HomeMy WebLinkAbout09 - Concrete Street Pavement Reconstruction Project DesignQ SEW Pp�T
CITY OF
�m
z NEWPORT BEACH
c�<,FORN'P City Council Staff Report
July 10, 2018
Agenda Item No. 9
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: David A. Webb, Public Works Director - 949-644-3311,
dawebb@newportbeachca.gov
PREPARED BY: Andy Tran, Senior Civil Engineer, atran@newportbeachca.gov
PHONE: 949-644-3315
TITLE: Concrete Street Pavement Reconstruction Project Design — Approval
of Professional Services Agreement (18R21)
ABSTRACT:
As part of the City's Pavement Management Program, several concrete streets in central
Balboa Peninsula are scheduled for reconstruction in Fiscal Year 2018-2019. Staff issued
a Request for Proposal for professional engineering design services to prepare
construction documents for this project and is requesting City Council's approval to enter
into a Professional Services Agreement with PENCO Engineering, Inc.
RECOMMENDATIONS:
a) Determine that the action is exempt from the California Environmental Quality Act
(CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines
because it will not result in a physical change to the environment, directly or indirectly;
and
b) Approve a Professional Services Agreement with PENCO Engineering, Inc. of Irvine,
California, for the Concrete Street Pavement Reconstruction Project at a not -to -
exceed price of $150,700.00, and authorize the Mayor and City Clerk to execute the
Agreement.
FUNDING REQUIREMENTS:
The adopted budget includes sufficient funding for this project. It will be expensed to the
Gas Tax Fund account in the Capital Improvements Program budget, Account No. 12101-
980000-18R21. The consultant's fee proposal is $137,000.00, plus $13,700.00
(approximately 10%) for contingency purposes to cover unexpected costs.
9-1
Concrete Street Pavement Rehabilitation Project Design— Approval of Professional
Services Agreement (18R21)
July 10, 2018
Page 2
DISCUSSION:
As part of the City's Pavement Management Program, several concrete streets (Anade
Avenue, Montero Avenue, Alvarado Avenue and 6th Street) in central Balboa Peninsula
are scheduled for reconstruction in Fiscal Year 2018-2019. Proposed improvements
involve removing and reconstructing the concrete pavement, constructing a storm drain
system, parkway improvements, reconstructing deteriorated concrete sidewalks,
driveway approaches, curbs and gutters, and curb ramps, adjusting utility boxes to grade,
and restriping the pavement.
On April 24, 2018, staff requested proposals from consulting firms to provide professional
engineering design services for this project. Five proposals were received from the
following firms:
1. PENCO Engineering, Inc. (286/300 points)
2. Rick Engineering Company (272/300 points)
3. Onward Engineering (260/300 points)
4. Kreuzer Consulting Group (248/300 points)
5. Walden and Associates (241/300 points)
The City's proposal review team consisted of three staff members from the Public Works
Department. Using the qualification -based selection process, the proposals were
evaluated by the review team independently. Proposal evaluations were based on the
consultant's project understanding, experience, qualifications, planning, approach, ideas
and projected level of effort. While all five firms appear to meet the minimum qualifications
as required in accordance with the proposal, PENCO was selected by the review team
as the most qualified and responsive firm for this project. PENCO demonstrated a
creative and cost effective approach to design challenges of the low lying areas and had
great previous experience with other concrete street projects. They also successfully
completed similar pavement reconstruction projects for other local agencies and the City.
The proposed scope of work includes research and data collection, utility coordination,
topographic survey, preparation of final construction plans, specifications and
construction cost estimates, and construction support services. Construction is
tentatively planned for Spring of 2019.
The proposed not -to -exceed fee of $137,000 is consistent with the level of effort that is
required to complete this scope of work. The preliminary construction cost estimate is
over $1 million and engineering final design services typically range from 10 to 15 percent
of the construction cost. The design fee for this project is approximately 14 percent and
the proposed hours are consistent with the top proposals. The design of this project is
rather complicated because much of the existing sidewalks and transitions to private
properties are lower than the street level requiring extra design efforts. Given the
challenges associated with this project such as the extreme flat terrain and proximity to
residential properties, staff believes that the design fee is cost effective and consistent
with the industry.
