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HomeMy WebLinkAboutC-7072-1 - PSA for Park Avenue Bridge Replacement Construction Engineering ServicesAMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT WITH FOUNTAINHEAD CONSULTING CORPORATION FOR PARK AVENUE BRIDGE REPLACEMENT CONSTRUCTION ENGINEERING SERVICES THIS AMENDMENT NO. ONE TO PROFESSIONAL SERVICES AGREEMENT ("Amendment No. One") is made and entered into as of this 10th day of January, 2017 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and FOUNTAINHEAD CONSULTING CORPORATION, a California corporation ("Consultant"), whose address is 2400 Katella Avenue, Suite 800, Anaheim, California 92806, and is made with reference to the following: RECITALS A. On February 23, 2016, City and Consultant entered into a Professional Services Agreement ("Agreement") to engage Consultant to provide construction engineering/management and inspection services for the Park Avenue Bridge Replacement Project ("Project"). B. The parties desire to enter into this Amendment No. One to reflect additional Services not included in the Agreement, to update the Schedule of Billing Rates, and to increase the total compensation. NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows: 1. SERVICES TO BE PERFORMED Exhibit A to the Agreement shall be supplemented to include the Scope of Services, attached hereto as Exhibit A and incorporated herein by reference ("Services" or "Work"). Exhibit A to the Agreement and Exhibit A to this Amendment No. One shall collectively be known as "Exhibit A." The City may elect to delete certain Services within the Scope of Services at its sole discretion. 2. COMPENSATION TO CONSULTANT Exhibit B to the Agreement shall be supplemented to include the Schedule of Billing Rates, attached hereto as Exhibit B and incorporated herein by reference ("Services" or "Work"). Exhibit B to the Agreement and Exhibit B to Amendment No. One shall collectively be known as "Exhibit B." 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 One Million Two Hundred Sixty Four Thousand Six Hundred Forty Three Dollars and 87/100 ($1,264,643.87), 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 additional Services to be performed in accordance with this Amendment No. One, including all reimbursable items and subconsultant fees, in an amount not to exceed Four Hundred Nineteen Thousand Eight Hundred Ninety Six Dollars and 13/100 ($419,896.13). 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] Fountainhead Consulting Corporation 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 OF NEWPORT BEACH, CITY ATTORNEY'S OFFICE a California municipal corporation Date: Dater• By J Aaron C. Harp W^ %TI%`tIIU Kevin Mu on City Attorney May ATTEST: q 15 �y CONSULTANT: Fountainhead Consulting Date: Corporation, a California corporation Date: By: AlLt J Leilani I. Brown Citv Clerk Signed in Counterpart Bv: Russell Rhodes Chief Executive Officer Date: Signed in Counterpart Bv: Anastasia Benavidez Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Fountainhead Consulting Corporation Page 3 IN WITNESS WHEREOF, the parties have caused this Amendment No. One to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: I Ll I'm 6 CITY OF NEWPORT BEACH, a California municipal corporation By: By: Aaron C. Harp (AM %1.u901v Kevin Muldoon City Attorney Mayor ATTEST: CONSULTANT: Fountainhead Consulting Date: Corporation, a C lifomia corporation Date: & By: By: Leilani I. Brown Russell Rhodes City Clerk Chief Executive Officer Date: (� _ i By: Z7 Anastasia Benavidez Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Fountainhead Consulting Corporation Page 3 EXHIBIT A SCOPE OF SERVICES Fountainhead Consulting Corporation Page A-1 December 15, 2016 Mr. Fong Tse, PE Assistant City Engineer City of Newport Beach 100 Civil Center Drive Newport Beach, California 92660 Subject: Cost Proposal for Additional Construction Engineering Services associated with the Park Avenue Bridge Replacement Project — Contract No. 7072.1— Amendment No. 11 Dear Mr. Tse, Attached for your review and consideration is our cost proposal for the additional services requested on the above referenced project. The additional costs are associated to the following increases to the original scope of work in the construction management services contract: 1) Quality Assurance Material Testing including Gamma Gamma testing of the CIDH piles: During the initial review of the project by the Caltrans local assistance coordinator the Caltrans oversight engineer determined that the contract special provision requirement of the contractor to perform Quality Assurance (QA) testing was not satisfactory to the Department. The Caltrans oversight engineer requested that the City delete the QA testing from the construction contract and add the QA testing to the construction management contract. The Cities CM obtained two sub -consultants for this work. Group Delta will perform most of the QA material testing and Earth Spectives will perform the gamma gamma testing for the CIDH piles. 