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HomeMy WebLinkAboutC-5876 - On-Call PSA for On-Call Structural Engineering ServicesS AMENDMENT NO. ONE TO C" ON-CALL PROFESSIONAL SERVICES AGREEMENT WITH MRH STRUCTURAL ENGINEERS, INC. FOR ON-CALL STRUCTURAL ENGINEERING SERVICES V THIS AMENDMENT NO. ONE TO ON-CALL PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 5th day of December, 2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and MRH STRUCTURAL ENGINEERS, INC., a California corporation ("Consultant"), whose address is 3400 Irvine Avenue, Suite 101, Newport Beach, California 92660, and is made with reference to the following: RECITALS A. On July 3, 2014, City and Consultant entered into a Professional Services Agreement ("Agreement") for on-call structural engineering services ("Project"). B. The parties desire to enter into this Amendment No. One to reflect an increase in the volume of Services not included in the Agreement and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. COMPENSATION TO CONSULTANT Section 4.1 of the Agreement is 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 B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Three Hundred Thirty Seven Thousand Five Hundred Dollars and 001100 ($337,500.00), without prior written authorization from City. No billing rate changes shall be made during the term of this Agreement without the prior written approval of City." The total amended compensation reflects Consultant's additional compensation for an increased volume of Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Sixty Seven Thousand Five Hundred Dollars and 00/100 ($67,500.00). 2. INDEPENDENT CONTRACTOR Section 10 of the Agreement is amended in its entirety and replaced with the following: "10.1 It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 10.2 Consultant agrees and acknowledges that no individual performing Services pursuant to this Agreement shall: work full-time for more than six (6) months; work regular part-time service of at least twenty (20) hours per week for one year or longer; work nine hundred sixty (960) hours in any fiscal year; or already be a CalPERS member." 3. 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] MRH Structural Engineers, Inc. Page 2 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTOOFFICE Date: I� N By: Aaron C. Harp µwv r�•a2 rte City Attorney ATTEST: Date: I CITY OF NEWPORT BEACH, a California municipal corporation Date: h{0 ll, By: cam_ C.V—A,_ Dave City Manager CONSULTANT: MRH Structural Engineers, Inc., a California corporation Date: 1z. ! l4I tCo By: Leilani I. Brown V Mohammad Hari, M.S., S.E. City Clerk President [END OF SIGNATURES] MRH Structural Engineers, Inc. Page 3 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 10/3/16 Dept./Contact Received From: Terresa Date Completed: 10/3/16 Sent to: Terresa By: Alicia Company/Person required to have certificate: MRH Structural Engineers, Inc. Type of contract: All Others I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 8/21/16-8/21/17 A. INSURANCE COMPANY: RLI Insurance Company B. AM BEST RATING (A-: VII or greater): A+:XI C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ® Yes ❑ No D. LIMITS (Must be $1 M or greater): What is limit provided? 1,000,000/2,000,000 E. ADDITIONAL INSURED ENDORSEMENT— please attach ® Yes ❑ No F. PRODUCTS AND COMPLETED OPERATIONS (Must (What is limits provided?) include): Is it included? (completed Operations status does F. PRIMARY & NON-CONTRIBUTORY WORDING (For Waste not apply to Waste Haulers or Recreation) ® Yes ❑ No G. ADDITIONAL INSURED FOR PRODUCTS AND G. HIRED AND NON -OWNED AUTO ONLY: COMPLETED OPERATIONS ENDORSEMENT (completed H. NOTICE OF CANCELLATION: Operations status does not apply to Waste Haulers) N Yes ❑ No H. ADDITIONAL INSURED WORDING TO INCLUDE (The City its officers, officials, employees and volunteers): Is it included? ® Yes ❑ No I. 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 N No K. ELECTED SCMAF COVERAGE (RECREATION ONLY): N N/A ❑ Yes ❑ No L. NOTICE OF CANCELLATION: ❑ N/A N Yes ❑ No H. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 8/21/16-8/21/17 A. INSURANCE COMPANY: RLI Insurance Company B. AM BEST RATING (A-: VII or greater) A+:XI C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? N Yes ❑ No D. LIMITS - If Employees (Must be $1M min. BI & PD and $500,000 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 N/A ❑ Yes ❑ No G. HIRED AND NON -OWNED AUTO ONLY: ❑ N/A N Yes ❑ No H. NOTICE OF CANCELLATION: 0 N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 8/21/16-8/21/17 A. B. C. D. E. F. G. H. INSURANCE COMPANY: RLI Insurance Company AM BEST RATING (A-: VII or greater): A:XI ADMITTED Company (Must be California Admitted): WORKERS' COMPENSATION LIMIT: Statutory EMPLOYERS' LIABILITY LIMIT (Must be $1 M or greater) WAIVER OF SUBROGATION (To include): Is it included? SIGNED WORKERS' COMPENSATION EXEMPTION FORM NOTICE OF CANCELLATION: ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED IV. PROFESSIONAL LIABILITY V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: ( I Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 10/3/16 Date ® Yes [-]No ® Yes ❑ No 1,000,000 ® Yes ❑ No ® N/A ❑ Yes ❑ No ❑ N/A ® Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® N/A ❑ Yes ❑ No ® Yes ❑ No RISK MANAGEMENT APPROVAL REQUIRED (Non -admitted carrier rated less than _; Self Insured Retention or Deductible greater than $ ) ❑ N/A ❑ Yes ❑ No Reason for Risk Management approval/exception/waiver: Approved: Risk Management * Subject to the terms of the contract. ,,:o ON-CALL PROFESSIONAL SERVICES AGREEMENT WITH MRH STRUCTURAL ENGINEERS, INC. FOR ON-CALL STRUCTURAL ENGINEERING SERVICES THIS ON-CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 3rd day of July, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and MRH STRUCTURAL ENGINEERS, INC., a California corporation ("Consultant'), whose address is 1411 N. Batavia St., Ste. 121, Orange, CA 92867, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide on-call structural engineering services ("Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. 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: The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Consultant shall perform the on-call services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Upon written request from the Project Administrator as defined herein, 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: 2.1.1 A detailed description of the Services to be provided; 2.1.2 The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; 2.1.3 The estimated number of hours and cost to complete the Services; 2.1.4 The time needed to finish the specific project. 2.2 No Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein 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. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Letter Proposal and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Seventy Thousand Dollars and 00/100 ($270,000.00), 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. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person MRH Structural Engineers, Inc. Page 2 who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement and the Letter Proposal or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B and the Letter Proposal. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Mohammad Hariri, M.S., S.E. to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Community Development. City's Principal Civil Engineer or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. MRH Structural Engineers, Inc. Page 3 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. U1l0[.]11911a1V7hII 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. MRH Structural Engineers, Inc. Page 4 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the MRH Structural Engineers, Inc. Page 5 term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 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 co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership orjoint-venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A and the Letter Proposal. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information to City upon prior written request. MRH Structural Engineers, Inc. Page 6 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 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 expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed MRH Structural Engineers, Inc. Page 7 sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Samir Ghosn, Principal Civil Engineer Community Development City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 MRH Structural Engineers, Inc. Page 8 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Mohammad Hariri, M.S., S.E. MRH Structural Engineers, Inc. 1141 N. Batavia St., Ste. 121 Orange, CA 92867 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. MRH Structural Engineers, Inc. Page 9 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 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. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. MRH Structural Engineers, Inc. Page 10 28.12 Counterparts, This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] MRH Structural Engineers, Inc. Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTQR/NE ' OFFICE Date: (� By: ' )C Aaron C. Harp City Attorney ATTEST: Date: 7 By: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: 7. • �`i By: Rush N. Hill, II Mayor CONSULTANT: MRH Structural Engineers, Inc., a California corporation Date: 7 l Zit ! 20 !• Mohamma ariri, M. S., S. E. President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements MRH Structural Engineers, Inc. Page 12 IWAem Mol MRH Structural Engineers, Inc. Page A-1 28, 2014 'Structural Engineers WORK PLAN — On -Call Structural Review MRH Consultants shall perform the following professional services requested by the City of Newport Beach: ❖ Provide thorough and quality code compliance plan reviews of complex structural design, according to all adopted codes and regulations including California Building Code, referenced documents, other related standards and the City of Newport Beach Municipal Code to include reviews of construction documents submitted to the City for: • Building permits • Structural portion(s) of other permits The above review shall include: • Review of structural plans for code compliance • Review analysis of all structural engineering calculations • Review of Geotechnical /Soil Reports and Ground Motion Hazard Analysis • Review of other technical reports as needed • Review of book specifications as needed • Review of Field Changes and Deferred Submittals • Review of additional work on projects as needed • Recheck of all plans and supporting documents through approval ❖ We will provide a written notification to each applicant, consisting of a complete electronically -generated plan check letter outlines and identify the documents reviewed, instructions to the applicant regarding the processing of documents, and a list of plan check comments. The plan check comments will refer to appropriate sheets, details or calculations pages and the code section of concern. Comments will specify the apparent code violation. ❖ The plan check correction list will meet all requirements of the City and we will meet any additional requirements that staff requests. We will be available during regular business hours to discuss and clarify plan check issues with applicants, designers, owners and consultants. ❖ We will be available to resolve any codes issues by telephone, or meetings prior to resubmitting corrected plans and documents. ❖ We will be available to meet with applicants in person for all required meetings as directed by the Chief Building Official. ❖ We will be available for pre -submittal meetings with applicants' design team on complex or major projects as requested. 