9-2
Concrete Street Pavement Rehabilitation Project Design— Approval of Professional
Services Agreement (18R21)
July 10, 2018
Page 3
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this 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 foreseeable 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:
Attachment A — Location Map
Attachment B — Professional Services Agreement
9-3
ATTACHMENT A
0
o SCALE: NTS
m T
Q
2 b
Q
� Q o
OJ a
of
O I
m ro
J
m
rn
3
PACIFIC OCEAN a
z
O
F
U
O
A
� a
Q 3
J a
Q F
Ln
O w
Oz
~ BAY ISLAND � a
= M
(PVT ST)
A 0 7
I
U
d
Q m a
yaP �
QO �� NEWPORT CHANNEL
m � a
a
m
w
co
z
0
0
z
� O w
� w
0J N
I
0
0
N
/
f/1
F
U
W
o� n C3
Ql a
v �
U
BALBOA PENINSULA
N
CONCRETE STREET CITY OF NEWPORT BEACH
U
PAVEMENT RECONSTRUCTION
PUBLIC WORKS DEPARTMENT
LOCATION MAP C-7184-1 18R21 07/10/18
9-4
ATTACHMENT B
PROFESSIONAL SERVICES AGREEMENT
WITH PENCO ENGINEERING, INC. FOR
ENGINEERING SERVICES FOR THE CONCRETE STREET PAVEMENT
RECONSTRUCTION PROJECT
THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is made and
entered into as of this 10th day of July, 2018 ("Effective Date"), by and between the CITY
OF NEWPORT BEACH, a California municipal corporation and charter city ("City"), and
PENCO ENGINEERING, INC., a California corporation ("Consultant"), whose address is
16842 Von Karman Avenue, Suite 150, Irvine, Caifornia 92606, and is made with
reference to the following:
RECITALS
A. City is a municipal corporation duly organized and validly existing under the laws
of the State of California with the power to carry on its business as it is now being
conducted under the statutes of the State of California and the Charter of City.
B. City desires to engage Consultant to provide engineering services and
construction documents for the Concrete Street Pavement Reconstruction 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 June 30, 2020, 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.
9-5
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 One Hundred Thirty Seven
Thousand Dollars and 00/100 ($137,000.00), without prior written authorization from
City. Additionally, the City has allocated a contingency amount of Thirteen Thousand
Seven Hundred Dollars and 00/100 ($13,700.00) for unexpected costs, for a total not to
exceed amount of One Hundred Fifty Thousand Seven Hundred Dollars and 00/100
($150,700.00). No portion of the contingency shall be expended without prior written
approval of City's Project Administrator. 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.
Penco Engineering, Inc. Page 2
9-6
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.
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 Gary Solsona 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.
Penco Engineering, Inc. Page 3
9-7
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
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"), and which 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 orforwhose 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
Penco Engineering, Inc. Page 4
9-8
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 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.
Penco Engineering, Inc. Page 5
9-9
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. 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
Penco Engineering, Inc. Page 6
9-10
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 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
Penco Engineering, Inc. Page 7
9-11
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
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") and/or Government Code §§ 1090 et
seg., which (1) require such persons to disclose any financial interest that may
foreseeably be materially affected by the Work performed under this Agreement, and (2)
Penco Engineering, Inc. Page 8
9-12
prohibit such persons from making, or participating in making, decisions that will
foreseeably financially affect such interest.
25.2 If subject to the Act and/or Government Code §§ 1090 et seq., Consultant
shall conform to all requirements therein. 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.
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: 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: Gary Solsona
Penco Engineering, Inc.
16842 Von Karman Avenue, Suite 150
Irvine, CA 92606
27. CLAIMS
27.1 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.).
Penco Engineering, Inc. Page 9
9-13
27.2 To the extent that Consultant's claim is a "Claim" as defined in Public
Contract Code section 9204 or any successor statute thereto, the Parties agree to follow
the dispute resolution process set forth therein. Any part of such "Claim" remaining in
dispute after completion of the dispute resolution process provided for in Public Contract
Code section 9204 or any successor statute thereto shall be subject to the Government
Claims Act requirements requiring Consultant to file a claim in strict conformance with the
Government Claims Act. To the extent that Contractor/Consultant's claim is not a "Claim"
as defined in Public Contract Code section 9204 or any successor statute thereto,
Consultant shall be required to file such claim with the 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 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.