2) Vibration Monitoring: During the course of the work the City received concerns from local residents neighboring the project regarding potential damages to private property from vibrations being generated by construction activities. The original contract special provisions did not require the contractorto provide vibration monitoring services for the City. In order to protect the city's interest and to address public concerns about the city's effort to monitor the contractor's activities the City opted to add a subconsultant (Morgner CM) to the original CM contract to document the vibrations being generated by the construction activities. 3) Time Extension for RE and OE plus full time work due to increase in scope of work During the course of the work the City's contractor had substantial difficulties with utility companies, specifically So. Cal Gas and So. Cal Edison identifying their existing utility tie-in locations, identifying clear paths for the temporary relocations and completing their utility relocations as a whole. The additional time to perform the work needed (72days) to ultimately get the utilities relocated has extended the contract duration. Together with the additional scope of work added to coordinate and manage the QA material testing and vibration monitoring, additional hours are needed for work by the city's CM that was not originally contemplated in the contract. 4) Time Extension for Public Relations As referenced above: during the course of the work the City's contractor had substantial difficulties with utility companies, specifically So. Cal Gas and So. Cal Edison identifying their existing utility tie-in locations, identifying clear paths for the temporary relocations and completing their utility relocations as a whole. The additional time to perform the work needed (72) days to ultimately get the utilities relocated has extended the contract duration. As part of the City's efforts to coordinate construction activities, the city has a sub - consultant working with the CM team to keep the public informed of various construction activities and coordinate major construction traffic events on and off the island. As a result of the project duration being extended this service will also need to be extended to support the local community concerns and construction awareness efforts. Please feel free to contact me if you have any questions or concerns. Sincerely yours, Ivan Benavidez Jr., PE Senior Project Manager EXHIBIT B SCHEDULE OF BILLING RATES Fountainhead Consulting Corporation Page B-1 0 u T L Q L o O m o 0 0 0 0 0 0 0 0 0 0 0 0 o 0 M N L U N LL m � m o F» f» Ev N o o 0 o o m rn rn m 0 0 r m Ili M Lci of m a`a � o Q N fA CLU w Q.O m M N 0� �D V L r O N z O- 6 m � 0 m M 3 U LLN OO O a) U r L6 C 7 E m a O 0m N L M a o mCL u> n U In N co N N C N N O N N O Os O_ m 4% C m c m —_ NO m F q N 0- o O a O O U w CE = o m � ro c¢ O w � D a a o 0 m m w r m � � 0 0 m m r 0 0 o tD r z O O U (D 0 r 0 0 0 m o 0 O Q U Q D- U � W a � c m y y m E.0 o 0 vi F Uo E > m a m z ¢ in O o o 0 w >� a H 7 a N L U N a c cu N m � C m C � a`a � o Q N N CLU w Q.O 0� L r O N z O- 6 0 m 3 U LLN OO O a) U r L6 C 7 E m a O 0m N L M a U mCL cl) n U In N co N N C N N O N N O_ m 4% C m c m —_ NO m q N 0- o O U WO PROFESSIONAL SERVICES AGREEMENT WITH FOUNTAINHEAD CONSULTING CORPORATION FOR PARK AVENUE BRIDGE REPLACEMENT CONSTRUCTION ENGINEERING SERVICES THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement') is made and entered into as of this 23rd day of February, 2016 ("Effective Date"), by and between the CITY OF NEWPORT BEACH, a California municipal corporation and charter city ("City'), and FOUNTAINHEAD CONSULTING CORPORATION, a California corporation ("Consultant'), whose address is 2400 East Katella Avenue, Suite 800, Anaheim, California 92806, 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 construction engineering/ management and inspection services for the Park Avenue Bridge Replacement Project ("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 December 31, 2018, 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 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 Eight Hundred Forty Four Thousand Seven Hundred Forty Seven Dollars and 00/100 ($844,747.74), 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. Fountainhead Consulting Corporation Page 2 4.4 Consultant shall not receive any compensation for Extra Work performed without the prior written authorization of City. As used herein, "Extra Work" means any Work that is determined by City to be necessary for the proper completion of the Project, but which is not included within the Scope of Services and which the parties did not reasonably anticipate would be necessary at the execution of this Agreement. Compensation for any authorized Extra Work shall be paid in accordance with the Schedule of Billing Rates as set forth in Exhibit B. 