12 April 28, 2014 MRH Structural Engineers WORK PLAN — On -Call Structural Review (Cont'd) ❖ Perform all plan checks with competent personnel qualified and experienced in the discipline to be reviewed. Reviews on structural plans for complex structures will be performed by a registered Structural Engineer. We will ensure all consultant team members assigned will possess relevant education, experience, and proficiency in all areas pertaining to residential, commercial, and industrial plan review. ❖ We will advise and consult with the Chief Building Official, or staff, regarding potentially unsafe conditions shown or not shown within plans that may not be specifically covered in code. Provide recommendations for discretionary decisions that must be made by the Building Official. ❖ Pick up plans at the City within a day of notification, maximum 24 hours. In most cases MRH plan checkers will personally pick up and drop off plans at the City. ❖ We will complete each plan check for typical, usual and non-complex projects within the following time: First Check: Ten (10) working days from submittal by applicant (Residential) Fifteen (15) working days from submittal by applicant (Commercial) Subsequent Checks: Five (5) working days Additional Services ❖ We will be available to provide additional plan review services on site at Newport Beach City Hall if requested, by the city of Newport Beach. ❖ If requested by the city of Newport Beach, MRH will be available to provide additional thorough and quality code compliance plan reviews according to all adopted and legislated codes and regulations including California Building Code, Mechanical Code, Plumbing Code, and Electrical Code; City of Newport Beach Municipal Code and the Accessibility and Energy Conservation requirements to include reviews of construction documents submitted to the City for: • Grading Permits • Mechanical permits • Electrical permits • Plumbing permits • Energy Compliance reviews 13 o MRH Structural Engineers, Inc. Page B-1 April 28, 2014 MRH Structural Engineers FEE SCHEDULE - ON-CALL STRUCTURAL REVIEW Plan Review Services — On -Call Structural Review ❖ MRH hourly rate for plan checks is $150.00 per hour. MRH hourly rates for on site plan checkers are: $120.00 per hour for a Structural Engineer (SE). $95.00 per hour for a Civil Engineer (CE). EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 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. 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. 3. Coverage Requirements. A. 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. 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. B. 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, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. 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 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. MRH Structural Engineers, Inc. Page C-1 D. 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 two million dollars ($2,000,000) 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. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. 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. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, 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. C. 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. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. 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. MRH Structural Engineers, Inc. Page C-2 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. 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. F. 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. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. MRH Structural Engineers, Inc. Page C-3 H. 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. MRH Structural Engineers, Inc. Page C-4 TO: FROM PREPARED BY: PHONE: TITLE: ABSTRACT: CITY OF NEWPORT BEACH City Council Staff Report July 8, 2014 Agenda Item No. 6 HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL Kimberly Brandt, Community Development Director — (949) 644-3226, kbrandt@newportbeachca.gov Seimone Jurjis, PE, CBO, Chief Building Official (949)644-3282 Building Inspection and Plan Review Services - Approval of Professional Services Agreements with VCA Code, JAS Pacific, and MRH Structural Engineers The Community Development Department recently completed a Request for Proposals for building inspection, plan review, and permit issuance services. Of the eight proposals submitted, staff is recommending VCA Code Group and JAS Pacific for two building inspectors, two plan check engineers, and one permit specialist. Additionally, staff is recommending amending an existing contract with MRH Structural Engineers for providing on-call complex structural plan review services. RECOMMENDATION: Approve and authorize the Mayor and City Clerk to execute: a) A three-year professional services agreement (Staff Report Attachment CC 1) with The Code Group, dba VCA Code, for an annual amount of $460,000 with a not to exceed amount of $1,380,000 over three years, subject to available funding through the annual budget process; b) A three-year professional services agreement (Staff Report Attachment CC 2) with Jason Addison Smith Consulting Services, Inc., dba JAS Pacific, for an annual amount of $313,000 with a not to exceed amount of $939,000 over three years, subject to available funding through the annual budget process; and c) A three-year on-call professional services agreement (Staff Report Attachment CC 3) with MRH Structural Engineers Inc. for an annual amount of $90,000 with a not to exceed amount of $270,000 over three years, subject to available funding through the annual budget process. FUNDING REQUIREMENTS: For Fiscal Year 2014/15, City Council approved $750,000 in account 2920-8080 and $410,000 in account 2930-8080 building plan review and inspection services. This funding is sufficient for the three contracts which total $863,000 for FY 2014/15. Staff also notes that this expenditure will be offset in part by the revenue collected through plan review and permitting fees. 36 DISCUSSION: In April 2014, the Building Division initiated a Request for Proposals (RFP) for Building Safety services that included staffing for building inspection, plan check engineer, and permit issuance. Additionally, the RFP requested on-call structural review and mechanical, electrical, and plumbing reviews services. The use of contract services is necessary to meet the current and projected workload over the next three fiscal years. The following eight consulting firms submitted proposals with varying levels of service and staffing: • Hayer Consultants Incorporated • JAS Pacific • TYR • VCA Code • West Coast Code Consultants Inc. • Engineering Alignment Systems • KPFF Consulting Engineers • MRH Structural Engineers Staff interviewed all eight consulting firms and also met with several potential contract personnel. Based on the interviews, staff ranked each consultant according to their proposal, interview, and availability of staff with a high degree of technical knowledge and exceptional customer service skills. The final rankings are as follows: For Building Plan Review and Inspection Services 1. VCA Code 2. JAS Pacific 3. TYR 4. Hayer Consultants Inc. 5. West Coast Code Consultants For On -Call Complex Structural Plan Review Services 1. MRH Structural Engineers 2. KPFF Consulting Engineers 3. Engineering Alignment Systems Staff recommends City Council approve professional service agreements with VCA Code, JAS Pacific, and MRH Structural Engineers. VCA Code The City currently contracts with VCA Code to provide three full-time building inspectors and one plan check engineer. The existing agreement will end on September 30, 2014. As a result of the RFP process, staff recommends a continuance of their services through the approval of a new three-year professional services agreement. For the 2014/15 fiscal year ,VCA Code will provide two full-time building inspectors at a rate of $70 and $65 per hour, depending on the individual, and a full-time plan check engineer at a rate of $95 per hour. The total annual cost to the City is $460,000, which will equal $1,380,000 over the three-year agreement term . The proposed hourly rates will remain fixed for the duration of the agreement. JAS Pacific JAS Pacific will provide one full-time plan check engineer at a rate of $105 per hour, and one permit technician at a rate of $42 per hour. An additional fund of $19,000 has been allocated to the contract to cover the cost of review for mechanical, electrical, and plumbing systems. The total annual cost to the City is approximately $313,000. The total cost for a three-year agreement is $939,000. The proposed hourly rates will remain fixed for the duration of the agreement. 37 MRH Structural Engineers The City currently contracts with MRH Structural Engineers for on-call structural review of projects that are highly complex for a not to exceed amount of $125,000. MRH submitted a competitive proposal through the RFP process, and staff recommends a continuance of their services through the approval of a new three-year professional services agreement at a cost of $90,000 per year. The total cost for the three-year term of the agreement is $270,000. The proposed hourly rates will remain fixed for the duration of the agreement. City Council approval of the three professional service agreements will allow the Community Development Department to obtain contract services for two plan check engineers, two building inspectors, and one permit technician, as well as on-call structural plan check review services at a total annual cost of $863,000. ENVIRONMENTAL REVIEW: The recommended action is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably forseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. 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). ATTACHMENTS: Description Attachment CC 1 - Professional Services Agreement with The Code Group, Inc., DBA VCA Code Attachment CC 2 - Professional Services Agreement with Jason Addison Smith Consulting Services, Inc. DBA JAS Pacific Attachment CC 3 - On -Call Professional Services Agreement with MRH Structural Engineers, Inc. ATTACHMENT CC -1 PROFESSIONAL SERVICES AGREEMENT WITH THE CODE GROUP, INC., DBA VCA CODE FOR BUILDING PLAN REVIEW & INSPECTION SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 9th day of July, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and THE CODE GROUP, INC., DBA VCA CODE, a California corporation ("Consultant'), whose address is 2200 W. Orangewood Ave., Ste. 155, Orange, California 92868, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide building plan review and inspection services ("Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services' or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A. In the absence of a specific schedule, the Services shall be 39 performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein 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. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed One Million Three Hundred Eighty Thousand Dollars and 00/100 ($1,380,000.00), 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. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. The Code Group, Inc., DBA VCA Code Page 2 Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Charles Russell to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City, City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Community Development Department, Building Division. City's Chief Building Official or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. The Code Group, Inc., DBA VCA Code Page 3 41 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. Is] RIMJMPi111 *R 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No The Code Group, Inc., DBA VCA Code Page 4 42 civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 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 co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting The Code Group, Inc., DBA VCA Code Page 5 43 power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. The Code Group, Inc., DBA VCA Code Page 6 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 expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. The Code Group, Inc., DBA VCA Code Page 7 45 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Seimone Jurjis, Chief Building Official Community Development Department, Building Division City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Charles Russell, Vice President The Code Group, Inc., DBA VCA Code 2200 W. Orangewood Ave., Ste. 155 Orange, California 92868 The Code Group, Inc., DBA VCA Code I+��ilt«7A_1LTit+ Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. The Code Group, Inc., DBA VCA Code Page 9 47 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 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. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] The Code Group, Inc., DBA VCA Code Page 10 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S 91FFICE Date:(v ZS Y By: Aaron C. Harp City Attorney ATTEST: Date: Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Rush N. Hill, II Mayor CONSULTANT: The Code Group, Inc., DBA VCA Code, a California corporation Date: BY: Tom Van Dorpe President Bv: Robert Chou Vice President [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements The Code Group, Inc., DBA VCA Code Page 11 EXHIBIT A SCOPE OF SERVICES The Code Group, Inc., DBA VCA Code Page A-1 50 Code Organization Structure City of Newport Beach Building Plan Review and Inspection Services RFP No. 14-36 We have a team of knowledgeable professionals that not only possess a seasoned, realistic perspective, but can also provide practical suggestions for improvement in the most efficient and cost-effective manner. Summary Resume of Key Team Member A brief summary of the qualifications of the associates who are available to perform plan check services for the City are as follows: Charles Russell, CBO Vice President/ Project Manager • Over thirty years' of building construction project management • Over ten years' as Certified Building Official • Certified Plans Examiner • Certified Building Inspector • ICC Education Committee Chairman • Member of ICC Orange Empire Chapter • Member of ICC Los Angeles Basin Chapter Timothy McCormick, PE, CBO, CASp Assistant Project Manager • Over thirty-four years' of building construction project management • Over fifteen years' as Certified Building Official • Certified Plans Examiner • Registered Civil Engineer • Certified Access Specialist • Past President, ICC Los Angeles Basin Chapter Hue Luu, PE Director of Plan Check Services • Over fifteen years' experience as structural designer and plan check engineer • Over eight years' experience in construction management and inspection • Extensive knowledge of all California Codes: Building, Residential, MEP, Green • Registered Professional Engineer • Certified Plans Examiner Ali Hekmat Plan Check Engineer Over thirty years' experience as structural designer and plan check engineer Certified Plans Examiner • Registered Civil/Structural Engineer Phil Nguyen Plan Examiner • Over nine years' experience as plan check engineer • Certified Plans Examiner 41 Page Code City of Newport Beach Building Plan Review and Inspection Services RFP No. 14-36 Brian Walters Senior Building Inspector Over twenty years' experience as building inspector with project management experience • ICC Combination Inspector— Legacy • ICC Building Inspector • ICC/UPC Plumbing Inspector • ICC Electrical Inspector • ICC/UMC Mechanical Inspector • AIBA (Class A) Assistant Building Surveyor/Building Surveying Technician with Private Endorsement • QBSA Residential Building Inspection and Consultant License • QBSA Open Building License • N.S.W. Open Building License • State of California C-5 Carpenter & HIC License Robert Barton Building Inspector • Over fourteen years' experience as building inspector with MEP experience • General B Contractor's License CA #797971 (Inactive) • ICC Certified Building #5003384 • Building Inspector UBC/CBC/IBC • Electrical Inspector NEC/CEC • Mechanical Inspector UMC/CMC/IMC • Plumbing Inspector UPC/CPC/IPC • Plans Examiner UBC/CBC/IBC • Accessibility Inspector UBC/ANSI • Commercial Property Maintenance Inspector UBC • Combination 1&2 Family Dwelling Inspector Uniform Codes & SI • ACI Field Technician Grade 1 • Post tensioned concrete Special Inspector Uniform Codes & SI • Structural Masonry Special Inspector Uniform Codes & SI • Structural Steel & Welding Special Inspector Uniform Codes & SI Joseph S/ouka Building Inspector • Over seven years' experience conducting code enforcement and building inspections • ICC Certified Building 5 1 P a g e City of Newport Beach Building Plan Review and Inspection Services RFP No. 14-36 City of Newport Beach rnu rrguyen Wayne Lee All Hekmat pan Plan Check Plan Chack Examiner Engineer Enginery Plan Check Services Brian Walters Robert Barton Joseph Slouke Seniorfluilding Building Inspector uifding Inspect Building Inspection Services 61 Page Code City of Newport Beach Building Plan Review and Inspection Services RFP No. 14-36 Proposal - Methodology -Scope of Services BUILDING PLAN REVIEW SERVICES Our assigned staff will be two California licensed civil or structural engineers and one Plans Examiner who will work full time at Newport Beach City Hall. As assigned work by City supervisory staff, our engineers will review construction drawings, report and calculations for conformance to all requirements of the California Building Standards Code. This includes the California Building, Residential, Mechanical, Electrical, Plumbing, Energy and Green Building Standards Code as adopted and amended by the City of Newport Beach. When requested, our review will also include compliance with NPDES and WQMP requirements. Reviews will be completed within the hours allotted by the City or each assignment. Our reviews will provide complete and easy to understand comments on how to make construction documents conform to applicable code requirements. First, we identify the apparent code violation and its location on the documents. Then we will suggest alternative solutions for compliance as the codes allow. Finally, we advise all applicants of other available remedies, which may include second opinion review by City supervisors, code modifications, and alternate methods of construction. We then stay actively involved in meetings and decisions needed to assist the applicant on the path to successful code compliance, which is the desired outcome. Our staff will be readily accessible and knowledgeable to solve any code or service concerns. Our current civil engineer Ali Hekmat will continue to provide this service and will be joined by one additional civil or structural engineer and one plans examiner. Once awarded the contract, we will recruit for the two new positions and insure that candidates meet the high standards of both our firm and the City of Newport Beach. ON-CALL STRUCTURAL REVIEW Our assigned staff will be California licensed civil or structural engineers who will perform work at our corporate office in Orange, California. As assigned work by City supervisory staff, our engineers will review construction drawings, report and calculations for conformance to all requirements of the California Building Standards Code as adopted and amended by the City of Newport Beach related to complex structural designs. Reviews will be completed within the hours allotted by the City or each assignment or a percentage of fees as negotiated for any one project. Our reviews will provide complete and easy to understand comments on how to make construction documents conform to applicable structural code requirements. First, we identify the apparent code violation and its location on the documents. Then we will suggest alternative solutions for compliance as the codes allow. Finally, we advise all applicants of other available remedies, which may include second opinion review by City supervisors, code modifications, and alternate methods of construction. We then stay actively involved in meetings and decisions needed to assist the applicant on the path to successful code compliance, which is the desired 151Paga Code City of Newport Beach Building Plan Review and Inspection Services RFP No. 14-36 outcome. Our staff will be readily accessible and knowledgeable to solve any code or service concerns. Meetings can be conducted either at our offices or at Newport City Hall as the applicant desires. Our available staff for this function includes the following licensed civil engineers: Hue Lue, Wayne Lee and Tim McCormick. Please attached resumes. BUILDING INSPECTION SERVICES We currently provide three well qualified building inspectors full time to the City: Robert Barton. Brian Walters and Joseph Slouka. Please see their attached resumes. We note that the current proposal asks for two full time inspectors. As an extra benefit to the City, we can continue to provide the three already onsite if desired.. Our building inspectors will review completed and progress construction for conformance to applicable portions of the California Building Standards Code as adopted and amended by the City of Newport Beach. As directed, they will also review for Title 25 Mobilehome Parks regulations and State Water Resource Control Board regulations related to storm water pollution provision. Inspectors will issue correction notices as required and keep documentation in accordance with City standards and policies. Our staff will work under the direction of the Principal Inspector and will work as directed for second opinions and discretionary decisions for code modifications and alternate methods of construction and the issuance of final construction approvals including the Certificate of Occupancy. This will be in addition to the normal daily inspection assignments. Our staff will continue to be an invaluable asset who are seamlessly interwoven with the existing City staff to perform the best management practices of inspection services. 161Page EXHIBIT B SCHEDULE OF BILLING RATES The Code Group, Inc., DBA VCA Code Page B-1 56 Code FEE SCHEDULE Plan Check and Inspection Services Principal Certified Building Official Assistant Building Official Structural Engineer CASp Consultant Services CASp Consultant Plan Check Plan Check Engineer • Check Mechanical, Electrical, Plumbing • Grading Plan Review Engineer II • Fire Protection Engineer II Non Structural Plan Checker NPDES Review Combination Building Inspector Senior (Commercial) Building Inspector Grading Inspector Code Enforcement Officer Permit Technician Clerical/Administration City of Newport Beach Building Plan Review and Inspection Services RFP No. 14-36 Plan Engineer II $160.00 $135.00 $115.00 $125.00 $160.00 $160.00 $95.00 $85.00 $85.00 $47.00 to $75.00 $55.00 to $85.00 $47.00 to $75.00 $47.00 to $75.00 $40.00 to $55.00 $50.00 Planning Plan Check and Inspection Services Senior Planner $115.00 Planner $105.00 EIR Specialist $115.00 Green and Energy Services CALGreen/LEED/Build it Green Consultant $115.00 Certified Energy Analyst (Energy Modeling) $115.00 Certified Energy Plans Examiner (CEPE) $95.00 HERS Rater $115.00 Outside Services A 15% fee for administrative coordination and handling will be added to subcontracted services such as, but not limited to, rebate and tax programs, reports, marketing, awards, green documentation, and other specialized services when such services are specifically requested in writing in advance. Automobile Travel Mileage: In accordance with the IRS mileage reimbursement rate in effect at the time the service is performed for building inspectors and plan check staff performing site observations. Miscellaneous Miscellaneous out-of-pocket expenses will be billed at cost plus 10%. This includes, but is not limited to, the following: 1. Third Parry Fees (such as LISGBC, GBCI, Build It Green, and other similar fees) 2. Reproduction and Photographic Services 3. Governmental Fees 4. Transportation Costs 5. Delivery Services 6. Out -of -Town Living Expenses 1IPa[Ie 2. 3. EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 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. 