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
29.1 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 Consultant 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 Consultant or any
Penco Engineering, Inc. Page 10
9-14
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.
29.2 Unless otherwise exempt by law, Consultant warrants that no contractor or
subcontractor was listed on the bid proposal for the Services that it is not currently
registered and qualified to perform public work. Consultant further warrants that it is
currently registered and qualified to perform "public work" pursuant to California Labor
Code section 1725.5 or any successor statute thereto and that no contractor or
subcontractor will engage in the performance of the Services unless currently registered
and qualified to perform public work.
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 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.
Penco Engineering, Inc. Page 11
9-15
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]
Penco Engineering, Inc. Page 12
9-16
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:
By:
Aaron C. HJXP Mus to•14.-k
City Aftorrtq
ATTEST:
Date:
Leilani I. Brown
City Clerk
CITY OF NEWPORT BEACH,
a California municipal corporation
Date:
By:
Marshall "Duffy" Duffield
Mayor
CONSULTANT: Penco Engineering, Inc.,
a California corporation
Date:
By:
George Jurica
Chief Executive Officer and
Chief Financial Officer
[END OF SIGNATURES]
Attachments: Exhibit A — Scope of Services
Exhibit B — Schedule of Billing Rates
Exhibit C — Insurance Requirements
Penco Engineering, Inc. Page 13
9-17
EXHIBIT
SCOPE OF SERVICES
Penco Engineering, Inc. Page A-1 9.18
*:01141 .
SCOPE OF SERVICES
CONCRETE STREET PAVEMENT RECONSTRUCTION DESIGN
9-19
A RESEARCH AND DATA COLLECTION
Immediately upon receipt of Notice to Proceed. PENCO will research and obtain readily available
✓ Compiled Existing
record drawings and other data pertinent to the scope of work (to facilitate the preliminary
Records (design files)
design). PENCO already has in hand the previous Labelle Marvin pavement recommendations
report prepared for the four (4) project streets and has already thoroughly reviewed the coring
results (generally 4' to 5" PCC of existing pavement thickness), R -value (70), subgrade moisture
and pavement recommendations for PCC thickness (including 4' AB under the PCC section for
uniform grading purposes -
B UTILITY COORDINATION
Preliminary research of utilities has shown existing water, gas. sewer, electrical and
✓ Utility Coordination Log
telecommunication lines are located within the four (4) project streets_ PENCO has also obtained
& Correspondence
a certified list of all utilities and agencies within the project limits from Underground Service Alert.
✓ 2111 Utility Notices
The precise location of all impacted utilities will be established. PENCO will submit Preliminary
✓ 3,1 & 4:1° Utility Notices
and Final design plans to affected utility companies. The final design plans will be compatible with
(as -needed)
all utilities in the project areas to be relocated, adjusted to grade or otherwise modified.
C I DESIGN SURVEYING
PENCO shall obtain ground specific field locations and elevations within the defined project limits.
✓ AutoCAD Civil 3D
Said areas shall include the existing concrete roadways, concrete walkways, ADA ramps, curbs,
2015 files for
gutters, visible utilities, and finish pavement. Limits of field topography are from 10 feet beyond
Topographic Survey
existing westerly Right of Way to 10 feet beyond existing easterly Right of 'Nay to facilitate the
✓ DTM of existing
design of any abnormal join conditions.
surface features
PENCO shall prepare a detailed Topographic Survey Map based upon on the ground locations
and elevations within the defined mapping limits in accordance with the American Congress of
Surveyinq & Mappinq (ACSM) 2018 mapping requirements for the project Specified area, which
includes: 1'=20' scale, 0.5400t contours, 25 -foot spot elevations, surface utilities, plotted cross
sections at 25 -foot intervals.
B I BASE MAPPING AND FIELD REVIEW
Utilizing the topographic survey (per Task C above), PENCO will prepare base maps at a scale of
✓ 20 scale Roadway,
1'=20 in AutoCAD, which will include dimensions, street names, north arrow, scale, match lines,
RNV and Utility
street centerline, existing RAN, stationing, location of surface topographic features and location of
Basemap (.&.vg)
surface and subsurface utilities.