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 Ivan Benavidez, Jr. 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 Public Works Department. City's Public Works Director 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 community professional standards Fountainhead Consulting Corporation Page 3 and with the ordinary degree of skill and care that would be used by other reasonably competent practitioners of the same discipline under similar circumstances. 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 legally recognized professional standards. 8.2 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. 8.3 Consultant shall not be responsible for delay, nor shall Consultant be responsible for damages or be in default or deemed to be in default by reason of strikes, lockouts, accidents, 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 Fountainhead Consulting Corporation Page 4 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 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 Fountainhead Consulting Corporation Page 5 the control of Consultant. Control means fifty percent (50%) or more of the voting power or twenty-five percent (25%) or more of the assets of the corporation, partnership or joint -venture. 16. SUBCONTRACTING The subcontractors authorized by City, if any, to perform Work on this Project are identified in Exhibit A. Consultant shall be fully responsible to City for all acts and omissions of any subcontractor. Nothing in this Agreement shall create any contractual relationship between City and any subcontractor nor shall it create any obligation on the part of City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise required by law. 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 CADD data delivered to City shall include the professional stamp of the engineer or architect in charge of or responsible for the Work. City agrees that Consultant shall not be liable for claims, liabilities or losses arising out of, or connected Fountainhead Consulting Corporation Page 6 with (a) the modification or misuse by City, or anyone authorized by City, of CADD data; (b) the decline of accuracy or readability of CADD data due to inappropriate storage conditions or duration; or (c) any use by City, or anyone authorized by City, of CADD data for additions to this Project, for the completion of this Project by others, or for any other Project, excepting only such use as is authorized, in writing, by Consultant. By acceptance of CADD data, City agrees to indemnify Consultant for damages and liability resulting from the modification or misuse of such CADD data. All original drawings shall be submitted to City in the version of AutoCAD used by the City in .dwg file format, on a CD, and should comply with the City's digital submission requirements for improvement plans available from the City's Public Works Department. The City will provide Consultant with City title sheets as AutoCAD file(s) in .dwg file format. All written documents shall be transmitted to City in formats compatible with Microsoft Office and/or viewable with Adobe Acrobat. 17.4 All improvement and/or construction plans shall be prepared with indelible waterproof ink or electrostatically plotted on standard twenty-four inch (24") by thirty-six inch (36") Mylar with a minimum thickness of three (3) mils. Consultant shall provide to City 'As -Built' drawings and a copy of digital Computer Aided Design and Drafting ("CADD") and Tagged Image File Format (.tiff) files of all final sheets within ninety (90) days after finalization of the Project. For more detailed requirements, a copy of the City of Newport Beach Standard Design Requirements is available from the City's Public Works Department. 18. OPINION OF COST Any opinion of the construction cost prepared by Consultant represents the Consultant's judgment as a design professional and is supplied for the general guidance of City. Since Consultant has no control over the cost of labor and material, or over competitive bidding or market conditions, Consultant does not guarantee the accuracy of such opinions as compared to Consultant or contractor bids or actual cost to City. 19. CONFIDENTIALITY All Documents, including drafts, preliminary drawings or plans, notes and communications that result from the Services in this Agreement, shall be kept confidential unless City expressly authorizes in writing the release of information. 20. 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. 