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. Coverage Requirements. A. Workers' Compensation Insurance, Consulta Compensation Insurance, statutory limits, Insurance with limits of at least one million accident for bodily injury by accident and each by disease in accordance with the laws of the 3700 of the Labor Code. nt shall maintain Workers' and Employer's Liability dollars ($1,000,000) each employee for bodily injury State of California, Section 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. B. 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, one million dollars ($1,000,000) general aggregate. The policy shall cover liability arising from premises, 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. C. 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 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 The Code Group, Inc., DBA VCA Code Page C-1 58 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. 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. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. 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. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, 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. C. 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. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. 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 The Code Group, Inc., DBA VCA Code Page C-2 59 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. E. 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. F. City Remedies for Non -Compliance. If Consultant or any subcwnsultant 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. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. 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. The Code Group, Inc., DBA VCA Code Page C-3 60 ATTACHMENT CC -2 PROFESSIONAL SERVICES AGREEMENT WITH JASON ADDISON SMITH CONSULTING SERVICES, INC., DBA JAS PACIFIC FOR BUILDING PLAN REVIEW & INSPECTION SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 9th day of July, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and JASON ADDISON SMITH CONSULTING SERVICES, INC., DBA JAS PACIFIC, a California corporation ("Consultant'), whose address is P.O. Box 2002, Upland, California 91785, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide building plan review and inspection services ('Project'). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED Consultant shall diligently perform all the services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). City may elect to delete certain Services within the Scope of Services at its sole discretion. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule 61 included in Exhibit A. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein 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. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Nine Hundred Sixty Nine Thousand Dollars and 00/100 ($969,000.00), 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. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bilis shall include the name of the person who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 2 62 not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Christine Champany to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Community Development Department, Building Division. City's Chief Building Official or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 3 63 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 4 civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with Citys 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 informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 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 co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page—5 &I power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information to City upon prior written request. 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 6 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 expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 7 67 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Seimone Jurjis, Chief Building Official Community Development Department, Building Division City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Christine Champany, Vice President Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific P.O. Box 2002 Upland, California 91785 Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 8 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 9 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 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. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law. 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 10 70 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S QFFICE Date: (o /;, 6 11q Aaron'C'-Mar City Attorney ATTEST: In Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: Rush N. Hill, II Mayor CONSULTANT: Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific, a California corporation Date: By: Christine Champany Vice President Date: M J. Addison Smith Chief Executive Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page 11 71 EXHIBIT SCOPE OF SERVICES Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page A-1 72 II. METHODOLOGY A. Scope of Services JAS Pacific can provide the City with seamless quality building plan review, on-call structural review, and building inspection services within the requested timeframes. Our service procedures are thorough meeting all expectations including great customer service and efficient response times, without compromising quality. As part of JAS Pacific's over arching goal to attain customer safisfaction, a tailored service delivery system is developed, service models are effective and efficient, and procedures adapted to meet the City's requirements. We are confident that we can accommodate the City's financial needs as well as provide the desired level of customer service. Addifionally, because of our available resources, we have the ability to alter the levels and types of service to address increased workloads and customer needs. Fully demonstrating our qualifications, below we provide a detailed discussion on the scope of work. This proposal will exhibit our principles, practices, and methods of latest code knowledge and application through the detailed scope of work and in our quality staff proposed. Through contracting with JAS Pacific, the City can be assured that all structures will be equal to or exceed the applicable City, State, and Federal regulations. JAS Pacific understands the City's needs and we have the resources to provide timely deployment. With limited City resources, contracting with JAS Pacific will afford the City more flexibility in the allocation of such resources. JAS Pacific Services City Benefit Personnel Superior level of customer service Expertise Consistent code application Staffing Resources Flexibility to meet all levels of demand Contract Costs Expenses are consistent with revenues Acting on behalf of the City, JAS Pacific will provide superior levels of customer service, consistent code application, and develop seamless working relationships with City staff. Contracting with JAS Pacific will provide the City with a cost- effective alternative to a fully internally staffed department and allow the City to focus on other critical municipal matters. JAS Pacific will perform applicable functions as an extension of City staff and will follow all City procedures and directives. Varying workload demands will be met and is ensured through available back up staff. JAS Pacific understands the importance of excellent customer service not only to the City but to the clients we serve. We strive to meet and exceed all client expectations and we will create a cooperative work environment with the City and the clients we serve. Our understanding and approach to the proposed scope of services are detailed below. 1. Building Plan Review JAS Pacific will provide the City with building plan review services, through the contracting of two (2) Licensed Plan Check Engineers and one (1) Plans Examiner. All proposed building plan review personnel meet all required qualifications, education, and certification/licensing as applicable for the field they will be working in. Additionally, all Plan Check Engineers and Plans Examiners possess the requisite skills and experience required to perform all duties and responsibilities below as applicable to their assignments. Building plan review services will include the review of construction documents submitted for all types of residential and nonresidential construction projects. The assigned Plans Examiner will be responsible for mechanical, electrical, and plumbing plan reviews for residential, commercial, and industrial projects. The construction documents shall be reviewed for conformance Page 115 73 with the Codes. Staff will not only identify building code issues within the plans, but also will address the big picture and offer helpful suggestions to reach life -safety and code compliance standards. Architectural Mechanical Structural Accessibility Electrical Occupancy Energy Fire Plumbing Green Building Gradino Storm Water Plan Check Engineers/Plans Examiner Duties and Responsibilities: • Review residential, commercial and industrial buildings for compliance with the City -adopted codes, including California Building and Residential Codes, Green Code, Mechanical Code, Plumbing Code, and Electrical Code; The City of Newport Beach Municipal Code; and State Energy Conservation requirements. • Provide written notification to each applicant, consisting of a complete electronically -generated plan check letter which outlines the documents reviewed, instructions to the applicant regarding the processing of documents, and a listing of plan check comments. The plan check comments will refer to appropriate sheets, details or calculations pages and the code section of concern. Comments shall specify the apparent code violation. • Be available during regular business hours to discuss and clarify plan check issues with applicants, designers, owners and consultants. The resolution of code issues may be performed by telephone and/or meetings prior to the resubmission of the corrected plans and documents. • Attend all required meetings as directed by the Chief Building Official. • Review grading plans to assure conformance with City codes, written policies and standard specifications and compliance with the recommendations, specifications and details contained in the submitted soils report and assure that all appropriate details are shown on the plans. Review quantity calculations to assure accuracy and completeness. • Review Erosion Control Plans to verify erosion and sedimentation measures comply with the Best Management Practices listed in the Storm Water Pollution Prevention Plans in compliance with NPDES and WQMP requirements. • Conduct comprehensive and accurate reviews of submitted construction documents to check for architectural, structural, mechanical, plumbing, electrical, fire, grading, civil, storm water, accessibility and/or energy requirements and providing plan review comments. • Ensure that construction documents adhere to applicable Codes. • Coordinate plan reviews with other City departments or agencies in order to make sure all appropriate requirements are incorporated in the construction documents. • Notify the applicant of the need for corrections and meet and confer with permit applicants to resolve all outstanding plan review comments and approving their projects. • Perform over the counter plan review of construction documents for simple construction projects • Work with permit counter staff to facilitate the issuance of construction permits for approved construction documents. • Attend and participate in meetings with other City plan review or inspection staff, property owners, contractors or design professionals. Page 116 74 • Ensure security and privacy, preventing theft, loss, or unauthorized copying of plans. • Provide status feedback on the checking of any plan within one business day of a telephone request. • Apply new Standards as prescribed by law when existing Codes are subsequently replaced by newer Codes. • Review plans and return to applicant as soon as practical. • Assist the City with plan review services during an emergency or natural disaster. • Assist the City with the code adoption process if necessary. • Perform rechecks of corrected plans and plan changes until plans and related documents are substantially correct and complete. • Maintain records related to plans reviewed, including all turnaround times. • Respond to telephone inquiries about code requirements and plan review procedures relating to assigned projects. • Maintain knowledge of City adopted Building and Residential, Electrical, Plumbing, Mechanical, Fire, Title 24 Energy, Title 24 Accessibility, and Green Building Codes and other City Ordinances, policies, and procedures. • Draft written corrections and redlining of plans. • Provide code interpretations. • Ensure all requirements of all other agencies having jurisdiction over projects are incorporated into the plan review and approval process. • Maintain accurate records. • Ensure availability during business hours to discuss and provide clarification of review comments, issues, and corrections with designers, applicants, and contractors via telephone or in person if necessary and available. Resolution of such instances may take place by telephone or by meetings prior to resubmitting corrected plans or documents. • Maintain knowledge of adopted building, fire, plumbing, mechanical, electrical, and energy codes; and principles, practices and methods of architectural, plumbing, mechanical, and electrical design and construction. • Performing other related duties, as required. 