Fire Insurance Compan INSURERC: INSURER D: INSURER E: $ 2,000,000 _ INSURER F: $ 1,000,000 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. � 1Nl R LTR .— TYPE OF INSURANCE AD S a Y _110GCYNUMBER POLICY kFF MMtDD1YYYYj P Y EXP h_1M(QD1YY LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 2,000,000 PREMISES Ea occurrence $ 1,000,000 A X COMMERCIAL GENERAL LIABILITY X X 6807554X473 411412012 411412013 ' CLAIMS-MADE � OCCUR MED EXP (Any one person} $ 10,000 PERSONAL &ADV INJURY $ 2,000,000 ..._.�. GENERAL AGGREGATE $ 4,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS- COMP /OP AGO $^ 4,000,000 POLICY �X PRO T LOG $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ 1,000,000 _ BODILY I NJURY(Per person) $ A ANY AUTO 680755OX473 4/14/2012 4/14/2013 ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident} $ PROPER DAMAGE PER ACCIDENT $_... X HIRED AUTOS X NON -OWNED AUTOS __ $ m UMBRELLA LIAB OCCUR EACH OCCURRENCE $ AGGREGATE $ [ EXCESS LMS ! CLAWS -MADE DED RETENnON$ $ __ WORKERS COMPENSATION AND EMPLOYERS'LIABILITY YIN ANY PROPRIETOPJPARTNER /EXECUTIVE❑ OFFICERIMEMSER EXCLUDED? NIA I WOCSTATU- OTH- PH E.L. EACH ACCIDENT $ (Mandatory In NH) E.L. DISEASE - EA EMPLOYEE $ Des, describe under DESCRIPTIONOFOPERATIONSbelow E.L- DISEASE - POLICY LIMIT_ $ B PROFESSIONAL PL- 1490 -92 _ 4/14/2012 4/1412013 PER CLAIM _ 1,000,000 B LIABILITY HD PL - 1410.12 4/14/2012 4114/2013 AGGREGATE 2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach 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 PROFESSIONAL SERVICES AGREEMENT FOR ON -CALL LANDSCAPE ARCHITECTURAL DESIGN SERVICES. CITY OF NEWPORT BEACH, ITS ELECTED OR APPOINTED OFFICERS, AGENTS, OFFICIALS, EMPLOYEES AND VOLUNTEERS ARE NAMED AS ADDITIONAL INSUREDS AND PRIMARYINON- CONTRIBUTORY CLAUSE AND A WAIVER OF SUBROGATION APPLIES TO THE GENERAL LIABILITY POLICY -SEE ATTACHED ENDORSEMENT. SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE CITY OF NEWPORT BEACH THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ATTN: TANIA MOORE ACCORDANCE WITH THE POLICY PROVISIONS. P.O. BOX 1768 NEWPORT BEACH, CA 92658 -6915 AUTHORIZED REPRESENTATIVE — . 1 001988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD POLICY NO.: 6807550X473 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. t 0- 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 ". 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 D3 81 09 07O 2007 The Travelers Companies, Inc. Page 1 of 2 Includes copyrighted material of Insurance Services Office, Inc., with its permission. by you before, and in effect when, the "bodily injury' or "property damage" occurs, or the "personal injury" offense is committed. D. 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. Agenda item No. 4 January 22, 2013 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Public Works Department David Webb, Public Works Director /City Engineer 945 - 644 - 3311, dawebb @newportbeacihoa.gov PREPARED BY: Michael J. Sinacori, P.E., Assistant City Engineer 949- 644 -3342, mslnacorl @newportbeachca,gdv APPROVED: . /\'\ v TITLE: Approval of Amendment No. 1 to the On -Call Professional Services ABSTRACT: The City previously entered into On -Call Professional Services Agreements with TCLA, Inc, (TCLA), and David A. Pedersen (Pedersen), for Landscape Architect Services. The term of the existing agreements will expire on January 31, 2013. If the amendments are approved, the term will be extended for two years and the funding limit increased to $250,000 allowing staff to assign additional landscape architectural services to the consultants. RECOMMENDATIONS: 1. Approve Amendment No, 1 to the April 29, 2011, On -Call Professional Services Agreement with TCLA to extend the term until January 31, 2015, increase the contract limit to $250,000 for continuing on -tail landscape architectural services and authorize the Mayor and City Clerk to execute the Amendment. 2. Approve Amendment No. 1 to the April 11, 2011, On -Call Professional Services Agreement with Pedersen to extend the term until January 31, 2015, increase the contract limit to $250,000 for continuing on -call landscape architectural services and authorize the Mayor and City Clerk to execute the Amendment. FUNDING REQUIREMENTS: Funding for these consultants will be paid from the individual capital improvement project budgets at the time of project implementation. Page 1 of 14 aC Approval of Amendment No. 1 to the On -Call Professional Services Agreements with TCLA, Inc., and David A. Pedersen January 22, 2013 Page 2 DISCUSSION: In order to decrease staff time and reduce cost, while at the same time deliver capital projects in a timely manner, the Public Works Department retains on -call consultants for various professional services such as Surveying, Geotechnical, Civil and Traffic Engineering and Landscape Architecture. On -call consultants are selected through a formal process to identify the most qualified firms who provide the necessary services. With respect to Landscape Architectural services, the City entered into On -Call Professional Services Agreements in April 2011 with TCLA and Pedersen. Both firms have provided exceptional services in an expeditious manner. The original agreements expire on January 31, 2013. Staff recommends extending the term of the agreements for two additional years to January 31, 2015. Staff also recommends increasing the maximum amount of compensation to the consultants from $120,000 to $250,000 throughout the term of the agreements. The current fee schedule for each consultant will remain unchanged. ENVIRONMENTAL REVIEW: Environmental clearances will be completed for each Capital Improvement Project. NOTICING: The agenda item has been noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). Public Works Director /Qity Engineer Attachments: A. Amendment No, 1 to On Cali Agreement with TCLA, Inc. B. Amendment No. 1 to On Cali Agreement with David A. Pedersen Page 2 of 14 ATTACHMENT A AIVIFNDMENT NO. ONE TO ON -CALL DESIGN PROFESSIONAL SERVICES AGREEMENT WITH TCLA, INC. FOR ON-CALL LANDSCAPE ARCHITECT SERVICES THIS AMENDMENT NO. ONE TO ON -CALL AGREEMENT FOR PROFESSIONAL SERVICES ( "Amendment No. One") 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 TCLA, inc., a California corporation ("Consultant"), whose address Is 1340 Reynolds Ave., Suite 103, Irvine, CA 92814 and is made with reference to the following: RECITALS A. On April 28, 2011, City and Consultant entered into a Professional Services Agreement ( "Agreement') for on -call assistance for landscape architecture services ( "Project'). B. City desires to enter into this Amendment No. One to extend the term of the Agreement to January 31, 2015, to increase the total compensation and update insurance requirements. C. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: TERM Section 1 of the Agreement shalt be amended in its entirety and replaced with the following: The term of this Agreement shall commence on the April 29, 2011, and shall terminate on January 31, 2015 unless terminated earlier as set forth herein. 2. COMPENSATION TO CONSULTANT Section 4 of the Agreement shall be amended in its entirety and replaced with the following: City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and Incorporated herein by reference. Consultants compensation for all Services performed In accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Fifty Thousand Dollars and 001100 ($230,000.00) 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. 3. INSURANCE Section 14 of the Agreement shall be amended in its entirety and replaced with the following: Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own Page 3 of 14 ATTACHMENT A expense during the tern of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terns and conditions described in the insurance Requirements attached hereto as Exhibit R, and incorporated herein by reference. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shalt remain unchanged and shall be In full force and effect, [SIGNATURES ON NEXT PAGE] TCLA, Inc. P,ag @age 4 of 14 ATTACHMENT A IN WITNCSS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITYATTOIRNEY'S OFFICE Aaron C. Hat City Attorney ATTEST: By Lellani i. Brown City Clerk Attachments: A1z -00171 CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Keith Curry Mayor CONSULTANT: TCLA, [no, a California corporation Date: By: Joe Varonin PresldenttSecretary [END OF SIGNATURES] Exhibit B — insurance Requirements TCLA, Inc. PagMgg 5 at 14 ATTAACHMENT A EXHIBIT T B 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 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 Ciass)AI (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 Wori<ers' Compensation Insurance. Consultant shall maintain Workers' Compensation insurance, statutory limits, and Employer's Liability insurance with limits of at least one million dollars ($9,000,000) 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 i iabllity 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 activlties 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. ATTACHMENT A 1.3.4 Professignal Liability (Errors & Omissions) Insurance. Consultant shall maintain professional liability Insurance that covets 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: 9.4.1 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 Iiablilty, 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 Contributont. 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 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. Currant 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 ail required Insurance policies, at anytime. 9,52 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 David A. Pedersen Page of 14 ATTACHMENT A 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 Proylsjons. 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 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. 1.5,8 City Remedies for Non Comptianco if Consultant or any subconsultant falls 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. of 14 David A. Pedersen Page E - ATTACHMENT B AMENDMENT NO. ONE TO ON -CALL D) SIGN PROFESSIONAL SERVICES AGREEMENT WITI-I DAVID A. PEDERSEN FOR ON -CALL. LANDSCAPE ARCHITECT SERVICES THIS AMENDMENT NO. ONE TO ON -CALL AGREEMENT FOR PROFESSIONAL SERVICES ( "Amendment No. One ") 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 David A. Pedersen, a sole proprietor ( "Consultant), whose address is 20271 Acacia, Suite 120, Newport Beach, CA 92660 and is made with reference to the following: RECITALS A. On April 12, 2011, City and Consultant entered into a Professional Services Agreement ( "Agreement ") for on -call assistance for landscape architecture services ( °Projecf). 13. City desires to enter into this Amendment No, One to extend the term of the Agreement to January 31, 2015, to increase the total compensation and update Insurance requirements. C. City and Consultant mutually desire to amend the agreement, as provided below. NOW, THEREFORE, it Is mutually agreed by and between the undersigned parties as follows: 1. TERM Section 1 of the Agreement shall be amended in Its entirety and replaced with the following: The term of this Agreement shall commence on the April 12, 2011, and shall terminate on January 31, 2015 unless terminated earlier as set forth herein. 2. COMPENSATION TO CONSUI -TAN T Section 4 of the Agreement shall be amended in its entirety and replaced with the following: City shall pay Consultant for the Services on a time and expense not -to- exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit A and incorporated herein by reference. Consultant's compensation for all Services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred fifty Thousand Dollars and 001100 ($250,000.00) 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, 3. INSURANCE Section 14 of the Agreement shall be amended in its entirety and replaced with the following: Without limiting Consultant's Indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own Page 9 of 14 expense during the term of this Agreement or for other periods as specified In this Agreement, policies Of insurVnce of file type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit B, and incorporated herein by reference. 