21. RECORDS Consultant shall keep records and invoices in connection with the Services to be performed under this Agreement. Consultant shall maintain complete and accurate Fountainhead Consulting Corporation Page 7 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. 22. 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. 23. 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. 24. CITY'S RIGHT TO EMPLOY OTHER CONSULTANTS City reserves the right to employ other Consultants in connection with the Project. 25. CONFLICTS OF INTEREST 25.1 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. 25.2 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. Fountainhead Consulting Corporation Page 8 26. NOTICES 26.1 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. 26.2 All notices, demands, requests or approvals from Consultant to City shall be addressed to City at: Attn: David A. Webb, Public Works Director Public Works Department City of Newport Beach 100 Civic Center Drive PO Box 1768 Newport Beach, CA 92658 26.3 All notices, demands, requests or approvals from City to Consultant shall be addressed to Consultant at: Attn: Ivan Benavidez, Jr. Fountainhead Consulting Corporation 2400 E. Katella Avenue, Suite 800 Anaheim, CA 92806 `wr�qw_1 V16? 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.). 28. TERMINATION 28.1 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 Fountainhead Consulting Corporation Page 9 such default, and thereafter diligently take steps to cure the default, the non -defaulting parry may terminate the Agreement forthwith by giving to the defaulting party written notice thereof. 28.2 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. 29. PREVAILING WAGES Pursuant to the applicable provisions of the Labor Code of the State of California, not less than the general prevailing rate of per diem wages including legal holidays and overtime Work for each craft or type of workman needed to execute the Work contemplated under the Agreement shall be paid to all workmen employed on the Work to be done according to the Agreement by the Consultant and any subcontractor. In accordance with the California Labor Code (Sections 1770 et seq.), the Director of Industrial Relations has ascertained the general prevailing rate of per diem wages in the locality in which the Work is to be performed for each craft, classification, or type of workman or mechanic needed to execute the Agreement. A copy of said determination is available by calling the prevailing wage hotline number (415) 703-4774, and requesting one from the Department of Industrial Relations. The Contractor is required to obtain the wage determinations from the Department of Industrial Relations and post at the job site the prevailing rate or per diem wages. It shall be the obligation of the Contractor or any subcontractor under him/her to comply with all State of California labor laws, rules and regulations and the parties agree that the City shall not be liable for any violation thereof. 30. STANDARD PROVISIONS 30.1 Recitals. City and Consultant acknowledge that the above Recitals are true and correct and are hereby incorporated by reference into this Agreement. 30.2 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. 30.3 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 Fountainhead Consulting Corporation Page 10 breach of the same or any other term, covenant or condition contained herein, whether of the same or a different character. 30.4 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. 30.5 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. 30.6 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. 30.7 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. 30.8 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. 30.9 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. 30.10 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 race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, sex, sexual orientation, age or any other impermissible basis under law. 30.11 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. 30.12 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] Fountainhead Consulting Corporation Page 11 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Date: 319176 By: _ 14or Aaron C. Harp chr-k o31ov!