2. On -Call Structural Review JAS Pacific will provide the City with on-call structural plan review services, through the contracting of Licensed Plan Check Engineers. Assigned Plan Check Engineers will assist the City with special projects involving the review of complex structural design on an as -needed basis. Plan Check Engineers Duties and Responsibilities: • Provide on-call plan review of complex structural design for conformance to the latest adopted codes and standards. • Provide written notification to each applicant, consisting of a complete electronically -generated plan check letter which outlines the documents reviewed, instructions to the applicant regarding the processing of documents, and a listing of plan check comments. The plan check comments will refer to appropriate sheets, details or calculations pages and the code section of concern. Comments shall specify the apparent code violation. • Be available during regular business hours to discuss and clarify plan check issues with applicants, designers, owners, and consultants. Resolution of code issues may be performed by telephone, or meetings prior to resubmitting corrected plans and documents. Page 117 75 • Attend all required meetings as directed by the Chief Building Official. 3. Inspection JAS Pacific will provide the City with building inspection services, through the contracting of Certified Building Inspectors. All Building Inspectors are fully qualified to perform residential, commercial, and industrial inspections. All inspectors meet all qualifications, education, and certificationficensing requirements including an ICC Building Inspector certification. All JAS Pacific assigned building inspectors shall be equipped with the necessary tools and equipment when performing inspection services on behalf of the City. Inspection services will include comprehensive field inspection in accordance with the approved construction documents the Codes. Personnel shall not be substituted without approval from the Chief Building Official. INSPECTION Structural Life Safety Electrical Plumbing Fire Gradin Handicapped Access Combination Residential Building Inspector Duties and Responsibilities: • Provide inspections of all requested inspections and re -inspections for compliance with City Municipal and State Codes and regulations: California Building, Residential, Plumbing, Mechanical, Electrical, Fire, Energy, and Green Building Standards codes. Compliance will also be ensured with Disabled Access Regulations, and Title 25; Mobile Home Parks regulations; State Water Resource Control Board regulations related to storm water pollution prevention; Sound Transmission Control regulations; and, locally adopted building ordinances and amendments thereof. • Maintain all inspection records for all assigned projects, including correction notices and all documentation related to project inspections. • Coordinate all inspection and re -inspection requests as assigned. • Coordinate with the Principal Building Inspector, as appropriate, on discretionary decisions or requests for alternate materials. • Coordinate with the Principal Building Inspector on all Certificate of Occupancy to be sure that all applicable City regulatory agencies have approved the project. • Review the approved construction documents to gain familiarity with the construction project and review for compliance with code requirements and discrepancies after permit issuance. • Conduct inspections on construction projects to determine conformity with the approved construction documents and the Codes. • Work closely with property owners and contractors to provide solutions to problems on-site. • Attend and participate in meetings with other City inspection or plan review staff, property owners, contractors, or design professionals. • Maintain a record of non -complying items and ensuring the resolution of such items. • Ensure that any construction changes are properly documented and approved by the appropriate City staff. • Provide inspection services and assure that the construction meets the plans and is in compliance with the latest adopted codes, policies and procedures. • Assist the City with inspection services during an emergency or natural disaster. • Inspect commercial, industrial, or residential buildings during various stages of construction. Page 118 76 • Recognize the need for and requiring plan reviews for Building, Electrical, Plumbing, and Mechanical Codes and outside agency requirements. • Review permit package to verify that onsite conditions are consistent with the appropriate records for square footage, setbacks, heights, and other requirements that apply. • Provide written documentation of inspections performed. • Attend meetings with City staff, City Council, Planning Commission, developers, contractors, and general public as needed. • Attend meetings and provide emergency inspections upon short notice. • Read and study project specifications, plans, reports, and calculations to become familiar with projects prior to inspection, and ensuring compliance with all applicable requirements. • Perform and document inspections on construction projects to determine that all aspects of the project work, such as grading, foundations, building, electrical, plumbing, and mechanical systems conform to the applicable Codes, zoning ordinances, energy conservation, and disabled access requirements including all local, City, State, and Federal legal requirements. • Maintain a written record of non -complying items and follow-up to resolution of such items. • Record all significant construction -related activities and events, such as work completed, to provide a chronological and factual history of inspection on assigned construction projects. • Maintain accurate records. • Provide clear and understandable written responses related to review. • Establish professional working relationships with all affected City Departments to streamline enforcement efforts. • Ensure that the public interests for a safe environment are met and uphold the preservation of health, safety, and welfare of the public. • Be readily available to accommodate the overload of inspection demands in a timely manner. • Possess and maintain all required certifications and licenses while providing services to the City. • Respond to telephone inquiries about code requirements and inspection procedures relating to assigned projects. • Perform other related duties, as required. JAS Pacific's goals of inspection services are code compliance, community safety, and providing helpful mitigation suggestions to keep the project moving forward. JAS Pacific shall have adequate available staffing resources including qualified building inspectors to provide the City with necessary staffing levels to meet the varying workload demands and can ensure this through available back up staff. B. Work Plan JAS Pacific understands the City's needs. We propose to tailor a service delivery system that meets and exceeds the City's expectations. Additionally, due to our available resources we have the ability to offer flexibility that result in the greatest benefit to the City. We can provide the City with options on the configuration of staffing for the delivery of services that strike a balance between efficiency and quality. JAS Pacific, in the delivery of plan review, building inspection, and permit center services, takes care of staffing — including salaries and benefits — transportation, insurance, certifications, and continuing education. We propose to provide building plan review, on-call structural plan review, and building inspection services through the contracting of Licensed Plan Check Engineers, a Certified Plans Examiner, and Certified Building Inspectors. In the delivery of services to the City under the proposed agreement, JAS Pacific will not be utilizing sub -contractors. Page 119 77 JAS Pacific handles all assigned plan reviews and inspections through all phases of construction to the issuance of a certificate of occupancy. The overall results are structurally sound buildings and communities, safisfied customers, and a reputation of the City as being developer and builder friendly. We understand the City's requirements and know that a service program addressing both components will be satisfactorily negotiated. Below is our detailed approach on how the proposed services will be delivered and resources managed in order to accomplish the Scope of Work. 1. Building Plan Review JAS Pacific is prepared to provide the City with on-site building plan review services through the contracting of two (2) Plan Check Engineers and one (1) Plans Examiner. All assigned personnel possess the necessary qualifications for assigned projects including state licenses in civil or structural engineering, ICC certifications in the respective fields that they will be working and licensed engineers for all structural and geotechnical reviews. This type of approach is beneficial to the City providing a wide spectrum of expertise and the resources to meet any level of demand. We believe this is a comprehensive and efficient approach to providing these services to the public and City staff. For a detailed step-by-step review of the approach, please refer to 'Illustration A — Building Plan Review Work Plan' below. 2. On -Call Structural Plan Review JAS Pacific is prepared to provide the City with both on and off-site structural plan review services through the contracting of Licensed Plan Check Engineers. On-call structural plan review services are provided timely and seamlessly and assigned staff are accessible to promptly respond to all inquiries. Off-site services are conducted via FedEx, daily and as needed, thus diminishing any impact of logistics. JAS Pacific provides an overnight courier service at no additional cost to the City or applicant for the receipt and delivery of plans. The appropriate registered engineer reviews or oversees the review of all plans. For a detailed step-by-step review of the approach, please refer to'Illustration A — Building Plan Review Work Plan' below as the process is very similar to that of building plan review services however it includes the option of off-site services. 