4. INTEGRATED CONTRACT Except as expressly modified herein, all other provisions, terms, and covenants set forth in the Agreement shall remain unchanged and shall be in full force and effect. [SIGNATURES ON NEXT PAGE] David A. Pedersen Pagbap 10 of 14 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY A NEWS OFFICE Date: Aaron C. Harp pip City Attorney 1f�l CITY OF NEWPORT BEACH, A California municipal corporation Date: By: Keith Curry Mayor ATTEST: CONSULTANT: David A. Pedersen, Date: sole proprietor Date: By :_ _ .._ Leflanl I. Brown City Clerk Attachments: All -00M By: David A, Pedersen Sole Proprietor [END OF SIGNATURES] Exhibit B — Insurance Requirements David A. Pedersen Pa g%6311 of 14 EXHIBIT S 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 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. Ali 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 Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 1.3 Coverage Reauirements. 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. 13.1.1 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 feast 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- oompleted 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. David A. Pedersen _ Page12 of 14 1.3.4 Professional Liability (Enors 4 Omissions) Insurance. Consultant shaft maintain professional liability insurance that covers the Services to be performed In connection with this Agreement, in the minhnum 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 Reguirements. The policies are to contain, or be endorsed to contain, the following provisions: 4.4.1 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. 1.43 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 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 CltVs 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 s or �a David A. Pedersen Pao M such change. If such change results in substantial additional cost to the Consultant, the City and Consultant may renegotiate Consultant's compensation. 9.5.9 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. 9.5,4 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 Seif- 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. 1.5.8 Citv Remedies for Non Comollance 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. 1.5,5 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. 4 of 14 David A. Pedersen NMI- y Brown, From: Laura Curran [lauracurran @me.comj Sent: Tuesday, January 22, 2013 12:00 PM To: Dept - City Council; dsinacori @newportbeachca.gov; Webb, Dave (Public Works) Cc: Kift, Dave; Brown, Leilani Subject: Questions re Approval of Amendment No.1 to the On-Call Professional Services Agreements with TCLA, Inc„ and David A. Pedersen Please include in the Public Record for the 1/22 Council Meeting. To the City Council & City Staff: Re Agenda Item 4 Approval of Amendment No.1 to the On-Call Professional Services Agreements with TCLA, Inc., and David A. Pedersen This Agenda item calls for an increase in the Professional Landscaping contract for 2 contractors, as per report: Staff also recommends increasing the maximum amount of compensation to the consultants from $120,000 to $250,000 throughout the term of the agreements. The current fee schedule for each consultant will remain unchanged." The Report does not discuss or describe: 1. what projects they have worked on previously 2. what projects they will be assigned to 3. how many City Staff will be working on related projects, who will supervise these contractors, and why Contractors are required instead of City Staff Can you please direct me to where this information is available. Thank you Laura Curran s ON -CALL PROFESSIONAL SERVICES AGREEMENT WITH TCLA, INC. FOR ON -CALL LANDSCAPE ARCHITECTURE SERVICES THIS ON -CALL PROFESSIO L SERVICES REEMENT ( "Agreement') is made and entered into as of thisc� May of , 2011, by and between the CITY OF NEWPORT BEACH, a Municipal C rporation ( "City "), and Total Concept Landscape Architecture, Inc., a California Corporation doing business as ( "DBA ") TCLA, Inc., whose address is 1340 Reynolds Ave., Suite 103, Irvine, CA 92614 ( "Consultant'), and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City has a need for on -call assistance for landscape architecture services C. City desires to engage Consultant to perform on -call landscape architecture services throughout the City on an as need basis ( "Project'). D. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the services described in this Agreement. E. The principal member of Consultant for purposes of Project, shall be Joe Varonin. F. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned Parties as follows: 1. TERM The term of this Agreement shall commence on the above written date, and shall terminate on the 31St day of January, 2013, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall provide "On -Call' landscape architecture services as described in the Statement of Qualifications attached as Exhibit "A." Upon verbal or written request from the Project Administrator, Consultant shall provide a letter proposal for services requested by the City (hereinafter referred to as the "Letter Proposal "). The Letter Proposal shall include the following: A. A detailed description of the services to be provided; B. The position of each person to be assigned to perform the services, and the name of the individuals to be assigned, if available; C. The estimated number of hours and cost to complete the services; and D. The time needed to finish the specific project. No services shall be provided until the Project Administrator (as defined below in Section 6) has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE Time is of the essence in the performance of services under this Agreement and the services shall be performed to completion in a diligent and timely manner. The failure by Consultant to perform the services in a diligent and timely manner may result in termination of this Agreement by City. Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the services to be provided for the Project, each party hereby agrees to provide notice to the other party so that all delays can be addressed. 