✓ Field Notes & Photos
Upon completion of base map preparation, PENCO will perform a comprehensive field review to
confirm completeness f accuracy of the topographic survey from the base maps, note existing
conditions that may affect the design, note access concerns 1 traffic control concerns, note
potential utility issues and other construction challenges and collect a photo -document log of the
project sites. From the data collected during our field review, the project's existing CAD base
mapping will be updated.
9-19
4 i s �.
HYDROLOGY AND HYDRAULICS STUDY
y and hydraulic analysis wilt be performed for Anade Avenue within the limits of the
7deva�
✓ Draft & Final Hydrology
street improvements to address the drainage challenges associated with the existing
& Hydraulics Study
lkeing below the top of curb elevation and the generally flat longitudinal street slope. A
Report
hydrology and hydraulics study report will be drafted to summarize the drainage impacts of the
proposed street improvements and serve as the basis of the design for storm drain
improvements. The hydrology and hydraulics study report will be prepared in accordance with the
City's and Orange County Hydrology Manual and Local Drainage Manual
E PREPARATION OF CONSTRUCTION DOCUMENTS
EA PLANS
Based on review of the project limits and scope of work, the following is the anticipated plan sheet
✓ 50% Plans and
count
Estimate Submittal
• One (1) Title Sheet
Package (PDF
• Two (2) Typical Sections and Detail Sheets
submittals)
• Four (4) Street Improvement Plan and Profile Sheets (at 1 "=20' scale horizontal and
✓ 90% PS&E Submittal
1 "=2' or 4' vertical)
Package (PDF
• One (1) Storm Drain Improvement Plan and Profile (at 1"=20' scale horizontal and 1"--2'
submittals)
or 4� vertical)
✓ 100% Final PS&E
• Seven (7) Design Cross Section Sheets (at 25 intervals)
Submittal Package
• Eleven (11) Landscaping Irrigation & Planting Plans & Details (at 11-20'scale)
(PDF submittals)
Total = Twenty-six (26) sheets
✓ Approved, Signed
A brief description of each plan and submittal component is as follows-
reproducible plans on
Mylar. Bid PS&E
Title Sheet
✓ Written review
Will be prepared on the City's standard title block and will include a vicinity map, legend, sheet
comments from QAIQC
index, general notes and signature blocks for all applicable agencies and project management
reviews
staff_ Utility contact info, and other City requested items will be added as needed
Typical Sections and Detail Sheets
General project notes, a master list of construction notes and roadway typical sections will be
included that depict the proposed improvements. Construction details will be prepared for all work
items that cannot be built by a standard plan or do not have adequate space on the plan and
profile sheet for the necessary elevation callouts. Additional typical details will be included for
pavement transitions, pavement reconstruction sections, and other miscellaneous construction
items that require further detailing.
Street Improvement Plan and Profile Sheets
Street improvement plan and profile sheets will be prepared for the entire project limits of each
street Finish surface of the street centertine and top of curb profiles will be shown in the profile:
grid. Re -installation of pavement legends, raised pavement markers and curb painting that are
impacted by the proposed street improvements will be depicted on the plan view improvements.
As part of the design process, Civil 3D corridors will be setup and designed to calculate and
depict the proposed design cross falls and elevations. Design sections will be plotted and
submitted to the City for review during the 50% submittal phase_ Design sections are intended
only for design review, and will not be formatted for construction documents 1 final production.
9-20
I I E i
I': 1 11
ain Plan and Profile Sheet
7aas,tt-ioog-Trn-mment
(See previous page for
in plan and profile sheet will be prepared for Anade Avenue showing the proposed
deliverables)
and profile of the storm drain mainline and laterals, hydraulic information, pipe size and
material and connection to the exisfing catch basin at Edgewater Place_
Landscape Irrigation and Planting. Plans and Details
PENCO's subconsultant David Volz Design (DVD) will prepare construction drawings that will
only address repair and replacement of any damaged landscape as a result of the new street
improvements. The scope of services for this task proposes the type of new plant materials shall
match the existing and that the existing planter locations and size remain similar to the existing
planters location and size. Any evaluation of sight lines and distances and electrical design are
excluded from this task scope of services.