3. Inspection JAS Pacific is prepared to provide the City with inspection services through the contracting of two (2) certified Building Inspectors. Assigned staff will be responsible for all construction, emergency, disaster, and special inspection projects. For a detailed systematic review of the general approach, please refer to 'Illustration B — Inspection Work Plan' below. Page 120 M Illustration A— Building Plan Review Work Plan Below, the flow chart outlines the general approach to building plan review services for the City to be provided by either a Plan Check Engineer or Plans Examiner and can be modified to best suit the City's needs. The work flow is similar for both on and off-site services. Couriersewices areprovided JAS Pacific receives plan on a dallybasis or as required check request ____ i atno cost to the City, and plans aredelivered io JAS Paciftc for review Project file is created Projectfile willbe maintained and maintained and willinclude all correction throughout plan --------------lists, record of all conversations and written review process andemall correspondence Plan checkremams with initial Plan check request is assigned to a Plan Plan Checkeruntilapproval Checker ------------ unless otherwise requested by the City A full plan check is completed according to Scope of Work Corrections? Yes No Comprehensive list of required corrections is Issued via hard copy or Corrections are coordinated with the applicant and changes are completed Plans are approved Approved documents Include approved plans, calculations, a letter of transmittal, and two copies of the signed correction lists indicating corrections have been completed and approved. All documents are forwarded to the City via courier at no cost. Applicant Is notified of required corrections. Means/point of exchange are provided through a toll free telephone number and cost-free mail exchange forpick-up and delivery of plans. Page 121 79 Illustration B— Building Inspection Work Plan Below, the flow chart outlines the general approach to inspection requests and processing for the City to be provided by a Building Inspector and can be modified to best suit the City's needs. JAS Pacific staff receives a building Inspection request Inspection is assigned I All Inspectors are qualified to a Building Inspector. -------- andexperlenced, having all applicable and necessary licenses and certifications as detailed in the RFP. Building Inspector returns to the Offl,e and Review ensures compliance Building Inspector with code requirements and reviews project plans ------- discrepancies after permit priorto conducting -------- Issuance. Inspection plansand Codes. Inspection Ensures all aspects ofthe projectwork conform withall Building Inspector performs and documents applicable Codesand comprehensive field _______ ordinancesin effector the Inspection ameofapplicafiontor construction permits. Building Inspector returns to the Offl,e and Re ncludellei and completes clear and comments, comments, diagrams, and s, understandable written ------- suggestionstoassistin projecicompllance with responsendabled tothe plansand Codes. Inspection Compliance? I No I correction notices of Code or plan deficiencies documented during Corrections are provided to the applicant, clarification is provided if requested, and instructed to schedule a reinspection upon completion of corrections I Yes I Job inspection record Is approved for the portion of work inspected and construction can proceed until next required inspection Process is repeated until isissued. Page 122 59 4. Turn -Around Schedule C. Additional Services In addition to the specific services requested in the RFP and detailed above, JAS Pacific can also provide the City with permit center and public information counter, clerical assistance, full department management and administration, urban planning and public works, and specialized management services. Upon request, detailed descriptions of these additional services can be provided. Page 123 rE EXHIBIT B SCHEDULE OF BILLING RATES Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page B-1 82 Building & Su,/'ety Support Services The following is a Fee Schedule for services provided by JAS Pacific to the City of Newport Beach: SUPPORT STAFF Building Inspector 1 $58.00 / hour Building Inspector II $62.00 / hour Building Inspector III $66.001 hour Permit Technician I $40.001 hour Permit Technician II $42.00 / hour Permit Technician III $45.00 / hour Mileage PLAN CHECK $.551 mile or IRS rate Plan Check Engineer/Architect I — In House $105.001 hour Plan Check Engineer/Architect II — In House $110.001 hour Plan Checker— In House $85.001 hour Plan Check Engineer/Architect — Out Source $95.00 / hour Plan Checker— Out Source $75.00 / hour RM EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 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. 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. 3. Coverage Requirements. A. 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. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in flavor of City, its officers, agents, employees and volunteers. B. 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, one million dollars ($1,000,000) general aggregate. The policy shall cover liability arising from premises, 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. C. 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 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 Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page C-1 84 vehicles, in an amount not less than one million dollars ($1,000,000) combined single limit each accident. D. 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. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. 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. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, 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. C. 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. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. Additional Agreements Between the Parties. The parties hereby agree to the following: A. 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 Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page C-2 85 Agreement. City reserves the right to require complete, certified copies of all required insurance policies, at any time. B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. E. 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. F. 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. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. H. 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. Jason Addison Smith Consulting Services, Inc., DBA JAS Pacific Page C-3 86 ATTACHMENT CC -3 ON-CALL PROFESSIONAL SERVICES AGREEMENT WITH MRH STRUCTURAL ENGINEERS, INC. FOR ON-CALL STRUCTURAL ENGINEERING SERVICES THIS ON-CALL PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and entered into as of this 3rd day of July, 2014 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and MRH STRUCTURAL ENGINEERS, INC., a California corporation ("Consultant"), whose address is 1411 N. Batavia St., Ste. 121, Orange, CA 92867, and is made with reference to the following: RECITALS A. City is a municipal corporation duly organized and validly existing under the laws of the State of California with the power to carry on its business as it is now being conducted under the statutes of the State of California and the Charter of City. B. City desires to engage Consultant to provide on-call structural engineering services ("Project"). C. Consultant possesses the skill, experience, ability, background, certification and knowledge to provide the professional services described in this Agreement. D. City has solicited and received a proposal from Consultant, has reviewed the previous experience and evaluated the expertise of Consultant, and desires to retain Consultant to render professional services under the terms and conditions set forth in this Agreement. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. TERM The term of this Agreement shall commence on the Effective Date, and shall terminate on June 30, 2017, unless terminated earlier as set forth herein. 2. SERVICES TO BE PERFORMED 2.1 Consultant shall perform the on-call services described in the Scope of Services attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Upon written request from the Project Administrator as defined herein, 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: 2.1.1 A detailed description of the Services to be provided; 2.1.2 The position of each person to be assigned to perform the Services, and the name of the individuals to be assigned, if available; 99 and 2.1.3 The estimated number of hours and cost to complete the Services; 2.1.4 The time needed to finish the specific project. 2.2 No Services shall be provided until the Project Administrator has provided written acceptance of the Letter Proposal. Once authorized to proceed, Consultant shall diligently perform the duties in the approved Letter Proposal. 3. TIME OF PERFORMANCE 3.1 Time is of the essence in the performance of Services under this Agreement and Consultant shall perform the Services in accordance with the schedule included in Exhibit A and the Letter Proposal. In the absence of a specific schedule, the Services shall be performed to completion in a diligent and timely manner. The failure by Consultant to strictly adhere to the schedule set forth in Exhibit A and the Letter Proposal, if any, or perform the Services in a diligent and timely manner may result in termination of this Agreement by City. 3.2 Notwithstanding the foregoing, Consultant shall not be responsible for delays due to causes beyond Consultant's reasonable control. However, in the case of any such delay in the Services to be provided for the Project, each party hereby agrees to provide notice within two (2) calendar days of the occurrence causing the delay to the other party so that all delays can be addressed. 3.3 Consultant shall submit all requests for extensions of time for performance in writing to the Project Administrator as defined herein 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. 3.4 For all time periods not specifically set forth herein, Consultant shall respond in the most expedient and appropriate manner under the circumstances, by hand -delivery or mail. 4. COMPENSATION TO CONSULTANT 4.1 City shall pay Consultant for the Services on a time and expense not -to - exceed basis in accordance with the provisions of this Section and the Letter Proposal and the Schedule of Billing Rates attached hereto as Exhibit B and incorporated herein by reference. Consultant's compensation for all Work performed in accordance with this Agreement, including all reimbursable items and subconsultant fees, shall not exceed Two Hundred Seventy Thousand Dollars and 00/100 ($270,000.00), 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. 4.2 Consultant shall submit monthly invoices to City describing the Work performed the preceding month. Consultant's bills shall include the name of the person MRH Structural Engineers, Inc. Page 2 :: who performed the Work, a brief description of the Services performed and/or the specific task in the Scope of Services to which it relates, the date the Services were performed, the number of hours spent on all Work billed on an hourly basis, and a description of any reimbursable expenditures. City shall pay Consultant no later than thirty (30) calendar days after approval of the monthly invoice by City staff. 4.3 City shall reimburse Consultant only for those costs or expenses specifically identified in Exhibit B to this Agreement and the Letter Proposal or specifically approved in writing in advance by City. 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B and the Letter Proposal. 5. PROJECT MANAGER 5.1 Consultant shall designate a Project Manager, who shall coordinate all phases of the Project. This Project Manager shall be available to City at all reasonable times during the Agreement term. Consultant has designated Mohammad Hariri, M.S., S.E. to be its Project Manager. Consultant shall not remove or reassign the Project Manager or any personnel listed in Exhibit A or assign any new or replacement personnel to the Project without the prior written consent of City. City's approval shall not be unreasonably withheld with respect to the removal or assignment of non -key personnel. 