3.1 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator not later than ten (10) calendar days after the start of the condition that purportedly causes a delay. The Project Administrator shall review all such requests and may grant reasonable time extensions for unforeseeable delays that are beyond Consultant's control. 3.2 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by telephone, fax, hand - delivery or mail. 4. COMPENSATION TO CONSULTANT City shall pay Consultant for the services on a time and expense not -to- exceed basis, in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit "A" and incorporated herein by reference. No rate changes shall be made during the term of this Agreement without the prior written approval of the City. Consultant's compensation for services performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed the fees identified in the Letter Proposal, as approved by the Project Administrator. Total compensation paid to Consultant during the term of this Agreement shall not exceed One Hundred Twenty Thousand Dollars and 00/100 ($120,000) without written amendment to the Agreement. 4.1 Consultant shall submit monthly invoices to City describing the work performed the preceding month. Consultant's bills shall include the name of the person and /or classification of employee who performed the work, a brief description of the services performed and/or the specific task in the letter proposal to which it relates, the date the services were performed, the number of hours spent on all work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) days after approval of the monthly invoice by City staff. 4.2 City shall reimburse Consultant only for those costs or expenses specifically approved in the Letter Proposal. Unless otherwise approved, such costs shall be limited and include nothing more than the following costs incurred by Consultant: A. The actual costs of subconsultants for performance of any of the services that Consultant agrees to render pursuant to this Agreement and the Letter Proposal, which have been approved in advance by City and awarded in accordance with this Agreement. B. Approved reproduction charges. C. Actual costs and /or other costs and /or payments specifically authorized in advance in writing and incurred by Consultant in the performance of this Agreement. 4.3 Consultant shall not receive any compensation for Extra Work without the prior written authorization of City. As used herein, "Extra Work" means any work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Letter Proposal and which the parties did not reasonably anticipate would be necessary. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates set forth in Exhibit B. 5. PROJECT MANAGER Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Harry Kobzeff to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 6. ADMINISTRATION This Agreement will be administered by the City's Public Works Department. Michael Sinacori, Assistant City Engineer, or his designee, shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator or an authorized representative shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES In order to assist Consultant in the execution of its responsibilities under this Agreement, City agrees to, where applicable: A. Provide access to, and upon request of Consultant, one copy of all existing relevant information on file at City. City will provide all such materials in a timely manner so as not to cause delays in Consultant's work schedule. B. Provide usable life of facilities criteria and information with regards to new facilities or facilities to be rehabilitated. 8. STANDARD OF CARE 8.1 All of the services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the services required by this Agreement, and that it will perform all services in a manner commensurate with community professional standards. All services shall be performed by qualified and experienced personnel who are not employed by City, nor have any contractual relationship with City. By delivery of completed work, Consultant certifies that the work conforms to the requirements of this Agreement and all applicable federal, state and local laws and the professional standard of care. TCLA, Inc. 8.2 Consultant represents and warrants to City that it has or shall obtain all licenses, permits, qualifications, insurance and approvals of whatsoever nature that are legally required of Consultant to practice its profession. Consultant further represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any and all licenses, permits, insurance and other approvals that are legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, or acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties) from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or the acts or omissions of its principals, officers, agents, employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them. Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 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 TCLA, Inc. statute, rule or regulation and the expressed terms of this Agreement. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator and/or his /her duly authorized designee informed on a regular basis regarding the status and progress of the work, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work. Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement, a policy or policies of liability insurance of the type and amounts described below and in a form satisfactory to City. A. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City as evidence of the insurance coverage required herein. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance or issuance of any permit. Current certification of insurance shall be kept on file with City's at all times during the term of this Agreement. B. Signature. A person authorized by the insurer to bind coverage on its behalf shall sign certification of all required policies. TCLA, Inc. C. Acceptable Insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. D. Coverage Requirements. 