(o City Attorney ATTEST: Date: 1� By: dA. ' - Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date:a`�/� By: Diane B. Dixon Mayor CONSULTANT: Fountainhead Consulting Corporation, a California corporation Date: By: Signed in Counterpart Russell Rhodes Chief Executive Officer Date: Signed in Counterpart By: Anastasia Benavidez Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Fountainhead Consulting Corporation Page 12 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the dates written below. APPROVED AS TO FORM: CITY ATTORNEY/'S OFFICE Date: 'jAZ16 BY: _ 79r Aaron C. Harp' urM 01)0111(0 City Attorney ATTEST: Date: 0 Leilani I. Brown City Clerk CITY OF NEWPORT BEACH, a California municipal corporation Date: By: Diane B. Dixon Mayor CONSULTANT: Fountainhead Consulting Corporation, a California corporation Date:�%ff��� BY:1/;� Russell Rhodes Chief Executive Officer Date: 3 BY: /TA,Qi / nastasia Benavide`z Chief Financial Officer [END OF SIGNATURES] Attachments: Exhibit A — Scope of Services Exhibit B — Schedule of Billing Rates Exhibit C — Insurance Requirements Fountainhead Consulting Corporation Page 12 EXHIBIT A SCOPE OF SERVICES Fountainhead Consulting Corporation Page A-1 Management Approach to Scope of Work For this procurement Fountainhead guarantees clear, accurate, and timely deliverables performed by experienced and professional engineering staff. Our services will be personalized to meet the unique needs of each task included in this procurement contract. Furthermore we have reviewed the proposed scope and agree to its contents and implied meaning, we will not take the time to reiterate every element here, however we guarantee our services will be compliant with all project permit conditions, Caltrans Local Assistance Procedures Manual, Construction Manual and the Bridge Records and Procedures Manual. In order to develop an approach, the goal of the project must first be established, Our proposed goal is to complete the project in a safe, cost effective and time efficient manner with exceptional craftsmanship. Our approach will include all stakeholders such as neighbors, businesses, pedestrians, bicyclist, vehicular traffic, permitting agencies, utility companies, and will ensure that everyone will walk away from the project completely satisfied with the final product and services provided. After award of the Contract from the City, the Fountainhead Team will develop a customized quality assurance plan, specific to meet the needs and constraints of the project. This plan will ensure that uniform quality assurance procedures are adhered to. In the plan, Fountainhead will include procedures and designated responsibilities for Project start-up, Project Organization, Defining Roles and Responsibilities, Establish Lines of Communications and include a Communication Plan. During this stage, Fountainhead will prepare a Project—Specific Safety Plan for the Project Team. All team members will be required to review and sign this plan acknowledging all issues and requirements included in the Plan. During the Pre -construction phase, the Fountainhead Team will: EXHIBIT Proposelfor Construction Engineering Services Park Avenue Bridge Replacement Project Kick -Off meeting with City and Design Engineer to discuss administrative procedures. The Intent of this meeting is to, meet key staff, and review contract administration procedures: Upon Notice to Proceed from the City, the Fountainhead Team will set up an initial meeting with the City Project Manager and Design Engineer. In that meeting, the Fountainhead Team will be Introduced to the Project Development Team and City Staff. Procedures, protocols, and response times will be established to deliver the project successfully. Review Resident Engineer Pending files, Resident Engineer's files consist of design engineer memos to Resident Engineers, and technical reports and studies: The Resident Engineer Pending Files will be obtained from the Design Engineer and will be thoroughly reviewed by Ivan Benavidez and his team. An issues log will be produced from this review and the items listed will he addressed in due course based on priority. Perform Constructabiitty Review: Our team has reviewed the plans and specifications issued to the construction industry for bidding purposes. In an effort to meet your project delivery goals we have including a constructability review "matrix" of our finding for your consideration and implementation with the project architect / engineer. Resident Engineer's Schedule: Fountainhead, has prepared our own conceptual project schedule that includes all major activities anticipated for the project, Including utility relocations. Our Project Schedule as prepared by Fountainhead will be reviewed against the Project Baseline Schedule as prepared by the Contractor. Mr. Benavidez and his team will confer with the Contractor to offer suggestions and improvements to the schedule if applicable. ".5 -mall Eneugk to listen. Big Entn gq i to DeRvev." FOUNTAIN, )" EXHIBIT A Proposalfor Construction Engineering Services Park Avenue Bridge Replacement ProJect Prepare project instructions and establish proposed contract administration and record keeping procedures to be used during construction for review and approval by City Project