QA/QC Reviews
Prior to all milestone submittals for City plan check review, an experience independent in-house
team, led by PENCO s QAfQC Manager Joe Litchfield, will perform a thorough review of said
documents to confirm their quality. clarity, constructability and that all the project's intents are
being met. Deliverables are prepared in accordance with engineering practices that address
required standards and guidelines. Documents submitted to the City are independently checked
and back -checked. The review process will include a 2r�l thorough `back check" review of all
recommended corrections
Construction Document Processing
After receiving the City's plan check comments on the 90% and 100% PS&E submittals, PENCO
will prepare Final PS&E ready for bidding. All comments from the 5011A, 90% and 100% reviews
will be addressed, and where required, will be incorporated into the Final PS&E. After receiving
final approval of the 100% PS&E by the City, PENCO will provide the City with a project file of the
final signed plans on Mylar for City's signature, specifications and construction cost estimate.
E.2 SPECIAL PROVISIONS
Prepare technical specifications based upon the boiler plate supplied by the City_ Described bid
✓ Electronic and hard
items required by the plans or otherwise needed to accomplish the project construction in the
copy of Complete
General Provisions and include them in the Contractor's bid list_ Reference Special Provisions to
Specifications included
the SSPWC Greenbook (2015 Edition), Caltrans or other appropriate specificafions_
in the 90% and 100%
Design submittals
E.3 COST ESTIMATE
A detailed Engineer's Opinion of Probable Construction Costs will be developed, in accordance
✓ Electronic and hard
with City's requirements, for the 50%, 90% and 100% Final submittals to the City. The esfimates
copy of Cost Estimate
will incorporate recent relevant bid prices, price quotes from equipment vendors as necessary
included in the 50%,
and will reflect the most recent trends in construction pricing_
90% and 100% Design
submittals
F PROJECT MANAGEMENT AND PROGRESS MEETINGS
Project Manager Gary Solsona will manage the project administration for the duration of the
✓ Meeting agenda and
contract and implement the following documentation tools:
minutes
• Written team meeting agenda and minutes with the City's Project Manager and other
✓ Updated project
stakeholders
schedule
9-21
9-22
A711• All directions documents in nrriiing with distribution to City and all team members
• Detailed monthly invoices broken down by task, staff hours and hourly rates, in
with CAY's requirements
See previous page for
• Written monthly status reports (included as a backup to the monthly invoices), indicating
deliverables)
progress achieved during the reporting period in relation to the progress schedule
• Submittal of QA/QC documents and comments with each submittal. as requested
Provide coordination with City staff and other stakeholders for the work stated herein. This
encompasses conducting meetings, providing necessary meeting minutes, conference calls and
email correspondence. All meetings will be held at City Hall and PENCO will prepare all meeting
agendas and minutes. The project schedule will be reviewed and refined at each meeting (as
needed). The following meetings are anticipated_
• Kick-off Meeting
• Up to five (5) design meetings
• Project milestone submittal meetings
G CONSTRUCTION SUPPORT SERVICES
GA BID ASSISTANCE
Provide services during the bid stage by responding in writing to Contractors questions. It is
✓ Bid addenda, revised
understood that the City will receive all questions and issue the responses to the Contractor in
plans and specifications
order to properly control the flow of information. Assist the City in the issuance of addenda to the
(as -needed)
bid package. This consists of making design changes determined necessary to address
clarifications. Other design changes, such as those for the Contractor's preference, are not
anticipated. Changes in the overall design concept are not anticipated. Attend pre-bid meeting (if
requested). If requested, PENCO will review all bids for irregularities and conformance with the
bid documents_ If requested, PENCO will also check Contractor references to make
recommendations for contract award.
G.2 I PRE -CONSTRUCTION MEETING
PENCO's Project Manager will attend the pre -construction meeting, as requested by City staff,
✓ Meeting Notes
and will respond to any questions received during or after the meeting.
✓ Correspondence
Records
Contractor and City's construction representative redline drawings will be used for preparation of
electronic as -built drawings.
G.3 I REVIEW OF SUBMITTALS
The Contractors submittals! shop drawings will be received by the City and transmitted to
✓ Responses to
PENCO for review. Shop drawing reviews will be completed within three (3) working days of
submittals I shop
receipt. A total of 12 hours has been assumed for this task
drawings (memo
format)
G.4 RFI ! FIELD VERIFICATIONS
PENCO will provide responses to requests for information submitted by the Contractor_
✓ Responses to RFIs
Clarification drawings will be prepared and distributed, as required. A total of 12 hours has been
(memo format)
assumed for this task.