1. Workers' Compensation Coverage. Consultant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance for his or her employees in accordance with the laws of the State of California. In addition, Consultant shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employers Liability Insurance in accordance with the laws of the State of California for all of the subcontractor's employees. Any notice of cancellation or non - renewal of all Workers' Compensation policies must be received by City at least thirty (30) calendar days (10 calendar days written notice of non- payment of premium) prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. 2. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury, and property damage, including without limitation, contractual liability. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement, or the general aggregate limit shall be at least twice the required occurrence limit. 3. Automobile Liability Coverage. Consultant shall maintain automobile insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with work to be performed under this Agreement, including coverage for any owned, hired, non -owned or rented vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit for each occurrence. 4. Professional Errors and Omissions Insurance. Consultant shall maintain professional errors and omissions insurance, which covers TCLA, Inc. the services to be performed in connection with this Agreement in the minimum amount of one million dollars ($1,000,000). E. Endorsements. Each general liability and automobile liability insurance policy shall be endorsed with the following specific language: The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insureds with respect to liability arising out of work performed by or on behalf of the Consultant. 2. This policy shall be considered primary insurance as respects to City, its elected or appointed officers, officials, employees, agents and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Consultant's operations or services provided to City. Any insurance maintained by City, including any self- insured retention City may have, shall be considered excess insurance only and not contributory with the insurance provided hereunder. 3. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company. 4. The insurer waives all rights of subrogation against City, its elected or appointed officers, officials, employees, agents and volunteers. 5. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to City, its elected or appointed officers, officials, employees, agents or volunteers. 6. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage or in limits, by either party except after thirty (30) calendar days (10 calendar days written notice of non - payment of premium) written notice has been received by City. F. Timely Notice of Claims. Consultant shall give City prompt and timely notice of claim made or suit instituted arising out of or resulting from Consultant's performance under this Agreement. G. Additional Insurance. Consultant shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. TCLA, Inc. 15. PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS Except as specifically authorized under this Agreement, the services to be provided under this Agreement shall not be assigned, transferred contracted or subcontracted out without the prior written approval of City. Any of the following shall be construed as an assignment: The sale, assignment, transfer or other disposition of any of the issued and outstanding capital stock of Consultant, or of the interest of any general partner or joint venturer or syndicate member or cotenant if Consultant is a partnership or joint - venture or syndicate or cotenancy, which shall result in changing the control of Consultant. Control means fifty percent (50 %) or more of the voting power, or twenty - five percent (25 %) or more of the assets of the corporation, partnership or joint- venture. 16. SUBCONTRACTING The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express written consent of City. Consultant shall not subcontract any portion of the work to be performed under this Agreement without the written authorization of City. 17. OWNERSHIP OF DOCUMENTS Each and every report, draft, map, record, plan, document and other writing produced (hereinafter "Documents "), prepared or caused to be prepared by Consultant, its officers, employees, agents and subcontractors, in the course of implementing this Agreement, shall become the exclusive property of City, and City shall have the sole right to use such materials in its discretion without further compensation to Consultant or any other party. Consultant shall, at Consultant's expense, provide such Documents to City upon written request. Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed documents for other projects and any use of incomplete documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 18. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the services in this Agreement, shall be kept confidential unless City authorizes the release of information. TCLA. Inc. 19. RECORDS Consultant shall keep records and invoices in connection with the work to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement. All such records shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records during regular business hours. Consultant shall allow inspection of all work, data, documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment under this Agreement. 20. WITHHOLDINGS City may withhold payment of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or his designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 21. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the work accomplished by Consultant, the additional design, construction and /or restoration expense shall be borne by Consultant. Nothing in this paragraph is intended to limit City's rights under any other sections of this Agreement. 22. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 23. CONFLICTS OF INTEREST The Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act'), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 24. NOTICES All notices, demands, requests or approvals to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first -class mail, addressed as hereinafter provided. All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Michael Sinacori Public Works Department City of Newport Beach PO Box 1768 3300 Newport Boulevard Newport Beach, CA 92658 -8915 Phone: 949 - 644 -3342 Fax: 949 - 644 -3308 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Joe Varonin TCLA, Inc. 27905 Smythe Drive Valencia, CA 91355 Phone: 661 - 702 -1011 Fax: 661 - 702 -0293 25. TERMINATION In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance bf due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, the non - defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. - - - -- --- — -------------------------------------------- - - - - -- Notwithstanding the above provision, City shall have the right, at its sole discretion and without cause, of terminating this Agreement at any time by giving seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 26. CLAIMS The Consultant and the City expressly agree that in addition to any claims filing requirements set forth in the Contract and Contract documents, the Consultant shall be required to file any claim the Consultant may have against the City in strict conformance with the Tort Claims Act (Government Code sections 900 et seq.). 27. COMPLIANCE WITH ALL LAWS Consultant shall at its own cost and expense comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all work prepared by Consultant shall conform to applicable City, county, state and federal laws, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28. WAIVER A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 29. INTEGRATED CONTRACT This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 30. CONFLICTS OR INCONSISTENCIES In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. TCLA, Inc. 31. AMENDMENTS This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney. 32. SEVERABILITY If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 33. INTERPRETATION. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 34. CONTROLLING LAW AND VENUE The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 35. EQUAL OPPORTUNITY EMPLOYMENT Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. TCLA, Inc. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: OFFICYO� T F� CITY ATTORNEY BMJ � 1 (�-- Leonie Mulvihill Assistant City Attorney ATTEST: Date: 3— /_/1 y. 29)" ni .Brown City Clerk CITY OF NEWPORT BEACH, A California municipal corporation Date: By: C'_- VL A Dave iff City Manager CONSULTANT: Total Concept Landscape Architecture, Inc. dba TCLA, Inc., a California Corporation Date: n i Byy Jonin Pr Attachment: Exhibit A — Statement of Qualifications and Schedule of Billing Rates TCLA, Inc. .i TCLA, Inc. Landscape Architecture Joe Vamnm ASLA .CLIACA #1737 AZ #13616 NV #206 TX #1180 Environmental Planning Harry Kobzeff ASLA CA #1777 Corporate Office: Irvine Office: 27905 Smyth Drive 1340 Reynolds Ave Suite 103 Valencia. CA 91355 -4304 Irvine, CA 92614 -5551 PH 661 - 702 -1011 PH 949- 250 -1615 . FX 661 - 702 -0293 FX 949 -250 -1801 December 17. 2010 Mr. Michael Sinacori, P.E. Principal Civil Engineer City of Newport Beach 3300 Newport Boulevard Newport Beach, CA 92658 -8915 . Subject: Proposal for On -Call Landscape Architecture Services Dear Michael: We are pleased to submit the following proposal for On -Call services to the City of Newport Beach. It has been our pleasure to have served the City since our original contract of June 2006. -! • By way of introduction, TCLA, Inc. has two offices; our corporate office in Valencia and our . I Orange County office. Believing in staying close to our clients we will be managing this project through our Orange County office. Our office location is as follows: `� •.� TCLA, Inc. 1340 Reynolds Avenue, Suite 103 ' Irvine, CA 92614 r (949) 250 -1615 _ Mr. Harry Kobzeff will be the Principal in Charge of all work and will be involved personally involved in all aspects of work. [ Mr. Joe Varonin is Managing Principal, located in our Valencia office. As President, he will be the person who will be the contact person for use in the Agreement. His address and specifics are: ' Joe Varonin TCLA, Inc. .'27905 Smyth Drive Valencia, CA 91355 Ph: 661-702-1011 joe@tclainc.com e TCLA, Inc. has been involved with numerous park and public works projects as well as renovation projects. We have renovated play equipment areas for Los Angeles County Parks as well as the renovation of ebsting park restroom and park lighting facilities. Our projects also include numerous streetscape and public works facilities. We are involved with many water district and city corporate yard facilities as well as booster pump and reservoir sites. We are familiar with municipal grant and capital improvement projects from Palmdale to Blythe. .I Mr. Michael Sinacon November 17, 2010 On -Call Landscape Architecture Services Page 2 . We have also been heavily involved with recreation projects for colleges throughout southern California. Football stadium fields, baseball and softball fields, practice fields, artificial and natural grass venues have all been within our scope of work contracts. We have also been heavily involved with plaza design and general new building landscape and irrigation design. TCLA, Inc. believes in Principal involvement in the production of documents. We do not believe in N handing projects down to unqualified staff, while office Principals are developing business plans. Both of our Principals are actively involved in our projects from design through the final site visit. We enjoy this type of work, and becoming part of a team with Public Works, Recreation, Community, Services, General Services and Maintenance personnel to best develop projects that project the City's image and assist the personnel who need to maintain it. We also enjoy working . with the public and making presentations to Staff and any Design Review Boards. TCLA, Inc. is very pro - active with sustainable landscapes a ater conservation measures. Mr. Varonin is a Certified Landscape Irrigation Audihorand a meoer of Rainbird's Irrigation Design . Board dedicated to developing the best technology and sys or water conservation in landscapes. We have performed work on many Water Distri §"d Agencies, providing not only fine landscape design for the facilities, but public educational facilitiegregarding types of low -flow irrigation systems and sustainable, low -water use'j7lant materials. TCLA, Inc. has worked with the Newport Beach Public Works department on numerous past projects including many with citizen group involvement. We have prditidedservioes on reservoir slopes, streetscapes, medians, community centers and:dther miscellaneous projects. We believe in being very detailed within our plans which reduces change orders and assists in keeping project schedules intact. .c. We also continue to provide in -house irrigation design. We do not "ship -out" our irrigation to outside consultants. We believe in a comprehensive design approach where we have a working knowledge of all aspects of landscape design. With the new water conservation ordinances.and "smart" irrigation equipment, we believe the landscape designer, should have a working knowledge r of irrigation types and equipment. We also like not having to be tied to another- firms time constraints. We enjoy having a good working relationship with Tom Diaz, the City Irrigation Specialist, and working with him to achieve the best irrigation systems for long -term use and maintenance. r lul !n C wo ul r 1 N We have enjoyed our relationship with Dan Sereno and Kevin Pekar in General Services. Together, we have been trying new plant material types for lowerwater use anti aesthetic value. ' c They provide us with good information as to the practicality, of our landscape -designs. _nt. 1.0 LOCAL STAFFING LIST Due to the economy downturn of the last several, years, w lo+ last year. We are currently providing Principal si Kiees -Sly w economy. We still are able however to share work between ofl been the case. We do have several part-tinge employees that as well. F ;' All work will be done within the Irvine Office. Th6 =1iVi following personnel, who will be the only staff working ii C. • Harry H. Kobzeff ASIA, - Principal in Cgarge le' �1 l -c file we ides as I1 provide�jw 67TCL7ti¢:I it�of �4 F .stir. 'IV, K ;y s. t•: has,chang t.withinthe !it ariaupturt in the". zssa�y as djas always .; witlias- needed services T... iya, oar ,, : .d''u:. is � ic. onsisfi rbf this >ori4*achWp bi*: ..s nth. .,t ,n P. .edge: s per: •: r :i v ■ ® Mr. Michael Sinacori November 17, 2010 On -Call Landscape Architecture Services Page 3 ® Mr. Kobzeff will be in charge of all design, construction documentation and construction observation activities. He will oversee and perform all drawing and cost estimation. He also will be responsible for all meeting attendance. 2.0 ADVANCE NOTICES We have no new advance notice requirements for projects. We have performed on a timely basis in the past and will continue to give the City the best service we can. We will notify the City if we believe deadlines are not achievable prior to accepting any new project. Due to the lag in new construction, we have the ability to accept projects on short notice. We can add new staff at any . time as needed for project acceleration. . 3.0 FEE SCHEDULE The following fee schedule will be current for the City of Newport Beach for the period from December 2010 through December 2012. Any project with a signed contract during this period will be held to these fee rates, even if the contract period extends past December 2012. • Managing Principal $160.00 1hour Principal in Charge $140.00 /hour • Project Manager $120.00 /hour • Job Captain $ 85.00 /hour • Professional Staff $ 65.00 /hour Thank you for allowing us this opportunity to extend our contract with the City of Newport Beach . for another two years. . Should you have.any questions, please feel free to call us. Landscape Architects are regulated by the state of California. Any Questions concerning a Landscape Architect may be referred to the Landscape Architects Technical Committee at: Landscape Architects Technical Committee, 400 R Street, #4000, Sacramento, CA 95614 (916) 575 -7230. Cordially, TCLA, Inc. Harry H. Kobzeff A.S.L.A. 1 Principal CA#1777 Landscape Architects are regulated by the state of California. Any Questions concerning a Landscape Architect may be referred to the Landscape Architects Technical Committee at: Landscape Architects Technical Committee, 400 R Street, #4000, Sacramento, CA 95614 (916) 575 -7230. .i ORDF CERTIFICATE OF LIABILITY INSURANCE DP ID ?Qf �-� TCIAI -1 04/01 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATIO ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE (OC) Heffernan Prof, Practices HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 1855 W. Katella Ave. #255 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOV Orange CA 92867 Phone: 714- 997 -8100 Fax:714- 460 -9935 INSURERS AFFORDING COVERAGE NAICq INSURED INSURER Tuvolora indemnity Ccmpeny INSURER B fns Employers FLre fea. Co., 20648 TCLA Inc. INSURERC: 27901 Smyth Dr. INSURER O. Valencia, CA 91355 -4304 INSURER ' COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAI.IEO 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 POLICES. AGGREGATE LIMITS SHOWN MAY HAVE SEEN REDUCED BY PAID CLAIMS, LTR NSft TYPE OF IN POLICY NUMBER pp EE MMMD� D TE MIODIYYYY LIMBS GENERAL LIABILITY EACHOCCURRENCE $2,000,000 PREMISES(Eaoew,encef $1,000,000 A X C�IMERCIALGENERALLIABILITY 6607550X473 04/14/11 04/14/12 CLAIMSMADE [g]OCCUR MEDEXP("onspenw), $10,000 PERSONALSADVWJURY s2,000,000 _ GENERAL AGGREGATE 34,000,000 GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS AEG $4,000 000 POLICY X PRO- JECT LOG AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT s INCL IN GL ANYAUTO (Ea ar nl) m BODILY INJURY S ALL OWNED AUTOS SCHEDULEDAUTOS (Pa P..) X BODILY INJURY A HIREDAUTOS 6807550X473 04/14/11 04/14/12 X NON-OWNEO AUTOS (Per arcidenl) S PROPER TY DAMAGE S _ (Per emiOnl) GARAGEUASHJTY AUTO ONLY - EA ACCIDENT S OTHERTHAN EAACC S ANY AUTO N/A 5 AUTO ONLY: AGO EXCESS J UMBRELLA LIABILITY EACH OCCURRENCE $ OCCUR CLAIMS MADE AGGREGATE S 5 S DEDUCTIBLE $ RETENTION S WORKERS COMPENSATION - TORY LIMITS ER ANDEMPLOYERS'LIABILITY YIN E.L. EACH ACCIDENT S ANYPROPRIETORIPARTNER/EXECUTNTO N/A OFFICERIMEMSEREXCLUDEDI LJ E.L. DISEASE - EA eMPLOYEEI S (Mandatory In NH) If ee,deaaib.0 w S CI AL PROVISIONS below -- -'—' El OISFASE� POLICYLIMIT S OTHER B PROFESSIONAL DPLO63111 04/14/11 04/14/12 PER CLAIM $1,000,000 LIABILITY