Manager: Fountainhead's general record keeping process will follow the Caltrans Local Assistance Procedures Manual and the Construction Manual with all 83 file categories. In coordination with the City, this process will be modified as directed to meet internal City contract administration procedures while maintaining compliance with Federal requirements Prepare agenda identifying attendees and conduct a Preconstruction conference with the Contractor awarded the construction contract: In coordination with the City, Mr. Benavidez will prepare a Preconstruction Conference Agenda. This process will also include preparing a list of attendees to be invited to the Conference. The draft attendees list will be reviewed with the City and modifications will be made as necessary. At this conference, general contract administration processes will be discussed and a list of anticipated submittals will be shared with the Contractor. The Contractor will be requested to provide all the initial submittals required prior to start of work such as Stone Water Pollution Prevention Plan, Baseline Schedule for the Project and Contractor Health and Safety Plan. Fountainhead will prepare and distribute meeting minutes. Establish outline of dispute resolution with contractor's methodologies, policies, and procedures. Outline shall be reviewed and approved by City Project Manager: A dispute resolution process that generally follows the Caltrans Construction Manual and Standard Specifications will be prepared to meet City processes and procedures. This process will be reviewed in detail with the City Project Manager and modifications will be made as necessary. The process will then be reviewed with the Contractor to ensure buy -in from all parties involved. Weekly and/or Monthly Meetings At Fountainhead we use meetings as a tool to coordinate between consultants and key stakeholders. Monthly, weekly, or as often as deemed necessary focus meetings are conducted to discuss and resolve issues promptly. The goal of all our meetings is to identify and discuss objectives, schedules, contract terms, related risks and risk action plans. Fountainhead will distribute meeting minutes of all such meetings within 48 hours, Our meeting minutes Include Identification of the party responsible for action on any particular item. Schedule Control During construction the Fountainhead team will compare the baseline schedule with monthly progress schedule updates to identify any shortcomings, and implement corrections or mitigation measures to keep the schedule and Its deliverables on track. We generally use a weekly look -ahead at our weekly progress meetings. These tools will keep the entire team looking ahead of the project and will facilitate proactive handling of project activities and issues. If necessary, Fountainhead will derive any mitigation plans necessary to correct any progress deficiencies. Mitigation Strategies Typically Fountainhead team members are intimately familiar with the work plan and schedule and do not encounter situations where we have been the mot cause of a project delivery delay, however if we are the cause or even if any team member is the cause of a delay we work diligently to develop a mitigation plan to get the project back on track. As a general rule we identify activities that were originally scheduled to be performed in series and modify the finish to finish relationship with a lag so that the activities can be worked on concurrently instead, saving time without costing client any additional fees. Quality Assurance Quality Assurance is integrated into daily processes and procedures. Quality services begin with detailed work plans and a clear understanding of the project and the City's goals. Ivan will lead our team and be involved in every stage of the project to ensure that all work products are reviewed by a qualified staff member. Following is a brief description of the measures and procedures we follow to ensure quality products are produced and delivered to our clients. Our quahty program starts with selecting the right people with the proper training and experience. "Smart Enough to lister;. FOUNTAIN Big Eawugh to Dehver." 