5.2 Consultant, at the sole discretion of City, shall remove from the Project any of its personnel assigned to the performance of Services upon written request of City. Consultant warrants that it will continuously furnish the necessary personnel to complete the Project on a timely basis as contemplated by this Agreement. 5.3 If Consultant is performing inspection services for City, the Project Manager and any other assigned staff shall be equipped with a cellular phone to communicate with City staff. The Project Manager's cellular phone number shall be provided to City. 6. ADMINISTRATION This Agreement will be administered by the Community Development. City's Principal Civil Engineer or designee shall be the Project Administrator and shall have the authority to act for City under this Agreement. The Project Administrator shall represent City in all matters pertaining to the Services to be rendered pursuant to this Agreement. MRH Structural Engineers, Inc. Page 3 7. CITY'S RESPONSIBILITIES To assist Consultant in the execution of its responsibilities under this Agreement, City agrees to 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. 8. STANDARD OF CARE 8.1 All of the Services shall be performed by Consultant or under Consultant's supervision. Consultant represents that it possesses the professional and technical personnel required to perform the Services required by this Agreement, and that it will perform all Services in a manner commensurate with the highest professional standards. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized by one (1) or more first- class firms performing similar work under similar circumstances. 8.2 All Services shall be performed by qualified and experienced personnel who are not employed by City. By delivery of completed Work, Consultant certifies that the Work conforms to the requirements of this Agreement, all applicable federal, state and local laws, and the highest professional standard. 8.3 Consultant represents and warrants to City that it has, shall obtain, and shall keep in full force and effect during the term hereof, at its sole cost and expense, all licenses, permits, qualifications, insurance and approvals of whatsoever nature that is legally required of Consultant to practice its profession. Consultant shall maintain a City of Newport Beach business license during the term of this Agreement. 8.4 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, acts of God, or the failure of City to furnish timely information or to approve or disapprove Consultant's Work promptly, or delay or faulty performance by City, contractors, or governmental agencies. 9. HOLD HARMLESS 9.1 To the fullest extent permitted by law, Consultant shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers and employees (collectively, the "Indemnified Parties), from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorneys' fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims"), which may arise under this Agreement or in any manner relate (directly or indirectly) to the negligence, recklessness, or willful misconduct of the Consultant or its principals, officers, agents, employees, vendors, suppliers, subconsultants, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable, or any or all of them. MRH Structural Engineers, Inc. Page 4 .0 9.2 Notwithstanding the foregoing, nothing herein shall be construed to require Consultant to indemnify the Indemnified Parties from any Claim arising from the sole negligence, active negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorneys' fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Consultant. 10. INDEPENDENT CONTRACTOR It is understood that City retains Consultant on an independent contractor basis and Consultant is not an agent or employee of City. The manner and means of conducting the Work are under the control of Consultant, except to the extent they are limited by statute, rule or regulation and the expressed terms of this Agreement. No civil service status or other right of employment shall accrue to Consultant or its employees. Nothing in this Agreement shall be deemed to constitute approval for Consultant or any of Consultant's employees or agents, to be the agents or employees of City. Consultant shall have the responsibility for and control over the means of performing the Work, provided that Consultant is in compliance with the terms of this Agreement. Anything in this Agreement that may appear to give City the right to direct Consultant as to the details of the performance of the Work or to exercise a measure of control over Consultant shall mean only that Consultant shall follow the desires of City with respect to the results of the Services. 11. COOPERATION Consultant agrees to work closely and cooperate fully with City's designated Project Administrator and any other agencies that may have jurisdiction or interest in the Work to be performed. City agrees to cooperate with the Consultant on the Project. 12. CITY POLICY Consultant shall discuss and review all matters relating to policy and Project direction with City's Project Administrator in advance of all critical decision points in order to ensure the Project proceeds in a manner consistent with City goals and policies. 13. PROGRESS Consultant is responsible for keeping the Project Administrator informed on a regular basis regarding the status and progress of the Project, activities performed and planned, and any meetings that have been scheduled or are desired. 14. INSURANCE Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide and maintain at its own expense during the MRH Structural Engineers, Inc. Page 5 91 term of this Agreement or for other periods as specified in this Agreement, policies of insurance of the type, amounts, terms and conditions described in the Insurance Requirements attached hereto as Exhibit C, and incorporated herein by reference. 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 co -tenancy, which shall result in changing the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A and the Letter Proposal. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. City is an intended beneficiary of any Work performed by the subcontractor for purposes of establishing a duty of care between the subcontractor and City. Except as specifically authorized herein, the Services to be provided under this Agreement shall not be otherwise assigned, transferred, contracted or subcontracted out without the prior written approval of City. 17. OWNERSHIP OF DOCUMENTS 17.1 Each and every report, draft, map, record, plan, document and other writing produced, including but not limited to, websites, blogs, social media accounts and applications (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. Additionally, all material posted in cyberspace 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, including all logins and password information to City upon priorwritten request. MRH Structural Engineers, Inc. Page 6 92 17.2 Documents, including drawings and specifications, prepared by Consultant pursuant to this Agreement are not intended or represented to be suitable for reuse by City or others on any other project. Any use of completed Documents for other projects and any use of incomplete Documents without specific written authorization from Consultant will be at City's sole risk and without liability to Consultant. Further, any and all liability arising out of changes made to Consultant's deliverables under this Agreement by City or persons other than Consultant is waived against Consultant, and City assumes full responsibility for such changes unless City has given Consultant prior notice and has received from Consultant written consent for such changes. 17.3 All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 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 expressly authorizes in writing the release of information. 19. INTELLECTUAL PROPERTY INDEMNITY Consultant shall defend and indemnify City, its agents, officers, representatives and employees against any and all liability, including costs, for infringement or alleged infringement of any United States' letters patent, trademark, or copyright, including costs, contained in Consultant's Documents provided under this Agreement. 20. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate records with respect to the costs incurred under this Agreement and any Services, expenditures and disbursements charged to City, for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant under this Agreement. All such records and invoices shall be clearly identifiable. Consultant shall allow a representative of City to examine, audit and make transcripts or copies of such records and invoices during regular business hours. Consultant shall allow inspection of all Work, data, Documents, proceedings and activities related to the Agreement for a period of three (3) years from the date of final payment to Consultant under this Agreement. 21. WITHHOLDINGS City may withhold payment to Consultant of any disputed sums until satisfaction of the dispute with respect to such payment. Such withholding shall not be deemed to constitute a failure to pay according to the terms of this Agreement. Consultant shall not discontinue Work as a result of such withholding. Consultant shall have an immediate right to appeal to the City Manager or designee with respect to such disputed MRH Structural Engineers, Inc. Page 7 93 sums. Consultant shall be entitled to receive interest on any withheld sums at the rate of return that City earned on its investments during the time period, from the date of withholding of any amounts found to have been improperly withheld. 22. ERRORS AND OMISSIONS In the event of errors or omissions that are due to the negligence or professional inexperience of Consultant which result in expense to City greater than what would have resulted if there were not errors or omissions in the Work accomplished by Consultant, the additional design, construction and/or restoration expense shall be borne by Consultant. Nothing in this Section is intended to limit City's rights under the law or any other sections of this Agreement. 23. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 24. CONFLICTS OF INTEREST 24.1 Consultant or its employees may be subject to the provisions of the California Political Reform Act of 1974 (the "Act"), which (1) requires such persons to disclose any financial interest that may foreseeably be materially affected by the Work performed under this Agreement, and (2) prohibits such persons from making, or participating in making, decisions that will foreseeably financially affect such interest. 24.2 If subject to the Act, Consultant shall conform to all requirements of the Act. Failure to do so constitutes a material breach and is grounds for immediate termination of this Agreement by City. Consultant shall indemnify and hold harmless City for any and all claims for damages resulting from Consultant's violation of this Section. 25. NOTICES 25.1 All notices, demands, requests or approvals, including any change in mailing address, to be given under the terms of this Agreement shall be given in writing, and conclusively shall be deemed served when delivered personally, or on the third business day after the deposit thereof in the United States mail, postage prepaid, first- class mail, addressed as hereinafter provided. 25.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: Samir Ghosn, Principal Civil Engineer Community Development City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 MRH Structural Engineers, Inc. Page 8 25.