✓ Field Walk Notes (as
needed)
9-22
I G.5 I AS -BUILT DRAWINGS I I
Contractor and City's construction representative redline drawings will be used for preparation of d Draft and Final (Mylar)
electronic as -built drawings. PENCO will draft revision clouds around all construction revisions, As -built drawings
and will submit a bond and a PDF copy of the final As-builts for the City's records.
City Responsibilities
We acknowledge the City would assume the following responsibilities:
• Make available and provide all existing data and information relevant to the proposed project
+ Provide all environmental documentation and clearances, if necessary
• Provide construction management, administration, inspection and materials testing for the construction phase
• Pay all outside agency permit fees, if any
• Provide construction staking survey and oversee the Contractor's efforts to preservef perpetuate existing survey
monuments and centerline ties
Assumptions and Exclusions
• Prevailing wages applies to surrey and geotechnical work identified in the scope of services
• Street centerline and right-of-way to be established by found record monuments and corresponding record maps
• Preparation of Water Quality Management Plan and SWPPP for compliance with the NPDES permit during
construction activities and permanent BMPs for post construction is excluded. SWPPP preparation will be made the
Contractor's responsibility per strict requirements in the project specifications
• Preparation of Temporary Construction Easements; if required at driveways or sidewalk to be reconstructed requiring
"matching work"!re-grading within private property, are excluded
• Design of utility relocations is excluded
• Utility potholing work is excluded
9-23
EXHIBIT B
SCHEDULE OF BILLING RATES
Penco Engineering, Inc. Page B-1 9-24
EXHIBIT B
FEE SCHEDULE
CONCRETE STREET PAVEMENT RECONSTRUCTION DESIGN
Based on Tasks per the below fee schedule:
PERSONNEL HOURLY RATE
Principal
$ 230.00
Engineering Manager
$ 210.00
Survey Manager
$ 210.00
Senior Project Manager
$ 195.00
Project Manager
$ 185.00
Senior Project Engineer
$ 165.00
Project Engineer
$ 155.00
Supervising Sr. Design Engineer
$ 150.00
Senior Design Engineer
$ 140.00
Design Engineer
$ 125.00
Associate Engineer
$ 105.00
Engineering Technician
$ 95.00
Project Assistant
$ 100.00
Processor
$ 100.00
Senior Project Surveyor
$ 160.00
Project Surveyor
$ 135.00
Senior Survey Technician
$ 120.00
Survey Technician
$ 95.00
2 -Man Survey Crew
$ 230.00
2 -Man Survey Crew Prevailing Wage
$ 280.00
1 -Man Survey Crew
$ 175.00
TOTAL NOT -TO -EXCEED FEE (ALL TASKS AS SHOWN IN EXHIBIT A): $137,000
• Reproductions, deliveries; travel, meals and lodging; facsimiles; models, renderings and photos, Mylars;
and CDs, not included in scope of work.
• All reimbursable/Subconsultont costs shall be billed at cost plus 15%
• Mileage shall be billed at the current IRS standard mileage rate
• All accounts are due net 30 days from the date of invoice
• Outstanding accounts shall be charged 1.0% per month All required overtime work shall be billed at 150%
of the hourly rate
9-25
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 City Council, boards
and commissions, officers, agents, volunteers and employees.
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.
Penco Engineering, Inc. Page C-1 9-26
5
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.
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 City Council, boards and commissions, officers, agents, volunteers
and employees 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, its City Council, boards and commissions, officers, agents, volunteers
and employees 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 Agreement. City
reserves the right to require complete, certified copies of all required
insurance policies, at any time.
Penco Engineering, Inc. Page C-2 9-27
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. Consultant shall give City prompt and timely notice
of claims made or suits instituted that arise out of or result from Consultant's
performance under this Agreement, and that involve or may involve
coverage under any of the required liability policies. 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
Penco Engineering, Inc. Page C-3 9.28
judgment may be necessary for its proper protection and prosecution of the
Work.
Penco Engineering, Inc. Page C-4 9-29