20 1 "11""', QAIQC Measures The following measures will be implemented to improve quality assurance of deliverables. Procedures All team members must comply with the provisions of the project quality assurance procedures. Submittals Submittals will be independently reviewed by a peer. All data for which submittals are based will be independently developed and reviewed by a peer. Field information will be independently reviewed and verified Cost Estimates Proposal for Construction Engineering Services Park Avenue Bridge Replacement Project • Cost estimates shall be checked for mathematical accuracy and will ensure that project elements are Included. • All cost estimates, including figures obtained from outside sources, shall be checked for mathematical accuracy, reasonableness of data and assumptions and to confirm that all items in the project have been accounted for and included in the estimate. Cost estimates shall also be checked for incorporation of all related items, such as credits for deleted work, contractor's overhead and profit and a suitable contingency allowance. Documentation Reviews Reviews are without a doubt the heart of QA. It must be undertaken with diligence and dedication. A Submittal QA Checklist will be used as a tool for quality assurance. Checking should only be done by staff having thorough understanding and knowledge of the work being checked. Checking must be a continuous effort throughout the duration of the contract. This does not preclude the final check, but rather avoids a big "crunch" at the end of the work, which often leads to ineffective checking or redoing of the work. Peer Reviews In addition to collecting field data, the field survey team is responsible for reviewing topographic maps. All office. produced product"ncluding elevations, cross-sections, plan review comments—are also reviewed by another qualified team member. Frequent Reviews Over the course of the project, the engineering team will review the work in process to assure that the products adhere to the clients expectations and will best serve the project goals. Frequent review of the processes is one of the best ways to avoid problems and provides opportunities to modify the process to better suit the project. Document Controls Expertise for PM/CM Support Processes Two components at the heart of a successful project are effective communication and comprehensive project documentation. Although some small and short duration projects may be best served through manual use of the spreadsheet -based document tracking systems that have been in use for many years by a large cross-section of the industry, larger projects, with durations exceeding several months will benefit from an easy-to-use, and industry standard document control system. Fountainhead's document management system offers a solution for both components with networking of project teams through the power of the Internet. The level of staffing and project control tools used will be determined based on the complexity of each project and the requirements of the City of Newport Beach. Fountainhead follows best practices models for program management activities. Our Best Practices evaluation for project controls determined that "Procore" software was the most successful in meeting all of our "Smufl-Enough to listen 1 FOUNTAIN Big E rough to Deliver." 21 9 11nrny Proposal for Construction Engineering services Park Avenue Bridge Replacement Project document controls objectives through all phases of a project and we have adopted it as our standard tool. This Web based Document Control collaboration tool allows all participants' immediate access to project documents through a web browser and is easily customized to fit every client and every project. • Web Access to a centralized database • Review action lists based on Ball -in -Court field • . • Prepare and Distribute Requests for Information _ - • Record daily reports = _ • Run live, up-to-the-minute reports • Prepare and distribute information = • Comment on and status meeting business items • Share secured information among owner representatives, design professionals, utility companies, contractors, suppliers, and subcontractors • Customize forms and reports included in the application or create your own client specific reports Federal, State & Local Reporting Requirements Since the project funding includes Federal Funding through Caltrans - Local Assistance Program, The City is required to conduct and manage all stages of project development, selections, advertising, award, and managing the construction and post construction stages in accordance with various sections of the Local Assistance Program Manual, Specifically, Chapter 15 "Advertising, Award, and Pre -Construction Stage," Chapter 16 "Construction Stage," and Chapter 17 "Post Construction Stage." Following above procedures and guidelines is critical in order to get allocated Federal Funding Reimbursements. Caltrans & FHWA may perform project records audit during and after completion to verify agencies compliance with above procedures and guidelines. Our Project Manager, Ivan Benavidez, has been successful on all his Federally Funded projects and passed numerous Caltrans and FHWA audits with many positive comments for the thoroughness of his filing system and strict compliance with the State and Federal guidelines. Caltrans Manuals • Caltrans Local Assistant Procedures Manual, • Quality Assurance Manual Program Guidelines • Caltrans 2010 Standard Plans & Specifications • Construction Manual • Safety Manual, Cal -OSHA Safety Orders • Manual on Uniform Traffic Control Device (MUTCD) • Traffic Manual • Caltrans Bridge Record and Procedures Manual • Survey Staking Manual City's Standards & Procedures and Permit Requirements • APWA Plans & Specifications • City Standard Plans and Specifications • City Standards for Progress Estimate preparation, review, and processing • Storm Water Board Permit • Coastal Commission Permit • Fish and Game Permit "S'mall Enough to Listen Big Enough to Deliver." 