AGGREGATE $2,000,000 DESCRIPTION OF OPERATIONS I LOCATIONS f VEHICLES I EXCLUSIONS ADDEO BY ENDORSEMENT I SPECIAL PRONSIONS *10 DAYS NOTICE FOR NON- PAYMENT OF PREMIUM. PROJECTS AS ON FILE WITH THE INSURED INCLUDING BUT NOT LIMITED TO PROFESSIONAL SERVICES AGREEMENT FOR ON -CALL LANDSCAPE ARCHITECTURAL DESIGN SERVICES. CITY OF NEWPORT BEACH, ITS ELECTED OR APPOINTED OFFICERS, OFFICIALS, EMPLOYEES AGENTS & VOLUNTEERS ARE NAMED AS ADDITIONAL INSUREDS AND PRIMARY CLAUSE AND WAIVER OF SUBROGATION V CR111'NMIG rfVAVGR SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL Defer GMBR TD MAIL 30* DAYS WRrrn N NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, CITY OF NEWPORT BEACH PUBLIC WORKS DEPT. y� ATTN: SHAUNA OYLER P.O. BOX 1768 AUTHORI ENTATIVE NEWPORT BEACH CA 92658 -8915 ACAon 95 f9nnninil 41 9RR•2009 ACORD CORPORATION. All dente reserved. The ACORD name and logo are reglstered marks of ACORD NQTEPAD:: _ HDLDER CODE TCLAI -1 .INSURER'S NAM9 . TCLA, Ina . , . .. ..OP ID Q8 DATE APPLIES TO THE GENERAL LIABILITY POLICY -SEE ATTACHED ENDORSEMENTS. THIS PAGE LEFT BLANK INTENTIONALLY IMPORTANT If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER This Certificate of Insurance does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 26 (2009101) POLICY NO.: 6807550X473 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 ". 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 staled 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 by you before, and in effect when, the "bodily CG D3 8109 07 © 2007 The Travelers Companies, Inc. Page 1 of 2 Includes copyrighted material of Insurance Services Office, Inc., with its permission. injury" or "property damage" occurs, or the "personal injury" offense is committed. D. 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 01 09 07 C 2007 The Travelers Companies, Inc. Page 2 of 2 Includes copyrighted material of Insurance Services Office, Inc., with its permission. [DR5,CS] PRINTED : 04 -26 -2011 (REV.8-2010) CERTHOLDER COPY SC P.O. BOX 420807, SAN FRANCISCO,CA 94142 -0807 CERTIFICATE OF WORKERS' COMPENSATION INSURANCE ISSUE DATE: 04 -26 -2011 CITY OF NEWPORT BEACH SC PUBLIC WORKS DEPARTMENT 3300 NEWPORT BLVD NEWPORT BEACH CA 92663 -3816 GROUP: POLICY NUMBER: 1153939 -2011 CERTIFICATE ID: 171 CERTIFICATE EXPIRES: 01-01 -2012 01- 01- 2011/01 -01 -2012 THIS CERTIFICATE SUPERSEDES AND CORRECTS CERTIFICATE # 170 DATED 03 -09 -2011 JOB:ALL CALIFORNIA OPERTIONS This is to certify that we have issued a valid Workers' Compensation insurance policy in a form approved by the California Insurance Commissioner to the employer named below for the policy period indicated. This policy is not subject to cancellation by the Fund except upon 30 days advance written notice to the employer. We will also give you 30 days advance notice should this policy be cancelled prior to its normal expiration. This certificate of insurance is not an insurance policy and does not amend, extend or alter the coverage afforded by the policy listed herein. Notwithstanding any requirement, term or condition of any contract or other document with respect to which this certificate of insurance may be issued or to which it may pertain, the insurance afforded by the policy described herein is subject to all the terms. exclusions, and conditions, of such policy. 1'w)Wi. Few Authorized Representative President and CEO EMPLOYER'S LIABILITY LIMIT INCLUDING DEFENSE COSTS: $1,000,000 PER OCCURRENCE ENDORSEMENT #0015 ENTITLED ADDITIONAL INSURED EMPLOYER EFFECTIVE 2011 -04 -26 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. NAME OF ADDITIONAL INSURED: CITY OF NEWPORT BEACH ENDORSEMENT #1600 - JOSEPH A. VARONIN P,S T - EXCLUDED. ENDORSEMENT #2065 ENTITLED CERTIFICATE HOLDERS' NOTICE EFFECTIVE 01 -01 -2004 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. ENDORSEMENT #2570 ENTITLED WAIVER OF SUBROGATION EFFECTIVE 2011 -04 -26 IS ATTACHED TO AND FORMS A PART OF THIS POLICY. THIRD PARTY NAME: CITY OF NEWPORT BEACH EMPLOYER TOTAL CONCEPT LANDSCAPE ARCHITECTURE INC. 27905 SMYTH DR VALENCIA CA 91355 SC (DR5,CS1 PRINTED : 04 -26 -2011 IREV.8-2010 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. Date Received: 4 -19 -1I Dept. /Contact Received From: Date Completed: 4-19-11. Shauna Sent to: Shauna By: Joel Company /Person required to have certificate: Inc. GENERAL LIABILITY A. INSURANCE COMPANY: Travelers Indemnity Company B. AM BEST RATING (A-: VII or greater): A +: XV C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1M or greater): What is limit provided? $2M Occi$4M Aggregate E. PRODUCTS AND COMPLETED OPERATIONS (Must include): Is it included? (completed Operations status does not apply to Waste Haulers) ® Yes ❑ No F. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No G. PRIMARY & NON - CONTRIBUTORY WORDING (Must be included): Is it included? ® Yes ❑ No CAUTION! (Confirm that loss or liability of the named insured is not limited solely by their negligence) Does endorsement include "solely by negligence' wording? ❑ Yes ® No NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. Insurer will mail. AUTOMOBILE LIABILITY A. INSURANCE COMPANY: Travelers Indemnity ComDan B. AM BEST RATING (A-: VII or greater) A +: XV C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1M min. BI & PD and $500,000 UM, $2M min for Waste Haulers): What is limits provided? CSL included with G.L. E. PRIMARY & NON - CONTRIBUTORY WORDING (For Waste Haulers only): Is it included? NIA ❑ Yes ❑ No F. NOTIFICATION OF CANCELLATION: Although there is a provision that requires notification of cancellation by certified mail; per Lauren Farley, the City will accept the endeavor wording. Insurer will mail. Ili. WORKERS' COMPENSATION A. INSURANCE COMPANY: State Fund B. AM BEST RATING (A -: VII or greater). C. LIMITS: Statutory D. WAIVER OF SUBROGATION (To include): Is it included? ❑ Yes ® No HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Need Work Comn waiver of subrogation for anoroval. which is i one Approved: At r Age liant lnsuran a Servicdsl Da Broker of record for the City of Ne port Beach ❑ Requires approvallexceptionlwaiver by Risk Management B &B initials Comments: Approved: Management Date ❑ Yes ® No