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Mohammad Harid, M.S., S.E. MRH Structural Engineers, Inc. 1141 N. Batavia St., Ste. 121 Orange, CA 92867 26. CLAIMS Unless a shorter time is specified elsewhere in this Agreement, before making its final request for payment under this Agreement, Consultant shall submit to City, in writing, all claims for compensation under or arising out of this Agreement. Consultant's acceptance of the final payment shall constitute a waiver of all claims for compensation under or arising out of this Agreement except those previously made in writing and identified by Consultant in writing as unsettled at the time of its final request for payment. Consultant and City expressly agree that in addition to any claims filing requirements set forth in the Agreement, Consultant shall be required to file any claim Consultant may have against City in strict conformance with the Government Claims Act (Government Code sections 900 et seq.). 27. TERMINATION 27.1 In the event that either party fails or refuses to perform any of the provisions of this Agreement at the time and in the manner required, that party shall be deemed in default in the performance of this Agreement. If such default is not cured within a period of two (2) calendar days, or if more than two (2) calendar days are reasonably required to cure the default and the defaulting party fails to give adequate assurance of due performance within two (2) calendar days after receipt of written notice of default, specifying the nature of such default and the steps necessary to cure such default, and thereafter diligently take steps to cure the default, the non -defaulting party may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 27.2 Notwithstanding the above provisions, City shall have the right, at its sole and absolute discretion and without cause, of terminating this Agreement at any time by giving no less than seven (7) calendar days' prior written notice to Consultant. In the event of termination under this Section, City shall pay Consultant for Services satisfactorily performed and costs incurred up to the effective date of termination for which Consultant has not been previously paid. On the effective date of termination, Consultant shall deliver to City all reports, Documents and other information developed or accumulated in the performance of this Agreement, whether in draft or final form. 28. STANDARD PROVISIONS 28.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. MRH Structural Engineers, Inc. Page 9 95 28.2 Compliance with all Laws. Consultant shall, at its own cost and expense, comply with all statutes, ordinances, regulations and requirements of all governmental entities, including federal, state, county or municipal, whether now in force or hereinafter enacted. In addition, all Work prepared by Consultant shall conform to applicable City, county, state and federal laws, rules, regulations and permit requirements and be subject to approval of the Project Administrator and City. 28.3 Waiver. A waiver by either party of any breach, of any term, covenant or condition contained herein shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 28.4 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 28.5 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement and the Scope of Services or any other attachments attached hereto, the terms of this Agreement shall govern. 28.6 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 28.7 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. 28.8 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 28.9 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange, State of California. 28.10 Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex, age or any other impermissible basis under law, 28.11 No Attorneys' Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing party shall not be entitled to attorneys' fees. MRH Structural Engineers, Inc. Page 10 Ra 28.12 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES ON NEXT PAGE] MRH Structural Engineers, Inc. Page 11 97 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTAR12-6SCE 0Date: By: ) 6VII, C Aaron C. Harp City Attorney ATTEST: CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Rush N. Hill, II Mayor CONSULTANT: MRH Structural Engineers, Inc., a California corporation Date: By: Leilani I. Brown Mohammad Hariri, M.S., S.E. City Clerk President [END OF SIGNATURES] Attachments: Exhibit A - Scope of Services Exhibit B - Schedule of Billing Rates Exhibit C - Insurance Requirements MRH Structural Engineers, Inc. Page 12 EXHIBIT A SCOPE OF SERVICES MRH Structural Engineers, Inc. Page A-1 99 April 28, 2014 MRH Structural Engineers WORK PLAN — On -Call Structural Review MRH Consultants shall perform the following professional services requested by the City of Newport Beach: •:• Provide thorough and quality code compliance plan reviews of complex structural design, according to all adopted codes and regulations including California Building Code, referenced documents, other related standards and the City of Newport Beach Municipal Code to include reviews of construction documents submitted to the City for: • Building permits • Structural portion(s) of other permits The above review shall include: • Review of structural plans for code compliance • Review analysis of all structural engineering calculations • Review of Geotechnical /Soil Reports and Ground Motion Hazard Analysis • Review of other technical reports as needed • Review of book specifications as needed • Review of Field Changes and Deferred Submittals • Review of additional work on projects as needed • Recheck of all plans and supporting documents through approval 4• We will provide a written notification to each applicant, consisting of a complete electronically -generated plan check letter outlines and identify the documents reviewed, instructions to the applicant regarding the processing of documents, and a list of plan check comments. The plan check comments will refer to appropriate sheets, details or calculations pages and the code section of concern. Comments will specify the apparent code violation. The plan check correction list will meet all requirements of the City and we will meet any additional requirements that staff requests. •:• We will be available during regular business hours to discuss and clarify plan check issues with applicants, designers, owners and consultants. We will be available to resolve any codes issues by telephone, or meetings prior to resubmitting corrected plans and documents. C• We will be available to meet with applicants in person for all required meetings as directed by the Chief Building Official. •e We will be available for pre -submittal meetings with applicants' design team on complex or major projects as requested. 12 April 28, 2014 MRH Structural Engineers WORK PLAN — On -Call Structural Review (Cont'd) Perform all plan checks with competent personnel qualified and experienced in the discipline to be reviewed. Reviews on structural plans for complex structures will be performed by a registered Structural Engineer. :• We will ensure all consultant team members assigned will possess relevant education, experience, and proficiency in all areas pertaining to residential, commercial, and industrial plan review. •:• We will advise and consult with the Chief Building Official, or staff, regarding potentially unsafe conditions shown or not shown within plans that may not be specifically covered in code. Provide recommendations for discretionary decisions that must be made by the Building Official. •:• Pick up plans at the City within a day of notification, maximum 24 hours. In most cases MRH plan checkers will personally pick up and drop off plans at the City. 4 We will complete each plan check for typical, usual and non-complex projects within the following time: First Check: Ten (10) working days from submittal by applicant (Residential) Fifteen (15) working days from submittal by applicant (Commercial) Subsequent Checks: Five (5) working days Additional Services :• We will be available to provide additional plan review services on site at Newport Beach City Hall if requested, by the city of Newport Beach. If requested by the city of Newport Beach, MRH will be available to provide additional thorough and quality code compliance plan reviews according to all adopted and legislated codes and regulations including California Building Code, Mechanical Code, Plumbing Code, and Electrical Code; City of Newport Beach Municipal Code and the Accessibility and Energy Conservation requirements to include reviews of construction documents submitted to the City for: • Grading Permits • Mechanical permits • Electrical permits • Plumbing permits • Energy Compliance reviews 13 EXHIBIT B SCHEDULE OF BILLING RATES MRH Structural Engineers, Inc. Page B-1 102 April 28, 2014 MRH Structural Engineers FEE SCHEDULE — ON-CALL STRUCTURAL REVIEW Plan Review Services — On -Call Structural Review MRH hourly rate for plan checks is $150.00 per hour. ie MRH hourly rates for on site plan checkers are: $120.00 per hour for a Structural Engineer (SE). $95.00 per hour for a Civil Engineer (CE). EXHIBIT C INSURANCE REQUIREMENTS — PROFESSIONAL SERVICES 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. 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. 3. Coverage Requirements. A. 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. 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. B. 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, personal and advertising injury, and liability assumed under an insured contract (including the tort liability of another assumed in a business contract). C. 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 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. MRH Structural Engineers, Inc. Page C-1 104 D. 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 two million dollars ($2,000,000) 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. 4. Other Insurance Requirements. The policies are to contain, or be endorsed to contain, the following provisions: A. 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. B. Additional Insured Status. All liability policies including general liability, excess liability, pollution liability, and automobile liability, if required, 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. C. 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. D. Notice of Cancellation. All policies shall provide City with thirty (30) calendar days notice of cancellation (except for nonpayment for which ten (10) calendar days notice is required) or nonrenewal of coverage for each required coverage. 5. Additional Agreements Between the Parties. The parties hereby agree to the following: A. 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. MRH Structural Engineers, Inc. Page C-2 105 B. City's Right to Revise Requirements. City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant sixty (60) calendar days advance written notice of such change. If such change results in substantial additional cost to Consultant, City and Consultant may renegotiate Consultant's compensation. C. Enforcement of Agreement Provisions. Consultant acknowledges and agrees that any actual or alleged failure on the part of City to inform Consultant of non-compliance with any requirement imposes no additional obligations on City nor does it waive any rights hereunder. D. 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. If the Consultant maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for higher limits maintained by the Consultant. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. E. 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. F. 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. G. Timely Notice of Claims. Contractor shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Contractor's performance under this Contract, and that involve or may involve coverage under any of the required liability policies. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City. s MRH Structural Engineers, Inc. Page C-3 106 H. 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. MRH Structural Engineers, Inc. Page C-4 107