22 • City Practices for Public Complaints, mitigation, and resolution • City Practices with Local businesses, residents, local utility companies • City Practices with all permitting agencies and adjacent jurisdictions • Utility Company Standards and Testing Procedures FOUNTAIN, ! �'. EXHIBIT B SCHEDULE OF BILLING RATES Fountainhead Consulting Corporation Page B-1 a) m M O (O m O m m V C fA EPr fA FA iI CO 0 0 w o 0. 0 0 0 0 0 0 Z z J J_ 0 00 m 0 0 0 0 r_: p O Z O O rO 00 OOOOO N h �W w O N O (O O O N o N ((D (00 V � O O N fA M H3 O O m O N O N M ro N j N O O L M O O T N 00 0 W c N c (p T N O O O d d N 06 C a 0- 0 0 O 0 � O a o O O m s N LL O d 07 m O O O O O O W O N O O O Z O N O Z5O OJ N O O c- c 0 n m 0 m 0 d U CQ 0 W 0 N r O m O p 3 o m O N n r O m O O 0 o O O m O d ro N r W n W N r O a CLC) f o _ c aa 0 O n � O Im m a y C7 N c m c m e N Z c (j m c tq c° d o - v E>O'_ O (p N 14 N C NL F QO U y m U m m U N 0 u .. C Nd .0 '� p — L N 2 mLcu �N dZ 2 U` TOca F a m <_ G O o a a' I—O a) m M O (O m O m m V C fA EPr fA FA iI CO LU > Qh K L n p (D > ( 0LL m (D ° E >C7F>-Q Z z J J_ m LL p 0 0 0 0 Z 0 0 0 0 p It ui ui vi a r m �3. 6��, go O O N o w J N U m N > m L a L n p (D > ( 0LL m (D ° E >C7F>-Q 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. Fountainhead Consulting Corporation 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. Fountainhead Consulting Corporation 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. 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 Fountainhead Consulting Corporation Page C-3 judgment may be necessary for its proper protection and prosecution of the Work. Fountainhead Consulting Corporation Page C-4 CERTIFICATE OF INSURANCE CHECKLIST City of Newport Beach This checklist is comprised of requirements as outlined by the City of Newport Beach. * Date Received: 3/9/16 Dept./Contact Received From: _ Raymund Date Completed: 3/18/16 Sent to: Raymund By: Alicia Company/Person required to have certificate: Fountainhead Consulting Corp. Type of contract: Public Works I. GENERAL LIABILITY EFFECTIVE/EXPIRATION DATE: 5/1/15-5/1/16 A. INSURANCE COMPANY: Lloyd's of London B. AM BEST RATING (A-: VII or greater): A C. ADMITTED Company (Must be California Admitted): Is Company admitted in California? ❑ Yes N No D. LIMITS (Must be $1 M or greater): What is limit provided? IM/2M E. ADDITIONAL INSURED ENDORSEMENT— please attach N 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) N 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? N Yes ❑ No I. PRIMARY & NON-CONTRIBUTORY WORDING (Must be included): Is it included? N 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 U. AUTOMOBILE LIABILITY EFFECTIVE/EXPIRATION DATE: 4/21/15-4/21/16 A. INSURANCE COMPANY: Allstate Insurance Company B. AM BEST RATING (A-: VII or greater) C. ADMITTED COMPANY (Must be California Admitted): Is Company admitted in California? N Yes ❑ No D. LIMITS - If Employees (Must be $1 M 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 ❑ Yes N No H. NOTICE OF CANCELLATION: ❑ N/A 0 Yes ❑ No III. WORKERS' COMPENSATION EFFECTIVE/EXPIRATION DATE: 7/16/15-7/16/16 A. INSURANCE COMPANY: State Compensation Insurance Fund B. AM BEST RATING (A-: VII or greater): N/A C. ADMITTED Company (Must be California Admitted): ® Yes ❑ No D. WORKERS' COMPENSATION LIMIT: Statutory ® Yes ❑ No E. EMPLOYERS' LIABILITY LIMIT (Must be $1M or greater) 1,000,000 F. WAIVER OF SUBROGATION (To include): Is it included? 9 Yes ❑ No G. SIGNED WORKERS' COMPENSATION EXEMPTION FORM: ® N/A ❑ Yes ❑ No H. NOTICE OF CANCELLATION: ❑ N/A ® Yes ❑ No ADDITIONAL COVERAGE'S THAT MAYBE REQUIRED W. PROFESSIONAL LIABILITY EFF5/1/15-5/1/16 LIMIT2M RATING:A++:XV CARRIER: Tokio Marine Specialty Non -Admitted ❑ N/A ®Yes ❑ No V POLLUTION LIABILITY V BUILDERS RISK HAVE ALL ABOVE REQUIREMENTS BEEN MET? IF NO, WHICH ITEMS NEED TO BE COMPLETED? Approved: Agent of Alliant Insurance Services Broker of record for the City of Newport Beach 3/18/16 Date ® 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: Risk Management approval needed due to GL and PL carriers being non -admitted. Sheri Approved 3/10/16. Approved: Risk Management Date * Subject to the terms of the contract.